CDirector of Public Prosecutions v Te Kiri

[2025] VCC 749

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01023

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARNELLE WAHIA SINDI TE KIRI

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2025
DATE OF SENTENCE:	5 June 2025
CASE MAY BE CITED AS:	CDPP v Te Kiri
MEDIUM NEUTRAL CITATION:	[2025] VCC 749

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing

Catchwords:       dishonestly obtain a financial advantage by deception from the Commonwealth

Legislation Cited:      

Cases Cited:             DPP v Gregory [2011] VSCA 145; Hoomiyer v The King [2025] VSCA
  37; Totaan v  the Queen (2022) 297 A Crim R 224; R v Verdins [2007]
  VSCA 102; Guden v The Queen [2010] VSCA 196; El-Rakhawy v The 
  Queen [2011] WASCA 209; Shmuel v R [2023] VSCA 137; R v
  Ibbetson [2020] QCA 214; Read v The Queen [2020] WASCA 56; R v
  Massey [2015] QCA 254.

Sentence:  Total effective sentence of 17 months’ imprisonment, released forthwith on a Recognisance Release Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Hobbs	Commonwealth Director of Public Prosecutions
For the Accused	Ms B. East	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Darnelle Te Kiri, you have pleaded guilty to one charge of dishonestly obtain a financial advantage by deception from the Commonwealth contrary to subsection 134.2(1) of the Criminal Code (Cth).

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.

Circumstances of the offending

3You were aged between 38 and 39 years of age at the time of the offending.

4An overview of the GST and Business Activity Statements system is outlined comprehensively in the prosecution opening from paragraphs [4] to [6].

5Between 15 December 2021 and 29 June 2022, you lodged eight Business Activity Statements (BAS) for the tax periods November 2021 to June 2022, while not operating a legitimate business enterprise, claiming a refund entitlement. As a result, you obtained GST refunds (and a financial advantage from the ATO) totalling $202,936.

6On 5 July 2021, you registered for an Australian Business Number (ABN) as an Individual/Sole Trader for the main business description ‘Hospitality/Bar Work’.

7On 14 December 2021, you registered for GST reporting monthly on a cash basis commencing 29 November 2021.

8On 15 December 2021, you commenced lodging BAS via ATO Online Services. myGov login and ATO data confirm each BAS lodged was via your myGov and ATO Link ID.

9The eight BAS lodged by you between 15 December 2021 and 23 June 2022, for the monthly periods November 2021 to June 2022, are summarised in the table as outlined in the opening, which I will not read but will reproduce in my reasons -

BAS Period	Lodgement Date	Sales (G1)	GST on Sales (1A)	Purchases (G11)	GST on Purchases (1B)	Net Payable / (Refund)	Date deposited into Westpac account
Nov 2021	15/12/2021	-	-	$181,412	$16,492	$16,492	20/12/2021
Dec 2021	15/12/2021	$17,121	$1,556	$184,932	$16,812	$15,256	20/12/2021
Jan 2022	29/01/2022	$232	$343	$336,237	$30,567	$30,224	03/02/2022
Feb 2022	28/02/2022	$29,842	$2,712	$298,430	$27,130	$24,418	08/03/2022
March 2022	13/04/2022	$39,650	$3,604	$396,506	$36,046	$32,442	22/04/2022
April 2022	15/04/2022	$39,860	$3,623	$398,607	$36,237	$32,614	26/04/2022
May 2022	24/05/2022	$28,642	$2,603	$286,429	$26,039	$23,436	31/05/2022
June 2022	23/06/2022	$34,286	$3,116	$342,870	$31,170	$28,054	29/06/2022
TOTAL		$202,936.00

10You nominated a Westpac account for the purpose of receiving GST refunds from the ATO. Westpac bank records confirm you as the sole signatory to the account.

