Director of Public Prosecutions (Cth) v Wallis
[2020] VCC 1695
•21 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00519
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELISSA WALLIS |
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JUDGE: | Her Honour Judge Marich | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 5 October 2020 | |
DATE OF SENTENCE: | 21 October 2020 | |
CASE MAY BE CITED AS: | DPP (Cth) v Wallis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1695 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms A.Dearman | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. Dann QC | Stary Norton Halphen |
HER HONOUR:
1 Melissa Wallis, you have pleaded guilty to one charge of dishonestly obtain a financial advantage by deception from a Commonwealth entity, contrary to s134.2(1) of the Criminal Code of the Commonwealth, which carries a maximum penalty of 10 years’ imprisonment or a fine of 600 penalty units, or both.
2 The circumstances in which you came to commit that offence are set out in the Summary of Prosecution Opening for Plea dated 6 July 2020 (Exhibit A). In addition to making oral submissions, the prosecution also provided an Outline of Crown Submissions dated 30 September 2020, with a Table of Comparative Cases (Exhibit B).
3 Since the conclusion of the plea in mitigation of penalty, I have received an assessment from the Office of Corrections indicating your suitability for a Community Corrections Order which I will receive and mark as Exhibit C.
4 In addition to making oral submissions, your counsel relied on an Outline of Plea Submissions dated 10 September 2020 (Exhibit 1), a psychological report prepared by Jeffrey Cummins dated 15 June 2020 (Exhibit 2), a Supplementary Psychological Report prepared by Jeffrey Cummins dated 1 July 2020 (Exhibit 3), a letter from Dr Pradeepa Dasanayake, consultant psychiatrist, dated 17 July 2020 (Exhibit 4), and a bundle of character references (Exhibit 5). I have since received a document entitled Submissions as to Available Sentencing Options dated 8 October 2020, which I will now receive and mark as Exhibit 6.
5 I have had regard to each of those exhibited documents in formulating my Reasons for Sentence, as well as the matters developed in oral argument.
Circumstances of the offence
6 On 5 October 2010, you opened a Bendigo Bank account in your name, with an account number ending in 0423. That day, you lodged with the Department of Human Services (now Services Australia) (“the Department”) a forged form entitled “Authorising a person to enquire or act on your behalf”. It was purported to be signed by a James Hogg, who was at the time a recipient of an Age Pension, on 5 October 2010, and it nominated you as both correspondent and payment nominee on his departmental profile.
7 As Mr Hogg’s correspondence nominee, you were authorised to make enquiries with the Department and make changes to Mr Hogg’s profile on his behalf, and you were required to notify the Department of any changes in his circumstances which may have impacted his entitlement to Age Pension payments. As payment nominee, you were authorised to receive Mr Hogg’s Age Pension on his behalf. You were also required to ensure that the payments received were only for Mr Hogg’s benefit.
8 This forged nominee form identified your Bendigo Bank account ending in 0423 as the account into which Mr Hogg’s Age Pension should be paid. This was the same account into which your own Centrelink payments were paid during the period between August 2013 and November 2015.
9 Mr Hogg, born in January 1928, had been in receipt of an Age Pension from the Department for the period between 1998 and August 2010, when his Age Pension was returned from his nominated financial institution to Centrelink, as his nominated bank account had been closed. This led to his benefits being suspended from 6 September 2010, however as a result of you lodging the Nominee Form, Mr Hogg’s Age Pension payments were reinstated and deposited into your account in accordance with your instructions on the Nominee Form.
10 Mr Hogg neither completed nor signed this document. Records of the Department of Home Affairs established that he had departed Australia for the United Kingdom on 4 September 2010, and he has not returned to Australia since.
11 Between 5 October 2010 and 9 July 2018, which is the period of the charge to which you have pleaded guilty, you received Mr Hogg’s Age Pension without any entitlement. In addition, on 6 October 2010, you notified Centrelink by telephone falsely claiming that Mr Hogg could be contacted at your mobile number. Between 20 October 2010 and 12 February 2014, you updated Mr Hogg’s residential and postal addresses on nine occasions. On 20 December 2010, you contacted Centrelink by telephone and requested that Mr Hogg’s payment be updated to be payable weekly rather than fortnightly, and falsely claimed that this would assist Mr Hogg with “ongoing budgeting requirements”. Between 1 November 2010 and 21 February 2014, you requested twelve advanced payments of Mr Hogg’s Age Pension. On 31 October 2013, you contacted Centrelink by telephone and requested that Mr Hogg’s regular payment day be changed, falsely claiming that Mr Hogg had recently moved address, and required the change to assist with his budgeting for rent.
