Director of Public Prosecutions (Cth) v Russo
[2024] VCC 868
•29 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01892
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN RUSSO |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2024 | |
DATE OF SENTENCE: | 29 May 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Russo | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 868 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempt to dishonestly obtain a financial advantage by deception from the Commonwealth – Commit an indictable offence whilst on bail – Guilty plea – Mid-range offending – Intellectual disability – Probable effect of any sentence on family or dependents – Prospects of rehabilitation – Current sentencing practices – Recognisance release order
Legislation Cited: Criminal Code Act 1995 (Cth); Bail Act 1977 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Clark [2023] VSC 220, [50]; R v Verdins [2007] VSCA 102; Romero v The Queen [2011] VSCA 258; Stevens v The Queen [2021] VSCA 218; Muldrock v The Queen (2011) 244 CLR 120; Clifton v The King [2024] VSCA 82; R v Sinclair (1990) 51 A Crim R 418; Totaan v R (2022) 108 NSWLR 17; Mohamed v R [2022] VSCA 136; Ryan v The King [2022] SASC 110; DPP (Cth) v Gregory (2011) 34 VR 1; Keefe v The Queen [2014] VSCA 201; Stamatopoulos v The Queen [2018] WASCA 148; DPP (Cth) v Alateras [2004] VSCA 214; Wong v The Queen (2001) 207 CLR 584; Henne v R (Victorian Supreme Court of Appeal, Priest JA, 20 December 2016); Cao v Regina [2010] NSWCCA 109; R v Anderson [2012] QCA 215; DPP v Parfrey [2010] VSCA 212; Soliman v The Queen [2021] VSCA 8; Acosta v R [2015] VSCA 94; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; DPP (Cth) v Parfrey [2010] VSCA 212; DPP v Buhagiar and Healthcote [1998] 4 VR 540; DPP v Adams [2017] VCC 662; DPP v Dattilo [2016] VCC 1617
Sentence: Imprisonment for 12 months – Release forthwith on recognisance release order – s 6AAA declaration – Imprisonment for 1 year and 6 months with a recognisance release order releasing you after 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms O. Kefford | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Portelli | KPT Legal |
HIS HONOUR:
Introduction
1Dean Russo, you have pleaded guilty to one charge of attempt to dishonestly obtain a financial advantage by deception from the Commonwealth, contrary to subsections 11.1(1) and 134.2(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). The offence carries a maximum penalty of 10 years’ imprisonment.
2You also pleaded guilty to the related summary offence of commit an indictable offence whilst on bail, contrary to section 30B of the Bail Act 1977 (Vic), which carries a maximum penalty of 3 months’ imprisonment or a fine of 30 penalty units.[1]
[1] At the time of the offending, this represented a fine of $5,547.60.
3You fall to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 9 April 2024,[2] which I note is an agreed document.
[2] Exhibit P1.
Summary of Offending
4On 4 April 2022, you applied for an Australian Business Number (‘ABN’). The application form listed you as a sole trader, the entity establishment date as 4 April 2022, and described the business as ‘Automotive Conversion’. The application was granted and the business was registered on the Australian Business Register.
5On 11 April 2022, you opened a Bendigo Bank account and added the account details to your Australian Taxation Office (‘ATO’) account as the nominated refund bank account.
6On 27 April 2022, the ATO confirmed your registration for Goods and Services Tax (’GST’) as at 4 April 2022.
7Between 13 May 2022 and 19 February 2023, you lodged 11 Business Activity Statements (‘BAS’) with the ATO. Five of these statements falsely claimed a GST refund. The falsified BASs related to the periods April, May and December 2022 and January and February 2023 and claimed the following refund amounts on GST purchases:
(a) April 2022 – $31,450;
(b) May 2022 – $27,000;
(c) December 2022 – $20,565;
(d) January 2023 – $21,565;
(e) February 2023 – $20,667
8You represented that your automotive conversion business was a legitimate business with associated GST activity. However, the information contained in the five BASs was false because you did not carry on any business activity and had no business income or expenses during the offending period.
9At the time of lodging each of the five claims for refunds, you were required to declare that the information given on each BAS was true and correct, that the entity is authorised to make the declaration and that the tax invoice requirements have been met. The GST refunds claimed by you would equate to approximately $1,407,307 in business expenditures between April 2022 and February 2023. Statements from your bank accounts do not reveal any evidence of a business having been conducted in that period.
