Director of Public Prosecutions (Cth) v Hill

[2016] VCC 1380

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01061

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY HILL

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	15 September 2016
CASE MAY BE CITED AS:	DPP (Cth) v Hill
MEDIUM NEUTRAL CITATION:	[2016] VCC 1380

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – defraud the Commonwealth – dishonestly obtain a financial advantage by deception

Legislation Cited:     Crimes Act 1914 (Cth), Criminal Code Act 1995 (Cth), Sentencing Act 1991 (Vic)

Cases Cited: R v Tsiaras [1996] 1 VR 398, R v Verdins & Ors (2007) 16 VR 269, R v Smith (1987) 44 SASR 587, Cameron v The Queen (2002) 209 CLR 339, R vMilne [2001] VSCA 93

Sentence:Convicted and sentenced to 3 years and 8 months imprisonment with a non-parole period of 20 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Buckley	Solicitor for the Office of Public Prosecutions
For the Accused	Ms C. Woodward (Plea) Mr D. Grove (Sentence)	Victoria Legal Aid

HIS HONOUR:

1In this mater, Mr Hill, who is now 75, having been born on the 18th day of March 1938, pleaded guilty to a Commonwealth    Indictment on the 17th day of August 2016, which is numbered for this Court's purposes as
CR-15-01061. 

2The Indictment is composed of two charges under the then relevant s.29D of the Crimes Act 1914 (Cth). Those charges being defrauding the Commonwealth, for which the maximum penalty prescribed at that time was ten years and/or 1,000 penalty units. The further charge, Charge 3, arises because of the timeframe involved, the appropriate charge then being under the new and substituted Criminal Code Act 1995 (Cth), being a charge of dishonestly obtain by deception Commonwealth monies, an offence under s.134(2)(1) of the new Criminal Code, again for which the maximum penalty prescribed is one of ten years.

3The Indictment, as I have said, embraces the changes of legislation made by the Commonwealth Parliament, and the relevant charges, and divides the totality of defrauding as set out in the revised summary.  That summary, dated 11 August 2016, was tendered as Exhibit A, and was accepted by Ms Woodward as the facts upon which I am to sentence Mr Hill.

4Mr Hill immigrated to Australia in 1951.  He was aged 13 at the time.  After being in the airforce, and then working at various jobs in Australia, he in fact retired, and shortly thereafter began this period of deception, in which he double-dipped from the Commonwealth.  From the age of 54 to 72, from 1994 through to 2013, over such period of 18 years, Mr Hill defrauded the people of Australia by receiving not only his own pension entitlement, but additional pension payments in the sum of $236,352 by way of various allowances, to which he was not entitled.

5Mr Hill did this by the fraudulent use of the name Barry Hilton.  That was a name which apparently at one stage he had used, although it was, I am told, never subject to a registered name change.  However, at various times, as shown in the Exhibit A, “Hilton” was a name in which he produced a Victorian licence, a Medicare card, an ATO assessment, and electoral enrolment card, a Westpac handy card, and indeed, a bank account with the National.

6All of such documents were used as part of this ongoing scheme of criminality committed against the Commonwealth.  All such documents of course, used to satisfy the requirements of the Department that the pension being paid out to the said Mr Hilton was appropriate, when it clearly was not.

7In the record of interview, Mr Hill said he was well aware of what he was doing, and knew it was wrong, that he allegedly spent all of the money on research for environmental projects, and did not spend any money upon himself. To date, he has repaid the sum of $8,644. He has entered into an arrangement that by way of his current aged pension, every fortnight is deducted a sum of $137.40. He has no other capacity to repay this sum, and hence the full repayment will probably never occur. However, to the extent that he has consented to a reparation order, and I have signed such, which needs to be taken into account pursuant to the provisions of s.16A(2)(f) of the Crimes Act 1914 (Cth). 

8Mr Hill made a record of interview on the 18th day of September, 2013.  Despite that, the plea in this matter, or the entering of the plea of guilty, did not occur until March of 2015, and as indicated, the final plea did not take place before this Court until this year.  There is no presentence detention served, there is no victim impact statement served.  As I say, I have signed the reparation order.  The submission made by the prosecutor was, given the serious nature of these crimes, there should be only one appropriate sentence, that being an immediate term of imprisonment.