11For each BAS lodgement you accepted the electronic declaration that the information contained within each BAS was true and correct

12On 8 August 2022, the ATO audited your BAS lodgements for the periods November 2021 to June 2022. The following was identified: 

(a)   You did not record income from your business in your (FY2022) income tax return (ITR) despite having lodged BAS for the months November 2021 to June 2022, which fall within the ITR financial year.

(b)   You did not record income from any source (in your FY2022 ITR), despite alleging to have made business acquisitions (totalling an estimated $2,425,423) in the November 2021 to June 2022 BAS lodgements.

(c)   You contacted the ATO on fourteen (14) occasions from your mobile phone throughout the period 14 December 2021 and 22 July 2022 to lift the security measures on your account so you could access ATO Online Services. Online open-source searches did not reveal any advertisements or a trading name for your alleged business.

(d)   You were not operating a business and were not required to lodge BAS.

13All BAS lodged by you for the monthly BAS period 1 November 2021 to 30 June 2022 were amended to nil. As a result, a debt was raised totalling $202,936 being the total amount of GST refunds paid to you which you were not entitled to receive. Notification of the audit determination was sent to you by post.

14Your Westpac bank statements show receipt of each ATO refund and show that you were aware of the GST refunds because you transacted immediately after each ATO deposit. The funds were transferred to third parties; a ‘Wise’ money account, withdrawn at ATMs, and used for unknown purposes. Funds were also used for miscellaneous expenses including rent, groceries and pubs/gaming.

15Your bank statements show there were no transactions during the period 1 November 2021 to 30 June 2022 (BAS periods) which related to running a hospitality business, for example there were no food or beverage related purchases or wages.

16The offending was detected via ATO audits and a subsequent criminal investigation commenced on 6 December 2022. 

17On 9 February 2023, a search warrant was executed at your residential address.

18On 9 June 2023, you were offered to participate in a Record of Interview. No interview took place.

Commonwealth sentencing

19Sentencing for Commonwealth offences is governed by Part 1B of the Crimes Act 1914 (Cth) (‘the Act’).

20The fundamental principle in sentencing a federal offender is that the Court must impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’: s 16A(1).

21The particular factors to be considered by a sentencing Court are set out in s 16A(2) of the Act, which contains a non-exhaustive list of factors. The section requires that the Court ‘take into account’ the factors identified in that subsection so far as they are relevant and known to the court.  The relevant sentencing principles are also helpfully summarised by the prosecution in their submissions, Annexure A.

Nature and gravity of offending (s.16A(2)(a))

22The charge you have pleaded guilty to carries a maximum penalty of 10 years imprisonment. I take into account that the charge is a rolled up one and I have considered the full circumstances and range of your offending.   

23The offending is serious, as reflected in the maximum penalty. I accept the prosecution submission that general and specific deterrence loom large in the sentencing calculus for offences of this nature.   Fraudulent offending against the Commonwealth and its agencies is viewed very serious. 

24As submitted by the prosecution, the Courts have a responsibility to protect the integrity of the revenue system of the Commonwealth by imposing condign punishment for deliberate and sustained fraud and sentences that are likely to deter others who may be otherwise tempted to indulge in similar conduct [1].   

[1] DPP v Gregory [2011] VSCA 145 op. cit. at [57]. ‘A sentence imposed for fraud upon the taxation revenue is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of the incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation. When these considerations are not reflected in the responses of the courts, the criminal justice system itself fails to achieve its objectives.’

25As the Court of Appeal further recently stated ‘the GST system, which involves self-assessment, is a ‘soft target’ for the dishonestly inclined. Fraud on that system involve a breach of trust which … calls for denunciation’[2] .

[2] Hoomiyer v The King [2025] VSCA 37.

26You obtained a large sum of money, totalling $202,936, from the revenue of the Commonwealth, which has not been repaid. The offending relates to a course of dishonest conduct spanning six and half months of offending during which you lodged eight individual BAS. I accept that the offending, whilst relatively unsophisticated, was planned and methodical.  I note, as advanced by your Counsel, that you didn’t take steps to avoid detection.  However, this must be viewed in the context that the offending is on a system that relies heavily on honesty, self-assessment and self-reporting.  Also, while I accept that there are no signs of extravagant enrichment in your case and that the funds may have been used to pay rent and other expenses and to fuel your gambling, your offending was motivated by financial gain which does increase its objective gravity. I take into account, as raised by your Counsel, that you ceased your offending prior to being notified of any investigation.

