Director of Public Prosecutions (Cth) v O'Brien

[2022] VCC 1046

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-02345

DIRECTOR OF PUBLIC PROSECUTIONS (Cth)

v

ZOEY O’BRIEN

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2022
DATE OF SENTENCE:	01 July 2022
CASE MAY BE CITED AS:	DPP (Cth) v O’Brien
MEDIUM NEUTRAL CITATION:	[2022] VCC 1046

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Dishonestly causing loss to a Commonwealth entity

Legislation Cited:      Criminal Code Act 1995 (Cth)

Cases Cited:Black v The Queen [2022] VSCA 125; Bugmy v The Queen (2013) 249 CLR 571; DPP (Cth) v Alateras [2004] VSCA 214

Sentence:Total effective sentence of 18 months imprisonment. Pursuant to s. 20(1)(b) of the Crimes Act 1914, Zoey O’Brien be released forthwith on recognisance of $2,500 and on the condition of good behaviour for 3 years.

Reparation in the sum of $113, 949.46.

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APPEARANCES:	Counsel	Solicitors
For the DPP For the Accused	Ms S. Holmes Ms J. Ball	Commonwealth Director of Public Prosecutions Smith & Tapper Criminal Lawyers

HER HONOUR:

1Zoey O'Brien, you have pleaded guilty to a single charge of dishonestly causing a loss to a Commonwealth entity, contrary to subsection135.1(5) of the Commonwealth Criminal Code.

Nature and circumstances of the offending, and whether forms part of a course of conduct (s 16A(2)(a) & (c))

2This offence carries a maximum penalty of five years' imprisonment and/or a pecuniary penalty of up to $51,000.  A detailed summary of your offending was tendered by the prosecutor.[1]  I will not set out all the facts in that document, but I have taken them into account in understanding your offending and assessing its gravity.

[1] Amended Summary of Prosecution Opening for Plea dated 17 June 2022, Exhibit P1

3From 4 September 2007, not long after the birth of your first child, you were in receipt of a social security benefit designated as Parenting Payment Single, which I will call PPS.  That benefit is paid on the basis that the recipient is not in a relationship.  When you first began to be paid that benefit you were entitled to it.

4The charge period commences on 13 March 2014, which is the date of the birth of your daughter.  You had a third child who was born in August 2016. You and Ms Gunther married in November 2018.  During the charge period you and Ms Gunther lived together at various addresses. You were principally involved in the care of the children. Ms Gunther had a full time job which involved shift work.

5You took six international trips together.  Your three children were and are covered by Ms Gunther's health insurance as were you, between 20 February 2019 and 29 September 2020.

6Both you and Ms Gunther retained bank accounts in your own names, but also had a joint ING account opened in January 2019.

7The investigation into your offending included the investigators obtaining bank statements which showed the sharing of household expenses, and that you paid rent to Ms Gunther during the charge period.  Both of you deposited money into the ING account from your respective salaries.

8The prosecution opening sets out a number of matters relevant to the issue of the nature of your relationship with Ms Gunther.  There is no issue taken by you as to whether you were in a marriage-like relationship, then a marriage to Ms Gunther, and so I will not set out that material here.

9Whilst you were in receipt of the PPS you had an ongoing obligation to inform the Department of Human Services, which is now known as Services Australia, of a change in circumstances, including a change in your relationship status.  You were regularly reminded of this obligation in correspondence received from DHS.  You accept that you were aware of this obligation.  In addition to this ongoing obligation, on four occasions you failed to disclose that you were in a relationship with Ms Gunther.

10In August 2014, and March 2015 you travelled overseas with Ms Gunther.  You reported to Services Australia that you were travelling but you did not disclose that you were travelling with Ms Gunther.  Furthermore, when interviewed by a social worker in March 2015 and again in October 2016, regarding your benefits, you told the social worker you were not in a relationship when your daughter and youngest son were conceived.  This was not true, as at the time of the conception of each of them, you were in a committed relationship with Ms Gunther who appears on their birth certificates as a parent.