9Ms Woodward tendered her written submissions, Exhibit 1, and spoke to it.  The gravity of these crimes was accepted by Ms Woodward, and I quote from her words under that heading:

"The objective gravity of the offending is properly characterised as very serious.  It involved a sustained course of conduct over a significant period of time.  The welfare system is dependent on honesty.  Offences of this nature are easy to commit and difficult to detect.  The Court is compelled to send a clear message to the community in sentencing the accused."

10All of those matters set out by Ms Woodward under the issue of gravity of offending are fully accepted by this Court, on the basis that they are applicable. 

11The reason for why he carried out this deception upon the people of Australia, was what can only be described as a potential “Robin Hood” effect.  He had suggested, and there is no evidence to any other effect, that he made no personal gain, but for the fact that it enabled him to participate in a long-standing research program, which as I best understand the material tendered to me, was a desire to assist the environment by way of the development of technology, which converts hydrogen to energy.

12Unfortunately the research, and work that he put in, was to no avail, certainly to date.  I do not say that critically.  All inventions no doubt take a lot of time.  But the fact was, over all this period in which this money was allegedly allowing him to indulge in such research, as he said, there was no patent ended into, no corporation took up the project, and unfortunately the idea never came to fruition.

13Tendered on his behalf was a letter to the Court, which talks to this issue as to why he committed the crimes, which was not a matter dwelled on, if I might say, by Ms Woodward.  In the letter to the Court, which I appreciate, from Mr Hilton, dated 9 August, he said:

"I am well aware by keeping this money I was committing a crime, and sooner or later I would be held to account for my actions.  I had hoped that suitable funding would eventually be forthcoming and I could repay the Commonwealth and hopefully avoid prosecution.  Unfortunately, no legitimate commercial offers have been made, and the marketing of my technologies did not eventuate.  Sadly I was unable to repay the accumulating debt.  In the Australian vernacular, I was up the creek without a paddle."

14It seems to me that there is some lack of perception in his own understanding of his criminality, as he states:

"Apart from this one incident, I am a law-abiding citizen who seeks only to do good works."

15Unfortunately, it is not appropriate to seek to do good works by such being paid for illegally by the people of Australia.  While there may be, no proof of a gain, in the sense of extravagant living, clearly by double-dipping, Mr Hill was giving himself the ability to conduct such research, and to hopefully develop something which would be financially profitable.  Unfortunately, it was not.  He placed himself essentially, it seems to me, in no different a position to a gambler who takes money from his employer, hoping one day to be able to repay it.  Clearly he has stolen for his own purposes and to his own benefit, and must be sentenced on that basis.

16As put by his counsel, he has no prior offences.  However, in saying that, one must take into account that this behaviour was not a single aberration.  This criminality took place, against the people of Australia, over a sustained period of 18 years.  Hence he has no priors, but this criminality was committed over a period of 18 years. 

17Mr Hill retired 21 years ago, and shortly after, this deception, or double pension dipping, started and continued all throughout that following 18-year period.

18The plea focus was set out on three matters, the early plea and its utilitarian benefit, the low risk of reoffending, and the issue of delay. 

19Insofar as his personal background, employment and relationship matters, those matters are set out on p.2 and I will not go into them.  He led a normal, I suppose is the word, background by way of employment, having been with the Royal Australian Air Force, in which he served for ten years before going to general reserve, and thereafter had some forms of employment until he continued to focus on the research of the projects that I have detailed. 

20His personal relationships are set out, and are not really of all that much relevance to this case. 

21Insofar as the two and a half year delay from the date of the record of interview to the plea, there is no excuse proffered, and he is entitled to an appropriate discount on the basis of delay alone, as the law stands. 

22As the learned prosecutor said, this comes about from people having a situation hanging over their head after they have declared their guilt, but also as pointed out, and demonstrated in Mr Hill's statement, this is something that was hanging over his head, according to Mr Hill, all through, because he knew eventually he would be caught.

23However, it would appear that upon being detected, the issue of shame and the predicament he then found himself in, with the imminent happening of legal proceedings, let to a breakdown in his psychological health leading to the alleged attempted suicide, for which he was treated in March of this year.