27I also proceed on the basis that your offending is not a ‘victimless crime.’  There are both tangible and intangible impacts and losses, as outlined in the prosecution submissions at [22] to [24]. 

Plea of guilty (s16A(2)(g))

28You entered a plea of guilty at the committal mention on 29 May 2024.  Your plea of guilty at the first reasonable opportunity entitles you to an important sentencing discount.  Your plea has utilitarian value, indicates your willingness to facilitate the course of justice and I accept indicates remorse and contrition on your part. 

Personal circumstances (s.16A(2)(m))

29Your personal circumstances were canvassed by your Counsel and in the report of forensic psychologist Pamela Matthews. 

30In brief, you are now 41 years of age and you were born in Rotorua, New Zealand.

31You are the eldest of nine children: two brothers, born in New Zealand, and six half-siblings, born in Australia, to your mother’s second partner. At four years of age your father died. You are in contact with your siblings who live in Australia but do not have a close relationship with them. You have no contact with your siblings who remain in New Zealand due to your separation at a young age.

32As an infant you were sent to live with your maternal aunt, and growing up you lived in between your aunt, grandmother and mother.  When you lived with your mother you were exposed to alcohol abuse and physical discipline by your stepfather.  Also, your mother largely prevented you from going to school as you were expected to look after your stepfather’s children.  The home environment offered by your grandparents, when available to you, was a more stable one, free of substance use or violence. 

33After completing your first year at High School you returned living with your mother.  Given the abusive environment you fled and effectively became homeless between the ages of 15 to17.

34You did not complete your schooling, falling behind due to time off.  You lived with a friend’s family, avoiding your aunt and mother.  You continued living with your friend and family after the birth of your daughter at 19 years of age, eventually finding your own flat.

35At 31 years of age, you relocated to Australia to reconnect with your mother and siblings. You lived with an aunt for the first 9 months.  Unfortunately, the relationship with your mother remains a distant one as she continues to battle alcoholism. 

36After leaving high school at 15 years of age, you then worked in a Kiwi fruit factory when your daughter commenced school at five years of age. Since relocating to Australia, you have worked primarily in hospitality. Most recently, you were working at a butcher but after a workplace injury to your finger you had to stop working for a period and you were on WorkCover. You returned to work in 2024 but were subjected to bullying and could not remain working.

37You have had three significant relationships. The first was with the father of your daughter when you were around 19 years of age. This was not a serious relationship. The second lasted for ten years, when you were still living in New Zealand, and ended when you relocated to Australia. The third commenced in 2014 and you remain in this relationship though you do not live together.

38Your daughter is now 24 years of age. She has two children, aged four months and two years. Over the years your daughter has struggled significantly with her own mental health issues and drug addiction. You reside with her in Fawkner and support her and your grandchildren. You spoke to Ms Matthews about the support that you provide them.

39You also gave evidence on your plea hearing as to your family responsibilities, summarised as follows:  you live with your daughter and her children, aged 2 years and 4 months; your daughter is now 24 years of age and she does not have a partner, the father of the children has drug addiction issues and ‘needs to deal with himself’; she has struggled with mental health issues since the age of 11 or 12 though is currently not medicated; in the past you have attended all doctor’s appointments with her; she is currently abstinent from drugs but has used heavily in the past; part of her current behaviours or symptoms include recurring bad thoughts and having little patience; you feed the children, get them ready for bed, start their day, engage them in playtime and also spend time with your daughter so you can model these behaviours and she can learn; you have your one friend Ms Winika, who wrote a reference and attended court but otherwise you have no other real supports in the community; the children are not in childcare; you will help your daughter until you know she can do it on her own; you presently do not work but when you are in a position to work again you will continue to assist your daughter and her children and also provide them with further financial support. 

