Director of Public Prosecutions (Cth) v Hughes

[2022] VCC 2084

IN THE COUNTY COURT OF VICTORIA

AT Latrobe Valley

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-22-01139

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

ALICE HUGHES

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JUDGE:	Leighfield
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 November 2022
DATE OF SENTENCE:	24 November 2022
CASE MAY BE CITED AS:	DPP (Cth) v Hughes
MEDIUM NEUTRAL CITATION:	[2022] VCC 2084

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Dishonestly obtain financial advantage by deception from a Commonwealth entity – self-disclosure of offending – partial reparation – plea of guilty – participation in Koori Court sentencing conversation – disadvantaged upbringing – mental health issues

Legislation Cited:      Criminal Code (Cth) s134.2(1) – Crimes Act 1914 (Cth) s16A(2), s17A, s21B(1)

Cases Cited:Bugmy v R [2013] HCA 37

Sentence:                  Convicted and sentenced to a Community Correction Order of 15 months, with 50 hours unpaid community work and a programs condition – reparation order made

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Szara Isaacs	Commonwealth Director of Public Prosecutions
For the Accused	Tessa Theocharous	Kurnai Legal

HER HONOUR:

Introduction

1Alice Hughes, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity which carries a maximum penalty of 10 years’ imprisonment or a fine of up to $66,000.00. The offence occurred in the period between 22 August 2011 and 19 March 2020 when you were aged between 46 and 55 years of age. You are now 57 years of age.

Circumstances of the Offending

2The full circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 24 October 2022. However, in shorter compass, on 4 April 2011 you commenced working in paid casual employment with an employer now known as Opal Health Care. On 13 March 2012 your employment with Opal Health Care changed from casual to permanent part-time, this change taking effect from 19 March 2012. You were paid on a fortnightly basis and payslips were made available to you following each pay-run.

3When you commenced working for Opal Health Care you were in receipt of a Carer’s Payment from Services Australia (‘the Agency’). You had been receiving this payment since February 2009. On 11 August 2011 you cancelled that payment and were transferred by the Agency to a Newstart Allowance. Upon being granted that Allowance you advised Services Australia (‘the Agency’) that you were unemployed or not employed full time, and that you understood that you would have to notify the Agency within 14 days if your income changed or you obtained work. Moreover, you confirmed that you understood that you must declare to the Agency the gross amount of any casual earnings, and that giving false or misleading information in a claim is a serious offence. You then received regular fortnightly payments of Newstart Allowance between 22 August 2011 and 19 March 2020.

4Following the commencement of your receipt of Newstart Allowance benefits, you were required to report your income on a fortnightly basis. Between 22 August 2011 and 19 March 2020 you reported your income on 225 occasions, as required, using various methods including lodging SU19 Application for Payment forms, interactive voice response and by telephone. During that same period, you also received a number of reporting advice and obligation letters from the Agency reminding you to accurately report your income to avoid receiving incorrect Newstart Allowance payments.

5An analysis of the information provided by you on those 225 occasions revealed the following:

(a)   on eighteen occasions between 1 September 2011 and 6 June 2012 you lodged SU19 Application for Payment forms in which you falsely reported that you had not done any work in the relevant fortnight;

(b)   on eleven occasions between 22 August 2011 and 26 February 2014 you lodged SU19 Application for Payment forms in which you under-declared your income from employment;

(c)   on eighty-five occasions between 29 August 2012 and 18 March 2020 you falsely reported via the interactive voice response telephone system that you had not done any work in the relevant fortnight;

(d)   on seventy-nine occasions between 29 August 2012 and 18 March 2020 you under-declared your income using the interactive voice response telephone system;

(e)   on ten occasions between 21 December 2011 and 19 February 2020 you falsely reported via telephone that you had not done any work in the relevant fortnight; and

(f)    on twenty occasions between 21 December 2011 and 19 February 2020 you under-declared your income via telephone.

6As a result of the false information which you had provided to the Agency you obtained Newstart Allowance benefits from the Agency to which you were not entitled.