12 Between 11 October 2010 and 9 July 2018, Mr Hogg’s Age Pension benefit was paid to your Bendigo Bank account, initially the one ending in 0423 until 18 November 2015, and into another Bendigo Bank account controlled by you, ending in account number 2731, for the period between 26 November 2015 to 9 July 2018.
13 On 9 July 2018, Mr Hogg’s payments were cancelled as a result of there being no response from Centrelink’s Fraud Investigation Branch requesting contact. On 7 August 2018, you emailed the Department and requested that you be removed from Mr Hogg’s profile as his nominee. You were contacted by telephone by the Department on 13 August 2018, and you confirmed that you wanted the nominee status removed from your profile, as you claimed it was affecting your mental health.
Investigation
14 The offending was initially detected by way of internal investigation on 26 April 2018. The Department wrote to you on 8 January 2019, inviting you to participate in a formal interview, however that interview did not take place.
Quantum of offending
15 As a result of your offending, you dishonestly obtained $174,618.79 from the Department.
Plea of guilty, remorse
16 I was told that you pleaded guilty at committal mention on 31 March 2020, which was the earliest opportunity. Further, I accept and take into account that this plea is indicative of your remorse, which you have also expressed to a number of referees who have provided character references on your behalf, and to Mr Cummins, psychologist. I take into account in mitigation of penalty both your plea of guilty (s16A(2)(g) Crimes Act 1914 (Cth)) and your remorse (s16A(2)(f) Crimes Act 1914 (Cth)).
Personal circumstances
17 You are now 46 years of age, and you were aged about 36 at the commencement of the offending.
18 You were one of three children born to your parents. Your sister, Rebecca, sadly committed suicide in 2009 after sustaining a work-related neck injury at the age of 33. You have a 39-year-old brother who operates a concreting business and lives in Kealba. You also have a 24-year-old half-brother, with whom you have no contact.
19 You attend St Anthony’s Primary School in Melton, and St Oliver Plunkett Primary School in Pascoe Vale, and then you attended Pascoe Vale Girls High School until you passed Year 10 at age 16.
20 Your parents separated when you were aged 10. You have had minimal contact with your father since. Your mother remarried when you were approximately 15, and then your mother and stepfather separated when you were aged around 26. You have a reasonable relationship with your mother, though you acknowledge that your relationship has often involved conflict. Your mother wrote a letter for the purposes of this hearing which I have read and considered carefully, and she told me about the trauma you experienced at ten when your parents divorced, your grandfather died, and your grandmother moved away. In your teens, you lost your boyfriend to a drug overdose.
21 You started working as a stripper from the age of about 15, eventually progressing to sex work. You have also had some employment as a receptionist and as a data entry worker with the ANZ Bank.
22 You have a son, Jacob, who is now aged 23, who lives in Ballarat and works in the IT industry, and who has never been in trouble with the law. Jacob was removed from your care by his father when he was age 4, and he has never lived with you, however you are now reasonably close to him. You have a daughter, aged 12, who has been in your care since March 2020. At the time of the plea she was in Year 7 and at Princes Hill Secondary College, but I understand that she has now moved to Merimbula to live with your mother. Your mother told me that she was unfortunately born with drugs in her system, and she has had the care of your daughter at her home in Merimbula for periods including from November 2019 to March 2020, when your daughter came back to live with you as she loves you very much and was missing you terribly.
23 I read in the reference from Merri Outreach Support Service Ltd that they first became involved with you and your daughter in January 2014, when you were experiencing an episode of homelessness. You eventually moved into long term public housing. You made contact with them again recently, as your daughter had returned to you, and you were seeking some support in working with child protection to ensure that you were appropriate to care for your daughter. You have expressed your deep regret for this offending to them. They find you engaging and active in your quest to make your family’s situation a positive one, and they will continue to provide support to you until other support is in place.