24The position in regard to his actual health is somewhat difficult to clarify, and I point out that at no stage was it put to the Court that such creates a situation of exceptional circumstances.  The detailing of his precise health starts with the report of the thoracic surgeon Dr Manolitsas, his report is dated 27 July 2015. Unfortunately the Court does not have up to date reports in this regard as to the physical condition of Mr Hill, and that is why I had to seek advice and confirmation from Mr Grove this morning. 

25It would appear that from Mr Manolitsas' report, which is part of Exhibit 2, which is Dr Lyle's report and the material attached to it, there is a 20-year history of worsening shortness of breath upon exertion.  Mr Hill was tested apparently in 1988 by way of x-rays, which were consistent with chronic obstructive lung disease. Subsequently he had a CT scan of the chest, conducted on the 23rd day of July 2015 at the Frankston hospital, which showed the presence of such disease.  The results were consistent with a diagnosis of emphysema, although there was only moderate emphysematous changes noticeable.  However, the thoracic physician diagnosed severe chronic obstructive airways disease with limited exercise tolerance and poor long-term prognosis.

26However, it was the surgeon’s opinion that his current inhaled medication was appropriate and was reasonable in regard to the treatment thereof. 

27That then leads to Exhibit 2, which is the report of Dr Lyle, who identified three major problems, an enlarged prostate, diabetes, and chronic obstructive disease.  Insofar as the summary was concerned, while describing him as a “respiratory cripple,” the issue as to severe complications as according to the doctor in his report (p.2), is an issue which may arise should he be subject to infection.  He was classified as a high-risk patient, with significant and severe medical issues.

28As I say, that seemed to be the summary as best I can make it, because thereafter insofar as his further examination by the psychiatrist Owens, in the first report (Exhibit 4A), as I said to Mr Grove this morning, at p.3 of that report his history was that "He told him he had been diagnosed with chronic obstructive disease, chronic bronchitis and emphysema about 20 years ago, but that recent lung scans indicated he did not have this condition.".  And Mr Hill confirmed that advice again in the subsequent report of Mr Owens made in September of 2015.

29Hence, as I say, I do not have update reports.  My analysis was, as I took from that, and which was confirmed by Mr Grove this morning upon instructions, that clearly he has the disease, and it is able to be treated with appropriate medication which has been approved by the thoracic physician.  However, he is an ongoing risk, especially if he suffered infection.  Such is the summary in regard to his physical condition.

30As to his psychological state, we have the neuropsychologist's report, that is Lofthouse.  I do not, with respect, understand why that report was obtained, but what is clear from it is that we are dealing with a person who is described as having an average IQ of 108.  I suppose I should only make the point, it is not the average of the people we normally see here, but at any rate it is certainly in the band over 100.

31Mr Hill was first seen by Dr Owens - the first report of Dr Owens - I should say, that report of the neuropsychologist is Exhibit 3.  Exhibit 4A of Dr Owens was the first report, and it is to be noted that as of June 2015, Mr Hill had never seen a psychiatrist, or psychologist, or counsellor throughout his whole life.  Again, as I said, he described the emphysema condition, but again confirmed the matters that I spoke about.

32Mr Hill demonstrated some issues as to memory, and that was apparently why the neuropsychologist report was called for, and subsequently Dr Owens provided a further report, which is Exhibit 4B, dated 1 September 2015.  It describes, again, the medical history as I have described, and insofar as the psychological testing, it noted the issues as to the current legal situation that Mr Hill found himself.  Dr Owens concluded, on p.6, that there was no evidence of any current psychiatric illness such as a depressive disorder, anxiety disorder, or a psychotic disorder.  There was no evidence of any dementia or any cognitive impairment related to acquired brain injury.  Mr Hill was considered not to be suffering from any delusions, and Dr Owens did not consider Mr Hill to be suffering from any obsessions, given, despite his concentration on his environment matters, the specialist’s view that such interests were not intrusive or unwanted, and do not cause him any distress.