40According to s.16A(2)(p) of the Act, I must consider ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.’ On the evidence I consider that you provide essential support to your daughter and her very young children and that they would likely struggle and experience hardship without your ongoing support and I have mitigated your sentence accordingly.[3]

[3] Totaan v the Queen (2022) 297 A Crim R 224.

41You have no prior criminal history and have previously been of good character.

Mental health

42Ms Matthews opines that you meet the diagnosis for Posttraumatic Stress Disorder, Adjustment Disorder, with mixed anxiety and depression, and Gambling Disorder.[4]  In relation to PTSD, Ms Matthews considers that the symptoms have persisted for many years and that your symptoms cause clinically significant distress and impairment in functioning. They include heightened levels of anxiety when reminded of your childhood, feeling guilt and shame for your past and disconnected from others. Up until two months you were treated with anti-depressant medications though ceased this as you did not consider it to be of benefit.   

[4] Report of Pamela Matthews, 8, L158; 10, L216; 11, L229.

43You have been struggling with a gambling addiction since you were approximately 18 years of age. Ms Matthews states:

‘Ms Te Kiri is a woman who has experienced a childhood characterised by attachment disruption and physical abuse, leading to a disrupted and poor education and considerable emotional problems in particular personality dysfunction and post-traumatic stress disorder.  Ms Te Kiri, in the writer’s view, has relied on gambling over many years to moderate the persistent transient mood states, particularly anxiety and depression that are associated with both disorders.’ 

44Your Counsel relies upon limbs 5 and 6 of Verdins[5].  She relies upon the opinion of Ms Matthews, whereby she states - “Ms Te Kiri is likely to experience any time she may spend in custody as quite difficult, particularly separation from her daughter and grandchildren. Her mental state is expected to deteriorate immediately”.[6] Ms Matthews also notes “Ms Te Kiri is a potential masked suicide risk”.[7]

[5] R v Verdins [2007] VSCA 102.

[6] Report of Pamela Matthews, 12, L 268.

[7] Report of Pamela Matthews, 13, L 274.

45As raised with your Counsel notwithstanding Ms Matthews opinion as to your likely deteriorating mental state and masked suicide risk, I don’t accept that the evidence sufficiently develops or supports a serious risk of imprisonment having a significant adverse effect on your mental health.  I do however accept that limb 5 of Verdins is enlivened.  On my assessment, given your conditions and the nature of them, I accept that a term of imprisonment would weigh more onerously on you than it would a person in ‘normal health.’ 

46Your Counsel also relied on the risk of deportation given that you are not an Australian citizen.  She submits that any sentence of imprisonment would weigh more heavily on you because of this, particularly given that you have resided in Australia for so long and your daughter and grandchildren are settled here. 

47While it is unknown if your status will be affected or if you will be liable to deportation as a consequence of this sentence, I accept that the risk of this occurring is something that does weigh on you and would serve to make any period in custody more onerous[8]. 

[8] Guden v The Queen [2010] VSCA 196.

48I also note that there has been some delay in your case proceeding.  The offending ceased in June 2022, the investigation commenced in December 2022, a warrant was executed on your home on 9 February 2023 and you were not charged until nearly a year later, on 8 January 2024.  I take into account this delay and accept that the uncertainty of your situation, given your particular circumstances, has caused you anguish over this period. 

Prospects of rehabilitation

49Keeping in mind that for this type of offending, deterrence and denunciation are primary sentencing considerations, an assessment of your rehabilitative prospects remains relevant.

50In all the circumstances, I consider that you present with very favourable prospects of rehabilitation. Informing my assessment, I have taken into account your early plea of guilty, the absence of any prior criminal history or subsequent matters, the contributions you make to your family unit and your work history.  Your friend Che Winika provided a character reference confirming she’s known you for over 20 years and has previously worked with you.  She describes you as ‘approachable, social and self-motivated,’ always grounded and focused on achieving the goals you set.    

