Director of Public Prosecutions (Cth) v Knight

[2021] VCC 1927

\

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-20-01233

THE QUEEN
v
JOAN FRANCES KNIGHT (aka JOAN FRANCES KEMP, JOAN FRANCES STERCK, JOAN FRANCES MOUNTNEY, JOAN FRANCES CAREY, JOAN FRANCES THORNE, JOAN FRANCES HEATHORN)	Accused

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JUDGE:	HER HONOUR JUDGE MORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2021
DATE OF SENTENCE:	23 November 2021
CASE MAY BE CITED AS:	Director of Public Prosecutions (Cth) v Knight
MEDIUM NEUTRAL CITATION:	[2021] VCC 1927

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence

Catchwords:               One charge of defraud the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth) – one charge of dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to s134.2(1) of the Criminal Code Act 1995 (Cth) – total period of offending over 22 and one half years – early guilty plea – remorse – extreme hardship suffered by offender throughout her life – victim of domestic abuse – offending not motivated by greed – combination of consequences resulting from serious illnesses suffered by offender, making incarceration more onerous – COVID-19 considerations – prior good character – unlikely to reoffend – exceptional circumstances warranting the exercise of mercy

Legislation Cited:      Crimes Act 1914 (Cth), s16A, s16F(2), s17A, s19AC, s20(1)(b), s29D; Criminal Code Act 1995 (Cth), s134.2(1); Sentencing Act 1991 (Vic), s6AAA

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269; Re Nicholls (2020) 279 A Crim R 289; Bugmy v The Queen (2013) 249 CLR 571; Leighton v R [2010] NSWCCA 280; R v Sopher (1993) 70 A Crim R 570; R v Smith (1987) 44 SASR 587; Jawahiri v The Queen [2021] VSCA 287; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293; Director of Public Prosecutions v Herrmann [2021] VSCA 160; Postiglione v The Queen (1997) 189 CLR 295; Freeburn v The Queen [No 2] [2020] VSCA 176

Sentence:                   Convicted and sentenced to a total effective sentence of three years’ imprisonment.  Order pursuant to s20(1)(b) Crimes Act 1914 (Cth), upon offender entering into a Recognizance Release Order for a period of three years, offender be released forthwith upon giving security by recognizance in the amount of $2,000, to be of good behaviour for a period of three years and make reparation to the Commonwealth in the sum of $343,298.59. 

Section 6AAA declaration:  But for the plea of guilty, the offender would have been convicted and sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms O Kefford	Solicitor for the Office of Public Prosecutions
For the Accused	Ms N Smith (plea hearing) Ms A Wong (to hear sentence)	Victoria Legal Aid

HER HONOUR:

1Joan Frances Knight, you are to be sentenced in respect of one charge of defrauding the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth) (Charge 1) and one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to s134.2(1) of the Criminal CodeAct 1995 (Cth) (Charge 2).

2The maximum applicable penalties are:

·on Charge 1, defrauding the Commonwealth, 1,000 penalty units or imprisonment for ten years, or both; and

·on Charge 2, dishonestly obtaining a financial advantage by deception from a Commonwealth entity, ten years’ imprisonment and/or a fine of $66,000 (600 penalty units).

3You pleaded guilty when arraigned before me on 3 November 2021.

Circumstances of offending

4The circumstances of offending are well set out in the Summary of Prosecution Opening for Plea dated 22 January 2021 and tendered as exhibit A.  You accept as accurate the facts asserted in that document and are to be sentenced on those facts.  A copy of exhibit A will be attached to these Reasons for Sentence.[1]

[1]         Appendix “A”

5By way of brief summary, you have been in receipt of various social security benefits since 1977.  The period covered by the offending in Charge 1 is between 1 August 1996 and 23 May 2001 and for Charge 2, between 24 May 2001 and 5 February 2019.  Your offending continued throughout the period 1996 and 2019, but is the subject of two charges, because the offence in Charge 1 was repealed and replaced by the provision in the Criminal Code Act to which I have referred.

6During the period covered by the offending, you obtained multiple benefits to which you were not entitled.  You claimed social security benefits in your name, Joan Frances Knight (you were also known as Joan Frances Kemp and Joan Frances Sterck) whilst also receiving benefits in the name Joan Frances Mountney (also known as Joan Frances Carey, Joan Frances Thorne and Joan Frances Heathorn). 

7In the relevant period, you claimed benefits in the name of Joan Frances Knight whilst you were already in receipt of Social Security benefits in the name of Joan Frances Mountney.  You did this in order to obtain two social security benefits at the same time.  Between 1 August 1996 and 5 February 2019, a period of twenty-two-and-one-half years, you received a total of $350,517.83 in benefits to which you were not entitled.  You obtained the Disability Support Pension under the name Mountney and the Partner Allowance, Newstart Allowance, Disability Support Pension and Disability Support Pension (Blind) under the name Knight.

8You commenced receiving the Disability Support Pension under the name Mountney as of 10 November 1977.  It is not suggested that you were not entitled to receive that pension for the almost nineteen years that followed.  Your double claiming of benefits commenced on 1 August 1996 when you also claimed a pension under the name Joan Frances Knight.

9Your offending was discovered as a result of the Alternative Identity Project which involved the comparison of documents and personal details held in the Department’s systems to determine possible dual identity offending.  The Digital Identity Fraud Team identified links between Joan Frances Mountney and Joan Frances Knight, leading to the ultimate detection of your offences.

10On 7 February 2019, a search warrant was executed at your home.  During the search, investigators seized a number of relevant identification documents belonging to you in the names of Knight, Mountney and Sterck.  The documents included bank statements, electricity bills, a medical referral, and various letters and receipts.

11Your offending was relatively unsophisticated and it was inevitable that your crimes would be detected as you used identical contact details for the various forms that you completed. 

12You participated in a record of interview on 25 February 2019 at the Bendigo Department of Human Services Centre.  During the interview, you made full and frank admissions, acknowledging your guilt.  You admitted that you knew it was wrong to claim a second pension using a second identity and that you should not have done it.

13When asked to explain your reason for offending you replied:

“I really don’t know why I did it.  Maybe because me husband wasn’t supportin’ me and the kids.  …  And being put out of home, I s’pose, didn’t go too well with me, … me father passed away.  … I took that pretty bad, and then Mum put me out of home and put me into with my grandmother, and I was there until I was 20.  … I’m really annoyed with meself doin’ it.  I shoulda went for help and asked for help, to family … [to the] Salvation [Army] and those sort of people, but I didn’t, I come to youse and did the fraud, and it’s wrong.

…  

It’s bloody wrong to do it.  I’ve never done anything like that before.  What made me do it, I do not know.  … just I s’pose losin’ Dad, being close to him, put out of home.  … you should have mum support, and I never, after losing Dad, ‘cause Dad and I was pretty close.”[2]

(sic)

[2]Depositions pages 85-86

Plea in mitigation of penalty

14Your counsel, Ms Smith, acknowledged the gravity of your offending and that a term of imprisonment is warranted; however, in a comprehensive plea in mitigation on your behalf, she identified a number of factors which she submitted combined to moderate penalty.  I now turn to the factors advanced in mitigation.

Personal circumstances

15You have had what can only be described as a miserable and tragic life.

Childhood, early adult life, significant relationships

16You were born in Swan Hill 1953, the second youngest of five children in your family.

17You had learning difficulties at school, and throughout your schooling you were placed in a “special class” for slow learners.  Although you learned to read and write at school, your skills in mathematics are poor.  You had no friends at school and were often the victim of bullying.

18At home your mother abused you, both physically and emotionally, throughout your childhood.

19At the age of 13, whilst in form one at school, you were asked to stay home to care for your father who was struggling with ill health.  Your father passed away at the age of 62 in 1968 when you were aged thirteen.

