Director of Public Prosecutions(Cth) v Dhal
[2017] VCC 600
•17 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-02210
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADIOR DHAL |
---
| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 and 17 May 2017 |
| DATE OF SENTENCE: | 17 May 2017 |
| CASE MAY BE CITED AS: | DPP(Cth) v Dhal |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 600 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – dishonestly causing a loss to a Commonwealth entity contrary to s135.1(3) of the Criminal Code (Cth)
Legislation Cited: Criminal Code (Cth), s135.1(3); Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth), s16A(1), s16A(2), s16F, s21B,
Sentence:Convicted and sentenced to twelve months’ imprisonment, wholly suspended for two years, and released under paragraph 20(1)(b) of the Crimes Act 1914 (Cth) forthwith upon giving security by recognisance of $1,000 to be of good behaviour for two years; subject to lawful directions of a psychologist, engage in trauma and gambling counselling and provide bi-annual reports to the Court and DPP(Cth) for a period of two years. Reparation in the sum of $82,813.70.
Section 6AAA declaration: Convicted and sentenced to twelve months’ immediate imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J Gullaci Ms S J Holmes | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr S Norton | Stary Norton Halphen Pty Ltd |
HIS HONOUR:
1You have pleaded guilty to one charge of dishonestly causing a loss to a Commonwealth entity contrary to s135.1(3) of the Criminal Code (Cth).
The maximum penalty for this offence is five years’ imprisonment.2The circumstance of your offending are set out in the lengthy Summary of Prosecution Opening, exhibit A. You come before the Court as a result of an Australian Federal Police operation into family day care centres. Exhibits B and C add some information about these circumstances.
3I do not intend reciting these circumstances in great detail as the documents speak for themselves. These facts were admitted, save for paragraph 23 in exhibit A, and I have taken no account of it.
4In essence, in July 2015, the Federal Police commenced the investigation into the practices of a number of family day care businesses. Their proprietors were generally described as “child care providers”. These providers enlisted people, usually women, referred to as “educators” to look after children. You were an educator.
5You submitted your timesheets every two weeks to a provider who passed him onto the Commonwealth Department for payment. The payment was made to the provider and then given to you, less an administration fee.
6The police operation has apparently led to three providers and ten educators being charged. You are one of the ten educators.
7In essence, you dishonestly claimed and received payment for childcare services you did not provide at all or only in part. In other words, a number of claims you made were fraudulent. You did this through four childcare providers across about six months in 2015.
8I consider this as a serious example of this type of offence. There are a number of reasons why this is so. Your offending was persistent over a number of months. It required you to repeatedly provide false information that you knew would be passed on to the relevant revenue authority. Claims were made for children you provided no care for at all. Others were exaggerated false claims setting out a higher number of hours than you in fact provided.
9The evidence discloses that you discussed childcare claim issues over the telephone with others involved in the scheme. These conversations were in a context of false claims, eligibility, swapping of children and government attention. They clearly reflected your consciousness of the falsity of some of the arrangements and claims you were involved with.
10While it is difficult to precisely quantify the exact amount of the actual loss you caused to the Commonwealth, it is not less than $82,813.70. I accept your fraudulent claims went beyond this amount but they cannot be arithmetically proved beyond reasonable doubt. To take just one example, there was a claim for some hours that demonstrably exceeded the maximum hours that could be available in that particular period but a precise dollar figure cannot be proved.
11You pleaded guilty early. The Court was informed that you are the first offender among the three providers and ten educators charged to come before the Court following this police operation. Apparently some have indicated at this stage, they will be pleading guilty and others will go for trial. But what happens ultimately with respect to these other alleged offenders is really just speculation at this point. Exhibit B contained what was described by the prosecutor as a parity document setting out information about eight other educators charged and their alleged criminality in the overall scheme. Relevant alleged money sums are set out but whether these will be finally admitted or proved is speculation at this stage.
12I am not really assisted by these other possible court proceedings as they really only involved allegations at this stage. I am satisfied they at least corroborate two features of your offending that other evidence indicates. Firstly, your role was down the list towards the lower end of the offences these educators are alleged to have committed. The prosecution sensibly agreed with that description. Secondly, there were a number of other people involved with you as part of a larger web of child care fraud.