33Further, in regard to any issues as to his current situation and the risk of suicide, Dr Owens said this:

"I think his personality style [this is on p.7] is such that he would find it more difficult than most to cope with the blow to his fragile self-esteem that a gaol sentence would impose.  I would strongly advise that prison-based mental health services be advised in advance of his reception to prison, and this eventuality, so they may ensure his mental state is observed and he is provided with appropriate care.  It is my understanding that Mr Hilton would be able to access appropriate medical treatment services in the event of custodial disposition, and would be able to continue his treatment for hypothyroidism, obstructive airways disease, B12 deficiency and diabetes, and would be able to access further investigation of possible neuropathy in regard to his feet."

34It seems to me that does no more than state the position that does apply in our State, that when a person is sentenced, even with the issues that I have spoken of, one relies upon the appropriate service in this State, that is, the Department of Corrections, to look after persons so imprisoned.

35The latest letter filed refers to the response to his reaction that I have already spoken about as to the potential of imprisonment and his non-acceptance of such, I suppose is the way to put it.  He was, as I have said, admitted to the psycho-geriatric ward at Frankston hospital on 1 March following an overdose of nitrazepam in the context of a pending Court case for Centrelink fraud.  He was discharged with a diagnosis of adjustment disorder.

36The penultimate paragraph is a matter of some interest, it seems to me, it says this:

"At the time of review, it was my impression that there was no evidence of any major depressive disorder, bipolar effective disorder, or psychosis."

37It seems to me, therefore, the opinion of Mr Owens is confirmed.  Mr Hilton did, however - by Mr Hilton we mean Mr Hill.  Mr Hill did however present as an ongoing suicide risk in the context of potential losses and a vulnerable personality style, with evidence of narcissistic personality traits, including a sense of entitlement.  He denied imminent suicide plans, but stated that he would reconsider this if sentenced to a term of imprisonment, or a term in prison.  Mr Hilton stated that although he was not concerned about spending time in prison, he could not bear giving up his flat to re-establish himself, which he would have to do if he was incarcerated for more than six months.  He continued to be monitored, as I understand it, by the out service from that hospital and Dr Jennifer Hodgson, consultant psychiatrist at Peninsula Health opinion was that imprisonment may heighten Mr Hilton's risk of suicide if incarcerated, monitoring for symptoms of depression and risk of suicide would be advised, and she suggested a forensic psychiatric opinion regarding his ongoing risks. 

38There is also a further report, Exhibit 5, which is the report of a further psychologist, Matthews, which confirms the said risk.  The result of the reports, as I have summarised is that, albeit that he has a series of physical conditions, none of them could be called imminently grave at the moment.  The worst risk relates to his emphysema, which apparently is currently well-treated, but there is of course a risk of infection.  It is a long-term situation, and needs to be managed.  As to his psychological state, clearly he has reacted dramatically - I do not say that in any critical way - to being detected and facing imminent imprisonment.

39I find therefore that on the principles set out in R v Tsiaras [1996] 1 VR 398, and as confirmed in R v Verdins & Ors (2007) 16 VR 269, that principles five and six are applicable to this sentencing of Mr Hill. The totality of his conditions, both physical and mental, are such that he would find, at his current age, the experience of gaol more arduous than other members of the community, and this might be especially so if he gets an infection.

40However, as I have said, and has been said by Mr Owens, the responsible correction authorities are charged to look after all appropriate risks, and of course, appropriate advice will be sent to the authorities in this regard. 

41The difficulties of course, when you are faced with a sentence in this regard, where you have a person of this age in such condition, have been considered by Courts on a number of occasions, and the seminal statement as to consideration as to an offender's ill health upon the duration of a prison term was made by King CJ in R v Smith (1987) 44 SASR 587, which has been referred with approval, not only in this State by our Court of Appeal, but in the High Court.

42In the judgment of the Chief Justice, to which Cox and O'Loughlin JJ concurred, the Chief Justice said:

"The state of health of an offender is also always relevant to the consideration of the appropriate sentence for the offender.  The Courts however must be cautious as to the influence which they allow this factor to have upon the sentencing process.  Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.  It is the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners.  Generally speaking, ill health will be a factor tending to mitigate punishment, only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

43I find, given the finding that I have made, that clearly Mr Hill’s health has to be taken into account. 