20At the age of approximately fifteen years, you were raped four times by your older brother.  He tied your hands and feet to the bed and placed a pillow over your face to stifle your screams.  When you were aged seventeen years, you disclosed to your mother what your brother had done but she refused to believe you, accusing you of mental illness.  You were then sent to see a psychiatrist in Swan Hill, who prescribed medication for you.  You were subsequently admitted to a psychiatric hospital in Ballarat, where you remained for approximately three months.  Whilst hospitalised, you attempted suicide by cutting your forearm with a knife.  You were treated against your will with both medication and electric shock treatment.  You were then discharged.  Your mother threw you out of home, following which you lived with your grandmother until you were aged 20.   You then moved to Tasmania

21When you were in your early 20s and living in Tasmania, you formed your first significant relationship.  It was with Alan Heathorn.  Around that time, you commenced work in a dairy.  You also took on some domestic cleaning work.

22You had three daughters as a result of your relationship with Alan Heathorn: Belinda, Rebecca, and Christie.  In the late 1970s when your daughters were aged six, four, and two years, you, Alan and your three daughters were involved in a terrible car crash.  The car in which all of you were travelling was hit by another car.  Upon impact, your car rolled down an embankment and exploded.  Miraculously, you were thrown from the vehicle.  But there was no miracle for your husband and children.  They all perished.  With your family wiped out in an instant, you were left all alone.  After this, you lived with your mother-in-law but ultimately returned to Victoria, where you lived with your sister-in-law for a period.

23You met your second husband, Brian Carey, and had three children with him.  The relationship lasted for ten years, although your husband was aggressive and physically assaulted you on many occasions.  During one of these assaults, Mr Carey kicked you to the abdomen and as a consequence you required significant surgical intervention.  You were left infertile.  You have no contact with your children of this relationship.

24After you left Brian Carey, you entered a relationship with Joe Sterck, who died four years ago from heart disease and kidney failure.  This relationship lasted for approximately nine years.

25You spent two years alone after this, before meeting Gary, your current partner, with whom you feel very happy and supported.

26Prior to your relationship with Gary, you also had a relationship with Darryl Mountney and then with Mark Knight.  Your relationship with Mr Knight was marked by emotional and financial abuse.  You were in this relationship at the time your offending commenced.

Physical health

27You suffer from a number of significant health issues.  These are described in a report from Dr Owens, forensic psychiatrist, dated 26 May 2021.[3]

[3]Exhibit 2

28You have osteoarthritis in both feet, both knees, and in your right arm, which causes pain and stiffness and limits your activities.  You are able to do a small amount of dishwashing, clothes washing and cooking, but your partner, Gary, provides considerable support for housework chores.

29You are under the care of a respiratory physician because you have advanced chronic obstructive pulmonary disease, asthma, obstructive sleep apnoea, obesity hypoventilation syndrome and Type II respiratory failure.  You use supplemental oxygen delivered by nasal prongs.  You have had three episodes of pulmonary embolism (blood clot on the lungs), most recently in November 2020, for which you were hospitalised at the Dandenong Hospital for four days.  For the last twenty-five years, you have also suffered from Type II diabetes mellitus, which is controlled with medication.

30In 1999, you had a deep vein thrombosis in your leg.  You also suffer from hypertension and hypercholesterolaemia.

31Your right leg is four centimetres shorter than your left leg and it is likely that you will need an orthotic shoe.

32In 1984, you were involved in an accident while you were being taken to hospital by ambulance.  Whilst in the ambulance, you were hit to the left eye by an oxygen bottle.  This left you blind in your left eye.  You also have visual impairment in your right eye as a result of being hit by a television remote control thrown at you by your ex-husband on the very day that you were discharged from hospital after having undergone cataract surgery.  You can perceive light and dark but you are unable to distinguish objects through that eye.  You are legally blind.

33In 2004, you suffered a stroke.  You developed acute paralysis in your right arm and leg and could not move your mouth properly.  You were unable to speak for approximately fifteen months, although you gradually recovered function with the assistance of physiotherapy.  You were hospitalised in Swan Hill for a few weeks on that occasion.

34In 2019, you suffered a mild stroke.  You were admitted to hospital in Bendigo for four days.  You suffered garbled speech and altered sensation (pins and needles) in your right arm and halfway down your right leg.

35In 1998, you were diagnosed with possible epilepsy.  You saw a neurologist in Bendigo.  At the time, you were repeatedly having falls as a result of sudden losses of power in your legs.  You still suffer from these sudden falls, approximately twice a day.

36For the past three years, you have experienced memory problems and this has affected your capacity to describe some of the finer detail of your past history.

37For the last approximately seven years, you have had access to a National Disability Insurance Scheme package which has enabled you to set your home up with modifications to assist you in your mobility.  You are able to undertake some of the activities of daily living such as showering and dressing yourself, although you and your partner share the cooking duties.  You spend most of your day sitting on the couch or lying on your bed.

38Currently, you are taking a large number of prescribed medications for your various conditions.  These include:

·        Perindopril, 4 milligrams daily (for hypertension)

·        Esomeprazole, 20 milligrams daily (for gastro-oesophageal reflux disease)

·        Rosuvastatin, 20 milligrams daily (for hypercholesterolaemia)

·        Sitagliptin, 100 milligrams daily (for diabetes)

·        Phenytoin, 300 milligrams daily (for epilepsy)

·        Clopidogrel, 75 milligrams daily (to prevent blood clots)

·        Frusemide, 40 milligrams daily (for hypertension)

·        Carbamazepine, 600 milligrams daily (for epilepsy)

·        Benztropine, 0.5 milligrams daily (for dribbling from the mouth);

·        Duloxetine, 60 milligrams daily (antidepressant).  

39Ms Elena Ladlow, occupational therapist, notes that on top of the various health conditions that I have already mentioned, you also suffer from irritable bowel syndrome and incontinence of the bowel and bladder.  You require the use of continence aids at all times.  Ms Ladlow also notes that you have decreased hearing in both ears and need to wear hearing aids.  You have decreased sensation over your arms and legs and you suffer severe pain in both of your shoulders, moreso on the right.  You also have pain radiating from your hips down your legs, possibly due to your osteoarthritis.

40You completed a cognitive screen, the results of which indicated that you scored below normal ranges overall and that you had significantly lower scores in attention/working memory, language and delayed memory recall.

41Ms Ladlow has given a more comprehensive picture of your personal activities of daily living and has provided an assessment of your occupational therapy needs:

“Communication

Joan reports some difficulties with her communication since her initial stroke in 2004 where she received no therapy input post.  At times she has difficulty thinking of correct words to say and also states comprehension of information can be difficult, but is able to engage in conversation. 

Transfers

Joan has difficulty getting up from particular chairs and seats due to her differing leg lengths, balance issues and osteoarthritis in both of her shoulders.  Getting up from her couch is difficult currently and often Gary has to physically help lift Joan up which puts them both at risk of physically (sic) injury.  Joan states [she] had a lift/recline chair proposed in [a] previous NDIS plan but it didn’t eventuate.  On assessment, Joan has some difficulty getting out of bed – she has used a bed stick before but didn’t like it and isn’t interested in using one again.  With education on a ‘log roll’ technique Joan is able to get out of bed with more ease and less pain when [she] remembers to do so.  Getting up off the toilet is difficult for Joan and she usually leans forward and pulls on the low bath to get up which often results in a loss of balance.  Joan enjoys having a bath every 2 days and to get into the bath Joan steps in, lowers herself down onto her knees holding the tap and side of bath, then lowers herself onto her stomach to fully submerge.  Joan demonstrated this and lost her balance multiple times. Joan can safely transfer into the separate shower recess and on/off the shower stool.  As Joan falls frequently, to get up off the floor she has to climb onto all fours and then get close to an item of furniture to pull herself onto her feet.  Car transfers are difficult for Joan as Gary has a high ute, he has devised some steps he made himself to bring to the side of the ute and physically assists Joan as required. 