24 You have had a long, complex mental health history, interlinked with your drug abuse, which started at an early age. At the age of ten you put a plastic bag over your head, and by 12 you had had what you described to Mr Cummins as a couple of overdoses. By the age of 14, you had not only engaged in other acts of self harm such as cutting your wrists and overdosing on drugs, but you had left home and started living on the streets. I take the disadvantage and turbulence of your youth and adolescence into account in mitigation of sentence.
25 You started using cannabis at around the age of 12 or 13, and you reported to Mr Cummins, psychologist, that you would have been addicted to cannabis by the age of 14. You typically smoke three grams of cannabis per evening. You were introduced to heroin at the age of 15 while working as a sex worker, and within several months you became an intravenous heroin user, and you have subsequently had multiple heroin addictions. You candidly admitted through your counsel that the money that you derived from your offending was used to perpetuate your drug addiction and sustain your modest lifestyle. You experimented with methamphetamine in early 2019, and at that time your ability to look after your daughter raised the attention of the Department of Health and Human Services, and you agreed to allow your daughter to again be looked after by your mum.
26 You have been sexually abused and raped by your drug dealer in excess of 20 occasions over approximately 14 years, the last occasion occurred in February of this year. He has also choked and pushed, or punched you, resulting in two fractured ribs which required medical treatment.
27 You have been on methadone for approximately 10 years, and you currently take 60 milligrams of methadone daily. You have also been treated with the antidepressant, Lexapro, for approximately eight years, and have been prescribed Xanax intermittently over the last 12 months to control your anxiety. You have been diagnosed with Hepatitis C on three occasions, and on each occasion it resolved without you requiring treatment.
28 You attended a drug rehabilitation facility in Queensland, apparently in your teenage years. You underwent residential drug rehabilitation at the Buttery, at The Woolshed and via the Bridge program. In the last 10 years you have had three-month periods of residential drug rehabilitation at Odyssey House in Lower Plenty. I received a reference from Jodie Allen, drug counsellor, who indicates that you self-referred for support in April 2020 and have attended a number of subsequent appointments.
29 You write, and have published poetry, and you are now working on a manuscript for a book regarding your life and drug dependency. You have been on a Disability Support Pension for some time.
30 I have received a letter from Dr Pradeepa Dasanayake, Consultant Psychiatrist, whom you have seen annually to assess your mental state and for treatment recommendations, and you are suffering from long term depressive symptoms, anxiety and panic disorder.
31 Jeffrey Cummins, psychologist, assessed you and noted from the outset that you present as being mildly anxious and mildly to moderately depressed. You reported a narrative to him upon which he diagnosed you with Major Depressive Disorder, recurrent in type and of moderate severity (DSM-5). In his opinion, this Major Depressive Disorder developed in your very early teenage years, and since that time you have been self-medicating, primarily with cannabis and heroin, but also involving the occasional abuse of prescription medication. In his opinion, you currently suffer from a Trauma- and Stressor-Related Disorder, and you were suffering from a Trauma- and Stressor-Related Disorder at the time of offending. You also suffer an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, and also probably Post Traumatic Stress Disorder. He notes that you told him that you did regard yourself as a relatively psychologically-resilient person.
32 In his opinion, you present as having the ability to benefit from receiving ongoing mental-health treatment, and in his opinion you should receive ongoing mental-health treatment for the symptoms of depression and for possible trauma-related symptoms.
33 Based upon his assessment of you, it is his opinion that your mental health would deteriorate if you were incarcerated, as this would inevitably trigger past trauma. I am prepared to infer that your psychological state will mean that a sentence of imprisonment will weigh more heavily upon you than it would on a person in normal health. You are very concerned about your daughter’s ability to cope and thrive in your absence, and whilst, given her connection to and intermittent residence with your mother, I am unable to find that this is the type of case where hardship to your daughter becomes a mitigating circumstance, I do consider that your inability to provide support and care to her will weigh heavily upon your own mind, and I take that into account in mitigation.