7Additionally, between 14 June 2016 and 17 June 2019 you applied for and received three Advance Payments from the Agency of the maximum amount of $500. A further three applications for Advance Payments were refused. As a result of the income that you were earning from employment you were not entitled to those payments. I note, however, that those payments have already been recovered and do not form part of the over-payment constituting the charge.

8Between 22 August 2011 and 19 March 2020 you earned $355,164.08 gross income from your employment, but only reported $20,208.96 of those earnings to the Agency. As a result, during the period of the offending you received $101,941.79 in social security benefits, of which you were entitled to receive only $439.46. Therefore, the total amount of Newstart Allowance benefits which you obtained fraudulently was $101,502.33.

9On 15 May 2020, of your own accord, you attended at the Bairnsdale Centrelink Service Centre and requested that your benefits be cancelled as you had been under-declaring your income from employment. This then prompted an investigation into your conduct. During that investigation you were offered an opportunity to participate in a record of interview, however you declined that offer – which, of course, you were entitled to do.

Gravity of Offending

10It is clear from the material before me that you acknowledge and accept that your offending was serious. This is an appropriate concession for you to make. Your offending was not isolated, it took place over a period of approximately eight and a half years, and involved two hundred and fifty five occasions on which you either falsely under-declared your income, or falsely reported your income to be nil. You continued to fail to declare your income or falsely under-declare your income even after contact from the Agency in 2012, 2013 and 2019 where you were reminded about your obligations to accurately report your income to ensure that you were receiving the correct payment. Further, the amount which you obtained as a result of this conduct – $101,502.33 – was a substantial amount of money. I do however accept that your offending was unsophisticated, and did not involve you using assumed identities or claiming multiple benefits.

11As submitted by Ms Isaacs, the dominant sentencing purpose in cases of social security fraud is general deterrence – that is deterring others in the community from committing the same kind of offence as you committed. The social security system relies on those receiving benefits being honest in their interactions with the Agency. As a result, social security fraud is relatively easy to commit and can be difficult to detect. This is amply demonstrated by the circumstances of your offending which was able to continue for eight and a half years without detection – and indeed was ultimately only detected due to your self-reporting. It is important to understand that when a person does commit fraud against the social security system, the burden of that fraud falls upon taxpayers and the community as a whole. As a result, sentences which are imposed in this kind of case must reflect the community’s concern to protect the revenue and the integrity of the social security system.

12I do note, however, that in your case the gravity of your offending, and the need to give substantial weight to general deterrence, are only two of a number of factors which must be balanced in the sentencing synthesis.

Plea of Guilty, Co-Operation with Authorities and Contrition

13Your plea of guilty in this case is a valuable plea.

14As I have already outlined, your offending occurred between 2011 and March 2020. You were the one who alerted the authorities to your own criminal conduct on 15 May 2020 and it was conceded by prosecuting counsel on the plea that your notification alerted the Agency to your conduct – conduct which may have gone unnoticed in the absence of you taking action.

15On 21 January 2021 you commenced making regular repayments to Service Australia by way of withholdings. To date you have repaid an amount of $2043.25, with a balance of $99,459.08 outstanding.

16You were ultimately charged on 28 February 2022 (which was more than a year after you started making repayments), and entered a plea of guilty to the current charge at the first committal mention of this matter on 29 June 2022. The matter was then adjourned to 21 November 2022 for a plea in the County Koori Court sitting at Latrobe Valley. 

17As part of your plea hearing in the Koori Court Division of this Court you participated in a sentencing conversation with two Elders – Aunty Maureen Hood and Aunty Margaret Atkinson. It was obvious from the way in which you participated in the conversation that you are truly sorry for what you have done and that your offending has weighed heavily upon you, both throughout the offending period and also in its aftermath. You did not seek to excuse your behaviour by blaming it on your mental health or your gambling addiction, despite such matters being discussed during the conversation. Rather, your response to such suggestions was to simply and strongly say ‘I did it’ and to acknowledge you had done the wrong thing.

18During the conversation you disclosed that you had attempted to engage in treatment for your mental health but had had some difficulty in making progress. Rather than giving up on each occasion, you instead took a break and then tried again. You have not been able to work in the aftermath of your offending given your current mental health issues (which I will return to in due course), but you discussed with the elders your current community involvement which involves supporting elders by speaking and lunching with them each week. You also noted that you would like to return to employment at some point in the future if your mental health allows you to.