Mobility

Joan has difficulty mobilising around the house due to her decreased balance and has had 5-6 falls in the last 12 months, one requiring hospitalisation.  Joan can mobilise short distances without an aid however due to the 5cm length difference in her legs, the residual weakness in her right-side post stroke, and being blind all contribute to her poor balance and mobility issues.  Joan will often furniture walk around the house to maintain her balance and states if she doesn’t, she will walk into things due to her visual impairment.  

Sleep

Quality of sleep is no issue for Joan when she uses her CPAP machine that Gary prompts her to wear.  

Feeding

Joan can independently feed herself but has difficulty with food that is tough due to the many surgeries she has had on her throat; she reports at times tablets get stuck in her throat.  

Bathing/dressing

Joan is able to independently shower and dress herself when in a seated position.  At times she has difficulty with doing her hair due to her shoulder pain and weakness however manages to look presentable.  

Toileting

Joan is incontinent of bladder and bowel and wear[s] continence aids at all times.  Joan independently changes her continence aids and reports using the strategy of timed toileting to assist.  However currently Joan feels the need to empty her bladder every 30 minutes, and has felt she has wet through the pad when mobilising to the toilet.  Joan reports that 30 minute toileting is a new change and previously … [it] would be every hour.  Joan has had several prolapses and after a recent Doctor[’]s appointment has revealed she may have a new prolapse needing medical intervention. Joan would benefit from a continence review.   

Domestic Activities of Daily Living  

Joan and Gary share cooking tasks.  As previously mentioned, Joan often forgets she has put something in the oven or on the stove and leaves the room – resulting in it being burnt and causing safety concerns.  Joan also reports that when Gary assists her in cooking, he can often take over the task leaving her feeling dependent on him, although acknowledges his aim is to help.  Joan reports finding the task of doing the laundry overwhelming and often makes mistakes e.g. not grouping things correctly or machine-washing items that should be hand washed.  Joan has handed this task over to her support worker Lillian currently.  Gary has a gardener that attends to the backyard.  Joan and Gary share the indoor bin management duties, but Gary will put the wheelie bins out on the street due to Joan’s decreased balance.  Joan and Gary share the care of their small dog Lola. Lola is well behaved and trained.  

Community Activities of Daily Living  

Joan currently has limited community engagement other than her medical appointments due to COVID 19 restrictions and being in a relatively new environment with a visual impairment.  When Joan has an appointment, Gary drives her to it.  Joan has some difficulty with car transfers due to her upper and lower limb weakness and poor balance.  This is particularly so getting into and out of Gary’s ute as it is particularly high.  Gary often has to assist Joan by bringing a portable step up to the passenger side [of the] ute for her to step onto and thus into the car.  Joan is unable to drive due to her visual impairment and currently requires the assistance of another person to access the community.  This is because Joan is fearful of falling, she cannot walk long distances and she is unable to see clearly where she is going.  For this reason, Gary does the shopping independently.  Joan’s money management is now under control however she has many debts from financial abuse in previous relationships. 

Education /Employment  

Joan completed schooling up to year 7 equivalent.  [A]fter leaving school Joan worked in hospitality as a kitchen hand/chef’s assistant.  Joan was then a country and western singer which she thoroughly enjoyed. 

Leisure   

Joan enjoys painting and sewing despite it being more of a challenge with her visual impairment.  Joan loves singing but has found it to be more challenging post stroke due to her word finding difficulties.  Joan enjoys socialising however currently has limited social networks due to her recent move to Horsham and because of COVID restrictions.  

ABAS-3  

The ABAS-3 measures important behaviours an individual display[s] in various settings from birth to 89 years of age.  Adaptive behaviour is made up of the skills an individual use[s] to function in daily life, including taking care of oneself and interacting with other people.  It is particularly useful in evaluating individuals with developmental delays, autism spectrum disorder, intellectual disability, learning disabilities, neuropsychological disorders and sensory or physical impairments. 

Joan, along with some input from Gary, completed the ABAS-3 assessment with OT reading out questions on 29/10/20.   The scores range from Extremely Low, Low, Below Average, Average, Above Average and High.

…

Joan scored extremely low in the categories of communication, functional academics, leisure, community use and home living.  The Communication category examines Joan’s ability to verbalise her thoughts and communicate in a productive way.  Due to Joan’s word finding and comprehension difficulties post stroke, this can make it more challenging for her to communicate with others.  Gary assisted with the completion of this assessment as at times Joan found the questions challenging.  

The Functional Academics category examines Joan’s ability to complete daily tasks that require general knowledge and initiative, such as reading and obeying signs, writing important dates on the calendar etc and require higher executive functions to carry out on a daily basis.  Joan has difficulty recording important dates, using a phone book to locate an important number and ensuring she has the correct change after buying an item due to her visual impairment and cognitive changes post stroke. 

The Self-Direction category examines Joan’s impulse and emotional control, flexibility, self-monitoring, task initiation and organisation.  The score of between low and average reflects Joan requiring some assistance or prompting to complete these executive functions.  

The Leisure and Home-Living categories examine Joan’s ability to carry out socially accepted responsibilities in life.  Again, it appears that Joan has difficulty understanding complex tasks.  [H]er task initiation and planning appear to lead her to requiring assistance or prompting to carry out many day-to-day activities. 

The Social category and Community Use categories examine social norms and expectations in various social situations and Joan’s ability to access the community with appropriate skills and abilities, and handle money.  The scores in these categories indicate that Joan requires prompting or assistance with most of the items, which indicates that she can act appropriately in most social situations but at times needs assistance. 

The Health and safety category examines Joan’s ability to comply with general health and safety rules such as showing caution around hot or dangerous objects, following general safety rules at home and understanding medication management.  Joan’s low vision and poor attention demonstrate that she can at times be at risk of hurting herself.  

The category of self-care examines Joan’s ability to carry out tasks that demonstrates Joan is able to manage her hygiene, dressing and feeding. In this category the score reflects Joan is able to complete these tasks consistently with some difficulty due to her cognitive changes and physical limitations. 

HOME ENVIRONMENT 

Joan and Gary live in a one-bedroom weather board rental property in Horsham.  The front entrance has a brick step and no rail- Joan uses the couch on the front porch to stabilise herself when descending it.  When accessing the shower, which is located in the laundry, there is a half-step down into the rear of the house and a half step up into the bathroom.  At the rear entrance there is a small left-hand rail to assist with a significant gap between the door threshold and the small concrete step.  Gary has placed a small wooden step to act as a platform step to allow Joan room to open and shut the outward swinging door however, this wooden step is approximately 30mm difference posing a falls risk.  Gary has placed carpet on the step to accommodate the height discrepancy.  The inside of the house … is carpeted, with exception to the bathrooms and laundry which are lino.

GOALS 

NDIS Goals
•     To independently move in my home and to keep it maintained
•     To be able to be a peer support person for people with disabilities.   
•     I want to improve my ability to communicate with people.  

OT Goals

•     To increase my independence and ease of transfers in/out of the car and on/off the toilet

•     To stop walking into doors in my home

•     To get back to cooking complex meals and deserts independently in my home

•     To do talks for people with disabilities in my community
•     To access a singing group in my community 

CURRENT AND FURTHER OT INTERVENTION 

Since moving to Horsham, Joan has had limited NDIS therapy input.  The initial Occupational Therapy assessment took place on the 18th of December and Joan has been seen weekly since as a priority due to her falls, visual impairment and current overall vulnerability.  

