CDirector of Public Prosecutions v Strepelias

[2023] VCC 1898

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02088

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREAS GERASIMOS STREPELIAS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2023
DATE OF SENTENCE:	18 October 2023
CASE MAY BE CITED AS:	CDPP v Strepelias
MEDIUM NEUTRAL CITATION:	[2023] VCC 1898

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Dishonestly cause loss to a Commonwealth entity – Loss in excess of $191,000 – Serious offending – Criminal conduct over a period of some 4 months – Part-restitution paid – Relevant criminal history – Verdins not enlivened – Psychological history considered – Family hardship – Delay – Rehabilitation prospects very strong – Cooperation – Totality – General and specific deterrence.

Legislation Cited:      Criminal Code (Cth) s 135.1(5); Crimes Act 1914 (Cth) 16A(1), 16A(2), 16A(2)(p), 16AC, Sentencing Act 1991 (Vic) s 6AAA.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; The Queen v Todd [1982] 2 NSWLR 517.

Sentence:                  Imprisonment for a period of 2 years and 9 months, released immediately upon giving a recognizance of $5000 and to be of good behaviour for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S Tatas	Commonwealth Director of Public Prosecutions
For the Accused	Mr J Dounias	Bill Velos Lawyers

HIS HONOUR:

Introduction

1Andreas Gerasimos Strepelias, you have pleaded guilty to two rolled-up charges of dishonestly cause loss to a Commonwealth entity contrary to s 135.1(5) of the Criminal Code (Cth), which carries a maximum penalty of 5 years imprisonment (Charges 1 and 2).

2You have also admitted your prior criminal history.  

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of offending, you were 40 years old and residing in Bentleigh East.

5On 13 December 2017, the National Disability Insurance Agency (‘NDIA’) approved Quality Home Improvements Pty Ltd (‘QHM’), a company of which you were the sole Director, to provide services to National Disability Insurance Scheme (‘NDIS’) participants.

6Between 23 May 2018 and 24 July 2018, you accessed the accounts of 50 NDIS participants. You created false payment requests for services that QHM had purportedly provided to those 50 NDIS participants. In reality, none of the participants had requested the services purportedly provided, nor did you provide any such services.

7As result of the false service bookings made by you to the NDIA, you dishonestly caused a loss to the Commonwealth. The total amount of the fraud perpetrated on the NDIA by reason of your conduct which is the subject of Charges 1 and 2 on the Indictment is $191,159.71.

Background

8The NDIA is an independent statutory authority and its roles include the implementation and administration of the NDIS.

9The NDIS provides funding for ‘participants’ to access services and supports needed as a result of their disabilities. Participants have individualised ‘plans’ containing funding to help them obtain support services and assistance which is determined by consideration of the participants’ individual needs. Participants are able to choose their services and supports from the marketplace of providers.

10An individual or organisation that delivers a support or product to an NDIS participant is an NDIS ‘provider’. Providers can be registered or unregistered with the NDIA, but only registered providers can provide supports to NDIA managed participants and access the Provider Portal (‘Myplace’) to make payment requests.

11To register as a provider, the individual or organisation needs to create a Provider Digital Access (‘PRODA’) account using their mobile phone number. The authentication process through PRODA provides secure access to the Myplace portal.

12Myplace is a secure website portal where providers register their Australian Business Number (‘ABN’) and business operating name, and apply for registration groups. A registration group is linked to the types of specific services the provider offers to participants which are included in the NDIS price guide.

13Providers are required to read and sign a Declaration of Suitability confirming that they have read, understood, and agree to abide by the NDIA's guidelines and the NDIS Terms of Business for Registered Providers.

14Providers use their Myplace portal to manage their transactions with the NDIA and to view and manage their services with participants.

15To receive payment from the NDIA for services provided to a participant, the registered provider must:

(a)   create a service booking in Myplace, including making a declaration that the service booking has been discussed and agreed to by the participant; and

(b)   once the service is delivered, the registered provider can make a payment request via Myplace.