10The total quantum of GST refunds you attempted to dishonestly obtain was $121,337.
11However, each lodgement was ultimately rejected by the ATO and the claimed refunds were not deposited into your bank account.
12Accordingly, you did not obtain any financial advantage from the offending.
Investigation and Arrest
13On 26 May 2022, the ATO sent you a letter advising you that your tax account had been audited following unusual refund activity. The letter advised the amounts claimed for the period 1 April 2022 to 31 May 2022 had been amended and the ‘information held by the ATO doesn’t indicate any evidence you’re carrying on a business’. The letter advised that if further false reports were made you may be prosecuted and that your conduct may result in a criminal conviction. You did not respond to the letter and continued to make false BAS lodgements.
14On 28 February 2023, the ATO sent a further letter to you advising you that it had observed unusual refund activity on your tax account. The letter advised that the ATO would revise your GST labels to $0 for the periods December 2022 and January and February 2023, and that your ABN and GST registration had been cancelled. Again, you did not respond to the letter.
15On 25 April 2023, you were arrested and bailed by Victoria Police for an unrelated matter. The next day, you were invited to participate in a voluntary interview regarding your fraudulent BAS lodgements. You participated in the interview and gave a “no comment” record of interview, and were released without charge pending further investigation.
Commonwealth Sentencing
16As you are being sentenced for federal offending, I am guided by the regime set out in the Crimes Act 1914 (Cth) (‘Crimes Act’). In sentencing you, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[3] I am also mindful of the principle of parsimony – imprisonment is a sentence of last resort.[4]
[3] Crimes Act 1914 (Cth), s 16A(1).
[4] Ibid, s 17A(1).
17I take into account the matters set out in Part 1B of Crimes Act. In particular, I have had regard to s 16A(2) which sets out a non-exhaustive list of factors that must be taken into account as far as they are relevant and known to the court.
Nature and Circumstances of the Offence – s 16A(2)(a)
18Attempting to dishonestly obtain a financial advantage by deception from the Commonwealth is a serious offence; so much is clear from the maximum penalty of 10 years’ imprisonment.
19The prosecution submits that your offending is objectively serious having regard to the following factors:[5]
(a) The total quantum claimed to which you had no entitlement, $121,337, is considerable;
(b) The preparation required to make false BAS statements involved planning and premeditation;
(c) You persisted despite being formally cautioned by the ATO and did not voluntarily desist from the offending conduct;
(d) Your offending was brazen in that you did not have any legitimate entitlement to the amounts claimed; this was not a case of overstating otherwise legitimate claims; and
(e) Yours was a course of conduct offence, involving a series of criminal acts representing a single charge.[6]
[5] Crown Submissions on Sentence dated 3 May 2024, [8](a)-(e).
[6] Crimes Act 1914 (Cth), s 16A(2)(c).
20Your counsel appropriately conceded that the offending is serious.[7] However, your counsel, in written submissions, submits that an unknown associate of yours submitted the claims on your behalf and was involved in setting up the ABN. You made a similar claim to Ms Fakhri, a psychologist engaged by your solicitors. You told Ms Fakhri that you ‘felt that [you] were peer-pressured by a friend but did not want to disclose your accomplice’.[8]
[7] Outline of Submissions on Plea dated 6 May 2024, 2-3.
[8] Psychological Report prepared by Ms Rebecca Fakhri dated 1 May 2024, [75] (Exhibit D1).
21There is no reference to any accomplice in the agreed facts that your counsel accepted is the basis for the sentencing task. No-one else has been charged.
22In these circumstances, I conclude that yours is a mid-range example of the offence.
Character, Antecedents, Age, Means and Physical or Mental Condition – s 16A(2)(m)
23You are now 29 years old. At the time of the offending you were between 26 and 27.
24You are the only child born to your parent’s union. Your parents separated when you were approximately six weeks’ old. Your mother has told you that you were thrown out of the house so that your father could pursue another relationship. You have had little contact with your father.
25You enjoy a positive relationship with your mother. Your mother had maintained a relationship with a boyfriend for a few years, but she never partnered with anyone you regarded as a stepfather.
26You have two half-siblings who are around a decade or so older than you. Your half-brother committed suicide approximately a decade ago, while your half-sister (with whom you do not maintain contact) lives in Queensland.
27For most of your childhood you lived with your mother in the Berwick and Narre Warren areas, later moving to Koo Wee Rup where your mother still lives.