The following current OT interventions have included; 

•     Formal cognitive screen MoCA [Montréal Cognitive Assessment (blind version)] administered and results explained to Joan, see above

•     Functional cognitive assessment completed observing and prompting Joan making scones in her own home and feedback provided

•     Functional assessment of Joan’s mobility and accessibility as well as transfers in her own home e.g. bed, car and bath transfers 

•     Assessment, trial, purchase and installation of a toilet surround to increase Joan’s safety when transferring on and off of the toilet

•     Education and practice provided on new bed transfer technique of ‘log roll’ to increase ease, decrease pain and reduce risk of falling

•     Falls reducing strategies and education provided e.g. recommendation to use shower recess and stool and avoid climbing into bath, increasing light in rooms, avoiding low seating etc.

•     Trialled a car bar, assistive technology, to aid car transfers however Joan found this unhelpful. 

•     On 13/10/20 Joan trialled a lift recline chair at equipment store Country Care, to assist with safe sit to stand transfers.  Joan trialled three different chairs and found, in agreeance with OT recommendations, the Barwon small lift recline chair to be the most appropriate in size and function – able to lift Joan into standing without losing her balance or inducing pain in her shoulders.  It also ceased her partner Gary lifting her out of the chair. 

•     Trial of Samsung mobile voice controls with limited success- Joan found it to be harder due to her mild expressive communication issues and inconsistent success with this particular setting.  Trialled Google voice control with more effective use however still inconsistent success.  Adjustment of current mobile phone settings to larger print, black print on yellow background – Joan reports that this has increased her amount of phone use and ease of use dramatically.  Joan also commented that adding vibration for touch on the screen has assisted with pin code for entering phone.  

Future OT interventions required for Joan to achieve her goals include; 

•     5 hours is recommended for the trial and purchase of assistive equipment to enable Joan to independently cook with her visual impairment e.g. talking scales, talking timer, talking microwave, easy to use voice activation apps for her phone to read out recipe steps/ingredients 

•     10 hours is recommended for assessment and intervention for home modifications to the front and rear access of Joan’s home to ensure safety when entering and exiting, e.g. platform step at rear and grab rail at entry pending approval from owner. 

•     15 hours is recommended for assessment and intervention of Joan accessing the community and reviewing the need for a mobility aid – once a built-up shoe has been provided.  This will require intervention from a visual aid perspective, a mobility and falls perspective, and a cognitive perspective.  With Joan’s decreased short term memory, repetition is required to enable her learning and thus hours to practice this are required.

•     5 hours is recommended for education on and implementation of cognitive strategies to assist Joan in maintaining her safety e.g. strategies to assist her memory and attention when using the stove or oven, and for organisation when addressing goal of being a peer support person for people with disabilities.  

•     Inclusion and provision of the following Assistive Technology;

-Barwon small lift/recline chair for safe transfers, reduction in pain, falls and reducing partner lifting – see quote attached 

-Samsung tablet for telehealth appointments to access Speech Therapy and assessment

- Brail buttons for controller of lift/recline chair

•     15 hours for psychology/counselling support – Joan had no psychological input post both strokes and suffers from flashbacks, grief and loss.  Evidence shows that strokes can cause major changes to someone’s emotional management and mood and thus it is recommended with Joan’s consent, for Psychological/counselling support to ensure she has good mental and emotional health and coping strategies to maintain this.

•     10 hours for Dietician input – Joan reports that her weight can fluctuate significantly and given her numerous complex diagnoses, including diabetes mellitus, a Dietician review is required to assist Joan to maintain her health and wellbeing.”[4] 

[4]Exhibit 3, pages 4-10

Mental health

42In addition to all of the physical problems with which you are burdened, you also suffer from a number of mental health conditions, as summarised by Dr Owens:

“[72]I think that Ms Knight has a variety of symptoms of mental ill-health which are probably best described by chronic post-traumatic stress disorder (PTSD).  These include intrusion symptoms (repeated intrusive memories and flashbacks of being raped as well as nightmares), avoidance symptoms (avoiding watching/listening to things on television/radio that remind her of violence and especially sexual violence; avoiding situations where she feels physically vulnerable to being attacked); alterations in arousal and reactivity (hypervigilance and enhanced startle response, problems with concentration); negative alterations in cognitions and mood (persistent anger towards her family for not believing her or protecting her, some persistent paranoid thoughts) and exposure to multiple episodes of interpersonal violence including four incidents of rape by her own brother, following which her symptoms have developed.  It is not clear exactly what treatment she was provided at Lakeside Hospital but she was feeling suicidal at that time and was extremely distressed by both the trauma itself as well as the apparently unsupportive reaction of her mother.    

[73]She was exposed to another dreadful traumatic event in her mid-twenties when she lost her husband and three children in a road traffic accident, and to further violence in subsequent relationships which led to significant medical complications and disability.  When discussing the content of her nightmares and her thoughts when she has panic attacks, it seems that it is the incidents of rape that have continued to generate the greatest traumatic memories for her.    

[74]As an adult Ms Knight does not appear to have received any form of psychiatric or psychological treatment for her PTSD symptoms apart from prescription of an antidepressant in the last several years (which has been helpful for her).  I would strongly recommend that she engage in psychiatric and psychological treatment to get some relief from her symptoms, especially her anxiety symptoms and nightmares.  It is not clear to me exactly how long she has been suffering from symptoms of PTSD, but by her own account their presence has been quite prominent in recent years. 

[75]It is not possible to diagnose a personality disorder confidently on the basis of one assessment, but there is little in what I have gathered in the history and collateral information to support a diagnosis of borderline personality disorder in my view.    

[76]There does not appear to be any diagnosis of substance use disorder. 

[77]Ms Knight gives a history of difficulty learning in school associated with some conduct problems at that age, and that she required placement in a special class.  Her educational attainment has been rather limited owing to her being removed from school at a relatively early age due to domestic problems within the family.  It is possible that she may have borderline or low intellectual functioning, although I cannot make any comment on this without psychological testing – I understand she has had neuropsychological assessment conducted earlier this year. 

[78]In my opinion there is no connection between Ms Knight’s PTSD or its associated symptoms and the offending.    

[79]The acquired brain injury in the collateral information is probably referring to the strokes that Ms Knight suffered in 2004 and 2019.  However there may be some other acquired brain injury that I am not aware of and which Ms Knight did not mention to me.  Given this history and my own simple cognitive findings as well as those reported in the Occupational Therapy Report, neuropsychological assessment is advised to determine Ms Knight’s cognitive deficits – and potential rehabilitative suggestions – more precisely.

[80]Ms Knight’s symptoms of PTSD are likely to continue without active treatment.  In the event that she is imprisoned, she can obtain psychiatric and psychological treatment in the prison setting.  While there may be some deterioration in these symptoms I do not think this would be a serious deterioration and it would be able to be monitored for and treated by prison-based mental health services.  I think that her combination of physical and medical conditions (more than her psychiatric condition alone) are likely to cause her to experience imprisonment as more burdensome than an individual without these conditions.      

[81]Ms Knight’s rehabilitation will be enhanced by ensuring that she is provided psychiatric and psychological treatment for PTSD symptoms.  Psychological treatment in particular is likely to be most beneficial if it is tailored specifically to PTSD and includes measures targeting anxiety symptoms.  Her GP would be best placed to organise these treatment measures by means of appropriate referrals.”[5] 

[5]Exhibit 2, paragraphs 72-81

Prior good character

43You are a person of prior good character and are entitled to have that fact taken into account in your favour.

Early guilty plea

44Consistently with your full and frank admissions when interviewed, you pleaded guilty at a committal mention.  As a result, the matter was booked in for plea hearing in this Court.  The learned prosecutor, Ms Kefford, agreed that you indicated your plea at the earliest opportunity.

