Director of Public Prosecutions (Cth) v Landry
[2021] VCC 903
•5 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01621
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL LANDRY |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 March and 16 June 2021 | |
DATE OF SENTENCE: | 5 July 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v Landry | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 903 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence.
Catchwords: Sentence – fraud – one charge of dishonestly causing a loss to a Commonwealth entity – one charge of attempting to dishonestly cause a loss to a Commonwealth entity – plea of guilty – offending against NDIS – youth – high functioning autism – reparation – immediate term of imprisonment warranted.
Legislation Cited: Crimes Act 1914 (Cth).
Cases Cited:DPP (Cth) v Omar [2019] VCC 1054; DPP (Cth) v Rowson [2007] VSCA 176; Azzopardi v The Queen (2011) 35 VR 43; Worboyes v The Queen [2021] VSCA 169; DPP (Cth) v MHK (2017) 52 VR 272.
Sentence: Total effective sentence of 3 years’ imprisonment, with release after serving 16 months’ imprisonment on a recognizance of $5,000 to be of good behaviour for 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr A. Sim | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C. Morgan | Rolfe Criminal Law |
HIS HONOUR:
Preliminary
1Mitchell Landry, you are now 23 years old. You were 20 years old at the time of committing this offending.
2You have pleaded guilty to two charges against the Criminal Code Act 1995 (Cth). Charge 1 is that you dishonestly caused a loss to a Commonwealth entity. The maximum penalty for that offence is five years' imprisonment or 300 penalty units, or both. Charge 2 is that you attempted to dishonestly cause a loss to a Commonwealth entity. The maximum penalty for that offence is also five years' imprisonment or 300 penalty units, or both.
3You committed Charge 1 between 2 June 2018 and 10 September 2018. You committed Charge 2 between 1 June 2018 and 12 August 2018.
Circumstances of the offending[1]
[1] Crimes Act 1914 (Cth) s 16A(2)(a).
4The circumstances of your offending are contained in the prosecution opening, which was exhibited on your plea.[2] I act upon the facts as outlined in the opening, and which were not disputed by you. I will briefly summarise those facts.
[2] Exhibit 1.
5By way of background, the National Disability Insurance Agency, or the NDIA, is an independent statutory authority and its roles include the implementation and administration of the National Disability Insurance Scheme, the NDIS, on behalf of the Commonwealth.
6The NDIS provides funding for participants to access services and supports needed as a result of their disabilities.
7An individual or organisation that delivers a support or product to an NDIS participant is an NDIS 'provider'. Whilst providers can be registered or unregistered with the NDIA, only registered providers can provide supports to NDIA managed participants and access the online Provider Portal, known as 'Myplace'.
8To register as a provider, the individual or organisation needs to create a Provider Digital Access account, known as a 'PRODA account'. The authentication process through PRODA provides secure access to the Myplace portal.
9To receive payment from the NDIA for services provided to a participant, the registered provider must firstly create a service booking in Myplace. When completing a service booking, the registered provider makes a declaration that the service booking has been discussed and agreed to by the participant. Once the service is delivered, the registered provider can then make a payment request via Myplace. These requests are validated by the NDIA before being paid. The validation process involves confirming there is sufficient budget within the participant's plan and that the provider is registered to provide the claimed services.
10All claims for payment for services are processed and upon approval, payments are directly made into the provider's nominated bank account.
11On or about 3 October 2016, you obtained an ABN, or an Australian business number, for your sole trading business, 'Mitchell's Mowing and Property Services'.
12You created a PRODA account with the username 'mitchoman' on 23 June 2017. On that same date, via PRODA, you used the Myplace portal to submit an application to become a provider using the business name 'Mitchell's Mowing and Property Services'.
13On 15 September 2017, the NDIA approved Mitchell's Mowing and Property Services as a provider. You were thereby approved by the NDIA to provide services to NDIS participants.
14Records of the NDIA confirm that payments for services rendered by Mitchell's Mowing and Property Services were to be deposited into your National Australia Bank account.
15On four separate dates between 22 December 2017 and 29 May 2018, amounts were deposited by the NDIA into your bank account for legitimate services rendered.
16However, between 1 June 2018 and 7 September 2018, you accessed the accounts of 24 NDIS participants and created 22 false service bookings for services that had purportedly been provided to them. In reality, none of the participants had requested the services purportedly provided, nor did you provide any such services.