28You were diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) when you were seven and were also diagnosed with an intellectual disability. You refused to attend a special needs school. You were easily distracted at school. You were restless and disruptive and unable to complete most academic tasks. You can read and write at a very basic level. You were prescribed medication for ADHD as a youth and were assisted by an integration aide at school.
29The court was provided with a ‘Statement of Intellectual Disability’ dated 13 March 2018 issued under the Disability Act 2006 (Vic.) in relation to you. Arline Mathews, Team Manager, Disability Client Services, Southern Region, Department of Health & Human Services, states that she is satisfied that you have an intellectual disability within the meaning of that Act as you are over 5 years of age and have the concurrent existence of:
·significant sub-average general intellectual functioning; and
·significant deficits in adaptive behaviour
each of which became manifest before the age of 18 years.[9]
[9] Statement of Intellectual Disability dated 13 March 2018 (Exhibit D2).
30You attended two primary schools in Berwick and then Eumemmering College before transferring to Koo Wee Rup Secondary College, where you repeated Year 7 and then left school part-way through Year 8 at age 15.
31After leaving school, you obtained intermittent and ad hoc low-paid cash work such as labouring, plastering, framing and fencing work. In more recent times, you have been continuously employed as a powder coater for industrial equipment. You were also employed at Bob Jane T-Mart where you worked for several months stripping and fitting tyres earlier this year.
32You started using drugs from a young age including ice, speed, MDMA and cannabis. You report that you are no longer using illicit drugs and have been abstinent for many years. You also report significantly reducing your alcohol consumption.
33You have a five year old son from a previous relationship who resides with your father in Berwick.
34You are currently in a long-term relationship and have a daughter who is almost two years old. You live with your partner and Helena in Murrumbeena. This accommodation is transitional and has been obtained through Launch Housing. Despite its transitional nature, you have lived at this property for approximately four years. Your partner has been diagnosed with an intellectual disability and an acquired brain injury and she is in receipt of a Disability Support Pension. Your partner reports in a letter to the Court that you are actively involved in the care of your daughter.[10]
[10] Letter from Jasmine Bennett-Uren undated (Exhibit D3).
35You have a lengthy criminal history dating back to 2012 when you appeared in the Childrens’ Court.
36Some of your offending is dated and not particularly relevant to the sentence I impose in this matter.
37Concerningly, you were convicted and sentenced to a term of imprisonment in February 2021 for a number of offences including dealing with stolen goods – a dishonesty offence. On 24 July 2023, you were sentenced to a 2-year CCO by the Dandenong Magistrates’ Court for offending that included criminal damage and unlawful assault. That CCO expires on 23 July 2025. This subsequent offending is relevant to your prospects of rehabilitation, which I will consider later in these reasons. In addition, you have contravened three community correction orders.
Matters in Mitigation
Plea – s 16A(2)(g)
38You pleaded guilty to these offences at an early stage. Your offer to plead guilty was made when the matter was in the Magistrates’ Court on 1 November 2023. To your credit, you have spared the time and resources of the Court and prosecuting authorities, as well as sparing witnesses the ordeal of giving evidence at trial. You are to be afforded a discount in sentence as a result.
39Your counsel submits that your plea should attract the additional so-called ‘Worboyes discount’[11], applicable to pleas entered at a time when the Court’s lists were afflicted by the pandemic related backlog. The prosecution opposes this submission, submitting that the plea was entered after the Court’s lists were past the point of being overwhelmed by pandemic-related delays.[12]
[11] In accordance with the decision of Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’), offenders who pleaded guilty during this time were entitled to an ‘actual and palpable amelioration of sentence’: [35].
[12] County Court of Victoria, Update on pending criminal jury trials, 9 October 2023. See, also, DPP v Clark [2023] VSC 220, [50].
40I accept the prosecution submission and I do not additionally ameliorate your sentence in accordance with Worboyes.
Mental Health, Intellectual Functioning & Moral Culpability
41Your counsel submitted that your mental health and intellectual functioning enliven the principles enunciated in R v Verdins.[13] Those principles are numerous and relate to the sentencing exercise in different ways. It was argued on your behalf that:
(a) There is a clear link between your existing diagnoses and the offending such that there should be a moderate reduction in moral culpability and a reduction in the weight to be given to general and specific deterrence;[14] and
(b) Imprisonment will weigh more heavily on you than it would a person in normal health, and there is a serious risk that imprisonment will have a significantly adverse effect on your mental health.[15]
[13] [2007] VSCA 102 (‘Verdins’).