45A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.  A number of factors affect the weight that your guilty plea attracts:

(a)   the timing of your plea, which I assess as at the earliest opportunity;

(b)   you are entitled to a statutory discount because of your plea;

(c)   I accept that your plea is indicative of your true remorse;

(d)   you have avoided the cost and inconvenience of a trial.  You have spared witnesses the inconvenience of giving evidence, both at committal and at trial; and

(e)   there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.

46Dealing with the question of the social utility inherent in your guilty plea, I note that this factor must be given additional weight because of the current state of the criminal justice system in Victoria as a result of the world-wide pandemic of COVID-19. 

47In the recent case of Worboyes v R,[6] the Court of Appeal emphasised the need to give extra weight for a guilty plea as a relevant sentencing factor in the current climate.  As their Honours stated:

“34. It may thus be concluded that … the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea.  Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts’ trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.

35. As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.

36. There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.  As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.  Thereafter, he or she will have very restricted opportunities for contact with family and friends.  Further, rehabilitative and other programs within prisons are severely curtailed.  That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea.  These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.

37. Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic.  The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution.  In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one.  The longer the delays, the more pronounced their plight.

38. Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present.  One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39. For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[7]

[6][2021] VSCA 169

[7](Ibid) at paragraphs [34]-[39] (citations omitted)

Remorse

48I am satisfied that you are truly remorseful for your conduct, as is reflected in the record of interview and in your guilty pleas.

49You have agreed to make restitution and have agreed to having approximately $100 withheld from your fortnightly pension.  As at 27 October 2021, you had repaid $7,421.41 of the $350,517.83 that you had obtained unlawfully.

Verdins[8] factors

[8]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269

50Dr Owens has noted that there is no nexus between any mental health conditions from which you suffer and the offending.  However, he noted that because of your various health conditions, imprisonment would be more onerous for you than for other prisoners not so encumbered. 

Combination of factors making gaol more onerous

51I have referred to your physical and mental health issues.  I infer from all of the uncontested evidence before me that your respiratory problems requiring the use of oxygen day and night will add to the risk of serious harm should you be exposed to infection from COVID-19 whilst in custody, an exceptional circumstance I take into account.[9] 

[9]Re Nicholls (2020) 279 A Crim R 289

Prospects of rehabilitation

52There are constitutional issues affecting your cognition and behaviour.  Despite this, you have received extensive support from your partner, Gary, and from resources made available to you through the National Disability Insurance Scheme.

53You have no prior convictions, you have learned from your mistakes, and you are unlikely, in my view, to commit any further offences.

54It is likely that you will require ongoing support well into the future, although this does not affect my conclusion that you are unlikely to commit any further offences.

55I regard your prospects of rehabilitation as good.

Submissions as to sentence

56On behalf of the prosecution, Ms Kefford acknowledged your early plea of guilty, your cooperation with law enforcement agencies and that you did not use the money defrauded to fund a flamboyant lifestyle.

57Ms Kefford, however, stressed the significance of both general and specific deterrence and the overall gravity of your offending, given the period and the amount of money covered in the charges.  She submits that the principles enunciated by the High Court in Bugmy v The Queen[10] should be given only modest weight.  She also submits that you should receive only a modest discount because of your poor health.[11]  Ms Kefford contends that this is a case where there is a need for adequate punishment and that the “community is entitled to expect that a sentence imposed will carry an element of denunciation and punishment so as to reflect the appropriate proportionality between the circumstances of the offending and the sentence imposed”.[12]

[10](2013) 249 CLR 571

[11]Referring to Leighton v The Queen [2010] NSWCCA 280 at paragraph [39]; R v Sopher (1993) 70 A Crim R 570 at 573-574; R v Smith (1987) 44 SASR 587 at 589

[12]Exhibit B, Crown submissions on sentence dated 28 October 2021, paragraph 25

58Ms Kefford relied upon her written submissions, tendered as exhibit B.

59In all the circumstances she submitted that it would be appropriate to impose a term of imprisonment that is greater than three years.

60On the other hand, your counsel relied on all of the matters to which I have referred, and conceded that “this offending demands a term of imprisonment”.[13]  That said, Ms Smith urged the Court to moderate the term in view of the significant mitigating factors including your disadvantaged childhood, your physical ill health, your early plea of guilty, your admissions and expressions of remorse, your vulnerability in custody, and your prospects of rehabilitation.[14]

[13]Exhibit 1, Outline of plea submissions on behalf of Ms Knight, paragraph 55

[14]Exhibit 1, paragraph 56

Analysis

61There are many factors that I must take account of when sentencing you, including the matters referred to in s16A of the Crimes Act 1914 (Cth), which provides:

“(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a)the nature and circumstances of the offence;

…

(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

…

(e)any injury, loss or damage resulting from the offence;

…

(f)the degree to which the person has shown contrition for the offence:

(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)in any other manner;

…

(g)if the person has pleaded guilty to the charge in respect of the offence:

(i)that fact; and

(ii)the timing of the plea; and

(iii)the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;

(j)the deterrent effect that any sentence or order under consideration may have on the person;

(ja)the deterrent effect that any sentence or order under consideration may have on other persons;

(k)the need to ensure that the person is adequately punished for the offence;

(m)the character, antecedents, age, means and physical or mental condition of the person;

…

(n)the prospect of rehabilitation of the person;

(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”

(sic)

62I am also required to take into account principles of parsimony, a principle consistent with s17A of the Crimes Act 1914 (Cth), proportionality, and I must avoid passing a crushing sentence.

63It is difficult not to be moved by the hardship you have faced throughout your life.  Your early childhood was one of deprivation, marked by physical, sexual and emotional abuse.  You were forced to leave school at age thirteen to look after your father who was terminally ill.  At age fifteen, you were raped on multiple occasions by your older brother and when you confided in your mother, you were accused of being mentally ill and were admitted to a psychiatric hospital, where you received various forms of treatment including electric shock therapy.

64The significance of childhood deprivations was recently considered by the Court of Appeal  in Jawahiri v The Queen:[15]

[15][2021] VSCA 287

“73    …  We make the following observations, however:

(r)     In Bugmy the High Court said:

‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.  However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  … ‘.[16]

[16]Bugmy v The Queen (2013) 249 CLR 571, 594–5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations omitted)

In Director of Public Prosecutions v Drake,[17] this Court said:

[17] [2019] VSCA 293

‘[T]he profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability.  As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses.  As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years.  In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.’

(s)It is not always possible to establish a causal connection or nexus between the childhood deprivation and the charged offending.  As this Court said in Director of Public Prosecutions v Herrmann:[18]

‘The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus.  As Victoria Legal Aid pointed out in its helpful submission as amicus curiae, ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’.  The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.  As Dawson and Gaudron JJ said in Postiglione v The Queen:[19]

‘Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.’[20]

It is the mark of a humane society that the moral judgement expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years.  As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person’s view of the world around them and their understanding of social norms.  Thus, in Freeburn v The Queen [No 2],[21] it was accepted that the offender’s ‘background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending’.   In [Director of Public Prosecutions v] Snow [(a pseudonym)],[22] the Court drew attention to ‘the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage’.’

(t)The effects of profound childhood disadvantage and deprivation endure and must be given full weight in the sentencing exercise.

(u)…  The effects of profound childhood disadvantage endure and must be given their full weight in every sentencing exercise.  That weight does not diminish over time.  Of course, depending on the circumstances of the case, factors such as general and specific deterrence and community protection may demand more competing weight in the sentencing mix and may thus alter the eventual outcome, but the weight given to profound childhood disadvantage is not diminished.”[23] 

[18] [2021] VSCA 160, [45]–[46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) (citations in original)

[19] (1997) 189 CLR 295

[20]        (Ibid) 301

[21] [2020] VSCA 176

[22] [2020] VSCA 173

[23](Ibid) paragraph 73 (r), (s), (t) and (u)

65The personal hardships that you have faced, not only in your childhood, but throughout your life, are unmatched in any of the authorities to which counsel referred.  Your history of suffering can only be described as exceptional.

