Director of Public Prosecutions (Cth) v Wittahatchy
[2017] VCC 1069
•8 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00313
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DEBORAH SILVANA BERNADETTE WITTAHATCHY |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 4 August 2017 | |
DATE OF SENTENCE: | 8 August 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Wittahatchy | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1069 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty following Sentence Indication hearing – Charging fees for immigration assistance whilst not being a registered immigration agent – False representation as a migration agent – Two summary offences of giving immigration assistance without being a registered immigration agent – Relevant criminal history – Dishonesty offences – Chronic and debilitating ill-health
Sentence: Convicted and sentenced in relation to the indictable charges to an aggregate term of 2 years’ imprisonment to commence on 8 August 2017 but released immediately upon giving security by recognizance in the sum of $2,000 to comply with the condition to be of good behaviour for 5 years from 8 August 2017 – Convicted in relation to the summary charges and fined $1,500 with a stay of 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms N. Sheridan-Smith | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Offender | Mr L. Richter | James Dowsley & Associates |
HER HONOUR:
1 Deborah Silvana Bernadette Wittahatchy, you have pleaded guilty to nine charges of charging fees for immigration assistance while not being a registered migration agent, which carries a maximum penalty of ten years’ imprisonment; three charges of falsely representing that you were a registered migration agent, which has a maximum penalty of two years’ imprisonment, and two summary charges uplifted to this Court of giving immigration assistance without being a registered migration agent, which has a maximum penalty of 60 penalty units, which amounts to a maximum fine of $6,600.
2 Following a sentencing indication hearing last Friday, I indicated that if I were to hear a plea to the charges in this matter I would impose a sentence which did not involve immediate imprisonment. You then indicated, through your counsel, Mr Richter, that you would be prepared to plead guilty to the charges and you were arraigned, with those matters put at the sentence indication hearing being treated as the plea hearing proper.
3 The factual basis for sentencing is as follows:
4 Your offending occurred between1 August 2009 and 12 December 2011.
5 As you were not a registered migration agent, you were not authorised to perform the various tasks that you did on behalf of various applicants.
6 The registration process for migration agents was designed to recognise the knowledge and skill level required to provide qualified assistance to those seeking a migration outcome. This is a specialised area where inaccurate advice may harm an individual’s chances of migrating to Australia or remaining here on an appropriate visa.
7 Registered migration agents must declare their immigration assistance on an applicant’s Visa Application Form and provide various details in the form required, including their migration agent registration number.
8 You had graduated with a Graduate Certificate in Australian Immigration Law and Practice on 1 February 2007 from Victoria University. On 16 September 2008 you applied to be registered as a migration agent, however, your application was refused on 30 June 2010 on the basis that you were not of good character. When you filed your application for registration you were required to sign a number of documents, including a statutory declaration, indicating that you understood that you may not give immigration assistance until registered. You completed this statutory declaration, which was dated 14 September 2007.
9 On 16 March 2011, you lodged a further application to be registered as a migration agent, however, this was refused on 28 June 2011, because less than twelve months had passed since the decision on your last application.
10 Therefore, you well understood that you were not authorised to act as a migration agent as you had never been registered as one.
11 I now come to the basis for Charges 1 and 2 which relate to the complainant complainant Prageeth Madushanka Galbokka Hewage.
12 The complainant in respect of Charges 1 and 2 was a citizen of Sri Lanka arriving in Australia on a student visa to study a foundation course at Latrobe University in February 2009. In August 2009, the complainant wished to change his course to a building and construction course at Holmesglen Institute and was referred by a friend to a migration agent by the name of “Deborah”, who could help.
13 In August 2009, the complainant contacted you by phone. You told him you could take care of his enrolment and help him with extending his student visa. You advised him that he would need to file an application to waive his “no further stay condition” on his current visa. You told the complainant that he would need to provide copies of educational and financial documents, and it would cost him about $800, comprising about $300 for your fee for helping him with the visa application. He would also need to pay $300 to secure his enrolment at Holmesglen Institute of TAFE.