[14] Limbs 1, 3 and 4 of the so-called Verdins principles.
[15] Limbs 5 and 6 of the so-called Verdins principles.
42On the other hand, the prosecution submit that the evidence in relation to limbs 1, 3 and 4 of Verdins does not establish a causal link between your impairment and the offending, so as to enliven those aspects of the Verdins principles.[16] The prosecution does, however, fairly concede that limbs 5 and 6 are enlivened on the evidence.[17]
[16] Further Crown Submissions on Sentence dated 7 May 2024, [3]-[5].
[17] Ibid, [6].
43It is well established that an offender’s moral culpability, as contrasted with their legal responsibility, may be diminished due to the effect of a mental disorder from which they suffer either at the time of their offending or at the time sentence is to be imposed. In Verdins, the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.[18]
[18] Verdins (n 13) [32].
44In such a situation, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’.[19] The impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[20]
[19] Ibid.
[20] Romero v The Queen [2011] VSCA 258, [13].
45The relevance to the sentencing process of an accused having a diagnosed intellectual disability was explained by Priest and Kennedy JJA in the case of Stevens v The Queen[21] as follows:
As Muldrock makes clear, an intellectually disabled offender’s moral culpability will in most cases be lessened — although not necessarily eliminated — due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation and just punishment in a sentence appropriate for a person of ordinary capacity will often — but, presumably, not always — be inappropriate for an intellectually disabled offender (and the needs of the community). So much is consistent with what had earlier been said in Verdins.
Moreover, in the case of an intellectually disabled offender, general and specific deterrence may — depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender — be moderated or eliminated as sentencing considerations.[22]
[21] Stevens v The Queen [2021] VSCA 218 (‘Stevens’).
[22] Stevens (n 21) [32] (citations omitted).
46In the case of Muldrock v The Queen,[23] the High Court had explained that, unlike cases in which an offender relies on a mental illness in mitigation of her or his moral culpability where it will generally be necessary to discern a causal relation between the illness and the offending:
… [s]uch a question is less likely to arise in sentencing a mentally retarded[24] offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence.[25]
[23] (2011) 244 CLR 120 (‘Muldrock’).
[24] The Court used the terms ‘mentally retarded’ and ‘intellectually disabled’ interchangeably.
[25] Muldrock (n 23) [54].
47The Court went on to explain that:
… [t]he retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[26]
[26] Ibid, [54].
48Where both Verdins and Muldrock are relevant, a sentencing court must assess both. Specific consideration must be given to an offender’s intellectual deficit ‘whether or not the evidence establishe[s] a distinct causal pathway to the offending, as is usually required for the application of Verdins principles’.[27]
[27] Clifton v The King [2024] VSCA 82, [51] (‘Clifton’).
The Evidence
49The Disability Act 2006 (Vic) provides that "intellectual disability", in relation to a person over the age of 5 years, means the concurrent existence of:
(a) significant sub-average general intellectual functioning; and
(b) significant deficits in adaptive behaviour—
each of which became manifest before the age of 18 years.[28]
[28] Disability Act 2006 (Vic), s 3.
50The statement of Ms Mathews referred to earlier evidences that you satisfy these criteria. No challenge was made to the submission by your counsel that you have an intellectual disability.
51In support of these submissions, your counsel tendered a psychological report prepared by psychologist, Ms Rebecca Fakhri,[29] and the Statement of Intellectual Disability[30]. Ms Fakhri’s report is comprehensive, detailing your upbringing, personal circumstances, medical and psychological history and making recommendations for your future treatment. I note that Ms Fakhri’s evidence was not challenged by the prosecution.
[29] Exhibit D1.
[30] Exhibit D2.
52I will deal with the evidence relating to each grouped submission in turn.
Limbs 1, 3 and 4
53Ms Fakhri observes that you have been diagnosed with ADHD which was undiagnosed for much of your adolescence. In relation to your ADHD, Ms Fakhri reported that numerous studies demonstrate that core symptoms of the disorder can predispose an individual to unintentional involvement in criminal offences ‘due to inherent impulsivity, cognitive and behavioural dyscontrol, emotional regulation issues, risk-taking behaviour, difficulty dealing with stress, and executive functioning deficits which lead to problems with considering consequences of behaviour’.[31] Ms Fakhri notes that you ceased the use of psychostimulant medication at the age of 15 and have not recommenced, limiting your ability to manage the hyperactivity and impulsivity aspects of your disorder.[32]
[31] Exhibit D1, [111].