66The combination of your background of hardship in every aspect of your life, including your physical, sexual and emotional abuse, the terrible tragedy you faced of losing your husband and three daughters in a car crash in which you were also injured, and your multiple past and ongoing complex and debilitating physical and mental health conditions, calls not only for moderation of sentence, but, in my opinion, also demands application of the principles of mercy.

67Your offending was serious.  It continued for approximately twenty-two-and-one-half years, when you were aged between forty-two and sixty-five.  The amount defrauded is large, $350,517.83, but divided into the number of years of offending, it averages at approximately $15,579.00 per annum.

68You were not, however, motivated by greed.  There are no trappings of wealth.  You did not fund a lavish lifestyle; you purchased no luxury homes, cars, clothes, or jewellery.  You did not dine in fancy restaurants or invest in shares or property.  You did not travel to exotic locations or take extravagant holidays.  You used the money to support yourself throughout abusive relationships when you received little or no financial support from your partners, Mr Knight and Mr Carey.  You also relied on these funds to pay for your children and later, your grandchildren’s expenses of daily living, including food, clothing, education, sports equipment, and attending Scouts, Brownies and Girl Guides.  You live in rented accommodation, which you share with your partner.  You have commenced making restitution, although at your current rate of contribution it is unlikely that in your lifetime you will be able to pay back the total amount you defrauded.  You have no assets to speak of that could be sold to recover the balance of the debt you owe to the Commonwealth.

Sentences to be imposed

69I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[24] 

[24] Section 17A(1) Crimes Act 1914 (Cth)

70Both the prosecution and your counsel agree that a term of imprisonment is warranted.  With respect, I agree.

71In all the circumstances, I have no option but to impose terms of imprisonment.

72On Charge 1, defraud the Commonwealth contrary to s29D of the Crimes Act 1914 (Cth), you are convicted and sentenced to eight (8) months’ imprisonment.

73On Charge 2, dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to s134.2(1) of the Criminal Code (Cth), you are convicted and sentenced to twenty-eight (28) months’ imprisonment.

74On the question of cumulation, I note that your offending straddled two legislative periods: in the first period your crime fell to be charged under s29D of the Crimes Act 1914 (Cth). In the second period, your crime fell to be charged under s134.2(1) of the Criminal Code.  Had there been no change in the legislation, it is likely you would have faced one charge covering the entire period of offending the subject of both charges.  Had it been possible to lay one charge to cover the entire period of offending, I would have sentenced you to a term of three years’ imprisonment.  I do not intend to make the total effective sentence any longer than it would have been merely because, as a matter of legislative history, two charges have been laid.  Therefore, in fixing the overall period of imprisonment, I have taken into account the totality of your offending.  In my judgment, the total period of imprisonment should be three years.  I have allocated terms of imprisonment roughly proportionate to the timeframes covered by each of the charges.

75In order to achieve my intention that the total effective sentence be three years, I therefore direct that the sentence imposed in respect of Charge 1 commence this day and that the sentence imposed in respect of Charge 2 commence upon the completion of the sentence imposed in respect of Charge 1.  That results in a total effective sentence of three (3) years’ imprisonment.

76Because the total effective sentence is not greater than three years, under s19AC of the Crimes Act 1914 (Cth), I must make a single Recognizance Release Order and I must not fix a non-parole period. That leaves the question as to what period of imprisonment, if any, you should serve before being released on the recognizance.

77It is this aspect of the sentence that has given me the most cause for concern.  I have taken into account the submissions of counsel, including their respective concessions but, with respect, I am not bound by them.

78Notwithstanding the gravity of your offending, the mitigating factors in your case are exceptional. 

79Under s20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith upon giving security in the amount of $2,000.00 by recognizance of $2,000.00 to comply with the following conditions:

(a)   that you be of good behaviour for a period of three years; and

(b)   that you are to make reparation to the Commonwealth in the sum of – I shall check with counsel – by instalments of $100 per fortnight.

80I am required by s16F(2) of the Crimes Act 1914 (Cth) to explain the sentences I have imposed and the Recognizance Release Order I have just made.

81The total effective sentence I have just imposed is three years’ imprisonment. However, I have ordered that you be released forthwith upon entering the recognizance with the conditions I have mentioned.  That means that the entire sentence of three years will be served in the community, not within prison walls.  The Recognizance Release Order is subject to the conditions I have just outlined. 

82Ms Knight, you must understand that you must not, during the period of three years, commit any further breach of the law.  If you do, you will be in breach of the terms of the recognizance and should expect to be brought back before the Court and be ordered to serve the whole of the sentence I have just passed within prison walls.    

83The purpose of my making the Order is to give you the opportunity to not serve the sentences I have passed and to give you the chance to live down the disgrace of your conviction and to become again, as I believe you will, a useful and contributing member of the community.

84Do you understand, Ms Knight?

85OFFENDER:  Yes.  I do, Your Honour.

86HER HONOUR: Ms Knight may step out of the dock and sit behind her counsel while the Recognizance Release Order is prepared, and if I may double-check with Ms Kefford the amount of the reparation.  I have received a draft reparation order.  Is it preferable to make the reparation order separately and not included as part of the recognizance?

87MS KEFFORD:  Yes, Your Honour.

88HER HONOUR:  All right.  Very well, then.  The Recognizance Release Order does not contain the condition to make reparation to the Commonwealth.  That will be the subject of a separate order.  The amount - is it $343,298.59?

89MS KEFFORD:  Yes.  That’s correct, Your Honour.

90HER HONOUR:  Thank you, Ms Kefford.

91MS WONG:  Your Honour, there is one issue with the proposed order that both my friend and I agree with.  It says at the moment that she is to give security and recognizances.  I am not sure what Your Honour’s intention is, but I would have thought it would be just the recognizances that you are after in the order.

92HER HONOUR:  Well, you can do a security as well as a recognizance, but the idea is not that the $2,000 is payable now, only if there is a breach.  And if it is not necessary to have a security or to put the word “security”, I will delete it, but I will check with the prosecutor.  I want to make sure that ‑ ‑ ‑

93MS WONG:  Thank you, Your Honour.

94HER HONOUR:  ‑ ‑ ‑ the amount is $2,000 but not payable immediately.  Clearly, this woman has no financial means.

95MS WONG:  Thank you.  I’m grateful.

96HER HONOUR:  Ms Kefford, can you give me some assistance there?

97MS KEFFORD:  It would be sufficient just to have the recognizance, Your Honour.

98HER HONOUR:  Thank you.  Thank you very much.

99MS WONG:  May I approach my client, Your Honour?

100HER HONOUR:  Yes.  Ms Knight, you have now signed that document in the presence of my associate?

101OFFENDER:  Yes, Your Honour.

102HER HONOUR:  And you understand the consequences of breaching the Order?

103OFFENDER:  Yes, Your Honour.  I do.

104HER HONOUR:  Noting that I have given you quite an extraordinary opportunity in this case.

105OFFENDER:  Yes.

Statement under s6AAA of the Sentencing Act 1991 (Vic)

106It is desirable to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea I would have convicted and sentenced you to a total effective sentence of five years’ imprisonment. I would have directed that you serve a minimum of three years before becoming eligible for parole.

107I direct, pursuant to s6AAA, that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.

108The reparation order - as I understand it, that has been made by consent.  Is that right?

109MS WONG:  That’s correct, Your Honour.

110OFFENDER:  Yes.