17In this way, as a result of false service bookings made to the NDIA on 11 days between 2 June 2018 and 7 September 2018, you dishonestly caused a loss to the NDIA in the amount of $342,940.51. This conduct gives rise to Charge 1.
18To use just one individual example of how you did this, on 2 June 2018, you accessed the Myplace portal and made a service booking request for NDIS participant, 'CH'. You claimed 1020 hours for work said to have been completed between 1 August 2017 and 1 April 2018. CH's parents, who were responsible for authorising services under CH's plan, confirmed that they were unaware of Mitchell's Mowing and Property Services and had never made a booking to receive services from that business. The amount you claimed in relation to CH for this period was $44,881.80. On 5 June 2018, three days after making the claim, that sum was deposited into your bank account.
19Additionally, between 1 June 2018 and 12 August 2018, you accessed the accounts of nine NDIS participants and made nine false service bookings. These claims, however, were unsuccessful. They were never paid to you. You thereby attempted to dishonestly cause a loss to the NDIA in the amount of $156,338.42. This conduct gives rise to Charge 2.
20The NDIA received information in September 2018 of suspicious claims made by you. An investigation commenced in the latter part of 2019. In December 2019, a search warrant was executed at your residential premises. A number of items were seized, and you were arrested. You took part in a record of interview and exercised your right to silence. You were charged and released on bail.
Victim impact[3]
[3] Crimes Act 1914 (Cth) s 16A(2)(d),(e).
21In this case, the public revenue is the ultimate victim of your offending; further, there is a cohort of NDIS participants who are also victims. This cohort of participants are, generally speaking, vulnerable and disadvantaged persons. However, the NDIS participants did not, I have been told, suffer any long-term economic loss, in that their plans were eventually replenished.
22One Victim Impact Statement[4] was tendered by the prosecution. The author of that Victim Impact Statement is the mother of an NDIS participant who was one of the victims of your offending. In her statement, the author describes feeling that she and her daughter had been 'taken advantage of' and having trust issues when dealing with the NDIS since your offending. The author is concerned that the same thing could happen again and is now hypervigilant.
[4] Crimes Act 1914 (Cth) s 16A(2)(ea).
Objective gravity of offending
23The offending for which you fall to be sentenced is serious indeed.
24Both offences contained on the plea indictment are rolled up charges. Both encompass a series of fraudulent incidents.[5]
[5] Crimes Act 1914 (Cth) s 16A(2)(c).
25Charge 1 comprises 22 individual claims that you made and that you were paid for or that were paid to you. Charge 2 comprises nine individual claims that you made, but that were not paid to you.
26The quantum involved was significant – all up you fraudulently claimed just shy of $500,000. The amount of money involved is an important consideration in assessing the seriousness of the offending.
27Offending on the public revenue is inherently serious. In this case, your offending was against the NDIS, an organisation which manages the expenditure of public funds for vulnerable members of our community.
28Once registered as a provider, the NDIS was an honesty-based system. Claims were then generally accepted and processed in good faith without supporting documentation having to be produced and without further investigation or interrogation taking place. You abused this system.[6]
[6] DPP (Cth) v Omar [2019] VCC 1054 [29].
29You seized the opportunity to cheat the system and improve your financial situation. It involved sustained conduct on your part over a period of just over three months. Throughout that period, you had the opportunity to desist, but instead chose to continue to exploit this scheme. Your offending thereby involved a level of calculation and persistence.
30However, I do accept your counsel's submission that your offending was not overly sophisticated. I accept that when you registered as a provider, you did so in good faith. That is, you did not register with the intention of defrauding the system. When you commenced to defraud the system, it seems it was quite easy for you to do so. In this respect, your offending was quite simple and did not involve any complicated deceptions or actions on your part. You did not use any false names or make any attempt to conceal your identity, for example.
Moral culpability
31Before I assess your moral culpability, it is convenient to say something about your personal circumstances.
32At the time of this offending you were living in the Bendigo area. You have now left Bendigo and you are now unemployed.
33You were diagnosed with high functioning autism when you were a young child. Due to behavioural issues, you were removed from your family in 2010. You spent most of your teenage years living in various forms of State care. In 2014, you were placed on a Custody to Secretary Order.
34As a child, you experienced a breakdown in normal family life and a disjointed and unstable childhood.
