CDirector of Public Prosecutions v Ren
[2022] VCC 1683
•28 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02284
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIA JUN REN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 28 September 2022 | |
DATE OF SENTENCE: | 28 September 2022 | |
CASE MAY BE CITED AS: | CDPP v Ren | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1683 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Obtain financial advantage by deception
Legislation Cited: Crimes Act 1914 (Cth)
Cases Cited:
Sentence:20 months’ imprisonment, released forthwith on recognisance of $2,000 to be of good behaviour for 24 months, and pay penalty of $25,000
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms O. Kefford | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr D. Conners | Borchard & Moore |
HIS HONOUR:
1
Jia Jun Ren, you have pleaded guilty to an indictment charging you with an offence of dishonestly obtaining a financial advantage by deception from a
Commonwealth entity. The maximum penalty for that offence is imprisonment for 10 years or a pecuniary penalty of $108,000 or both.
2 The prosecution tendered and relied upon a summary of prosecution opening upon plea which is Exhibit A. That was read to the court. I shall not repeat it. Suffice to say that you had been intermittently in receipt of social security benefits in the form of parenting payment single (“PPS”) and parenting payment partnered since 2007.
3 The parenting payment is payable to persons with dependent children until the date of the youngest child's eighth birthday. The rate of the parenting payment benefit is affected by the recipient's relationship status, either single or partnered, and is also affected by other income received by the person and or their partner, including income from employment. The parenting payment is delivered by Services Australia which at the time of the offending was known as the Department of Human Services. The eligibility and rate of each benefit payable is affected by the income received by the person measured under an income test and their ownership of assets measured under an assets test.
4
The effect of the assets test is that the PPS is not payable to a person if their assets exceed a certain threshold. Assets include any property or money both outside and inside Australia. Assets relevantly include real estate assets and financial investments such as money held in bank accounts. The asset threshold is generally indexed on 1st July each year. The person's principal place of residence is excluded from the assets test. During the period covered by the indictment, that is, between 28 January 2017 and
30 October 2020 the assets threshold for the payment of PPS was at the beginning $250,000 rising to $263,250 on 1 July 2019.
5 At all relevant times your principal place of residence was excluded from the assets assessable for the purposes of granting you a parenting payment single. Between 28 January 2017 and 30 October 2020, whilst in receipt of a PPS payment, you obtained the financial advantage of a total of $77,407.06 from the Department of Human Services as a result of deception. That deception was the making of materially false or misleading statements in your claim for PPS which resulted in the non-disclosure of real estate assets and funds held in bank accounts.
6 On 28 January 2017 you submitted a claim to the Department of Human Services for PPS. In that claim you made a number of false declarations. You declared that apart from owning your own home you had no other real estate assets. Under the category of Business, Trusts, Companies and Real Estate you stated that you did not own any real estate apart from your home and that you were not a director, shareholder or otherwise involved in a private company. Under the category Other Assets you indicated that you had household and personal effects to the value of $20,000 and that you previously owned a 2003 Toyota Echo. Under the category Savings you indicated that you had cash on hand in the sum of $700 and a Commonwealth Bank account with a balance of $1,000. You declared that you did not receive any income other than what you had declared in the claim.
7
Those claims were false or misleading statements and they resulted in the non-disclosure of assets that you owned, being three other properties and more than $1m in funds held in bank accounts. The declaration that you were not a director of a private company was false as at the time you were a director of a company and had been so since 3 June 2014. Additionally, your declaration that you did not receive any income other than what had been declared on the PPS claim form was false as you received rental of approximately $1,170 per calendar month from an investment property in
Noble Park in Victoria. The three properties that you owned were respectively that property in Noble Park, a property in Springvale and a property in Camberwell.
8 During the period when you were receiving money pursuant to this false claim the total assessable assets were at the time of the commencement of the offending, 28 January 2017, approximately $2,200,000 in excess of the asset threshold and by 1 January 2020 the total assessable assets were a little under $2m, well in excess of the then asset threshold of $263,250.