13A search warrant was executed at your place on 16 December 2015.
You declined to participate in a record of interview. You were charged on
12 April 2016. You were charged on summons and, as stated, pleaded guilty early.14Turning to personal matters. You are 32 years of age. You came to Australia just on twelve years ago as a refugee from South Sudan and via a refugee camp in Kenya. That refugee camp was Kakuma. The notoriety of that camp was featured extensively in world media circles as the largest refugee camp in the world at about the time you were there. An aerial photograph has been tendered of that camp, exhibit 5. That photograph speaks for itself about the conditions in which over one million people of all cultures, religions, ethnic origins and backgrounds lived side by side in tents.
15Your experience as a child and then young woman in worn-torn Sudan and then six years in that refugee camp can only be described as horrific and desperate in the extreme. You bore your first child in that camp when you were only
17 years old. As a young girl, even before getting to that camp, you had been exposed to murders, rapes and violence towards your peers. Being a young girl, you had to learn to hide from marauding groups of men including soldiers just to survive. At one stage, you lived virtually as a slave.16You somehow did survive and got to Australia in 2005. In Australia, you have managed to get work in unskilled jobs. Your work ethic is good. You currently work in a laundry in St Kilda. You have achieved a reasonable proficiency in English. You studied and achieved a Certificate III in Hospitality. You now have five children aged fourteen down to two years old in your care. Your current partner is the father of the younger two and is not particularly supportive. It is not a good relationship. You get no support from the fathers of the elder three.
17Your personal circumstances are elaborated on in detail in the documents tendered on your behalf. These were:
(i)Outline of Submissions, exhibit 1
(ii)Report of Patrick Newton, psychologist, dated 31 January 2017, exhibit 2
(iii)Reference from Biong Biong from Edmund Rice Community Services dated 18 January 2017, exhibit 3
(iv)Letter from Kot Monoah from the South Sudanese Community Association dated 11 May 2017, exhibit 4; and
(v)Photograph I have already mentioned of the refugee camp, exhibit 5.
18These documents are self-explanatory and do not need to be quoted at length.
19The adversity you have overcome to date has been of such a dimension that it must go beyond the personal experience of the majority of people in this country. In my view, it is testament to your resilience and relevant to your capacity to rehabilitate.
20Mr Newton's report describes you being of normal intelligence and capable of understanding the wrongfulness of your actions. You have normal cognitive function. He describes the horrors you experienced in the past as leading to reactive anxiety and Post-Traumatic Stress Disorder. Fortunately, he stated that the PTSD is in remission. He described a heavy pathological gambling problem that you have used as something as a defence or avoidance mechanism to deflect your attention away from some of the personal traumas of the past. He described you have made considerable efforts to overcome a traumatic background family dysfunction and cultural dislocation to establish yourself in Australia. He considered that you would be assisted in terms of rehabilitation by personal counselling to assist in overcoming the impacts of past trauma as well as focusing on your gambling.
21The letter from Biong Biong describes some community-minded actions on your part in the Melbourne South Sudanese community. It is a positive character reference. Similarly, the letter from Kot Monoah describes your good character.
22I accept that apart from your current offending you are a person of good character. I assess your prospects of rehabilitation as good. You have overcome difficulty in your life as a refugee and mother in the face of some indescribable hardship. You have taken steps to address your gambling problem and you need to continue to do so if your rehabilitation is to remain on its current path.
23Your plea hearing occupied a full day and went into a second day. Your counsel pointed to a number of mitigating factors you are entitled to have taken into account. They were contained in helpful written form and oral submissions.
Put very briefly, the terrible background circumstances in your early life were relied on. Your early guilty plea indicates remorse. In your case, the utilitarian benefits of saving the time and expense of a trial, as well as saving witnesses the ordeal of giving evidence, are particularly relevant. There is a list of prospective 247 prosecution witnesses. While they would not all be called, your plea has led to considerable saving of time and expense.24Except for this offending I accept you are a person of good character. I accept you are involved in community work. I also accept that your attempts to deal with your past traumas have unfortunately led you towards the refuge of the pokies and a gambling problem.