35The effects of your autism, and your experiences in State care continue to make it difficult for you to form close personal relationships. You are largely alone in making decisions.
36In 2015, you began, but did not complete, high school at Bendigo Secondary College, where you focused on hospitality in the Victorian Certificate of Applied Learning program.
37You are largely estranged from your family and have been for some time, although you have some contact with your mother.
38Your counsel told me that at the time of committing this offending, you were recuperating from gastric band surgery.
39Investigations revealed that the NDIA funds you obtained were used to purchase two residential properties in North Bendigo, a residential property in White Hills and a Mercedes Benz van.
40On its face, your offending would be characterised as having been committed out of reasons of greed, as indeed the prosecution contends.
41In your case however, this assessment is complicated by your mental condition.[7]
[7] Crimes Act 1914 (Cth) s 16A(2)(m).
42On the first day of the plea hearing, defence counsel tendered some Department of Human Resources reports relating to you. They were dated 2014.
43Within those reports, it was identified that you have high functioning autism. The reports indicated that your condition affected your behaviours, which made you a target for bullying. They also refer to your interest in money as a preoccupation. The reports also noted your difficulties with understanding social language and noted that education may improve your understanding of these issues.
44Defence counsel submitted that while he did not seek to enliven any of the Verdins principles, your autism provided the context to your offending or a partial explanation for it.
45I queried whether the material (and indeed some of your counsel's arguments) might in truth engage Verdins. I also expressed a concern that I did not have before me an updated assessment in relation to your autism, the relationship between your autism and this offending if any, or how you might experience imprisonment in the light of your autism.
46Defence counsel sought additional time to acquire further evidence. I granted this request and the plea hearing was adjourned.
47At the further plea hearing, a detailed report from Ms Evelyn Chen, clinical neuropsychologist, dated 1 April 2021, was tendered.
48Ms Chen had before her the Department of Human Services report, to which I have made reference, together with some other medical reports which were not provided to me.
49Early in the report, Ms Chen recorded:
'When asked what had prompted him to claim amounts of money that he did provide a service for, Mr. Landry reported that he had an obsession with money, and that “it's extreme”. He reported that he has “always been obsessed with money since about 5 [years of age]”, “spending it or having it”.
He reported beginning a mowing business at 12 to 13 years of age, and then setting up a mowing business legitimately at 17 years of age. He reported trying to get “every job cause I wanted the money”.'
50The report goes on to record that when asked about your thoughts regarding why you offended, you reported, inter alia, or amongst other things the following:
· 'I was always isolated from people.'
· 'I was always frowned upon in life, judged and have a disability.'
· 'I saw that money, and I thought maybe I can look like everyone else.'
· 'He reported that he was denied for supports by NDIS previously. He stated that he 'knew I was eligible, and that “if I can't get it that way, I can get it this way.”'
51Having interviewed you and having conducted a series of tests, Ms Chen stated the following conclusion with respect to your diagnosis:
'In all, Mr Landry's neuropsychological profile is consistent with Autism Spectrum Disorder (ASD). There is no indication that he is hampered by significantly reduced cognitive function, as his general intellect is within the average range.'
52In her summary, Ms Chen then posed the question, 'Whether Mr Landry's diagnosed Autism Spectrum Disorder has had an impact on offending?'. Ms Chen answered that question as follows:
'Autism Spectrum Disorder (ASD) is a complex developmental condition that involves a wide spectrum. Symptoms such as persistent challenges in speech, social interaction, and restricted or repetitive behaviours are different in severity for each individual. Indeed, while many people with autism have normal intelligence, others experience mild to significant intellectual deficits.
In Mr. Landry's case, while his general intellect is intact, he does have a history of being fixated on money, and impulsivity/behavioural disinhibition since childhood (as detailed in historical reports provided). Mr. Landry's ASD has, therefore, to some extent, had an impact on his offending. However, it is not possible to quantify the extent of the impact as a consequence of the interrelatedness of his motivations, ASD behaviours, and learned experiences. However, it is reasonable to acknowledge that Mr Landry's fixation with regards to the accumulation of money and his impulsivity may have trumped his motivation to abstain from his offending behaviour at the time.
I note that Mr. Landry has regular sessions with a psychologist. With regard to education/rehabilitation, it will be worthwhile engaging a psychologist who is able to assist with addressing the impulses associated with money and how to manage that. He is an individual who will require ongoing support to ensure that he does not reoffend.'