[32] Ibid.
54Ms Fakhri also confirms your diagnosis of Intellectual Disability based on the Statement of Intellectual Disability. Ms Fakhri reports that your disability is:
… characterised by deficits in general mental abilities, including reasoning, problem-solving, planning, abstract thinking, judgement and learning from previous experiences. [Your] intellectual impairment as a result of [your] limited educational history likely placed [you] at risk of impulsive behaviour (further perpetuated by [your] ADHD) and poor problem-solving which contributed, to some degree, to the behaviours resulting in the current and prior charges.[33]
[33] Exhibit D1, [108].
55Ms Fakhri further opines that your Intellectual Disability has impaired the development of your moral reasoning:
Mr Russo’s ID has impaired his development, in regard to his moral reasoning. Moffitt’s developmental taxonomy would suggest that Mr Russo is at a critical point where, with the right support, intervention and engagement, his offending may remain ‘adolescence limited’ as opposed to him becoming a ‘life-course persistent offender’. Though he is not a young offender, due to his ID he does not function at the same level as an age-related peer and his moral reasoning could be compared to an adolescent.[34]
[34] Ibid, [109].
56Your counsel places reliance on these aspects of Ms Fakhri’s report in submitting that your moral culpability for the offending is reduced and that diminished weight should be given to the sentencing principles of general and specific deterrence in sentencing you.
Limbs 5 and 6
57In relation to the likely effect of imprisonment on you, Ms Fakhri opined that it:
… would likely weigh more heavily on Mr Russo than someone without his conditions (ADHD, ID, MDD, and PTSD in particular). This is due to his vulnerability with regard to a false sense of community acceptance within antisocial peer groups, both in the community and within the prison environment. His ID increases his vulnerability to being taken advantage of and exploited
His conditions also make him particularly more prone to emotional dysregulation which can result in disproportionate, impulsive, reactive behaviours which are heightened under stress and within the volatile prison environment. This may result in unintentional sanctions and conflict with other prisoners and with correctional staff.[35]
[35] Exhibit D1, [127], [128].
58Ms Fakhri further opined that your mental health would be unlikely to be ‘adequately treated, particularly given the need for consistent, regular psychological interventions particularly given the severity of his symptoms, and importantly, the lack of availability of psychostimulant medication in custody’.[36] Ms Fakhri bases this opinion on the diminished access to psychological and psychiatric treatment in the custodial environment, particularly for those inmates who are not afflicted by severe and acute mental illness who receive priority treatment.
[36] Ibid, [129].
Consideration
59The distinct causal pathway that is generally required to enliven limbs 1, 3 and 4 of Verdins is, in my view, not clearly established on the evidence.
60However, it is common ground that you suffer from an intellectual disability. In accordance with the evidence discussed above, this impairs your ability to reason as a person without such a disability does. It also impairs your ability to learn from experience. It may also explain why you failed to heed the clear warning that you received from the ATO in the letter dated 26 May 2022.
61Your disability means that your moral culpability is reduced but not eliminated. You are thus a ‘less suitable vehicle for general deterrence, punishment and denunciation’.[37] I have taken this into account in determining the appropriate sentence in your case.
[37] Clifton (n 27) [54].
Probable Effect of Any Sentence on Family or Dependents – s 16A(2)(p)
62Your counsel also submitted that the Court should have regard to the probable effect of an immediate term of imprisonment on your partner and daughter in determining the appropriate sentence to impose.
63Historically, this provision was construed as requiring ‘exceptional circumstances’ to be enlivened.[38] In recent times, the New South Wales Court of Criminal Appeal disavowed historical authority to this effect and held that a court imposing a sentence for a federal offence need not find exceptional circumstances before the provision can be enlivened to mitigate sentence.[39] This position has since been adopted in Victoria.[40]
[38] See, e.g., R v Sinclair (1990) 51 A Crim R 418.
[39] Totaan v R (2022) 108 NSWLR 17.
[40] Mohamed v R [2022] VSCA 136, [83]-[93].