11The prosecution note, that in addition to your failure to comply with your ongoing duty to disclose your relationship status, these four specific failures to disclose, demonstrate that you knew that being in a marriage, or marriage-like relationship would affect your eligibility for the PPS.  The PPS benefits were paid by DHS and Services Australia into a National Australia Bank account held in your name.  The charge covers the payment to you of $113,949.46 to which you were not entitled. I accept that your offending did not involve additional deceptions or conduct such as the creation of false identities.

12

The offending was discovered by a tip off to Services Australia in May 2019.  You were offered the opportunity to take part in an interview in April 2020, which you declined.  Charges were filed in September 2021, and you indicated your willingness to plead guilty at the earliest reasonable opportunity on

3 November 2021.

13As has been accepted by your counsel, this was protracted offending which only ceased due to the tip off and investigation.  The offending persisted over more than six years, and you received, as I have said, $113,949.46 to which you were not entitled.  I accept that your offending did not involve additional deceptions or conduct such as the creation of false identities.

Character, antecedents, physical or mental condition ((s 16A(2)(m))

14You are presently 35 years old.  You have no prior or subsequent convictions or findings of guilt.  You were born in Melbourne.  Your father and mother separated before you were born, and you had no contact with your father until you were around 16 years old. 

15Your childhood was marred by the instability caused by your mother's many issues.  She was impulsive, gambled, drank too much and was sometimes physically abusive.  Finances were precarious and you moved frequently.  You have a younger sister, Tahlee who was born when you were three-and-a-half years old.

16You report that the relationship between Tahlee's father and your mother was tumultuous, and that he was abusive towards your mother.  You report that your mother had multiple partners during your childhood.  When your mother and Tahlee's father split up, Tahlee would go and visit her father on weekends, but you always remained with your mother.

17You report that from age seven you would be left to care for Tahlee when your mother was at work.  You had to make sure that Tahlee was fed and taken to kinder.  When you were nine, your mother had a breakdown, and you were left to care for her and Tahlee.  You report that your mother would not leave her bed and would wet her bed, and that you had to clean this up, shower your mother and change her.

18This situation went on for around six months until your maternal grandparents moved in to care for your mother, you and your sister.  As I have said, you report that your mother would become physically aggressive to you, but not to Tahlee, prior to your grandparents helping.

19When you were 16 you reached out to your father who lived interstate.  Whilst this was a positive experience, you could not but contrast the safety and care of your half-siblings lives to you own life.  This effort by you to connect to your father led to a negative reaction by your mother, who  evicted you from the home. Your contact with your father  also affected your relationship with Tahlee.

20You reported to Ms Ferrari, that you lied often as a child and gave examples of lies told to garner sympathy, or to provide an excuse for choices you made but did not wish to explain.

21In April 2022, your mother moved into your home, as she was homeless.  She became intoxicated and violent to you and then to your eldest son when he tried to protect you.

22In the face of a very difficult situation at home, you did well at school.  You made efforts to make friends successfully, but you felt like an outsider in part due to your family's lack of funds for extra-curricular activities, which your school friends could attend but you could not.

23You started working at age 14 in retail, and then in your later teens in telemarketing, as a care assistant at an aged care facility, and in administration at a clinic.  You started a nursing degree in 2009 but ceased by 2013, due to your relationship and the effects of numerous miscarriages.

24You report that you would like to take up that degree again, although you would need to re-do the whole course.  You are presently doing a paramedic course online.

25You also worked from 2019 in casual work at a nursing home.  You stopped this work, ultimately, as it was not possible to juggle the care of your children with this job and Ms Gunther's job.

Relationships

26You have described a series of relationships from the age of 17.  Some of these relationships were positive and supportive and you remain close to your former partner, Linda, whom you were with at the time of the conception of your first son.

27Your next relationship was with a woman who was 29, to your age 20 and it commenced not long after the birth of your son.  This was initially a strong and supportive relationship, but conflict ensued when you wanted children, but she did not.  You described that she owned the home that you shared, and when you had to move out due to the deterioration of the relationship, you were homeless and without the possessions you thought you had shared with her.