19I acknowledge that participating in a sentencing conversation and fronting up to your offending behaviour in the presence of Aunty Margaret and Aunty Maureen – both of whom have known you for many years – was not easy for you. Indeed it was very challenging, and your real participation in the process is a factor which mitigates punishment.

20Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the Court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. Further s16A(2)(f) and s16A(2)(h) respectively require me to take into account your degree of contrition for your offending, and your level of co-operation with law enforcement agencies investigating this offence.

21I consider your plea to have been entered at the very earliest opportunity. It has significant utilitarian value, which gains even greater weight in the current climate of the pandemic which has caused unprecedented disruptions to the smooth running of the criminal justice system. Furthermore, I am satisfied that your plea is indicative of genuine remorse for your conduct, especially when considered in light of your unsolicited reporting of your own conduct, the conversations you have had with those around you outside court as reflected in the psychological report tendered on your plea, your participation in the sentencing conversation in this Court, and your commitment to making reparation since early 2021.

22In the circumstances, I have taken your self-disclosure and contrition into account in your favour and also given you a substantial discount for your plea of guilty.

Personal Circumstances

23You are a Mutti Mutti and Arunta woman who was born in Robinvale in 1965. You were the fifth of eleven children and had a childhood marred by disadvantage and dysfunction. You, yourself, describe your upbringing as horrible.

24Your parents separated when you were approximately nine years of age. Your father – whom you loved deeply – returned to Alice Springs, taking your youngest sister with him, and you remained in Victoria with your mother.

25Your mother had an alcohol problem and was often absent from the home, which meant that you played an important role in raising your younger siblings despite only being a child yourself. Further, you were sexually abused by a cousin when you were nine years of age. This was a traumatic experience for you not only at the time of the incident but also in the aftermath as you had no support and saw this cousin frequently. You did not feel safe in your own home and often slept with a knife in your bed so that you would be able protect yourself and your sisters.

26You attended Moe Primary School and recalled this as being a positive experience. However, you had a difficult time at High School as you were frequently subjected to racial abuse. As a result, you stopped attending school when you were in Year 9.

27You then left your family home and travelled to the Lake Tyers Aboriginal Trust to live with an aunt. You described to Megan Rodgers – a psychologist who prepared a report for the purposes of your plea – that by this time you had had enough of everything at home including your mother’s alcoholism, your home always being full of people drinking, not being able to get into the kitchen to get food and going hungry, as well as feeling generally unsafe. One of your brothers, with whom you had a close relationship, also left the family home and followed you to Lake Tyers.

28You met your partner Ron Mullett whilst you were living with your aunt and the two of you have now been together for 40 years. You have four children together – who are aged between 22 and 38 years. You also have twelve grandchildren. You were not formally employed whilst raising your children but did undertake a cooking course, after which you made lunches for elderly people and took them on outings.

29You later completed qualifications in aged care and were rightly proud of yourself for gaining employment as a Personal Care Assistant in an aged care facility. It was whilst you were undertaking this work that the current offending occurred.

30You worked approximately eight shifts per fortnight, and it was apparent from the sentencing conversation that you were much loved and appreciated by those you worked with and those you cared for. I am told that even now, you are being approached by former workmates who ask you when you are going to return to work. It was also apparent from the matters discussed in the sentencing conversation that whilst you loved your work, you also found it challenging due to the attachments which you would form with clients who would then pass away. 

31It was in this context that you developed a gambling addiction. You would go early to work and stop and play the poker machines at the Bowling Club on the way. The money which you obtained from the Agency went, in large part, towards servicing this gambling problem. Whilst this does not provide any excuse for your offending, it certainly explains how someone who had contributed so much to the community ended up offending in the manner you did. The shame and distress which you felt in respect of both your gambling issue and your offending conduct increased over time until the point where – with the encouragement of your partner Ron – you walked into the Centrelink office and reported your conduct. Whilst you are to this day ashamed of, and remorseful for, your conduct, it is apparent that making the disclosure about your offending lifted a significant burden from you.