14 On about 25 August 2009, the complainant filed his own "no further stay" waiver with DIAC. In about September 2009, he met with you at your home. You helped him fill in the DIAC forms by telling him what answers to put in. The complainant paid you $800 cash at that time. You did not provide a receipt. You told him that you were not a lawyer but that you were a migration agent. This gives rise to Charge 2 on the Indictment. The forms which were completed that day include the full response that he had not received assistance in completing the form. The questions and answers following that question were left blank, which necessarily followed on from a negative response to the first-mentioned question. Therefore, the form falsely conveyed that you had no role in completing it.
15 A separate form was also completed and dated 19 October 2009, nominating you as the authorised recipient of all communications from DIAC on behalf of the complainant. This form was also completed with false information, in that it recorded that no payment or gift for any assistance had been received by anyone, in fact it had been by you. The effect of the form was that all communications from DIAC regarding the visa application were directed to you exclusively.
16 Over the next few months the complainant tried to contact you about the progress of his application, but you avoided contact with him. You falsely claimed that you had enrolled him at Holmesglen Institute of TAFE and, subsequently, at another organisation. However, neither had enrolled the complainant at their institution, nor received any money for enrolment. You falsely claimed that you had Letters of Offer from both organisations, but documents were never provided to the complainant to verify this. Therefore, you took the full benefit of the fees earmarked for enrolment, which were never paid.
17 In sentencing you, I note that this conduct could not be said to amount to mere ineptitude on your part, but to taking money under false pretences.
18 Records obtained by the prosecution indicated that a Subclass 575 Visa Onshore Application was filed on about 21 October 2009 by you, but the complainant was not made aware of this.
19 In February 2010, the complainant approached a registered migration agent who discovered from DIAC that his application for a visa had been refused and the deadline to file a review with the Migration Review Tribunal was close of business that day. Fortunately, the review application was filed in time by the registered migration agent, and the complainant’s student visa was subsequently granted in September 2011.
20 Investigators found, in a “client file” held by you, a Notice of Decision dated 28 July 2011, to the effect that the complainant had incurred unexplained absences from his authorised course for a significant period between February and April 2010, such that his enrolment was cancelled. This impacted on his visa eligibility. Also found on that file was a letter dated 28 July 2011, advising that the application for a student visa was refused. Apparently you failed to advise the complainant of the significant development in his application.
21 The basis for Charges 3 and 4 relate to the complainant Soujata Ramnial.
22 This complainant was a citizen of Mauritius. In April 2008, she arrived in Australia on a Subclass 572 Student Visa and commenced a Diploma of Hospitality Management at “Academia International & Academia Australia”. Initially she stayed with her brother-in-law, who was living with you at that time. You told the complainant that you were studying to become a migration agent and if she experienced any visa problems, to come to you for help. The complainant saw you socially, and at one point you told her that you had finished your studies to become a migration agent and that you were now registered, which was false, as you well knew. You gave the complainant your business card.
23 On 10 May 2010, the complainant completed her studies but wished to stay in Australia, so she contacted you. You told her to apply for a Subclass 485 Visa to enable her to stay for eighteen months and an entry into the job-ready program. You told the complainant that this would cost around $700 to $800 for your assistance with the visa application, plus $250 for the visa application fee and $300 for the skills assessment with TRA.
24 About two weeks later, the complainant paid you these amounts in cash, but did not receive a receipt. You provided a visa application form and a “Form 80”. A few days after this, the complainant returned to your home with the completed forms. You said that you would apply for the TRA skills assessment online. Investigators found, at your home, on this complainant’s “client file”, a General Skills Migration Application Form with similar incorrect and misleading information of the same kind as the previous complainant’s forms.
25 About ten days before the expiration of this complainant’s visa, the complainant’s husband called you. You confirmed that everything had been lodged. In June 2010, you called the complainant for some further details and told her that she had been granted a Bridging Visa A.
26 In about November/December 2010, the complainant, her husband, and their employer, “Hamid”, who ran a pizza shop that they worked in, went to see you as the employer had offered to sponsor their migration under the Employer Nomination Scheme. You confirmed this and said it would cost the following amounts.