28Following a short relationship with another person who was abusive to you, you commenced a relationship with Ms Gunther, in 2012.  Clear arrangements were established about your financial contribution to the expenses related to your son.  You say that Ms Gunther owned the home, and that you paid rent and expenses.

29You and Ms Gunther began to make efforts to have a child, using the same donor who is the father of your first child.  You had a miscarriage, and then your daughter was born in March 2014, which is the commencement date of the charge.

30You report that following the birth of your daughter, the relationship declined.  You say that Ms Gunther was not supportive, but you proposed marriage in an effort to maintain or repair the relationship.

31You endeavoured to have another child with Ms Gunther, but had further miscarriages, which was traumatic and tragic.  Meanwhile, your first child was also suffering from poor mental health and attempted suicide.

32

You were physically, emotionally and mentally unwell at the time of the birth of your third child in August 2016.  You had trouble bonding with him, and he needed ongoing care for various physical concerns.  You report feeling unsupported by

Ms Gunther but that because you feared abandonment you struggled to maintain the relationship.

33

You started part-time work as a carer in 2019, but ultimately had to cease this work due to your focus on your youngest son's care, and what you have described as

Ms Gunther's unwillingness to prioritise the care of the children over her work.

34In 2020, your youngest child was diagnosed with severe symptoms of autism spectrum disorder, global developmental delay and pragmatic language disorder. [2] You report that your eldest child displays similar behaviours, although he has not been formally assessed, and his behaviour is not as severe.  You report that he struggles with depression, anxiety, and emotional regulation.

[2] Psychological Report of Pilot O’Brien by Ms Melanie Rogers, dated 19 May 2020, Exhibit D8

35Your relationship with Ms Gunther did not survive her learning of this offending, and you moved out with your children in September of 2020.  You say that Ms Gunther will have the care of the two children up to two nights a week, although this varies if her work hours do not align with these arrangements.

36References were provided from family and friends.  Ms Beswick has been your friend for 22 years.  She entrusted you with the role of being her child's godmother, and she praises your care for your children.  Your sister wrote about you caring for her when she was young, the instability of your life, and your mother's behaviour.  She also praises your care of your children, and writes of the concern she has if you are incarcerated and not able to care for them.  Ms Leslie, another long-term friend, wrote in similar terms, as does Ms Cassar. 

37A letter was provided regarding your volunteering with St Vincent de Paul stores and your eldest child  also being involved with that organisation.

Current Situation

38As to your current situation, you report that even when the two younger children are with Ms Gunther, you remain on call to assist with the management of your son's behaviour.  He does not cope well with any changes to his routine.

39Since the split between you and Ms Gunther, your living arrangements have been difficult, and at the time of the assessment by Ms Ferrari, in May 2022 you were having to leave your rental home to live with your sister for a time.  These uncertainties were difficult for you and the children to cope with.  Your financial situation is also difficult with moneys being taken out by Services Australia to meet the debt that you owe them.  Due to past overpayments, the debt associated with this offending has not yet been reduced.

40Your youngest son has been approved for funding under the NDIS, but there are waiting periods for the assistance which will be provided.  The ongoing care you provide for your children, the youngest in particular, impacts your ability to work and study, although as I have said, you are in the process of studying to be a paramedic.

41You have physical health issues with kidney disease, which will require long-term dialysis in the future.  In January this year, you sought parenting support from an organisation called The Orange Door.  From there, you were referred to OzChild and have been engaged in the intensive therapeutic program which supports your parenting and links you to other supports for yourself and your children.  It also provides family violence support and education.

42Ms Fisher from OzChild sets out many details reported by you to her, regarding your relationship with Ms Gunther.  I will not set these out, but note that the prosecutor has raised concerns with the reliability of some of the representations made by you, where these can be compared with other documents such as bank records.