111HER HONOUR: Thank you. By consent, the Court orders, pursuant to s21B(1) of the Crimes Act 1914 (Cth), Joan Frances Knight make reparation to the Commonwealth, namely, Services Australia, GPO Box 9822, Sydney, New South Wales 2001, in the sum of $343,298.59. Are there any further matters?

112MS KEFFORD:  No, Your Honour.

113MS WONG:  No, Your Honour.

114HER HONOUR:  I thank the parties for their comprehensive submissions and the provision of material.  Does Ms Knight have a copy of the Order yet?  There is nothing further.  We will temporarily adjourn.

115MS WONG:  As the Court pleases.

ANNEXURE “A”

IN THE COUNTY COURT OF VICTORIA   NO. CR-20-01233
AT MELBOURNE
IN ITS CRIMINAL JURISDICTION

THE QUEEN

-v-

JOAN FRANCES KNIGHT

SUMMARY OF PROSECUTION OPENING FOR PLEA

INDICTMENT

1. The Offender has pleaded guilty to the following offences:

Charge 1:	Defraud the Commonwealth contrary to section 29D of the Crimes Act 1914 (Cth).
	Maximum penalty: 10 years’ imprisonment and/or fine of $100,000 (1,000 penalty units).
Charge 2:	Dishonestly obtain a financial advantage by deception from a Commonwealth entity contrary to subsection 134.2(1) of the Criminal Code (Cth).
	Maximum penalty: 10 years’ imprisonment and/or fine of $66,000 (600 penalty units).

OVERVIEW OF OFFENDING

1. The Offender dishonestly claimed and obtained social security benefits from Services Australia (“the Department”) in the name Joan Frances KNIGHT (aka Joan Frances KEMP and Joan Frances STERCK) (“KNIGHT”) whilst also receiving benefits in the name Joan Frances MOUNTNEY (aka Joan Frances CAREY, Joan Frances THORNE, Joan Frances HEATHORN) (“MOUNTNEY”).

2. The Offender intentionally established the identity of KNIGHT while already in receipt of social security benefits in the name of MOUNTNEY in order to obtain two social security benefits at the same time. It is alleged that the Offender received a total of $350,517.83 in social security benefits to which she was not entitled.

FACTS

Background

1. The Offender has been in receipt of various social security benefits since 1977.

   5. During the period of offending, the Offender obtained Disability Support Pension under the MOUNTNEY identity, and obtained Partner Allowance, Newstart Allowance, Disability Support Pension and Disability Support Pension (Blind) under the KNIGHT identity. A chronology of the Centrelink benefits the Offender received under each identity is detailed below in Table 1:

Table 1: Chronology of Centrelink benefits and identities

Joan Frances MOUNTNEY		Joan Frances KNIGHT[25]
Benefit	Dates	Benefit	Dates
Disability Support Pension	10 November 1977[26] to 7 February 2019[27]	Partner Allowance	1 August 1996 to 20 October 1999
		Newstart Allowance	21 October 1999 to 19 April 2000
		Disability Support Pension	20 April 2000 to 24 August 2000
		Disability Support Pension Blind	25 August 2000 to 7 March 2019

[25] Annexure 001, [38].

[26] Annexure 001, [100].

[27] Annexure 032, page 1.

6. Partner Allowance (“PTA”) was a social welfare payment available to partners of pensioners or allowees who had no recent workforce experience. PTA was introduced so that each partner of a couple received a separate payment, rather than one member of the couple receiving a combined payment. An individual in receipt of PTA was required to inform the Department of any changes to their circumstances within 7 days.

7. Newstart Allowance (“NSA”) is a social welfare payment for job seekers that provides income while they are looking for work, and allows them to participate in activities designed to increase their chances of finding work.

8. Disability Support Pension (“DSP”) and Disability Support Pension Blind (“DSB”) are social welfare payments for people who have a physical, intellectual or psychiatric impairment that prevents them from working, or who are permanently blind.

9. Eligibility criteria for DSP, DSB and NSA may vary in regions affected by exceptional circumstances, and payments are calculated on an income and asset test basis and are administered by the Department. Recipients of social security payments are not entitled to receive more than one benefit at any one time.

10. The Department provides various options for people who want to claim a payment.  It is possible to notify the Department of an intent to claim a benefit by visiting a Customer Service Centre, telephoning the Department, or visiting the website.[28]

[28] Annexure 001, [6].

11. In order to qualify for a social security payment, a claimant is required to lodge a claim form and supporting documentation, including further forms or documents establishing their identity, age, residential address and marital status.[29]  Claimants are required to advise the Department if they have been known by any other names.[30]

[29] Annexure 001, [10].

[30] Annexure 001, [31].

12. When a claimant is applying for a social security benefit, the Department database is searched to ensure that the person is not already in receipt of a social security payment.[31]

[31] Annexure 001, [9].

13. A determination is made as to whether to grant or reject the claim based on the information provided by the claimant.[32]

[32] Annexure 001, [12].

14. A successful claimant is advised in writing of his or her ongoing obligation to notify the Department of changes in circumstances that might affect the rate of payments.[33]  The Department electronically records contact with recipients.

[33] Annexure 001, [14].

15. Payments of social security benefits are paid to claimants on a fortnightly basis.  Payments are paid in arrears based on the period for which the claimant is entitled.[34]

[34] Annexure 001, [35].

Offending

16. Between 1 August 1996 and 5 February 2019, the Offender submitted claims for and obtained benefits in the name KNIGHT whilst also receiving benefits in the name of MOUNTNEY.

17. The Offender commenced receiving Disability Support Pension under the MOUNTNEY identity on 10 November 1977. Those payments continued up until 5 February 2019.[35]

[35] Annexure 001, [38], Annexure 032, page 1.

18. The Offender commenced receiving social security benefits under the KNIGHT identity from 1 August 1996. Benefits obtained under the KNIGHT identity included PTA, NSA, DSP and DSB.[36] In claiming payments under the KNIGHT identity, at no time did the Offender advise the Department of her association with the MOUNTNEY identity.

[36] Annexure 001, [100].

19. The Offender’s obtaining of social security benefits under the dual identities of KNIGHT and MOUNTNEY amounted to an ongoing course of conduct, in that the claims made under the KNIGHT identity for PTA, NSA, DSP and DSB were intentional acts of a similar nature characterised by the purpose of obtaining payments of social security benefits from the Commonwealth, which the Offender knew or believed she was not eligible to receive. The Offender made claims under the KNIGHT identity using the same first and middle name as under the MOUNTNEY identity, with a slight variation to her date of birth to avoid detection. The details of these identities is outlined below in Table 2:

Table 2: Personal Details for the Identities

Name	Joan Frances MOUNTNEY Department Customer Reference Number (CRN): 301508194C	Joan Frances KNIGHT Department CRN: 306209979A
Date of birth	22 December 1953[37]	8 September 1953 and 22 December 1953[38]
Aliases	Joan F THORNE Joan F CAREY Joan HEATHORN	Joan Frances KEMP Joan Frances STERCK

[37] Annexure 029, pages 2, 5, 6.

[38] Annexure 006, page 1, Annexure 007, page 1, Annexure 008, page 1.

20. On the claim for Partner Allowance signed on 31 July 1996 in the name of Joan Frances KNIGHT, the Offender answered “No” to the question, “Have you ever claimed a Social Security benefit, pension or allowance or Youth Allowance before?”[39] Also on that claim form for Partner Allowance the Offender signed a declaration stating “I claim Partner Allowance and declare that the information given in this claim is correct.”[40]

[39] Annexure 006, page 2.

[40] Annexure 006, page 9.

21. On the claim for Newstart Allowance signed and lodged on 28 October 1999 in the name of Joan Frances KNIGHT, the Offender answered “No” to the question, “Have you applied for, or will you be applying for, the Disability Support Pension?”[41] Also on that claim form for Newstart Allowance the Offender signed a declaration stating “the information I have given on this form is complete and correct”.[42]

[41] Annexure 004, page 13.