·$4,000 for Anath, who I understood was your partner, and brother-in-law of the complainant, to do a business plan;
·$3,000 to $4,000, being your fee to prepare and lodge the visa application;
·$445 for the employer nomination; and
·$2,100 for the visa application charge.
27 The following day, the complainant and her husband paid you $200 in cash for the business plan provided to them by their employer. Again, no receipt was provided. In April 2011, you said that the business plan was ready and the remaining $2,000 was required to be paid for that. The complainant was sent an email with the business plan attached, and then deposited $2,455 into your bank account for the business plan and nomination fee. This money was provided by the employer.
28 A few weeks later, the complainant met with you at your house and paid $1,000 in cash as a deposit on the $3,000 fee being charged to prepare the visa application. No receipt was provided. Indeed, no receipts ever seemed to have been provided by you, and many of the transactions which took place were in cash amounts.
29 Again, you avoided being accountable to this complainant about the progress of her application. In about May 2011, the complainant approached a registered migration agent, as she was frustrated with the situation. She was advised that the employer was not eligible to sponsor an Employer Nomination Scheme Visa application because of the nature of his business. The complainant contacted you and told you that she wanted a refund of her money because you had provided the wrong information. You repaid a total of $1,755 into the account of the complainant the following week. However, you had wrongly taken substantial sums beyond this from the complainant, and her employer, who had provided the $2,455 for the business plan and nomination fee.
30 In relation to Charge 5, the complainant in relation to that charge is Sasikala Vijaykanth.
31 The complainant was a citizen of Sri Lanka and permanent resident of Australia. In November 2010, this complainant and her husband applied for a tourist visa on behalf of the complainant’s mother. The application was refused two weeks later. A friend of theirs referred this complainant to you for assistance.
32 You met with the complainant and her husband to discuss the matter. The complainant wanted her mother to come to Australia for the impending birth of her child. You said that you would prepare the visa application, but you did not say which visa this would be. You said that this would cost $105 for the application fee and $1,000 being your fees to prepare the application. You said that if the visa was not granted you would refund half of your fee.
33 In December 2010, the complainant and her husband, again, attended your home and provided all supporting documentation and $1,105 in cash. You told them that you would lodge the application and let them know. Again, the forms, which were filled in incorrectly, stated that no assistance to the applicant had been provided and that no fee had been paid for any assistance.
34 In January or February 2011, you called the complainant to advise that the visa had been rejected and that you were going to send the application to a friend of yours who worked for DIAC in Canberra. The complainant’s husband requested the refund of $500, as you had previously agreed. However, he had to make numerous requests before you provided that refund, which you paid in April 2011.
35 In relation to Charges 6, 8 and 12, the complainant in that matter is Chamath Vindika Jayasinghe Watiyapolage Don.
36 Again, the complainant was a citizen of Sri Lanka, who first arrived in Australia in July 2009 on a student visa. He studied a Diploma of Hospitality in Melbourne. His visa was due to expire on 31 March 2011. As his course was continuing, an extension was required and he was referred to you by a friend.
37 In January 2011, the complainant called you, and you told him that you were a migration agent. This gives rise to Charge 8. You told him to bring a list of documents with him. You advised that your fee for helping with the application would be $300.
38 At the appointment with this complainant, you talked to him about the visa extension process, the need for an extension of the confirmation of enrolment and the fact that he would be granted a bridging visa in the interim period, while the visa application was being considered. You asked him to complete his name and address on some forms and to sign at the end. The complainant was not sure what the forms were, but he trusted your advice. Subsequently, this complainant identified his handwriting on an application for a student visa form and an appointment or withdrawal of an authorised recipient form. These forms included a number of false and misleading responses, or non-responses, to questions of the nature previously described in relation to other complainants. Again, a form was signed which authorised you to be the recipient of all communications from DIAC on behalf of the complainant and, again, false particulars were contained in this form, which masked your involvement.