53In light of the new material, your counsel submitted that Ms Chen's report provided a foundation for concluding that there was 'some causal connection' identified between your condition and your offending. It was conceded it was not possible to quantify the extent of the impact that your condition had on your offending. Your counsel submitted that Verdins principle was now engaged, albeit to a limited extent. And that is the Verdins principle or propositions 1.
54The prosecution did not challenge the opinions of Ms Chen. They did, however, submit that the evidence did not rise to the level of enlivening Verdins principle 1. The prosecution said that the relationship between your autism and the offending, as disclosed by the evidence was, at best, tenuous and did not establish, on the balance of probabilities, that there was a realistic connection. The prosecution further pointed to the fact that Ms Chen's report had referenced two other reports in particular which had never been placed before me, namely, a psychological report by Gina Cidoni, psychologist, dated November 2019, and a report by Simon Kennedy, a psychologist, dated July 2020. This further weakens the cogency of Ms Chen's conclusions, the prosecution submitted.
55Turning to the relevant principles.
56An offender's moral culpability may be reduced if, at the time of the offence, their impairment:
· reduced their ability to exercise appropriate judgment, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct; or
· made them disinhibited; or
· obscured the intent to commit the offence; or
· contributed causally to the commission of the offence.
57This list is not exhaustive.
58For the impairment to engage Verdins at the time of the offending there must be a realistic connection between the two.
59I have concluded that Verdins principle 1 in relation to moral culpability is enlivened. Read as a whole, I find that Ms Chen's report provides an evidential foundation in support of the proposition that your autism had some impact on your offending.
60There can be no doubt that your motivation was monetary and asset enrichment, and, in a broad sense, it was committed for reasons of greed. But the motivation of greed in your case is somewhat coloured by the fact that the offending was committed by an isolated, impulsive, young man craving recognition, societal affirmation and belonging through your obsessive acquisition of money. That context to your motivation was grounded in your high functioning autism.
61Your autism interacted with your unstable background. You did not have the benefit of sustained support to manage your autism. By the time you came to commit this offending, you were very much alone and isolated in your decision making, and you operated without the support structures which your autism required.
62I accept your counsel's argument that, by reason of your autism within this setting, you did not have the normal social moderators or social handbrakes which might have caused you to pause before undertaking such criminal conduct. This meant that you were, to some extent, less equipped, by comparison with a person of normal mental health, to resist this offending or to desist from it, or to fully turn your mind to how society would view your conduct. In short, your impairment and impulsiveness disinhibited you to some degree.
63Your blameworthiness is to be contrasted, for example, with a clear-headed, more mature person, whose only explanation for such offending is pure greed.
64I therefore find that there is a realistic connection between your autism and the offending in question.
65That said, while there is some connection between your autism and your offending, this is not a case where the evidence establishes an extensive relationship between the two. And I give three reasons why that is so:
· I would not describe its impact on your offending as considerable. As
Ms Chen acknowledges in her report and as your counsel accepted, the level of the impact cannot be quantified beyond the mere fact of some relationship.· I am also conscious that this was not an isolated act of dishonesty with no time for reflection. The offending was neither rash nor ill-considered. Fundamentally you knew what you were doing was wrong.
· While it is not possible to disentangle all your motivations, this offending undoubtedly involved greed. Your counsel accepted as much. Your offending was purposeful.
66The effect of an impairment on moral culpability is always a matter of degree. In all the circumstances before me, it warrants a moderate diminution in your moral culpability.
67To a similar degree, I will moderate general deterrence and denunciation. For reasons which I will explain below, any moderation to specific deterrence will, however, be slight.
68For the sake of completeness, I will deal with the prosecution argument concerning the failure of the defence to provide me with the Cidoni and Kennedy reports. Whilst Ms Chen relied upon a number of other medical reports – including these reports – she did so more by way of describing your mental health history with autism and your related impulsiveness and disinhibition. That history is not disputed. You were also assessed by Ms Chen for some four hours and multiple tests were performed. Ms Chen's report is detailed. Ms Chen concluded that your current assessment results were broadly consistent with historical findings. It seems to me that Ms Chen's ultimate conclusions in relation to the impact of your autism on this offending were not materially influenced by the opinions of Cidoni or Kennedy.