9
The offending was initially detected on 17 January 2020 through a department project to identify recipients of PPS who had failed to advise of their correct circumstances. Your payments were cancelled on 4 November 2020 with the last payment date under the PPS payment scheme being 28 October 2020. You were advised of the debt arising from the overpayment of PPS on
16 December 2020 and it is noteworthy that you made full reparation of the debt of $77,408.06 on 6 April 2021. You were the subject of investigation by the Department of Human Services. They wrote to you on 4 November 2020 inviting you to participate in a formal interview. That took place and during the interview you made partial admissions to the offending conduct.
10 However, you stated during the interview that the properties were not really yours personally, and that you had borrowed $4m from your aunt in China to purchase the properties. You told the investigators that it was a cultural arrangement where your family set up a family trust and that the family technically owned those properties. You indicated that the family had decided to put the properties and loans in your name because the 'loan guy' told you that the family trust could not take out a loan with the bank. You said that you did not have power to sell the properties and that your family - your aunt, your father and your mother - had that power. However, you indicated that if your family could not pay the loan for any of the properties that you could sell the properties straight away.
11 Turning to matters personal to you, your counsel provided me with an outline of submissions dated 13 September 2022 along with the exhibits that I have already indicated this morning being the report of Ms Karvelis, psychologist, dated 1 May 2022, letters of reference from Mr Haugh and Mr Feng and school reports from the school where your two daughters are in attendance. Also, screenshots to indicate the payments that you made to satisfy the debt to the Department of Human Services.
12 Your counsel began his outline of submissions by suggesting that the offence to which you pleaded guilty is one of absolute liability. It is surprising that that found its way into a submission dated 13 September 2022 when the prosecution, obviously concerned that there might be some misunderstanding as to what the elements of the offence were, wrote to your solicitor, Mr Kuri, on 25 November 2021 setting out what the elements of the offence were, making it clear that the element of intention related to the conduct element and that there was an element of dishonesty. So the notion that you pleaded guilty to an offence of absolute liability without recognition of those elements is not only wrong but totally unrealistic. I have to sentence you on the basis that your conduct was intentional and that you acted dishonestly.
13 The notion that you just misunderstood and made a mistake is totally inconsistent with your plea of guilty and I have to sentence on the basis of your plea of guilty being an acceptance of all of the elements of the offence.
14 You are now 41 years of age. You have no prior convictions of any kind. You were born in China. You came to this country in 2000, commenced a university course in Adelaide and ultimately completed a degree course in 2005, having had some difficulty with language and therefore taking a little longer with the course. You married at a young age and you have an 18-year-old and a 16-year-old daughter of whom I have no doubt you are very proud. They seem to be doing extremely well at school and the reports suggest that they have a very bright future.
15 The psychological report sets out other aspects of your history including the fact that you worked and you had a business for a while. Your husband left you and returned to China, has been of no assistance to you in bringing up your daughters and provides no financial assistance to you. You entered into another relationship in 2015, and from that relationship you have two boys who are now aged 6 and 4. They live with you, as do your daughters. You are solely responsible for their upbringing because that partner also left you and has returned to China. He likewise provides you no support either financial or otherwise. Your parents live in Australia. They are separated. You do a lot for them but they do not appreciate you and have given you very little emotional or physical assistance in return for the efforts that you have made on their behalf.
16 The report of Ms Karvelis describes your emotional and your psychological profile in some detail. She diagnoses that you have a major depressive disorder recurrent that is exacerbated by the ongoing effects of postpartum disorder which I understood to be the same as postnatal depression. You also suffer from post-traumatic stress disorder. It is very much in your favour that you have been seeking treatment and have been progressing your treatment for those disorders. It is submitted on your behalf that I should apply each of the Verdins principles to mitigate sentence on the basis that it reduces your moral culpability and makes you an unsuitable vehicle for the application of the principle of general deterrence.
17 I am dealing with a deliberate offence of dishonesty. That is the basis upon which I have to proceed and I am not persuaded that the report provides a sufficient nexus between your mental impairments and your offending to reduce your moral culpability. I treat your moral culpability as high. I am persuaded that you have those conditions and if you were to serve an immediate term of imprisonment that it would be very hard on you for a number of reasons including those mental disorders. It also seems to me highly probable that those conditions would be significantly exacerbated by a term of imprisonment, not just because you have those conditions, but because of the family's circumstances that you would be very well aware of during the period of incarceration.