[42] Annexure 004, page 19.

22. On the claim for Disability Support Pension lodged 18 April 2000 in the name of Joan Frances KNIGHT, the Offender answered “Yes” to the question, “Have you ever claimed a social security payment from Centrelink?”[43] The Offender wrote “Newstart Allowance” in response to the question, “What payment did you most recently receive or claim?” In response to the question, “Have you received or claimed any of the following payments in the last 14 days?” the Offender ticked “Yes” and underlined “Newstart Allowance”. She did not underline or highlight “Disability Support Pension – including pension for permanently blind”, which was also an option under this question.[44] On the claim form for Disability Support Pension the Offender signed a declaration that “the information I have given is correct” and that she understands “that there are penalties for deliberately giving false or misleading information”.[45]

[43] Annexure 002, page 7.

[44] Annexure 002, page 7.

[45] Annexure 002, page 39.

23. When providing the claim form for each social security benefit under the KNIGHT identity, the Offender used information which was separate and distinct from the MOUNTNEY identity so as to avoid any detection of the dual claims for social security benefits:
1. On the claim form for Partner Allowance signed on 31 July 1996 in the name of KNIGHT, the Offender completed the section “Other names you have been or are known by (such as maiden name, previous married name, previous de facto name, assumed name, Aboriginal or tribal name)”  by writing only the name “Kemp”;[46]

[46] Annexure 006, page 1.

2. On the claim form for Newstart Allowance lodged on 28 October 1999 in the name of KNIGHT, the Offender answered “No” to the question, “Do you have, or have you ever had, any other name(s)? e.g. maiden name, alias (or clan/tribal name if you wish to provide it)” (emphasis in original); [47]

[47] Annexure 004, page 4.

3. On the claim form for Partner Allowance signed on 31 July 1996 in the name of KNIGHT, the Offender indicated that she did not have any children.[48] This information was inconsistent with the details supplied under the MOUNTNEY identity, which indicated that the Offender has three children (Julie Catherine CAREY, James Charles CAREY and Keith William CAREY born 1978, 1979 and 1984 respectively).[49]

[48] Annexure 006, page 5.

[49] Annexure D006.

24. On 1 May 2002, during the period of offending relevant to charge 2, the Offender supplied to the Department self-reported medical information under the KNIGHT identity in support of her continuing claimed entitlement to DSP.[50] That form was accompanied by a ‘Treating Doctor’s Report’ completed by Dr M Awal at Swan Hill Medical Centre dated 1 May 2002.[51] In that report, Dr Awal indicated that the Offender had been a patient at the practice since 30 December 1997.[52]

[50] Annexure 016, pages 1-3.

[51] Annexure 016, page 9.

[52] Annexure 016, page 7.

25. On 21 May 2003, during the period of offending relevant to charge 2, the Offender supplied to the Department self-reported medical information under the MOUNTNEY identity in support of her continuing claimed entitlement to DSP.[53] That form was accompanied by a ‘Treating Doctor’s Report’ completed by Dr Bashir Ahmed at Swan Hill Medical Centre dated 16 May 2003.[54] In that report, Dr Ahmed indicated he had been treating the Offender for 10-11 years.[55]

[53] Annexure 042, pages 33-38.

[54] Annexure 042, pages 39-46.

[55] Annexure 042, page 45.

26. On 18 July 2011, during the period of offending relevant to charge 2, DSP payments made with respect to the MOUNTNEY identity were suspended after two letters which had been sent to MOUNTNEY on 12 April 2011 and 5 July 2011 were returned to the Department undelivered. The Offender contacted the Department on 17 August 2011 regarding the suspension of the MOUNTNEY benefits. The Offender informed the Department that she had been hospitalised before then moving in with her brother. The Department subsequently restored MOUNTNEY’s DSP benefits, updated her address details and added a mobile contact number.[56] The updated address provided mirrored that which had been recorded with respect to the KNIGHT identity since 27 August 2010.[57]

[56] Annexure 036, pages 4-5.

[57] Annexure 011, page 1.

Detection

27. The offending was detected by way of the Proof of Identity (POI) Alternative Identity project on 12 July 2018. This Project involved the comparison of documents and personal details held in the Department’s systems to determine possible dual identity offending. The Digital Identity Fraud Team (DIFT) identified links between Joan Frances MOUNTNEY and Joan Frances KNIGHT and initial analysis indicated the existence of a possible dual identity.

Investigation and Record of Interview

28. On 7 February 2019 a Premises Search Warrant was executed at the Offender’s principal place of residence; Unit 1/10 Dylan Street, Epsom VIC 3551. The Offender was present during the search. Investigator’s seized a number of relevant identification documents in the names of KNIGHT, MOUNTNEY and STERCK belonging to the Offender. The seized documents included bank statements, electricity bills, a medical referral, letters and receipts.[58]

[58] Annexure 044, Annexure 046, Annexure 048, Annexure 050 and Annexure 052.

29. Further investigations by the Department revealed that:
1. The same residential address was listed with the Department for both identities. The address has been active for KNIGHT since 27 August 2010 and active for MOUNTNEY since 17 August 2011;[59]

[59]Annexure 011, page 1 and Annexure 031, page 1.

2. The same mobile phone number was provided to the Department for both identities; The number has been recorded for MOUNTNEY since 17 August 2011[60] and was provided by KNIGHT when she advised of the death of her carer in 2017;[61]

[60] Annexure 031, page 2.

[61] Annexure 074.

3. James Carey has provided the Department with the surname KNIGHT and MOUNTNEY as his mother’s name on different occasions;[62] and

[62] Annexure D007, page 2, Annexure D007, page 17, Annexure D007, page 19, Annexure 062, page 6 and Annexure 064.

4. Records held by Medicare indicate that KNIGHT is an alias of MOUNTNEY.[63]

[63] Annexure 069.

30. The Offender participated in a record of interview with investigators on 25 February 2019 at the Bendigo Department of Human Services Centre.  During the interview, the Offender admitted that:
1. She has used the names Joan Frances Knight, Joan Frances Mountney as well as the surnames Thorne and Carey;[64]

[64] Annexure 025, pages 20, 21 and 23.

2. She had been told by people that you could “get two payments from Centrelink if you want to” by using a “false ID card in another name”;[65]

[65] Annexure 025, pages 69 – 71.

3. She had provided a false ID card to the Department and she knew “more or less” at the time that it was something she should not have done;[66] and

[66] Annexure 025, pages 69 - 71.

4. In response to the allegation put to her, the Offender said: “I really don't know why I did it. Maybe because me husband wasn't supportin' me and the kids. Um, and that's about it. And being put out of home, I s'pose, didn't go too well with me, um, 'cause me father passed away. Um, I took that pretty bad, and then Mum put me out of home and put me into with me grandmother, and I was there until I was 20. There's – that's all. I'm really annoyed with meself doin' it. I shoulda went for help and asked for help, to family, any (indistinct) was in (indistinct) um, Salvation and those sort of people, but I didn't, I come to youse and did the fraud, and it's wrong”.[67]

[67] Annexure 025, page 20.

Other Matters

31. The Offender is currently 67 years old and was aged between 42 and 65 years old during the period of offending. She has no prior convictions.

32. There are no co-accused involved in this offending.

33. The Offender pleaded guilty at the committal mention at the Horsham Magistrates’ Court on 7 October 2020.

34. The Offender has not spent any time in custody in relation to this offending.

35. Pursuant to s 21B of the Crimes Act 1914 (Cth), the Crown will seek a reparation order to recover the amount overpaid, that being $350,517.83.[68]

[68] The debt amount that has been repaid will be confirmed on the date of sentence.

Commonwealth Director of Public Prosecutions
22 January 2021