16The payment request data is captured and sent to internal NDIA systems for validations and approval. Payment requests are either approved or rejected based on the outcome of the validation checks.

17Upon approval, payments are directly made into the Provider’s nominated bank account(s).

QHM registered as an NDIS provider

18On or about 17 March 2017, you registered QHM in Mackay, Queensland. You were listed as the sole Director and Shareholder. From 26 July 2018, the registered office of the company was your home address in Bentleigh East.

19On 29 November 2017, you created a PRODA account with the username of ‘astrepelias’ and received the unique identifier of ‘4648595552’. As part of the verification process, you uploaded your driver licence, passport and Medicare card.

20Also on 29 November 2017, you used the Myplace portal to submit an application using the business name ‘Quality Home Improvements Pty Ltd’ as a provider for registration group ‘household tasks’ in Victoria.

21On 30 November 2017, you signed and uploaded to the Myplace portal a Declaration of Suitability in your capacity as Director of QHM.

22On 13 December 2017, the NDIA approved QHM as a registered provider for the registration group ‘household tasks’ in Victoria and issued it with a Certificate of Registration.

23Subsequently, on 23 May 2018, you used the Myplace portal to submit an application using the name QHM as a provider for registration group ‘Assist travel/Transport’ in Victoria.

24On 29 May 2018, you used the Myplace portal to submit an application using the name QHM as a provider for registration groups ‘Plan Management’ in NSW and ‘Home Modification’ in the Australian Capital Territory, Queensland, New South Wales, South Australia, Tasmania and Victoria.

25On 31 May 2018, the NDIA approved QHM as a registered provider for these subsequent registration groups and issued it with a Certificate of Registration.

Bank accounts

26Payments for services rendered by QHM were to be deposited into a Westpac account and then, from 30 June 2018, a Commonwealth Bank account. You are the account holder of the Westpac and CBA accounts.

Further particulars of the offending

Charge 1: Dishonestly cause a loss to a Commonwealth entity

27In March 2018, NDIS participant ‘TM’ selected QHM to provide gardening and house cleaning services. TM received the following services:

(a)   gardening services from a person from QHM for approximately three hours on 28 May 2018;

(b)   cleaning services performed by two individuals on two separate occasions;

(c)   one linen service; and

(d)   electrical work by an electrician (with you in attendance) on 6 June 2018.

28TM never received transport services from QHM.

29You made 10 separate payment requests to NDIA in respect of TM by logging onto the Myplace portal, and you were paid all of the amounts you claimed. The claims were over a 10 day period. The details of those claims and payments are as follows:

(a)   On 28 May 2018, you made two separate payment requests in which you claimed 12 and eight units of work, respectively, described as ‘Linen Service’. The sum claimed by, and paid to, you was $729.80. You only provided TM with one linen service.

(b)   On 30 May 2018, you made one payment request in which you claimed 370 units of work described as ‘Linen Service’. You had not provided any further linen service to TM other than that for which you had already claimed and been paid. You claimed and were paid $19,332.50.

(c)   On 4 June 2018, you made one payment request in which you claimed 119 hours for work described as ‘House and / or Yard Maintenance’. You had provided gardening services to TM on one occasion, for approximately four hours, and on 23 May 2018, you made payment requests for those services. You claimed and were paid $5,228.86.

(d)   On 6 June 2018, you made one payment request in which you claimed 40 hours of work described as ‘Temp specialised transport to school/ educational facility/employment/community’. TM did have work completed on 6 June 2018, however, she only received electrical services comprising installation of a sensor light, a two way switch and safety switch. You claimed and were paid $1,200.39

(e)   On 7 June 2018, you made five separate payment requests, including one payment request for 45 units of work described as ‘Temp – Transport’ and one payment request for five units of work described as ‘Linen Service’. You did not provide these services. You claimed and were paid $4,050.00 for transport services. You claimed and were paid $250.00 for the linen service.