44The plea not only referred to health issues, but stressed the plea of guilty made by Mr Hill in this matter and its utilitarian benefit, which I accept.  These investigations are complicated, probably not so complicated in this case, but they do take a lot of investigation, and I accept that utilitarian benefit must be taken into account.  I accept that there is an appropriate discount to be given for the delay.  I do not see in the circumstances, given his age and health, that there is any real risk of any further offending, and I accept totally the proposition as to sentencing that punishment and denunciation are the major relevant factors in this case, in particular because of the sustained and deliberate fraud over time, that the need for a sentence effecting deterrence, which must be paramount, and the reference by Ms Woodward to Cameron v The Queen (2002) 209 CLR 339, which I accept. I also accept that any sentence imposed on Mr Hill must be one which is just and appropriate. As I have said, I also take into account the reparation order that I have made.

45The prosecution gave to the Court a number of cases relevant to sentencing, and a summary of those cases, which has been now tendered as Exhibit C.  In particular, I was referred to R vMilne [2001] VSCA 93, a decision of the Court of Appeal, as it then was, where there was an analysis of the remarks that I have referred to, and an analysis of the statement of King J made in Cameron.  The President, or Acting Chief Justice at the time, in Milne said at p.16:

"As I have said, I agree with these remarks.  An actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate cheating of the social welfare system, because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose for imposing sentence in such cases, namely general deterrence.  But that is not to say that there will not be the exceptional case where such factors exist."

46And indeed, albeit that there was no submission on behalf of Mr Hill as to the existence of exceptional circumstances, I was referred to DPP (Cth) vParfrey [2010] VSCA 212, however in that particular case there were exceptional circumstances brought about by intellectual deficiency of the person to be sentenced, and a finding of the Court in that case that Verdins principles reduced culpability, which they do not in this case.

47As I say, I have analysed Mr Hill’s medical condition.  I have got no doubt that he will be impacted by imprisonment, and that principles five and six of Verdins apply, and I do take such into account. 

48I also in sentencing have taken into account the matters set out in the summary provided by the learned prosecutor. 

49Yes, I would ask you please to stand up, Mr Hill.

50Despite what the learned prosecutor said to me during the hearing, it was clarified, and I understand, Mr Grove, there is no issue with this, that this Court is capable, pursuant to s.9 of the Sentencing Act 1991 (Vic) of passing an aggregate sentence.

51For the totality of these crimes, taking into account all of the matters I have referred to, and discounting the sentence on the bases that I have identified, I have determined, Mr Hill, to sentence you to a period of imprisonment by way of an aggregate sentence passed under s.9 of the Sentencing Act 1991 (Vic), that is, Victoria.

52The aggregate sentence for these three offences committed over a period of 18 years in this sum will be three years and eight months imprisonment.  I will impose, pursuant to the provisions of the Crimes Act 1914 (Cth), a single non-parole period of 20 months. In plain terms, that means that you will have to serve a period of 20 months before being eligible for parole. That period is probably lower than would be normally set, it is as merciful as I can be in the circumstances. It is a very difficult balance, as your criminality is of high end, sustained, and an abuse of the Australian people.

53As I have indicated, denunciation and punishment must be effected, however, that has to be balanced against the factors that have been put to me by Ms Woodward and Mr Grove.

54Can I indicate to you, on the presumption that the provisions of s.6AAA of the Sentencing Act 1991 (Vic) apply to a Commonwealth sentence, that had you not pleaded guilty to these matters, I would have sentenced you to a period of imprisonment of four years and ten months with a minimum of three years and three months.

55So the effective bottom line for you by pleading guilty, Mr Hill, is that you must serve a minimum period of 20 months before being eligible for parole.  Had you not pleaded guilty, you would have had to serve a period of three years and three months.

56Is there anything else I need to do?

57MR BUCKLEY:  No Your Honour, if I could just have a moment?

58HIS HONOUR:  Yes.

59MR BUCKLEY:  No, nothing further, Your Honour.

60HIS HONOUR:  Yes, Mr Grove?

61MR GROVE:  No, Your Honour.

62HIS HONOUR:  Yes, you can remove the prisoner.

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