43

It is unnecessary for me to make a detailed analysis of your statements to

Ms Fisher.  It appears to me that you may not deliberately lie, but that your reliability as a historian maybe impacted by your borderline personality disorder, or for unknown other reasons.

44Furthermore, it is possible that Ms Fisher has mistaken some of the details in her recital of what you told her.  Based on your reporting, Ms Fisher considers that you and the children have been impacted by family violence perpetrated by Ms Gunther. I am mindful that a person who has been subjected to domestic abuse is often disbelieved or gaslighted on the basis of small errors, undermining the global picture which may be hard to particularise.

45I accept also, that your personality structure and history would make you vulnerable to domestic abuse, and make it difficult for you to leave a problematic relationship. 

46Although I do not accept that all the allegations listed by Ms Fisher were accurate or truthful, taking into account the reports and letters that Ms Fisher, Ms Ferrari and your friends, I accept that your relationship with Ms Gunther was affected by domestic abuse.

47Ms Fisher is of the opinion that if you were imprisoned this would negatively affect the children and their relationship with you.  I accept that this is so, based on the material regarding the mental state of your sons, in particular your youngest child

Mental state 

48You commenced counselling with a psychologist in 2019, having been diagnosed with anxiety and depression by your GP in March of that year.  He prescribed anti-depressant medication which you still take.  You had previously seen a psychologist in the context of the miscarriages you suffered before 2014.

49Ms Ferrari noted that the treater report, which I have not seen, outlined severe depression, anxiety, and stress, and that you were highly distressed and affected by the legal proceedings.  You have reported suicidal thoughts in 2016 and an aborted suicide attempt on learning of this charge.  Ms Ferrari says in her report:

'Her complex psychiatric presentation emanates from a prejudicial childhood involving emotional, psychological and physical abuse and neglect by her mother who likely had untreated mental health problems, absence of her father following parental separation prior to her birth, instability and adversity of her psychosocial circumstances, and exposure to substance use and violence within her mother's numerous intimate relationships.  Ms O'Brien was parentified in her childhood and forced to care for her younger sister in her mother's absence, and then her mother, after a breakdown in her mental health, until such time as her grandparents intervened and assumed care of both her mother and the children.  By this time however, extensive psychological, emotional and physical abuse had occurred.'[3]

[3] Psychological Report by Ms Carla Ferrari, forensic psychologist, dated 27 May 2022, Exhibit D2 [66]

50Ms Ferrari considered that you meet the criteria for Post-Traumatic Stress Disorder, Persistent Depressive Disorder, Major Depressive Disorder, recurrent, severe, Borderline Personality Disorder with significant indications of a masochistic personality pattern.  She summarised the effect of these various conditions as:[4]

'Overall the results of this assessment suggest a severe degree of pathology characterises Ms O'Brien's overall personality organisation, and she has clinical symptoms of anxiety, depression and trauma, consistent with her history.  Her results on the MCMI-IV scale support her current self-reported symptomology from other psychometric testing.’

[4] Exhibit D2, [115]

51These diagnoses are unsurprising in view of the unsafe and unstable circumstances of your childhood.

52Ms Ferrari considered that prison would weigh more heavily on you, due to your mental state, and that it would benefit you to be able to continue seeing a psychologist, which would be more difficult in prison. I accept her opinions on these topics and that your mental state would be negatively impacted by incarceration.

Reasons for Offending

53Ms Ferrari reports that you give as the reason for your offending the stresses you were experiencing during your relationship with Ms Gunther, and that you continued to take the benefits due to the intense needs of your children and the limited support you received from your partner.  You were also fearful of being left destitute if there was a breakdown in the relationship, in view of your previous experience.[5]

[5] Exhibit D2, [75] – [76]

54She considered that your fear of abandonment and rejection led to you remaining in unhealthy relationships, which further impacted your mental health, behaviour and decision making.[6]  I have inserted there paragraphs 125 and 126 of the report which I will not read out at this point.