51Since April 2025, you have been engaged with Gamblers Health, Better Health Network. In the last month, you have completed two sessions with a gambling counsellor. 

52The letter from Gamblers Help indicates that you have set a goal for therapeutic treatment to maintain your abstinence from gambling and to improve your wellbeing.  You have agreed to continue counselling and regularly attend sessions fortnightly, or as needed.

53I note that you have no issues with alcohol or substance addiction.

54Ms Matthews also considers that you would benefit from educational support that provides you with a vocation and treatment that assists you in developing skills to self-manage and modulate your mood states.

Sentencing purposes

55The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.  In cases of this kind, I accept as a broad proposition that the weight to be given to general deterrence is increased and the weight given to personal factors is reduced[9] . You have no prior criminal history and assessed good prospects of rehabilitation and in these circumstances the prominence of the principles of specific deterrence and community protection in the sentencing exercise is reduced.

[9] El-Rakhawy v The Queen [2011] WASCA 209.

56I have also considered the sentencing landscape for your offending including the comparable cases provided by the prosecution. 

57In Hooimeyer v The King the applicant was charged with dishonestly obtaining a financial advantage from the commonwealth and attempting to obtain such an advantage. On charge one she was sentenced to 18 months imprisonment and to 1 month concurrent on charge 2. This was ordered to be served by way of RRO and she was to be released after serving 8 months imprisonment. The offending was serious and it was noted that she did not desist from it herself.  Charge 1 was a rolled-up count, involving her lodgement of 7 fraudulent BAS and a total of $144,648 in payments. The attempt charge related to another GST refund in the amount of $15, 454. The applicant was 23 years of age at the time of the offending and there had been a 10-month delay in prosecution. The applicant relied on hardship. At the time of sentence she was the primary carer of her 15-month daughter and was 3 months pregnant with her second child. She was separated from the father of the children, had sole financial responsibility for them and lived with her parents. The sentencing judge accepted that hardship would be experienced by the applicant in these circumstances. He erred in taking into account and considering that the applicant’s hardship could be mitigated if she made an application to have her daughter join her in custody.

58The Court of Appeal considered the applicant’s mitigatory circumstances, including that she was young, immature and suffered from longstanding depression and anxiety, engaging limbs 5 and 6 of Verdins. Also, affidavit material demonstrated that her mental health had deteriorated in custody and that notwithstanding she had made significant progress in her rehabilitation. The respondent submitted that a RRO combined with a term of imprisonment with release from the date of appeal was within range. The Court resentenced the applicant to 12 months imprisonment and directed that she be released after serving 4 months upon giving security by recognisance of $500 on condition that she be of good behaviour for 18 months.

59The case of Shmuel v R[10] involved an accountant who lodged 66 false amended BAS with the ATO over a two day period and attempted to fraudulently obtain $390,776.00. His plea was a very late one, with him pleading guilty on the second day of trial and later unsuccessfully seeking to change his plea. He had no criminal history. He was sentenced to three years on a RRO to be released after serving 18 months and the sentence was upheld on appeal. The Court noted that the applicants behaviour was not simply a breach of the duty of honesty reposed in each tax payer, but a breach of trust by an accountant, company director and Tax Agent with access to the digital Tax Agent Portal.

[10] [2023] VSCA 137.

60In the case of R v Ibbetson[11] the applicant pleaded guilty to 9 counts of obtaining property by deception and two counts of attempting to do so. The offences were committed over a 13 month period and involved a sum of $200,553.00. The applicant had no prior criminal history at the time. Her personal circumstances included a substantial gambling addiction. She had a 19 year old daughter, who was supportive of her and she had taken some steps towards her rehabilitation.  The appeal against her sentence of 3 years imprisonment on recognisance with 18 months to serve was dismissed. 

[11] [2020] QCA 214.