Imprisonment and Verdins 5
69On the first day of the plea hearing, your counsel did not seek to engage Verdins principle or proposition 5, namely that prison is likely to be more burdensome for you than it would be for a person who did not suffer from your condition.
70In the light of the subsequent report of Ms Chen your counsel changed his submission.
71In an addendum to her report, Ms Chen said the following:
'Prominent features of ASD include significant difficulty with reading social cues, and behaviours (e.g., repetitive behaviours) that do not 'fit' into what is considered to be normal. Mr. Landry presents with these features. Given that the prison population is likely to be less tolerant, Mr. Landry will be vulnerable if placed in a prison system. He is at risk of being isolated, being taken advantage of, and victimised by others. A prison term will affect Mr. Landry disproportionately compared to others who do not have ASD.'
72It is common ground between the parties that the new evidence now establishes that imprisonment will likely weigh more heavily upon you than it would a person in normal mental health.
73I agree. I will moderate the sentence I impose accordingly.
74On a similar note, I also take into account the public opprobrium that you have received as a result of your offending and the impact it has had upon you. The report of Ms Chen records your reporting of being recognised by residents of Bendigo and on one occasion someone saying words to you or to the effect, 'I'll bash your head in'. I note that you moved from Bendigo as a result of the attention that your offending received.
75Whilst some public censure is inevitable with offending such as this, I accept that it has increased the levels of anxiety that you experience as a result of your autism, and that this adverse experience has weighed more heavily on you than it may have on a person who does not suffer from autism, and I take that into account.
Criminal history and good character
76You do not have any prior convictions,[8] and that is despite your disjointed background.
[8] Crimes Act 1914 (Cth) s 16A(2)(m).
77Whilst your prior good character is relevant, I am mindful of the authorities which emphasise that in cases involving fraud on the public revenue, it is not uncommon for offenders to be of previous good character.[9] I will return to the question of your good character in a moment within the context of your youth.
[9] DPP (Cth) v Rowson [2007] VSCA 176, [26].
Subsequent matters
78I have been informed of some subsequent offending. You were convicted in the Bendigo Magistrates' Court on 5 May 2020 and sentenced to a community correction order for a period of 18 months. That order included conditions that you undertake 300 hours of unpaid community work and that you undertake treatment and rehabilitation for mental health assessment and treatment.
79The offences that you were convicted of included charges of obtaining and attempting to obtain property by deception.
80Your counsel informed me that the offending which involved the Transport Accident Commission was very similar in nature to the instant offending. It involved about $25,000, and you have also made full reparations in respect to this offending. The TAC offending occurred between May 2018 and March 2019.
81Your counsel informed me that the offending in relation to Australia Post involved you making false claims for insurance in relation to packages that were purportedly lost in the post. The amount involved in this offending was about $4500.
82Your subsequent offending is relevant to questions of rehabilitation and totality. And I shall return to these.
Youth
83You were very young at the time of committing the offending, that is the offending that brings you before me – 20 years of age, and you are now only 23 years of age.[10] Effectively, you fall to be sentenced as a first-time, relatively young offender.
[10] Crimes Act 1914 (Cth) s 16A(2)(m).
84In the circumstances, the youthful sentencing principles apply.[11] Most significantly, I must give more weight to the consideration of your rehabilitation than for an older person. This is an important factor.
[11] Azzopardi v The Queen (2011) 35 VR 43, 55–6 [34]-[40], [44]-[46].
85You must appreciate, however, that for a fraud on the public revenue, especially one of this size, the mitigating influence of your youth must partly give way to considerations of general deterrence and denunciation.
Plea of guilty, reparation and remorse
86I accept that you pleaded guilty at an early stage of proceedings, and I allow for a reduction in sentence on account of the utilitarian benefits of this plea.[12]
[12] Crimes Act 1914 (Cth) s 16A(2)(g).
87Further, because your plea of guilty was entered during the COVID-19 pandemic, it is worthy of greater weight in mitigation than if it were entered when the community and the courts are not afflicted by the pandemic's effects. Your plea of guilty therefore attracts a greater reduction in sentence than would ordinarily be the case.[13]
[13] Worboyes v The Queen [2021] VSCA 169, [39].
88In entering pleas of guilty, you have demonstrated an acceptance of responsibility for your conduct, and a willingness to facilitate the course of justice.
89You receive significant credit for having made full restitution voluntarily.[14]
[14] Crimes Act 1914 (Cth) s 16A(2)(f).