[125] Emotional dysregulation implicated in both BPD and PTSD can impair problem-solving and healthy information processing and can lead to an increase in negative emotions and a decrease in prosocial responses[7] as has been the case with Ms O’Brien. Further, PTSD symptoms are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues, and those with a history of trauma are more susceptible to respond to situations disproportionately without consideration of the consequences. It is important to note the contribution of Ms O’Brien’s conditions individually and cumulatively to her behaviour as well as impacting decision-making and judgement.

[126] At the time of the offending, Ms O’Brien reported several psychosocial stressors including instability of her relationships, financial hardship, fear of her relationships ending which would result not only in personal distress for herself but significantly impact her children’s psychosocial stability. These events would have triggered Ms O’Brien’s underlying conditions which at that time were untreated, and impaired her ability to cope, contributing to a deterioration in her mental state and heightening the risk of poorly considered behaviour.

[6] Exhibit D2, [77]

[7] Exhibit D2, [125] – [126]

55You report that you asked DHS in 2018 about ending the PPS, as you had “come into money”.  You had not actually come into some money but wanted to use this as a reason to bring the PPS to an end.  Later in 2019, after you started working, you again made enquiries regarding ending the PPS, this time because of having been married.  On both occasions you were told you would need to provide documentation, and so you did not persist with ending the PPS benefits.

56You explain, in this context, that at some time earlier, you had told Ms Gunther that the PPS payments had stopped and that you feared her response if she were to learn that you had not in fact cancelled the payments when you said you did.  Thus, despite being aware that you were not entitled to the payments, you could not find it in yourself to face the conflict about this with Ms Gunther.

57Ms Ferrari concludes by noting:[8]

'Ms O'Brien accepts responsibility for her offending and acknowledged receipt of the payments she was not eligible for due to her financial circumstances at the time, and the genuine fear that she would be unable to support her children should her relationship end.  She expresses genuine remorse for her actions and understands her behaviour was wrong and unlawful.'

[8] Exhibit D2, [82]

58It appears to me that your fear of financial instability contributed to your decision not to take steps to bring the payments to an end.  I accept that a combination of inertia and fear of the consequences contributed to your ongoing failure to notify DHS and your positive deceptions on the occasions to which I have referred.

59Even so, this does not fully explain why you did not take steps to properly inform DHS of the change in your relationship status with Ms Gunther at the time of the birth of your second child in 2014, which is the start of the charge period. At that time, your relationship with Ms Gunther was positive and the difficulties with your youngest child's health were not yet in existence. 

Moral Culpability

60It was submitted at the plea hearing that your mental state reduced your moral culpability to a modest degree.  Counsel noted the opinion of Ms Ferrari, which I have set out above. The prosecutor submitted that this opinion was insufficient to enliven limb 1 of Verdins. 

61On the day of the hearing of the plea, the Court of Appeal delivered its decision in the matter of Black v The Queen.[9]  Further written submissions were filed by the parties regarding this case and the application of the High Court authority of Bugmy v The Queen[10] to your case.

[9]Black v The Queen [2022] VSCA 125

[10]Bugmy v The Queen (2013) 249 CLR 571

62Your counsel submitted that your history and the effects of your experiences on your mental state are capable of enlivening the principles in Bugmy and thus, they are relevant to the assessment of your moral culpability, even in the absence of direct link to the offending.

63The prosecutor submitted that your circumstances were distinguishable from the profound disadvantage raised by the decision in Bugmy.

64I consider that your primary motivation for not cancelling the payments was financial, you wanted the money.  But your decision to take no action and continued inaction, was affected by your personality structure and the past experiences, including your disruptive and destabilising childhood.

65I consider that your decision making, and judgment were diminished to a modest degree on this basis, so that your moral culpability is somewhat lower than it otherwise would have been.

Contrition and guilty plea (ss 16A(2)(f) & (g))

66You indicated that you would plead guilty at the earliest reasonable opportunity.  This gives rise to a considerable discount in your sentence, as your plea has real practical benefits and has facilitated the administration of justice.  The mitigatory effect of your plea is all the greater in the context of the pandemic, which was affecting, in a significant way, the operations at the court when you entered the plea in 2021, and which continues to impact the business of the court.