61The case of Read v The Queen[12]  involved an accountant who lodged 26 false BAS with the ATO over a period of 14 months. The applicant pleaded guilty to 25 counts of obtaining a financial advantage by deception and one count of attempting to do so. He was sentenced to 4 years imprisonment with a non-parole period of 2 years. The applicant had no prior criminal history, had voluntarily disclosed the offending to his employer and had repaid a significant amount of the fraud debt, which was in the vicinity of $245,923.29. The Court found that there was significant mitigation in his case but also noted that he had ‘abused the trust reposed in him as an accountant and tax agent to defraud the revenue of a substantial sum of money over a lengthy period of time. The appellant exploited his knowledge of the taxation system and, to some extent, its weaknesses, to obtain money which funded his illicit drug use and gambling.’

[12] [2020] WASCA 56.

62In R v Massey[13] the applicant lodged 25 BAS with the ATO over a 6 month period and obtained $141,048.00 and attempted to obtain $116,607.00. His offending was premeditated and relatively sophisticated. He arranged for seven companies either to be incorporated or purchased. He then appointed associates as paid directors. He produced 85 false invoices which he used to claim tax refunds for business expenses which he had not incurred. He used a registered tax agent to lodge the statements, changing to a second tax agent when the first questioned the legitimacy of an invoice. He entered a late plea, did not cooperate, and expressed no remorse or contrition. He had a prior criminal history and whilst awaiting trial breached his bail conditions. He was in his early 60s at the time of the offending and 67 at the time of sentence and suffered ill health. He was sentenced to 3 years and 6 months imprisonment, to be released after serving 14 months. His appeal against sentence was dismissed.

[13] [2015] QCA 254.

63As a review of the cases indicate, they provide useful guidance, particularly in respect of general principles. They also provide some support for the proposition that in cases of this nature, involving repeated dishonesty against the commonwealth and substantial sums, ordinarily a term of immediate imprisonment is required. There are some similarities in the cases but also important differences, including periods of offending and greater positions of trust, and each case must ultimately be decided on its own facts and circumstances.  

64I am satisfied that no other sentence but for a sentence of imprisonment is appropriate in all the circumstances.  This is not disputed between the parties.  Also, both prosecution and defence accept that it is open for the Court to impose any such sentence by way of a recognisance release order.  The prosecution submit that an immediate term to serve is required, taking into account all the factors in your case, while your Counsel submits the sentence should permit your immediate release.    

65In your case, I consider that there are a number of compelling mitigating factors, including your early plea of guilty, lack of prior or subsequent offending, your vulnerable mental health, the risk of deportation and the probable effect that any sentence of imprisonment will have on your daughter and grandchildren.  Overall, after careful consideration of all the evidence and submissions put before the Court, I have decided that a sentence of imprisonment with your immediate release on recognisance can achieve all sentencing objectives in your case.  

Sentence

66On the one charge you are convicted and sentenced as follows: 17 months' imprisonment.

67Pursuant to s.20(1)(b)(i) of the Crimes Act1914 I order that you be released immediately upon you entering a recognisance in the sum of $1000 and to comply with the condition that you be of good behaviour for a period of two years.

68I need to explain it to you – you do not pay the $1000 now, however you may be liable to pay it if you breach the order and return to court.  It is a surety of types. 

69You need to promise to be of good behaviour for 2 years.  The term of imprisonment imposed is hanging over your head.  If you are not of good behaviour and you breach the promise, it is likely that you will be bought back before me and one of the options open to the court – and you would be at risk of this – is that you are required to serve the period of imprisonment imposed.  A RRO is also capable of being subject to an application for discharge or variation.

70Pursuant to s.6AAA but for your plea of guilty I would have imposed a term of 2 years and 7 months imprisonment and ordered your release after serving 6 months. 

71Ancillary orders - A reparation order of $202,936 will be sought, pursuant to s 21B(3) of the Crimes Act 1914 (Cth), the outstanding sum relating to Charge 1. This is consented to and taking into account all relevant matters in the exercise of my discretion I propose to make the reparation order in the terms sought.