90I also accept that by reason of your plea of guilty and your full repayment of the money involved, you have demonstrated remorse. In her report, Ms Chen indicates that you reported to her that you knew what you did was wrong and that your offending 'makes the system look bad'.
91I will give you credit for all of those matters.
Prospects of rehabilitation,[15] protection of the community and specific deterrence
[15] Crimes Act 1914 (Cth) s 16A(2)(n).
92For a relatively young person who comes before the court as a first-time offender of prior good character, assessing your risk of reoffending is surprisingly complex.
93On a positive note, and to your credit:
· You have no priors and come before the court as a person of good character and that is despite your unstable upbringing.
· You were a very young man at the time of the offending and are only 23 years of age today.
· You have not reoffended since your apprehension for these matters – that is in December 2019. True, there is the subsequent offending, but that took place before your apprehension for the current matters. Your counsel submitted, and I accept, that the delay - and that is effectively a delay since the last time you offended for the subsequent offending - since this time has enabled you to demonstrate some reform on your part.
· Further, in relation to your subsequent offending you have been serving a community correction order. I have received evidence from your Corrections case manager, Mr Samuel Chaston, concerning your compliance with that Order. It demonstrates a high level of compliance with those conditions, including the fact that you attend every session with a psychologist and that you are open to the therapeutic process, though I do not have any report on the nature of that treatment (despite the attempts by your legal practitioners to obtain one).
· Next, Ms Chen in her report indicated that you had demonstrated that you knew what you had done was wrong in respect of the current charges.
· And as I have said previously, you have accepted responsibility for the offending and there is evidence of remorse.
· And finally, you have pleaded guilty and made full restitution.
94I consider your prospects to be fairly good. There is, however, a note of caution or reserve in my assessment.
95Your prospects will be very much dependent upon your impulsive and disinhibited behaviour towards money being controlled. You really did jump into the deep end, given the size and seriousness of this fraud. Added to this is the subsequent offending. Your impulsiveness towards money is a troubling problem – for you and for the community. Ms Chen said in her report that you are an individual who will require ongoing psychological support to ensure that you do not reoffend.
96It is a positive thing that there is evidence before me to the effect that treatment can be a protective factor against reoffending. I am also somewhat comforted by the general report from Corrections that you have engaged well with the psychologist under the terms of the CCO and that you are open to the therapeutic process, though I have been told by your counsel that this treatment has not specifically targeted your offending behaviour involving money.
97The fact is, there remains an element of uncertainty about how successful and sustainable treatment of your impulsive and disinhibited behaviour towards money will prove to be. Your prospects will depend upon this.
98In all the circumstances, there is still a need for some weight to be given to the need to protect the community from you. Further, specific deterrence also still has a role to play with respect to you. Despite your high-level autism, you are of average intelligence and do appreciate the wrongfulness of what you did. You are capable of learning from the experience of punishment.[16] This sentence must play a role in making you abstain from such dishonest conduct in the future.[17]
[16] Crimes Act 1914 (Cth) s 16A(2)(k).
[17] Crimes Act 1914 (Cth) s 16A(2)(j).
Totality
99I am mindful of the application of the totality principle in sentencing you, and your subsequent offending is relevant in this regard.
100The subsequent fraudulent offending is connected in time and nature to the NDIS offending before me, albeit the NDIS offending is on a far greater scale. When fixing the sentences for the NDIS matter before me, I must be mindful of the sentences already imposed upon you for similar matters, so that your overall sentences for all matters are proportionate to the totality of your offending. I take into account the full subsequent sentence imposed upon you even though you have not until now served all of it.
101I am also conscious of the application of the principle of totality to my orders with respect to concurrency in relation to the sentences to be imposed for the two charges on the indictment, given their overlapping circumstances.
Balancing mitigating factors with denunciation and general deterrence
102I have reduced, by some measure, the weight to be given to denunciation and general deterrence, by reason of your age and your autism (and the consequential application in particular of Verdins principle 1).
103This does not mean that general deterrence and denunciation are rendered unimportant. The authorities are clear. There is a strong need for general deterrence for frauds like this – perpetrated upon the public revenue. These offences are difficult to detect and easy to commit. There is a need to protect the public revenue. Despite your mitigating factors, general deterrence and denunciation remain weighty considerations.