Impact of Mental Health and Disadvantaged Upbringing on Sentencing

32As I noted earlier, you underwent a psychological assessment with Ms Megan Rodgers for the purposes of this plea, and a psychological report authored by Ms Rodgers and dated 18 September 2022 was tendered on your behalf. Ms Rodgers confirmed that you suffer from post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder – the symptoms of which became more acute following your arrest, but all of which appear to date back to childhood.

33In her report Ms Rodgers identified the strong links between childhood sexual abuse and negative consequences including those related to mental, social, sexual, behavioural and physical health; and noted that where this trauma is experienced in childhood, biological, social and psychological development is often interrupted. She explained that survivors may experience mental health problems including depression and social anxiety. Additionally, Ms Rodgers noted the additional traumas which can arise as a result of being subjected to racism and substance abuse in the home as a child.

34In Ms Rodgers’ opinion, the combination of these factors in your case resulted in you ceasing your formal education at an early age and developing issues with your mental health which commenced in childhood, were present during the offending period, and continue to this day. Ms Rodgers noted that you have attempted to undertake treatment for these conditions, including counselling and prescription medication, however to date this has not been effective. Despite this, Ms Rodgers’ was of the view that you have insight into the negative impact of your conditions on your functioning and noted that you are willing to commit to treatment. Further, in Ms Rodgers’ view you are unlikely to re-offend in the future either in this way, or other ways, given the intense shame you feel in respect of your offending.

35It was submitted by Ms Theocharous on your behalf that your traumatic and deprived upbringing are matters which must be given weight in the sentencing exercise. In particular, it was submitted on your behalf, relying upon the principles in Bugmy v R [2013] HCA 37, that your moral culpability for your offending is reduced by reason of the impact of your deprived childhood, and that the weight to be given to general deterrence should be moderated, bearing in mind that the effects of profound childhood deprivation do not diminish with the passage of time.

36Ms Isaacs for the prosecution accepted that the factors identified in relation to your personal circumstances are mitigating and are relevant to the task of sentencing, but submitted that the weight to be given to such factors must be appropriate and must not lead to the imposition of a penalty which is disproportionate to the gravity of the offence. 

37I agree with the submissions of both counsel and have taken into account the impact of the hardship suffered by you during your childhood and adolescence when assessing your criminal responsibility for your offending. Whilst general deterrence still carries significant weight in the sentencing synthesis given the nature and gravity of the offence which you committed, I am of the view that your culpability must be assessed in the context of your personal history of trauma and deprivation, and that any sentence imposed should allow within it the opportunity for you to engage with rehabilitative supports to address the impact of those traumas. Accordingly, I am of the view that in the particular circumstances of your case, the weight to be given to the sentencing purpose of general deterrence should be moderated to a degree, and the weight to be given to rehabilitation should be enhanced to properly reflect the substantial impact of your background upon you.

38Further I note that I share the opinion of Ms Rodgers that you are unlikely to offend again in the future given that you self-reported your criminal conduct, have suffered immense shame in respect of your offending which is ongoing, have no relevant prior matters[1], have no subsequent or pending matters, and have tried to take steps to address your underlying issues and redress your offending behaviour. Accordingly, there is no need to place any weight on specific deterrence (that is deterring you from further offending) or community protection in the sentencing synthesis.

[1]The only prior matter alleged in this case dated back to 2006 where an adjourned undertaking was imposed, without conviction, for the offences of recklessly causing injury and unlawful assault. In my view this prior matter has no relevance to the sentencing task before me given the age and nature of the offences concerned, the sentence imposed, and the fact that the undertaking was not breached by Ms Hughes. 

Sentencing Submissions and Comparative Cases

39Turning now to the sentencing submissions made by counsel. Ms Isaacs for the prosecution submitted that whilst your offending is objectively serious and would ordinarily call for a term of imprisonment, there are a number of significant mitigatory matters in your case which moderate the weight to be given to general deterrence in the sentencing synthesis. Accordingly, it was submitted by Ms Isaacs, that it would be open in the particular circumstances of your case for the Court to sentence you to a suitably crafted community correction order.

40Your counsel, Ms Theocharous similarly submitted that a community correction order would be an appropriate disposition in this case given the significant mitigating matters in this case.