30The total sum claimed and obtained by you in respect of Charge 1 was $30,791.16.

Charge 2: Dishonestly cause a loss to a Commonwealth entity

31Charge 2 comprises 80 claims made by you, and the resulting payments to you, in respect of 49 NDIS participants over a period of approximately four weeks. You made all of the claims by logging onto the Myplace portal where you created and submitted the individual payment requests. You did not provide any of the services you claimed were provided in each of these individual payment requests.

32The details of those payment requests are set out in a table found at paragraph 32 of the prosecution opening, which I do not propose to reproduce in these sentencing remarks.

33The total sum claimed by you in respect of Charge 2 was $166,116.05. However, on 20 July 2018, you returned the payment of $2,612.50 charged against TS’ plan. You also returned the payment of $3,135.00 charged against AC’s plan. The total amount therefore obtained by you was $160,368.55.

34In around August 2018, SN1 was speaking with one of her providers to arrange her upcoming services and, due to insufficient funds in her account as a result of the claim made by QHM on 16 July 2018, SN1 had to reduce her hours from six hours to four hours a week. In February 2019, the hours were reduced to two hours per week to ensure that the funds would last until her new plan commenced.

35KK lives with his mother and sister. On 23 November 2018, KK’s brother and mother had arranged for KK to attend a two day YMCA camp to give KK a positive experience and to give KK’s mother a break as she was KK’s full-time carer as well as the primary carer for KK’s sister, who also has a disability. KK’s mother was also caring for her husband who was unwell. The camp was to be paid out of NDIS funds. KK’s attendance at the camp was unable to be funded due to insufficient funds in his NDIS plan as a result of the claim made by QHM on 23 July 2018.

Investigation

36The NDIA first received a complaint about your fraudulent claims from a member of the public on 6 July 2018. An investigation commenced on 2 October 2019.

37On or about 13 February 2020, you were contacted by an NDIA investigator offering the opportunity to participate in a taped record of interview. You declined this invitation.

Aggregate quantum of loss

38The total amount of the fraud perpetrated on the NDIA by your conduct is $191,159.71, which is constituted by:

·Charge 1 – $30,791.16; and

·Charge 2 – $160,368.55.

Nature and gravity of the offending

39The two charges on the indictment to which you have pleaded guilty are each rolled up charges; Charge 1, representing 10 separate payments in respect of one victim committed over a period of 10 days, and Charge 2, representing 80 separate payments in respect of 49 victims committed over a period of four weeks. While the offending period is therefore relatively short, it translated into a significant fraud committed by you totalling $191,159.71 causing a loss to the Commonwealth and the community.

40While the fraud committed by you involved payments from a government organisation, in this instance it had a direct impact on victims as is reflected in the victim impact statements. In other types of fraud on government entities, although there is an impact on the entity, individual victims are generally not directly affected. In this instance however the victims believed that they were receiving services while observing that their funding was reducing without any services being provided. As this occurred without explanation it caused significant anxiety and stress to those impacted. As such, your offending affected vulnerable members of the community and in my view, in all the circumstances, represents serious offending.

Victim impact statements

41Three victim impact statements were tendered on the plea, two from NDIS participants, and one from the sibling of a NDIS participant. All three NDIS participants were impacted by your fraud, which reduced the amount of funds they were able to utilise for vital support services. One victim describes how this situation caused her stress and anxiety which exacerbated her multiple sclerosis symptoms and resulted in relapses. Another victim, who has Autism Spectrum Disorder, Bipolar Disorder and Obsessive Compulsive Disorder, also experienced a worsening of her symptoms as a result of your offending. A third victim, who suffered from schizophrenia, was unable to attend a YMCA camp due to insufficient funds in his NDIS budget, which caused his mother, his primary carer, psychological distress.

42It is clear that your fraud had a material impact on the health and wellbeing of these already vulnerable NDIS participants, and I take the content of their victim impact statements into account. 