18 It seems to me that Verdins principles 5 and 6 apply. Whether they apply strictly under the Verdins principles per se or whether they need to be considered by reference to s16A sub-s2 of the Crimes Act 1914 (Cth) (“the Act”) is really neither here nor there. Those mental impairments are undoubtedly relevant and I take them into account in the instinctive synthesis and the application of the relevant paragraphs of s16A sub-s2 of the Act in particular s16A(2)(m) which deals with your character and antecedents, age, means, physical and mental condition. So I indicate that I do accept the submission going to Verdins principles 5 and 6.
19 The report is helpful in setting out information about your personal circumstances, the precise details of which I do not think I really need to go into. It is very clear that you have been expressing remorse for your offending and are suffering greatly from the realisation of the possible consequences which have arisen from your offending. I take that into account. Your remorse is also supported by the evidence given by Mr Haugh and the letter from Mr Haugh. I found Mr Haugh to be an impressive witness. He gave a good deal of insight into your present suffering. This matter has been hanging over your head for a while now, almost two years, since your realisation that the offence had been detected. That would have been difficult for you to bear, given the real prospect that you may have been deprived of your liberty and that your children would suffer greatly from your absence, particularly the younger children.
20 You are also entitled to a significant discount of sentence by reason of your plea of guilty. Your early indication of a plea of guilty at the first committal mention and the fact that you have pleaded guilty in these COVID times is to be taken into account and, as the Court of Appeal in Victoria has indicated, requires a palpable discount of sentence. Also, I take into account that, were you to be sentenced to an immediate custodial sentence, the conditions would be hard by reason of the ongoing stricter regime within the prison system.
21 It is common ground that the most persuasive aspect of the plea put on your behalf is the proposition that the family hardship, that is, the hardship on your children particularly and your parents, in particular the 6-year-old and 4-year-old boys, is so significant that I should impose a sentence which does not deprive you of your liberty.
22 I am required under s16A sub-s1 of the Act to impose a sentence that is of a severity appropriate in all the circumstances and to take into account under s16A sub-s2 the nature and circumstances of the offence which I have endeavoured to outline. Your personal circumstances, the degree of contrition that you have shown both by making reparation soon after you were notified of the debt and the expressions of remorse that are referred to by Mr Haugh, Mr Feng and Ms Karvelis are all relevant.
23 I have indicated that I must take into account your character, your antecedents, your age and your means. I was told a bit about your means. I understand that you have not been working for a number of years but that you have been supported by your aunt in China who has supplied you with sufficient funds, not merely to maintain a home for yourself and your four children, but also to maintain homes for your parents and to enable you to manage investment properties on behalf of the family and to receive rents from one or more of those properties. The evidence provided in support of the charge suggest that you had a float of around about $1m in cash during the period of the offending. I understand there is still a substantial float of cash available from the funds provided by your aunt in China.
24 I must also consider your prospects of rehabilitation. I am encouraged in that regard by the fact that you have participated in treatment to deal with the effects of your mental impairments and that you have been making progress. The references on your behalf and your expressions of contrition suggest that it is unlikely that you will offend again. I regard your prospects of rehabilitation as good.
25 And I am also required under s16A sub-s2 to take into account the probable effect that any sentence or order under consideration would have on any of your family or dependents. I can only conclude that, you being the only reliable carer in their lives, the effect would be devastating upon them, particularly on the 4-year-old, but also I suspect on the 6-year-old. The effects would also be significant on the two older children. I think the older daughter is in her VCE year; even though she has reached 18 years of age she is still part of your household.
26 Current sentencing practice suggests that ordinarily a term of imprisonment with immediate incarceration for at least part of the sentence would be required for this offending. The sum of money obtained and the degree of the deceptive conduct makes this a serious offence. It is not the most serious but I am assisted by the submissions of the prosecution which are Exhibit B along with the Appendix A setting out summaries of the asset valuations, the bank account balances at the relevant times and Appendix B a table of comparative sentences.