41In determining an appropriate sentence in this case I do have a duty to regard what has been done in comparable cases throughout the Commonwealth. To this end, Ms Isaacs provided a short table of cases where offenders have been sentenced in cases of social security fraud where the duration and quantum of the offending are similar to yours and where the offender was the person who had alerted the authorities to their own offending. The sentences imposed in those cases were all terms of imprisonment, and as Ms Isaacs identified, were provided as a yardstick to illustrate, but not define, the possible range of sentences available. I have read each of those cases.

42As identified by Ms Isaacs in her submissions, each of the cases provided by the prosecution illustrate the general proposition that, subject to the circumstances of each case, a sentence of immediate imprisonment is ordinarily likely to be required in cases of sustained and deliberate fraud on the welfare system. However none of the cases referred to in that table are on all fours with your case either in terms of the factual scenario or the circumstances of the accused. I have taken each of the cases referred to into account as they do provide guidance as to the application of the relevant sentencing principles in this area and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Ultimately, however, I have sentenced you in this case on the basis of applying the principles to the specific facts of you and your case.

Sentence

43Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court after having considered all other available sentences is satisfied that no other sentence is appropriate in all of the circumstances of the case. Further, under s20AB, the Act leaves open the option of certain state-based sentencing alternatives, such as a community correction order, when sentencing a federal offender.

44With both this, and the submissions of both parties in mind, I had you assessed for a community correction order. You were assessed as suitable for such an order, with Mr Collier recommending that I attach conditions which provide you with gambling (relapse-prevention) and financial counselling, and cultural programs to increase wellbeing. Insofar as an unpaid community work condition is concerned, Mr Collier noted that the closest culturally appropriate unpaid community work site is 45 minutes from your home and it cannot be guaranteed that you will be placed at that site. Further he noted that your physical health concerns may also impact upon your ability to undertake unpaid community work and recommended that if both treatment and community work conditions are added to the order, that a condition offsetting unpaid community work be added.

45I have considered all of the matters before me in this case. Any sentence I impose must reflect the gravity of the offending, the need to deter others, and must also be an adequate punishment for the offences committed. However, there are significant mitigating factors in this case, and when all of the relevant sentencing principles and factors are considered, I am not satisfied that imprisonment is the only appropriate sentencing option open in this case. I am of the view that a community correction order with conviction which requires you to undertake treatment, and a small amount of unpaid community work over a period of time, can sufficiently deter others, and denounce and punish your offending behaviour, whilst still giving appropriate weight to the substantial mitigating features in this case and promoting your ongoing rehabilitation.

46Ms Hughes, if you could please stand up.

47On charge 1 you are convicted and placed on a community correction order which will commence today and last for a period of 15 months. In addition to the mandatory conditions, you will have the following special conditions:

(a)   you must report to Bairnsdale Community Correctional Services by 4pm on Monday, 28 November 2022;

(b)   you must complete 50 hours of unpaid community work during the period of the order; and

(c)   you must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, educational, cultural and personal development programs as directed by the Regional Manager – with consideration to be given to courses or programs which address financial counselling, gambling relapse strategies, and social and emotional wellbeing.

48I order that up to 50 hours of treatment and rehabilitation can be credited as unpaid community work.

49Ms Hughes, do you understand the conditions of the order?

50OFFENDER:  Your Honour, yeah.

51HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order and the matter will be brought back to Court before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced in relation to these offences. Do you understand that?

52OFFENDER:  Yeah.

53HER HONOUR: Given what I have told you about the consequences of breaching the order, and the conditions which apply, do you consent to undertaking the community correction order?

54OFFENDER:  Yes.

Section 6AAA Declaration

55HER HONOUR: I am not going to make a formal s6AAA declaration in this case given that I have imposed a community correction order which is less than two years in length. I do however enforce the earlier observation I made that in most cases a term of immediate imprisonment would be imposed for this kind of offending, and the plea of guilty entered in this case is one of a number of significant mitigating factors which has led me to impose a sentence other than immediate imprisonment.

Ancillary Orders

56Pursuant to s21B(1) of the Crimes Act 1914 (Cth), I order that you make reparation to Services Australia in the amount of $99,459.08.

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