Personal circumstances

43You were born in 1977 and are now 46 years old. Your parents each separately immigrated to Australia from Greece in 1957 and the early sixties respectively, and met each other in Australia and then married. They had three children; you are the youngest. Your father was the provider in the family, and growing up you shared a close bond with him. He passed away in 2020 after a struggle with leukemia. His death affected your mother, Alexandra, greatly. You now live with your mother and are her main source of support and care.

44You grew up in East Bentleigh and finished your secondary education at St Bede’s College in Mentone. You went on to study a Bachelor of Economics degree at La Trobe University but abandoned your studies after two years. You commenced working full time in a call centre for a period of time, but later returned to study, this time at Victoria University. Whilst a student there, you worked part time for a Registered Training Organisation (‘RTO’) operated by a family friend, which offered various courses for a variety of industries such as retail, business and music. You commenced this work in 2000 and concluded in about 2014, starting first in an administrative role before ultimately moving into a sales position.

45You also ran your own company, ASER, for a period. This company had agreements in place with a few RTOs. You operated this business for two to three years before it closed down. You attribute the closure to personal issues, including relationship, mental health and drug problems, as well as the fact that the company was not receiving any payments.

46You have a relevant criminal history stemming from frauds you helped perpetrate against the Queensland government’s ‘Back To Work’ scheme over a period of 16 months from September 2016 to January 2018. You were charged with and pleaded guilty to four charges of fraud and were sentenced by the District Court of Queensland in Brisbane in October 2022 to a term of 5 years imprisonment, to be suspended for 5 years after serving 9 months. You served those nine months and were released in July 2023, this being your first time in custody. A bundle of medical case file notes from your time in custody in Queensland were tendered on the plea, which document your mental health struggles in prison. I will address your history of mental illness in further detail below. You engaged with alcohol and drug services whilst in custody in Queensland and completed six modules, covering topics such as common challenges in recovery and dealing with depression and anxiety. Todd Sellwood, a nurse practitioner candidate at Palen Creek Correctional Centre in Queensland, attests in a letter dated 11 May 2023 that having completed these modules, you were able to demonstrate insight into managing the drivers of your previous substance use.

47Following your release, you returned to Victoria and managed to obtain work in the construction industry through a friend, John Kourtis. You are still in this role now, in which you undertake traffic management and general labouring on construction sites.

48You were in a relationship with a woman for about four years, which ended acrimoniously after she obtained an intervention order against you before your first admission to The Alfred Hospital in August 2016. You were living in an apartment on Chapel Street at the time and were using drugs sporadically. You have longstanding mental health issues, and have sought professional help since 2012. Tendered on the plea were two psychiatric reports from Dr Richard Baker, one dated 4 June 2021 and the other dated 28 August 2022. Dr Baker outlines your psychiatric history in these reports and diagnoses you with Schizophreniform disorder and major depressive disorder. He is of the view that at the time of this current offending, it is likely your mental state would have impaired your decision-making faculties and your anxiety would have made it more difficult for you to resist the pressure and influence others were exerting upon you. He further opines that a term of imprisonment would cause you more distress than it would a person without your mental health conditions.

49You have a history of psychiatric admissions, starting in 2016, when you were admitted to The Alfred Hospital, having been brought there by police. The hospital discharge notes, tendered on the plea, show that you were experiencing psychosis stemming from a confluence of stressors, including workplace issues, the breakdown of your relationship, and your father’s multiple myeloma diagnosis. Dr Luke Holden, your longstanding general practitioner, notes in his report dated 17 April 2017 that following this admission, you remained compliant with medication and your continued assessment and treatment with your psychologist. However, you were admitted again in March 2017, after being taken to the hospital by police, who you voluntarily contacted during a ‘flare-up’ of psychosis characterised by paranoid beliefs. It appears your mental health symptoms have since stabilised, as demonstrated by the fact of your ongoing employment.