67Furthermore, I accept that you are remorseful for your offending.  I note your plea and your statement to others, such as Ms Ferrari and your friends and family.

68You have been put on a payment plan for repayment of this debt and another to Services Australia.

Prospects of rehabilitation (s 16A(2)(n))

69I accept that you have reasonable prospects for rehabilitation.  As I have noted, you have no other involvement in the criminal law.  Ms Ferrari assessed you as presenting a low risk of further offending.[11]

[11] Exhibit D2, [129]

Hardship to or by reason of dependants (s 16A(2)(p)

70I will address this factor on the basis submitted by both parties on the plea; that  is, you do not need to establish exceptional circumstances for this factor. 

71As I indicated on the plea hearing I accept that you have established on balance of probabilities that your incarceration would have a significantly negative impact on your youngest son in particular, but also on your eldest son and your daughter. Your younger son has severe ASD, and I accept that disruption from his normal routine would be very challenging and upsetting for him, and for those who care for him.

General Deterrence & Specific Deterrence (s 16A(2)(ja) & (i))

72Both of these factors carry real weight in the sentencing exercise.  I note the comments of Justice of Appeal Nettle, as he then was in DPP (Cth) v Alateras:[12]

'Social security fraud is easy to commit and widespread by difficult to detect.  And the introduction of more checks upon the applicants for social security would cause delays in the payments of benefit and therefore hardship to those whose need is urgent, as well as the need to protect the revenue. … In terms of sentencing principle therefore, the point is, that general deterrence is of particular significance in cases of tax and welfare fraud.'

[12]DPP(Cth)  v Alateras [2004] VSCA 214, [26]

73That is not to say that general deterrence is given primacy in sentencing, but rather that it carries real weight in the exercise of the discretion.

74Furthermore, your offending persisted over many years, and I consider that you need to be deterred from committing any such offence in future.  Whilst you do have reasonable prospects for rehabilitation, the factors which contributed to your decision to keep the benefits going, will persist and have the capacity to impair your decision making in future.

Adequate Punishment (s16A(2)(k), & s17A, restriction on imposing sentences

I must consider the extent to which you must be punished for this offending, but I must not impose a sentence of imprisonment, unless having considered all the other options available, I consider that no other sentence is appropriate in all the circumstances of the case.

Conclusion

75Having regard to all the matters I have set out above and to the material and submissions presented in the plea, I consider that the only appropriate sentence is one of imprisonment.

76Having regard to your personal history and circumstances and in particular the detrimental effect on your children if you are sent to gaol, I will impose a term of imprisonment with a recognisance release, which means that you do not have to go to prison.

77The sentencing orders that I arrived at are a sentence of 18 months' imprisonment, with release on a recognisance release order forthwith, with the following conditions:

(i)  That you must be of good behaviour for three years and

(ii) That you will give security by recognisance of $2,500 to comply with the conditions.

78Ms O’Brien, I need to explain to you something, before proceeding further.  Before I can make a recognisance release order, you must agree to be bound by it, and you must agree to be of good behaviour for three years and to enter the recognisance for the sum of $2,500.  You do not need to pay that sum upfront; it is a sum that you would pay if you breach the recognisance release order.

79

I must tell you that if you breach the order by not being of good behaviour during the period of the three years, and that would be by committing any offence, you can be charged with breaching the order and if the breach were proven, you could be fined up to as I understand it around $18,000, and you would be able to be

re-sentenced for the offending which I am just sentencing you, and that

re-sentencing may involve sending you to prison immediately.

80The orders of the court are that on Charge 1, I impose a sentence of imprisonment of 18 months. Pursuant to s21B of the Crimes Act 1914, I make an order permitting the release of Ms O'Brien forthwith on recognisance of $2,500 with the condition that she should be of good behaviour for three years. I will make the restitution order sought by the Crown.

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