39 This complainant tried to contact you many times in March 2011, but you did not respond. After three phone calls on 31 March 2011, you returned his call and told him that his visa application had been filed and that you would send a copy of the registered post receipt to him. This showed that you had mailed the application on that same day. The complainant did not receive any correspondence about whether or not his visa had been granted, as you had the authority to receive all communications on his behalf.
40 At the end of November 2011, the complainant called you to obtain your help with his next student visa application. You told him to bring a list of documents and that your fee to assist him would be $300. On that subsequent occasion you completed the complainant’s visa form online, and the complainant paid you $300. The form, again, falsely conveyed that no assistance had been received from any person in completion of it.
41 In relation to Charge 8 on the indictment and Summary Charge 14, the complainant in relation to those matters is Liyana Gamaralalage Kanchana Chathuranga Mudalpath.
42 This complainant was also a citizen of Sri Lanka. He arrived in Australia on a student visa on 4 April 2007 and commenced a Diploma of Hospitality Management at Holmesglen Institute of TAFE. He was meant to start a Business Degree, but wished to continue his studies in hospitality instead. He was referred to you to assist with his visa.
43 In August or September 2009, this complainant called you to discuss this change. You arranged to see him at your home a few weeks later. At the appointment with him, you completed the application form for the Melbourne Institute of Tourism and Hospitality. You told him it would cost $3,000 to enroll him in his new course, which was payable to the school directly. You said you would receive a commission from the school and there was no fee for your service at this time. The complainant commenced that course and continued his studies, which were scheduled to conclude in June 2011.
44 In January 2011 the complainant contacted you about extending his visa, which was due to expire in February of that year, so that he could complete the course. You told this complainant that he had to apply for a subclass student visa because he was enrolled in a diploma course. At an ensuing appointment, you told the complainant that it would cost around $500 to $600 for a visa application and to transfer this sum to your bank account. The complainant did so the following day. In February 2011, at the appointment, you told the complainant to complete his details in the application form, but to leave the details about migration agent blank, as you would fill these in. The forms, which were completed that day, included responses or non-responses to questions which were false and misleading, concealing your involvement in the same way as with previous complainants.
45 The form was signed on 11 February 2011, and a further form was completed which authorised you to receive all correspondence on behalf of that complainant. Again, the form was misleading in the same way as the previous forms of this nature.
46 A month later, you contacted the complainant to confirm that his visa had been granted.
47 I come to Charge 9 where the complainant is Samitha Kasun Dasanayaka Dasanayaka Mudiyanselage.
48 This complainant, also a citizen of Sri Lanka, came to Australia in May 2008 on a student visa to study English for a month, and then to embark upon a Diploma of Hospitality Management at Holmesglen Institute of TAFE. She went on to commence a Diploma of Business Management, which she was still completing when required to extend her visa, which was due to expire in August 2011. Again, a friend referred her to you for assistance.
49 The complainant met with you in mid-April 2011 at your home. You told her that she would need to provide a number of documents which you detailed, including proof of funds to support herself. You told her that you would enrol the complainant in a management course at Melbourne Institute of Tourism, and it would cost $4,000, which included the visa application charge and enrolment fees of $2,500, with the rest being payable to you for preparing and lodging the visa application and arranging enrolment. You said that the money could be paid in instalments into your bank account.
50 You gave the complainant an application form and asked her to write in her personal details only, and then sign the form. You then completed the remainder of the form in the complainant’s presence. Again, the form included the usual false and misleading statements, including the parts that were left blank. The form was signed on 27 August 2011, and a further form was signed authorising you as the recipient, with all of the usual false and misleading information conveyed in other forms to which I have previously referred in relation to other complainants.
51 Subsequently, the complainant made a cash deposit of $500 to your bank account, then five or six further instalments, totalling $4,000, from April 2011 to February 2012.
52 You engaged in ongoing communication with the complainant over a number of months. In September 2011 you advised her that her bridging visa had been granted and made a further appointment to obtain further documents requested by DIAC. At that further appointment the complainant was given a list of documents by you, which were required.
53 In February 2012 you contacted the complainant and told her that the visa had been refused because of problems with her financial documents and that she would need to have the decision reviewed by the Migration Review Tribunal. A further appointment was arranged, where you told the complainant that you could assist with that application to the MRT, but this would cost another $1,500 in order to lodge the application for review. This complainant provided you with two deposits totalling $1,500 about a week later.