25A particularly adverse impact from imprisonment would be your separation from your five children. The anguish of that separation, particularly for you having had to survive with little parental help in your own childhood is likely to make your time in prison more burdensome than for others. In the end defence counsel submitted that imprisonment with immediate release pursuant to a recognisance release order was the appropriate disposition. The prosecution submitted that imprisonment, including a period of actual custody, was the only appropriate disposition. Again, as with the defence, lengthy and helpful written and oral submissions articulated the reasons behind this submission.
26I am required to impose a sentence of a severity appropriate in all the circumstance of the case pursuant to s16A(1). That has been stated as the “primary obligation” on the Court. Each of the matters required to be taken into account pursuant to s16A(2) were pointed out in the prosecution submissions.
27Specific and general deterrence must be a prominent consideration that looms large in your case, being in effect fraud on public revenue. Public revenue needs to be protected in the community’s interest, serving the purpose it does of social and general welfare. It has to be said, however, that I consider matters of specific deterrence need to be viewed in light of the commendable progress you have made since being charged. Regarding general deterrence, I consider you a less appropriate vehicle than that for others given all the circumstances in your case. Yours is a first offence. I am of the view that your case is one that calls for some mercy in the sentencing disposition.
28If your gambling and background trauma can be addressed by way of appropriate professional help then I am satisfied that it is in the community’s interests to advance the rehabilitation you have already demonstrated is within your capabilities. Your capacity to overcome difficulty in the past leads me to have some confidence about your rehabilitation. In the end, when I look at the purposes of sentencing, I find that the community would be best served by the rehabilitation journey you have embarked on being furthered. I will impose conditions designed to do so.
29After considering all the relevant factors, notably those in s16A of the Act, you are convicted and sentenced to twelve (12) months’ imprisonment. I propose suspending the whole of this sentence for a period of two (2) years or 24 months, which means I am releasing you forthwith on a Recognisance Release Order in the sum of $1000 to be of good behaviour for two years or 24 months.
30I am making conditions of that Recognisance Release Order that you be subject to the lawful directions of Mr Patrick Newton, clinical and forensic psychologist, or his nominee, and engage in trauma and gambling counselling and provide written reports to the Court, the Commonwealth Director of Public Prosecutions and your solicitors every six months during that period of two years.
31Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of immediate imprisonment of twelve months.
32I make the Reparation Order pursuant to s21B of the Crimes Act (Cth) in the sum of $82,813.70 which remains outstanding.
33Just ask the lady to stand up if you would not mind.
34I am required by s16F of the Act to explain this sentence to you. I will do so in as plain a language as I can. I am releasing you and if you are of good behaviour and also carry out the conditions concerning Mr Patrick Newton over the next two years that will be the end of the sentencing process as far as the Court is concerned.
35If you are not of good behaviour you will be brought back to Court and depending on what you have done in not following my Order, you may be required to pay up to $1000 and you may be sent to prison to serve the prison sentence. I need to ask you if you are prepared to enter into the Recognisance as it requires your agreement before I can make the order releasing you. Mr Norton, do you want to get some instructions about that or to make sure she understands the matters I have tried to explain in as plain a language as I could?
36MR NORTON: Yes, Your Honour.
37MS HOLMES: Your Honour, while that’s being done, I may just indicate that my instructor has prepared the Recognisance Release Order as discussed with the condition as discussed earlier this morning. The wording is slightly different.
I’ll hand it up to Your Honour so that you can see whether you’re happy with the wording that’s on the written order or whether you’d like us to amend it.38HIS HONOUR: Have you shown it to Mr Norton? I just want you both to agree that the Orders I ultimately sign reflect the sentencing remarks that I have delivered. You can take a seat for the moment. Madam, you can take a seat.
39MS HOLMES: It is just that paragraph E of the order is where the condition regarding Patrick Newton is outlined and it is in slightly different terms to what Your Honour’s just pronounced. We do have a blank copy here that we can write the exact wording of what Your Honour’s pronounced if you prefer.
40HIS HONOUR: Well I just thought “written proof” of what, that she had gone to an appointment ‑ ‑ ‑
41MS HOLMES: Yes.