34 Were I to sentence you into custody, this would represent your first period of imprisonment. You have admitted a prior criminal history extending over approximately ten appearances, all in the Magistrates’ Court. You first appeared before the Magistrates’ Court in July 1993, for a traffic offence, resulting in a fine which was converted to a community-based order, which unfortunately resulted in breach. In March 1994, you committed offences of shop steal and fail to answer bail, and you were placed on a Good Behaviour Bond. In November 2008, further appearances for shop steal and fail to answer bail resulted in another Bond, obliging you to continue receiving treatment from your general practitioner. A further Bond followed in February 2010 for a further offence of shop steal. In May 2011, you pleaded guilty to theft, nine charges of attempt to obtain property by deception and 14 charges of obtaining property by deception, resulting in a Good Behaviour Bond. This appearance overlaps with the first year of the current offending. In December 2015, you appeared before the Magistrates’ Court for offences of contravening a Family Violence Intervention Order and recklessly causing injury, and were placed on a further Bond. An appearance for entering private place without authorisation resulted in a Bond in January 2016. Whilst this is not your first appearance before the court for dishonesty offending, you have never faced charges of this degree of seriousness before.
Sentencing principles, purposes of sentencing
35 I accept the prosecution contention that your offending carries a number of grave and concerning features. It occurred over a period just three months short of eight years. It resulted in a very considerable quantum paid to you, $174,628.79, to which you had no entitlement, in addition to your own pension. The offending took effort and some cunning to establish, and you needed to lie to the Department repeatedly to continue the payment. You funnelled the proceeds largely into your drug addiction.
36 Social security frauds provide a heavy burden for taxpayers. They undermine the integrity of the social security system and can demonise the genuine and needy in our society.
37 I have been provided with a table of comparative cases by the prosecution, and I have read and considered those cases. I accept that the decisions of intermediate appellate courts help to provide a “yardstick” in this case, that serves to illustrate, but not define, the possible range of sentences available (R v Pham (2015) CLR 550, [29]).
38 The central requirement in imposing sentence upon each charge is to impose a proportionate sentence that is of a severity appropriate in all the circumstances of the offence (Crimes Act 1914 (Cth), s 16(1)). I take into account the purposes for which sentence must be imposed, including the primary need, for general deterrence, as well as specific deterrence.
39 The sentences I will impose will punish you and denounce your behaviour (s 16A(j)-(k)) and allow for community protection, whilst allowing for your continued efforts at rehabilitation. I am guarded about your prospects for rehabilitation, but I share your counsel’s view that you have every motivation to move past your tortured history and continue to be a good mother to your daughter. I am acutely conscious that a sentence requiring immediate imprisonment is one of last resort (Crimes Act 1914 (Cth), s 17A).
40 I note that should I sentence you to immediate custody, it coincides with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus. A sentence necessarily involves an initial two week isolation period, and you will be deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities. I take these matters into account in mitigation of sentence.
Submissions
41 Your counsel submitted that a Community Corrections Order would represent a proportionate penalty, and adequately satisfy all of the purposes for which sentence must be imposed in this case, and, if I did not accept that contention, that a recognisance release order of imprisonment allowing you to be released forthwith ought be imposed.[1]
[1]See R v Boulton [2014] VSCA 342; Dyason v The Queen [2015] VSCA 210, [40].
42 The prosecution submitted that a disposition without immediate custody was not available in the proper exercise of my sentencing discretion, and submitted that a sentence involving immediate imprisonment was necessary. I have reflected on this part of the matter carefully. Ultimately, I consider that immediate custody is the only disposition available to me in the proper exercise of the sentencing discretion.
43 Ms Wallis, can I trouble you to stand up for just a moment? I am about to pass the sentence and I just need you to listen because you need to agree to one part if you would like.
Sentence
44 On the charge of dishonestly obtain a financial advantage by deception from a Commonwealth entity, you are convicted and sentenced to 18 months imprisonment. I order that you be released after serving six months of that sentence, if you are willing to enter into a recognisance in the sum of $1,000 to be of good behaviour for 18 months.
45 A couple of points to note. That sentence will begin today and you will be released six months from today if you are willing to promise to be of good behaviour, and if you are not of good behaviour then that $1000 becomes payable. Are you willing to enter into that part of the bond?
46 OFFENDER: I don’t know
47 HER HONOUR: Are you willing to enter into the bond so that you can be released after the six months to be of good behaviour for the other?
48 OFFENDER: (Indistinct)
49 HER HONOUR: Thank you, we will prepare that order. Please be seated.
Section 6AAA declaration
50 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to three years’ imprisonment with a non-parole period of two years.
51 I make the reparation order sought in the sum of $170,820.91. That is the amount sought by the prosecution. Thank you, I have signed that order. We will just ask the accused to sign the order. Next, I might ask both of you to check the order to make sure that I have not made any errors given the complexity of Commonwealth sentencing, thank you.
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