64As observed earlier in these reasons, you are an important figure in the lives of your daughter and partner. Your partner herself suffers from an intellectual disability and you assist her with the rearing of your young daughter and household duties. Your daughter would suffer were she to lose her father at such an important time in her life. So too would your partner.
65I take into account the probable collateral effect of imprisonment on your family in considering the type of sentence to impose.
Prospects of Rehabilitation
66Ms Fakhri assesses your risk of reoffending as falling within the moderate to high range.[41] Notably, this is an improvement on the assessment made of you in February 2021 as high. Ms Fakhri refers to the ‘de-escalation in the frequency of [your] offending’ in reaching this conclusion.[42]
[41] Exhibit D1, [100].
[42] Ibid.
67I note that, in her discussion of your ‘previous forensic history’, Ms Fakhri does not refer to your most recent offending that saw you sentenced in 2023. In these circumstances I attach reduced weight to her opinion about the de-escalation of your offending.
68Ms Fakhri observes positively of your present supports and outlook:
It is understood that presently he has support from his mother and current partner and is motivated to reform his lifestyle to improve his future prospects. He displays positive attitudes towards intervention, recognizing the need for compliance with orders to prevent continued negative impacts on his future outcomes.[43]
[43] Ibid, [102].
69Ms Fakhri goes on to make several recommendations in relation to the treatment of your conditions, substance misuse and long-term unemployment. I am mindful of these recommendations and their capacity to assist in your rehabilitation.[44]
[44] Ibid, [130].
70You are presently subject to a community correction order (‘CCO’) of two years’ duration. It expires on 23 May 2024. A Justice Plan is in place. In an email dated 6 May 2024,[45] your case worker, Ms Aleisha Dunks, reports that you engage openly and honestly throughout your supervision appointments and that you have identified that you want to make a change in your life and a be supportive for your family. You have obtained stable fulltime employment during the course of your CCO and have engaged openly throughout all offence specific discussions. You have also requested to be re-referred to a psychologist due to your ongoing concerns about your depression and anxiety.
[45] CCO Progress Report dated 6 May 2024 (Exhibit D4).
71On balance, I conclude that your prospects of rehabilitation are at least fair subject to your adherence to mental health treatment, engagement with community supports and provided you are proactive in obtaining employment.
Sentencing Principles
72General deterrence is the primary sentencing consideration for offences involving fraud against the public revenue.[46] Generally speaking, sentences imposed for fraud on the Commonwealth must give real effect to denunciation and general deterrence because:
(a) The offending has many harmful, but often hidden, social consequences;
(b) Revenue systems rely on honesty of claimants;
(c) The cost of fraud is borne by the whole community;
(d) Fraud is difficult to detect;
(e) The investigation and prosecution of fraud consumes considerable public resources;
(f) General deterrence is likely to have a more profound effect in the case of white-collar criminals.[47]
[46] See eg, Ryan v The King [2022] SASC 110, [30], and the cases cited therein, including DPP (Cth) v Gregory (2011) 34 VR 1, [57].
[47] Keefe v The Queen [2014] VSCA 201, [77] (citations omitted). See also Stamatopoulos v The Queen [2018] WASCA 148, [41].
73The practical result of these principles is that a custodial sentence is ordinarily required in cases involving tax and welfare fraud ‘unless the particular circumstances are sufficiently exceptional’.[48]
[48] DPP (Cth) v Alateras [2004] VSCA 214, [27].
74However, these general principles must yield to the circumstances of the particular case at hand. That is a function of the individualised approach to sentencing. In a case such as the present, that principle is reflected in s 16A(2) of the Crimes Act which requires a sentencing court to ‘address all the individual circumstances of the offence and the offender’.[49]
[49] Wong v The Queen (2001) 207 CLR 584, [135] (emphasis added).
75For the reasons already explained, general deterrence has a reduced role to play in your case. Further, punishment and denunciation do not require significant emphasis in light of your reduced moral culpability.[50]
[50] Cf Muldrock (n 23) [58].
76Specific deterrence is a more important sentencing consideration in light of your criminal history and the assessment I have made of your rehabilitation prospects.
Current Sentencing Practices
77The prosecution referred the Court to a number of appellate decisions which were said to provide ‘guidance as to the application of relevant sentencing principles’.[51] I have read each of the decisions.[52] I have been assisted by these cases within the limits explained by the High Court in DPP v Dalgliesh (a pseudonym).[53]
[51] Crown Submissions on Sentence dated 3 May 2024, [16]-[19].