54 In June 2012, the complainant enrolled herself in a hospitality management course at Brighton Institute of Technology and requested a refund from you for the fees advanced to enrol her in a course in accordance with the initial agreement. There was a discussion about whether the complainant could work under the terms of the visa, and you said you would check. A few days later, you contacted the complainant to ask her to complete an application for work rights, which was filed about a month later by you.
55 In February 2013 you told the complainant that the MRT matter was approaching and that the complainant would need a lawyer. You met with the complainant to hand over the relevant documents for the hearing. At the Migration Review Tribunal hearing it emerged that the complainant’s visa had been cancelled because her enrolment had not been confirmed, not due to the inadequacy of her financial records, as you had wrongly advised her.
56 Therefore, you took fees from the complainant in multiple instalments for immigration assistance which were you were not authorised or registered to provide.
57 The basis for Charge 10 relates to the complainant Anoja Cooray Merengngnage.
58 The complainant in relation to Charge 10 again was a Sri Lankan citizen who came to Australia in February 2007 on a Subclass Student Visa. Initially, she completed an English course, then a Diploma of Building Design and Technology at Holmesglen Institute of TAFE. Halfway through this enrolment she cancelled this, and enrolled in a Certificate III Hairdressing, Certificate IV Hairdressing and then a Diploma of Hairdressing Salon Management at another educational institution. She concluded these studies in March 2010. She then completed a Certificate IV in Business at Baxter Institute in January 2011.
59 In May 2011, the complainant wished to continue her studies and obtain another student visa. Again, she was referred to you by a friend. You met with the complainant at your home and discussed the situation. You advised the complainant that you needed to apply for a student visa and that you would take care of the paperwork for her. You provided a list of documents required, and asked her to transfer $1,500 for health insurance and $550 for the visa application, into your bank account. You said that you would charge $300 for preparing and lodging the application, and asked the complainant to bring the money with her to the next appointment.
60 The complainant transferred $550 to your bank account prior to the next appointment. At some stage the health insurance money was also transferred. A few weeks later, at the next appointment, the complainant provided all documentation requested and $300 cash as your preparation fee. The visa application, which was completed by you, contained the usual misleading statements and non-responses to conceal your true role. The form was signed on 1 August 2011. On that day, a further form nominated you as the recipient of all communications on behalf of the complainant, and again, this was completed in the usual misleading fashion.
61 Subsequently, you informed the complainant that the accountant at her new school would take care of renewing the complainant’s health insurance. However, in August 2011, when the complainant enquired about this, the educational institute told her that you had sent only $200 in payment for the letter confirming enrolment, and it was not their job to handle health insurance. The complainant then made her own arrangements to renew her health insurance. Subsequently, when the complainant’s husband sought a refund from you for the money transferred for health insurance renewal, you lied, falsely claiming to have sent the money to the school and that you were waiting for a refund of the fees before you could reimburse them.
62 In September 2011, you contacted the complainant to advise that her student visa application had been refused. You showed the complainant an email stating that the visa was refused due to late lodgment of documents. You emailed DIAC during the appointment with the complainant to “resend” the documents. You told the complainant that you would apply for a review of the decision at the Migration Review Tribunal, which would cost further money and would take about two years for the hearing to take place, but that the complainant could continue her studies in the meantime. You told the complainant what her fees would be for the application, but the complainant could not recall what was quoted. You then told the complainant you could also assist in an application for a regional visa, and if the complainant gave you $30,000 you would arrange sponsorship of her employment by a friend who owned a hairdressing salon. The complainant said she could not afford this and was not interested.
63 About a week later the complainant returned to your home and you completed the application for a Migration Tribunal Review hearing. The complainant could not recall how much this cost.
64 In November 2011, the complainant contacted you for help as she wished to return to Sri Lanka for her brother’s wedding. You arranged to meet with the complainant at DIAC and you completed the application for a bridging visa for her. This was granted that day. Again, the complainant could not recall the cost associated with this.