50A number of character references were tendered on the plea, from members of your family, the Greek community, your employer, and longstanding friends. They speak with a united voice as to the shock they experienced when they learned of your offending, as it did not cohere at all with the trustworthy, caring and hardworking individual they knew you to be. Your mother’s longstanding general practitioner also authored a letter confirming you are your mother’s primary source of care for at least the past four years; your mother has multiple medical conditions that require ongoing management, and you have assisted her in getting to medical appointments and with daily tasks of living.

Sentencing considerations

51As the charges to which you have pleaded guilty to are Commonwealth charges, I am required to sentence you in accordance with Part 1B of the Crimes Act 1914 (Cth) (‘Crimes Act’). Pursuant to s 16A(1) of the Crimes Act, the overarching principle is that any sentence I impose must be of ‘a severity appropriate in all the circumstances of the offence’. As part of that process, I must take into account the non-exhaustive list of matters pursuant to s 16A(2) of the Crimes Act that are relevant and known to the court.

52Mr Dounias, who appeared on your behalf, highlighted a number of matters in mitigation.

53First is your plea of guilty, which was entered at the earliest reasonable opportunity without the need for a contested committal. Your plea therefore has utilitarian benefit and has facilitated the course of justice. Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has resulted a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

54Further, at the time of the plea you offered to repay some $94,000. It was confirmed before sentence that you have indeed provided a cheque in the amount of $94,030.98 to the prosecution as part restitution. This gesture in my view is a further demonstration of your acceptance of responsibility and contrition.

55With reference to the psychological material, Mr Dounias submitted that Verdins principles 5 and 6 were applicable in this instance. Ms Tatas who appeared on behalf of the Commonwealth Director of Public Prosecutions submitted that the evidence does not support Verdins 5 and 6. Ms Tatas made reference to the substantive report of Dr Baker dated 4 June 2021, where he summarises his sessions with you conducted in mid-2018, noting that at the time of your offending your mental state was ‘normal’ and your ‘judgments were good’. Relevantly, in relation to the effects of custody on your mental health, there is no update following your recent 9 months in custody. Further that the materials provided from your prison case file do not make any reference to adverse mental health issues and it seems that your psychological conditions have stabilised. As such in my view the evidence does not support the application of Verdins principles 5 and 6 in this instance. That said I do take into account your long term psychological history as part of your personal circumstances and as part of the general sentencing discretion.

56Mr Dounias submitted that hardship is a relevant consideration as you play an important role in the care and companionship of your elderly mother. It is clear from the submission that the role you play in assisting your mother is important to her and undoubtedly any custodial sentence you may serve would have an adverse effect. I note however that until recently you were in custody in Queensland for a number of months away from your mother. Nonetheless, since your return to Melbourne you have settled into full time work and a routine of supporting your mother. In the circumstances I accept, to a limited extent, the ‘probable effect’ that any custodial sentence would have on your mother pursuant to s 16A(2)(p).

57I take into account that delay has some relevance in this matter. The complaint was made in July 2018 however a fraud investigation team was not established at the NDIS until January 2019 with the criminal investigation commencing in October 2019. Charges were ultimately laid on 6 November 2020. None of that delay up until that point, is attributable to you. Further, while the matter resolved in September 2021, due to the fact that you were serving the Queensland sentence, the plea was unable to proceed until you were released and had negotiated the statement you have made to be used at your co-accused’s trial. As such the plea date was adjourned a number of times. In the circumstances you have had this matter hanging over your head for a number of years which I take into account.

58I turn now to your prospects of rehabilitation. As noted above, although you have had sporadic issues with alcohol and drug use, you have evidently been able to achieve a level of stability in recent years. Whilst in custody in Queensland, you took steps to retrain by earning a Major Training Certificate II in Resources and Infrastructure Work Preparation. I further note that you were assessed by Queensland Correction Services in February this year and were found to have a ‘Risk of Reoffending Prison Version’ score of 1, which corresponds with a ‘low risk of further general re-offending’. You have stable accommodation and employment and have taken an active role in caring for your elderly mother. In the circumstances, I assess your prospects of rehabilitation as very strong.