[52] Henne v R (Victorian Supreme Court of Appeal, Priest JA, 20 December 2016); Cao v Regina [2010] NSWCCA 109; R v Anderson [2012] QCA 215; DPP v Parfrey [2010] VSCA 212; Soliman v The Queen [2021] VSCA 8; Acosta v R [2015] VSCA 94.
[53] [2017] HCA 41.
78The most helpful case is that of DPP (Cth) v Parfrey.[54] The offender pleaded guilty to social security fraud committed over a period that exceeded 20 years. The total amount of the overpayments exceeded $200,000. The Court of Appeal accepted that the offending was ‘reflective of greed rather than need’.[55]
[54] [2010] VSCA 212 (‘Parfrey’).
[55] Pafrey (n 54) [11].
79The offender had an IQ of 63 which the evidence described as ‘in the extremely low range, consistent with a diagnosis of intellectual disability’.[56] The offender had dated prior convictions for offences involving dishonesty.
[56] Ibid, [17].
80The Court of Appeal upheld the sentence of three years’ imprisonment with immediate release on payment of a recognisance of $1,000 and a condition to be of good behaviour for three years. The Court referred to the ‘very particular circumstances of the case’.[57] The Court concluded that while the sentence was ‘merciful’, it is not to be overlooked that ‘a wholly suspended sentence does play a role in deterring others’.[58]
[57] Ibid, [38].
[58] Ibid, [38]; the Court referred to DPP v Buhagiar and Healthcote [1998] 4 VR 540, 548.
81The offending presently before the Court is less objectively serious and the personal circumstances are quite similar those in the present offending.
82I have also considered two decisions of Judges of this Court in which non-custodial sentences were imposed after offenders pleaded guilty to dishonesty offences.[59]
[59] DPP v Adams [2017] VCC 662; DPP v Dattilo [2016] VCC 1617.
Consideration: Recognisance Release Order
83Section 20(1)(b) of the Crimes Act provides that, where a person is convicted of a federal offence, the court may ‘sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a)’. If none of the offences is a Commonwealth child sex offence, the court may order the offender’s release either immediately or after the person has served a specified period of imprisonment.[60]
[60] Crimes Act 1914 (Cth), s 20(1)(b).
84The order is a form of conditional release – the offender’s release is conditional on the offender giving security, to the satisfaction of the court, that he or she will comply with conditions, if ordered, which are specified in s 20(1)(a)(i)-(iv).
85The core condition of the bond is that the offender be of good behaviour for a specified period (up to 5 years).[61] The court has wide powers to impose other conditions.
[61] Crimes Act 1914 (Cth), s 20(1)(a)(i).
86Having regard to your complex psychological and psychiatric presentation, along with your social and employment difficulties, I consider that an appropriately crafted recognisance release order can best satisfy the sentencing principles in your case.
Orders
87Turning then to the orders that I make in this case. Mr Russo, please stand:
(a) On Charge 1, Attempt to Dishonestly Obtain a Financial Advantage by Deception from the Commonwealth, you are convicted and sentenced to 12 months’ imprisonment;
(b) On Summary Charge 4, I find you guilty and the charge is dismissed pursuant to s 76 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’). I have accepted the prosecution submission to do this on the basis that recent amendments to the Bail Act mean this is no longer an offence.[62]
[62] Crown Submissions on Sentence dated 3 May 2024, [10].
88The total effective sentence I impose if therefore 12 months’ imprisonment. That sentence commences today. I order, pursuant to s 20(1)(b)(ii) of the Crimes Act that you be immediately released upon a recognisance in the amount of $1,000 for a period of 12 months containing the following terms:
(a) that you be of good behaviour and obey all terms and conditions of the recognisance.
(b) other conditions that I could impose are addressed by the CCO you are subject to.
89I need to explain to you the purpose and consequences of making this order. The purpose is to sentence you a prison term from which you will be immediately released on recognisance. The consequences if you fail to comply with the order without a reasonable excuse including that you will be brought back to court and can be fined up to $1,000, they can extend the period for which you are to be of good behaviour, they can revoke the order and make a different order which may involve ordering you to be imprisoned for the term that I have indicated, or they could take no action.
90Finally, pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have sentenced you to 1 year and 6 months’ imprisonment with a Recognisance Release Order releasing you after 6 months.
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