65 You received funds which were said to be for health insurance in respect of this complainant, but as this was paid for personally by her, it appears that you received the benefit for the additional money paid which from my understanding was not refunded.
66 I come now to Charge 11 where the complainant is Raveesha Randeel Dimuthu Sampaya Mesthrige.
67 The complainant in this matter was also a Sri Lankan citizen, having arrived in Australia in October 2010 on a subclass student visa to undertake foundation studies at Central Queensland University and then a Certificate III in Engineering (Fabrication Trade) at Holmesglen Institute of TAFE. There was a no further stay condition on the visa and the expiry date for this was 30 August 2011.
68 In August 2011 the complainant approached a migration agent who quoted him $4,000 to help with a visa extension. He could not afford this, so a friend referred him to you and you made an appointment to see him.
69 At the appointment you told him that you would handle the application to waive the no further stay condition and the student visa application. You said that this would cost between $1,000 to $1,400 for your fee to prepare and lodge the applications, and a further $560 for the visa application charge. The complainant returned a few days later with documentation and paid you an amount which was between $1,000 and $1,400 in cash. You told the complainant that his waiver application would be approved because he was already enrolled and attending classes. You called to confirm this about a week later.
70 Within the next two weeks, at a further appointment, the student visa form was completed by the complainant, who was instructed to leave anything that he did not understand for you to complete. Again, the forms were misleading, as they did not identify your role in the completion of them. Forms authorising you to be the authorised recipient of all communications were also falsely completed in the usual way in respect of this complainant.
71 The complainant deposited $560 into your back account, as instructed by you. In August 2011, the complainant’s employer called him to say he could no longer work as his visa had expired. The complainant called you. You told him that he had a bridging visa granted, but he could not work whilst on that visa. On 16 November 2013, the complainant also contacted you to refer his cousin to you for help with an extended family visa.
72 The basis for Summary Charge 15 where the complainant is Rohan Wimalasiri is that between 1 November and 12 December 2011, you gave immigration assistance to this complainant, in that you gave him advice about nominating or sponsoring a visa applicant.
73 On 21 August 2012, the Australian Federal Police executed a search warrant at your home and found over eighty “client files” which contained migration-related documents. Further investigation revealed that seventy-five of these files had associated visa applications which had been lodged with DIBP.
74 Each of the files was a manila folder which contained the following information:
·On the front of the manila folder, the applicants’ name and subclass of visa application;
·On the inside of the manila folder, the applicants’ education details, and payment amounts and email address;
·Within each manila folder, there were photocopies or printouts of scanned copies of passports, completed visa applications and other DIBP forms, education certificates and results; and
·Within each manila folder, there were handwritten notes on personal details and payment amounts.
75 Documents which were seized at your premises matched the documents which were lodged with DIBP, which are the subject of Charges 1 to 12.
76 Ms Wittahatchy, your offending is serious and deserving of a punishment which is appropriate in all of the circumstances of your case. You well knew that you were not entitled to behave as a migration agent but, despite this, you took on the role, charging various people fairly substantial amounts to work on their behalf. While it is true that on some occasions you were able to effectively assist them, you were prepared to take fairly substantial sums of money from these individuals, and to complete form after form in a fraudulent fashion. Moreover, on a number of occasions your ineptitude, or dishonesty, or perhaps both, led to some complainants being placed in a dreadful position in terms of their quest to remain in Australia. While it may be that you had some competence in this area, you clearly did not have enough, and even if you did, you were unauthorised to conduct the business that you did. I should say that a number of the complainants appeared to have been somewhat complicit in this dishonesty, as it would appear that a number of them signed documents which they knew to be deceptive, insofar as your role and payment was concerned.
77 You have a relevant criminal history as follows:
·On 13 February 2014, you were discharged without conviction in respect of obtaining a financial advantage by deception and theft; and
·On 2 February 2005, you were convicted in the County Court of two charges of obtaining a financial advantage by deception and were sentenced to a total effective sentence of twenty-one months’ imprisonment, with a non-parole period of nine months. I have had the benefit of the sentencing remarks of the late Judge Barnett, dated 2 February 2005.