27 From a long history of sentencing throughout the Commonwealth for offences of this kind where there has been fraud on the public purse and obtaining scarce resources that should be channelled to people in genuine need, when you clearly were not, this is to be regarded as a serious example of the offence. Your motivation would seem to have been greed rather than need. Ordinarily your offending would require a significant period of actual incarceration as well as a substantial sentence to satisfy the various requirements in s16A of the Act and general sentencing principles of denunciation, just punishment, general deterrence and individual deterrence. These offences are difficult to detect and the need for deterrent sentences is very much in the public interest.
28 Section 17A of the Act requires me to only pass a sentence involving a term of imprisonment if that is the only sentence reasonably open. Such a sentence is the only sentence that is reasonably open on the facts of this case.
29 I am now ready to impose sentence upon you but before I do that I indicate this. I propose to sentence you to a term of imprisonment which I intend to suspend by way of a recognisance release order which would permit your immediate release. Before I make that order I need to explain to you the purpose and effect of that order and the consequences that may flow if you fail without reasonable excuse or cause to comply with the conditions of the proposed order. And I need to explain to you that any recognisance given in accordance with the order may be discharged or varied under the Act.
30
The purpose and effect of the recognisance order is to grant you conditional freedom from the commencement of the order. The condition is that you be of good behaviour for a period of two years and if you breach the recognisance order, that is, if you commit an offence punishable by imprisonment during the two-year period covered by the order you will be brought back before this court, probably before me, and you will be dealt with for the breach and may be re-sentenced for the offence. The recognisance order may be extended or revoked and you may be required to serve the remaining or the full term of imprisonment, particularly if you commit a further offence punishable by imprisonment during the period of the order. Also if you breach the order it could mean that you have to forfeit the sum of $2,000.
31 You should bear in mind that having given your recognisance, if you do, either the Commonwealth Director of Public Prosecutions or you may apply to vary or discharge that order. No doubt your counsel will explain that to you. These are matters that I need to draw to your attention before I pass sentence because I need to seek your consent in order to make that order.
32 Mr Conners, no doubt you have explained the effect of such an order.
33 MR CONNERS: Yes. I used slightly different language.
34 HIS HONOUR: Would you like to just speak to your client now to confirm that she understands what I said.
35 MR CONNERS: Yes.
36 HIS HONOUR: All right, thank you.
37 The need for just punishment, to satisfy the requirements of s16A sub-s1 of the Act and to satisfy the need for general deterrence requires me, in addition to a term of imprisonment, to make a pecuniary penalty order. I have taken into account your means in doing that. It needs to be of a size that is meaningful rather than simply a token and I indicate that that is the basis of the order that I propose to make.
38 Would you please stand, Ms Jia Jun Ren. For the offence of dishonestly obtaining a financial advantage by deception from a Commonwealth entity to which you pleaded guilty you are convicted and sentenced to imprisonment for a period of 20 months.
39 The total effective sentence is 20 months imprisonment but I order that pursuant s20 sub-s1(b) of the Act you are to be released forthwith on giving security by recognisance of $2,000 to comply with the condition that you be of good behaviour for a period of two years. The sentence will commence today.
40 You are also to pay the Commonwealth a pecuniary penalty of $25,000. That is to be paid by 28 November 2022.
41
But for your plea of guilty I would have sentenced you to imprisonment for a period of 32 months with release on recognisance after serving a period of
20 months. You can take a seat now and the recognisance release order will be prepared. Then you will be asked to sign it and I will sign it.
42 Ms Kefford, is somebody preparing that?
43 MS KEFFORD: Yes, I am, Your Honour.
44 ASSOCIATE: I have it now.
45 HIS HONOUR: I think that she should sign first. Mr Conners, would you mind just checking the order and explaining it to your client.
46 MR CONNERS: And have her sign it.
47 HIS HONOUR: If she is satisfied with it and your explanation of it, then she signs on the second page, please.
48 MR CONNERS: And a copy will be made for her to take away, Your Honour?
49 HIS HONOUR: Yes.
50 MR CONNERS: Yes, thank you.
51 HIS HONOUR: Once I have signed it, yes. Thank you. That order is now made and we'll provide a copy right now.
52 MR CONNERS: Thank you, Your Honour.
53 HIS HONOUR: Your client may leave the dock. Thank you both for your help.
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