42HIS HONOUR: No, I thought “written reports” was a better word to use.
43MS HOLMES: Certainly, Your Honour.
44HIS HONOUR: Written proof that someone’s kept a diary is not going to help me much. I just thought “reports” was a more pertinent expression to use.
45MS HOLMES: We’ve got a blank one so we’ll write out the exact wording that Your Honour’s given as part of your sentence and I’ll just have my instructor do that now.
46HIS HONOUR: Yes, well look, I do not want to be pedantic about it.
47MS HOLMES: No.
48HIS HONOUR: I just think “written proof” ‑ ‑ ‑
49MS HOLMES: Certainly, Your Honour. While my ‑ ‑ ‑
50HIS HONOUR: It may tell me a bit but a written report will tell me a lot more.
51MS HOLMES: Yes. While my instructor’s doing that I’ll also just raise that despite what I said earlier in relation to a written reparation order not being required, the prosecution’s position is that given the circumstances of this case, and that’s an unusual department that’s involved, it’s not a Centrelink matter, it is a Department of Education and Training matter, that a written order would be preferred.
52HIS HONOUR: Very well.
53MS HOLMES: We’ve prepared one and I’ve handed that to your Associate already and Mr Norton has seen that and has no issue with it.
54Mr NORTON: That’s so.
55HIS HONOUR: Yes, I am happy to sign that if it complies with the requirements set out.
56MS HOLMES: Yes thank you, Your Honour.
57Mr NORTON: Can I just raise something else, Your Honour, that’s unrelated to any of the mechanics and I just say it to provide Your Honour with some comfort. Over the break I spoke with Patrick Newton and I raised expressly with him the concerns in relation to expense. He’s indicated that what he intends to do is have the initial consultation to determine with precision exactly the type of counselling that he thinks is appropriate. He will arrange services through, for example Survivors of Trauma and the appropriate gambling agencies which he’ll oversee and then he will see Ms Dhal regularly throughout that period of counselling. Those services will be provided without expense to her. The fees will be kept manageable in that way.
58HIS HONOUR: Yes, thank you for that.
59MS HOLMES: So, Your Honour, I’ll just confirm this wording that’s been written.
60HIS HONOUR: Yes.
61MS HOLMES: “To be subject to the lawful direction of Patrick Newton, clinical and forensic psychologist, and to engage in –” or it should be “and/or his nominee”? “Or his nominee and to engage in trauma counselling and gambling counselling and provide written reports –?” Is that ‑ ‑ ‑
62HIS HONOUR: Yes, that is fine.
63MS HOLMES: “And provide written reports.”
64HIS HONOUR: Yes. Now you need that form of order signed by me and I also have to enter orders into the Court system. So I would like you to check those two that they reflect ‑ ‑ ‑
65MS HOLMES: Yes certainly, Your Honour.
66HIS HONOUR: ‑ ‑ ‑ the sentencing and do not come back to bite us with some technical hitch.
67MS HOLMES: Yes, sure.
68HIS HONOUR: Yes, all right. I will show you these draft Court Orders. They are called bi-annual, six months apparently. So that is the modern world we live in.
69MS HOLMES: Yes.
70HIS HONOUR: I think we understand what bi-annual means.
71MS HOLMES: Yes, thank you, Your Honour, I’ll hand those back and I’ll also hand up the Recognisance Release Order that’s been prepared. I’ll just indicate that on the back of that Recognisance Release Order. There’s a section for it to be signed in the presence of Your Honour’s Associate by the offender.
72HIS HONOUR: All right, well, I will get my Associate - will you perhaps go down there, Mr Norton ‑ ‑ ‑
73Mr NORTON: Yes, Your Honour.
74HIS HONOUR: ‑ ‑ ‑ so the lady understands what is happening. So is that after I have signed it?
75MS HOLMES: Yes, Your Honour.
76HIS HONOUR: Anything else?
77MS HOLMES: No, Your Honour.
78HIS HONOUR: You are free to go, Madam.
79I would like you to thank Mr Gullaci on my behalf for his assistance and counsel generally for a very fair and commendable way the prosecution conducted the case. Thank you for your assistance, Mr Norton.
- - -
2
0
0