59I take into account that you offered to cooperate with the authorities at an early stage, which ultimately resulted in you providing a formal statement to police. I therefore take into account your past cooperation in the general discretion. Further, in respect of s 16AC, I take into account that you have given a sworn undertaking to cooperate by giving evidence in any future proceeding brought against your co-accused in this matter. In a letter provided by a senior investigator with the NDIS Fraud Taskforce, it is noted that the information provided by you in your statement of 18 September 2023, has strengthened the prosecution case against your co accused and is of ‘significant value’.

60Mr Dounias submitted that the principle of totality has application in this instance. As noted, you served 9 months imprisonment in Queensland, having been released on 5 July 2023. As this matter was unable to be dealt with while you were serving the Queensland sentence, Mr Dounias submitted that weight should be given to the fact that you were thereby deprived of any concurrency between the two sentences. Further, the offences to which you were sentenced in Queensland were of a similar nature and were committed between September 2016 and January 2018 – close in time to this matter. In the circumstances I accept that the principle of totality is relevant. The principle, as it relates to the circumstances presented here, has been recognised in cases such as The Queen v Todd[2] where Street CJ noted:

But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved….It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.

[2] [1982] 2 NSWLR 517, 518.

61General deterrence is undoubtedly the primary sentencing consideration.  Offending of this type has a direct impact on the recipients of a government funded system while also putting at risk the public’s confidence in such systems. A message must be conveyed that frauds of this nature will be met with stern consequences by the courts. As to specific deterrence, while you do not have relevant prior criminal history, this fraud was committed following similar offending in Queensland and it does not reflect a single incident but involved a number of transactions over a period of almost two months. As such in my view specific deterrence has some role to play in the sentencing discretion.

62Mr Dounias, while conceding that a term of imprisonment is warranted, submitted that in all the circumstances the relevant sentencing considerations are able to be met by the imposition of a term of imprisonment with an immediate release on a recognizance release order.

63Having taken into account the relevant matters, including your cooperation both past and future, in my view a sentence of imprisonment with an immediate release is able to meet the applicable sentencing considerations in this instance.

Sentence

64Mr Strepelias, would you please stand.

65Andreas Gerasimos Strepelias, on Charge 1 you are convicted and sentenced to 9 months imprisonment which will commence today. On Charge 2, you are convicted and sentenced to 2 years and 6 months imprisonment. The sentence on Charge 2 will commence 3 months after the sentence imposed on Charge 1 making for a total effective sentence of 2 years and 9 months imprisonment.

66I direct that you be released forthwith after having you enter into a recognizance in the sum of $5000, to be of good behaviour for a period of three years.

67The purpose and effect of the recognizance release order is that it requires you to be of good behaviour for a period of three years from today. If you commit a further offence in breach of the recognizance to be of good behaviour in that three year period after your release, then unless you show a reasonable excuse for committing a further offence or offences, you will be dealt with for that breach and resentenced. You may have to pay $5000 and you may have to serve immediately the term of imprisonment I have imposed.

68Pursuant to s 16AC(2) of the Crimes Act, I am required to specify the sentence that would have been imposed but for the reduction in sentence as a result of your co-operation. I am also required pursuant to s 6AAA of the Sentencing Act 1991 to indicate the sentence that would have been imposed but for your plea of guilty.

69The total sentence I would have imposed but for the s 16AC undertaking and your plea of guilty is 4 years with a non-parole period of 3 years.

70Pursuant to s 6AAA, I have deducted 1 year from the head sentence which would result in a total effective sentence of 3 years and I would also have released you on a recognizance release order after serving 1 year and 9 months.

71Pursuant to s 16AC, the sentence has been further reduced as a result of your undertaking to cooperate resulting in the sentence of 2 years and 9 months to be released forthwith on an undertaking to be of good behaviour for a period of 3 years.