104The sentences I impose must play a role in deterring others from flouting the law and misusing public revenue systems such as the NDIS.[18]
[18] DPP (Cth) v MHK (2017) 52 VR 272, [57]-[60]; Crimes Act 1914 (Cth) s 16A(2)(ja).
General principles
105I must have regard to s16A(1) of the Crimes Act 1914 (Cth) and impose a sentence that is of a severity appropriate in all the circumstances. In doing so, I must have regard to those matters that are relevant and known to the court referred to in s16A(2) of the same Act, in addition to any other matters of relevance. I have already made reference to these matters throughout my reasons.
Submissions as to sentencing disposition and sentencing practices
106The prosecution submitted a term of immediate imprisonment with a non-parole period is the only appropriate disposition, which means a head sentence of greater than three years.
107The defence submitted I should consider a sentence that does not involve immediate custody by reason of the constellation of mitigating factors.
108I have had regard to the discernible sentencing practices as revealed by the public revenue fraud sentencing decisions brought to my attention by the prosecution. Of course, individualised justice requires that the sentences I impose upon you must be just and appropriate in the circumstances of your case. Every case is different.
109With that firmly in mind, I make a few general observations. The sentencing decisions, and the principles which underlie them, indicate that offending of this nature, and on this scale, is highly likely to attract some actual imprisonment. Further, a number of the decisions involve lengthier sentences requiring the imposition of a non-parole period. However, while the objective features in those decisions are broadly comparable to your case, they do not involve relatively youthful offenders who have attracted the application of several limbs of Verdins, who have made full restitution, and who have pleaded guilty during COVID-19.
Sentence
110Balancing all of the factors, I have determined that a term of actual imprisonment is required. No other sentence is appropriate in the circumstances.[19] Your mitigating factors will, however, result in a reduction of the length of the terms of imprisonment which I will impose, including the length of the actual period which you must serve. I have, however, concluded that a sentence of the length contemplated by the prosecution's submissions is not necessary in order to give full effect to all the relevant sentencing considerations.
[19] Crimes Act 1914 (Cth) s 17A(2).
111Would you please stand, Mr Landry?
112In relation to Charge 1, I sentence you to two years and six months' imprisonment. I order that this sentence is to commence today, 5 July 2021.
113In relation to Charge 2, I sentence you to 18 months' imprisonment. I order that this sentence commences 18 months after the commencement of Charge 1.
114The sentence on Charge 1 of two years and six months' imprisonment is thus the base sentence. On Charge 2, the intended cumulation is six months.
115You will therefore be sentenced to a total effective sentence of three years' imprisonment.
116I will, however, direct that you be released after having served 16 months' imprisonment, upon you entering into a recognizance of the sum of $5000, to be of good behaviour for three years.
117Before I make that order, I will explain to you the purpose and the effect of the proposed recognizance release order and the consequences that may follow if you, without reasonable excuse or cause, fail to comply with the conditions of the order.
118The purpose and effect of the recognizance order is to grant you conditional freedom after you have served 16 months' imprisonment.
119It requires you then to be of good behaviour for a period, a further period of three years after your release. If you commit a further offence in breach of the recognizance to be of good behaviour in that three year period after your release, then unless you show a reasonable excuse for committing a further offence or offences, you will be dealt with for that breach and resentenced. You may have to pay $5000 and you may have to serve immediately, the remaining term of imprisonment, which would be 20 months.
120I also tell you that you or an authorised person may apply to the court to vary or discharge the recognizance, in accordance with s20AA of the Crimes Act 1914 (Cth).
121So, subject to My Landry signing that recognizance release order and subject to hearing from you both that my directions as to commencement dates comply with my intended cumulation, I will formally pronounce the orders.
122And perhaps for the sake of completeness, before I ask that, can I ask that question that my intended cumulation corresponds with the dates?
123MR SIM: Yes, Your Honour, that is what I - I do not have an issue with what Your Honour has proposed.
124HIS HONOUR: All right. Mr Morgan?
125MR MORGAN: Yes, Your Honour.
126HIS HONOUR: All right. And you are preparing that document for Mr Landry?
127MR SIM: I am, Your Honour, yes. Yes.
Section 6AAA statement
128Finally, I declare that under s6AAA, my s6AAA statement under the State Sentencing Act, Mr Landry, but for your plea of guilty, I would have imposed a total effective head sentence of four years and 10 months with a non-parole period of two years and 10 months.
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