78 Further, you have subsequent matters for dishonesty which were committed between September 2012 and October 2012, some of which related to misrepresentation and dishonesty, albeit in a different context. Your offending on the occasions before me, your criminal history, and subsequent matters, give me some concern for your prospects of rehabilitation. However, I also factor in that your criminal history is somewhat dated, and that it has been over four-and-a-half years since you last committed criminal offences, being the subsequent matters to which I have just referred. I should add that the delay was attributable to the large number of complainants and ongoing offending by you, which took time to come to the attention of the authorities, as well as your decision to engage migration solicitors to represent you once the charges were filed in July 2014. Unfortunately, that decision led to the matter to be dealt with in the County Court rather than proceeding as a summary matter in the Magistrates’ Court as the Commonwealth prosecution submitted would have been appropriate in this case. However, it is a matter in your favour that you did not re-offended during the relevant period.
79 In assessing the seriousness of your offending, I factor in the duration of the offending and the various sums which were taken, as well as the total amount which you benefited from in your illegal conduct. I was told that this totaled between $7,900 and $8,400, insofar as direct benefit or gain is concerned. Further sums were provided to you by complainants for the purposes of education enrolment expenses, but it is unclear as to whether the funds were correctly applied.
80 I also factor in that your motivation for committing the offences was greed, albeit that in a number of cases you actually did provide a service, even if you were not authorised to do so. However, this is to be contrasted with someone who behaves fraudulently, as you did, without providing any service of worth at all. I also factor in that your offending involved a significant degree of effort and organisation, albeit that in a number of cases, your ineptitude, neglect, or dishonesty, resulted in stress or unfortunate outcomes for complainants from time to time. In a number of cases, you placed the complainants at risk of the prospect of unjustified deportation or visa refusal because of your conduct.
81 On the other hand I accept your counsel's submission that you did not behave in a predatory fashion, that these were people who came to you on recommendation from friends, and as I say, on occasion you did provide a service that did assist them, albeit you were not authorized to do so.
82 You entered your pleas of guilty following a sentencing indication which took place shortly before the matter was listed for trial. The sentencing indication hearing occurred after a fully contested adjournment application by you was adjourned part-heard after you collapsed in court at the original hearing, and also following a further mention of the matter. However, I take into account that you did plead guilty, albeit, at a late stage, such pleas of guilty have facilitated justice in this matter, in that you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of running contested proceedings in this court.
83 You are now fifty-five years old and you are in poor health. In your counsel’s written submissions, I was told that you live alone in rented accommodation, that you are single, and have one adult son. You were born and grew up in Sri Lanka, moving to Australia with your ex-husband in 1987.
84 You were close to your parents, but you were raised primarily by your grandparents in Sri Lanka, as your father, who was a high-ranking police officer, regularly shifted to different posts, and your education was given priority so that you were kept in the one place with your grandparents. You did well at school and embarked on a law degree, which you did not complete.
85 Upon arriving in Australia in 1987, you were employed in skilled administrative roles in various government departments. You performed these roles until about 2001.
86 You had a troubled relationship with your former husband, who was emotionally abusive towards you. You brought up your son, who is now thirty years old, almost single-handedly. Your former husband has since been imprisoned for child sex offences, which has caused you a good deal of distress, due to the backlash you have suffered from the Sri Lankan community.
87 In 2013 you ceased work because of health issues, including heart disease. Since then, you have received a Disability Support Pension from Centrelink.
88 You are a devoted member of the Living Waters Victoria Church and are involved in a number of its charity functions and events in the community.
89 I take into account your poor health, which has dramatically declined in the past two years or so. You have Chronic Ischaemic Heart Disease following a cardiac arrest in 2014. This required you to have a pacemaker inserted. You continue to have blockages and restrictions in the circulatory system surrounding the heart. You also suffer from Diabetes, Chronic Glomerulonephritis and Nephritic Syndrome, as well as other health complaints. I was told that you were on a waiting list to attend to your Osteoarthritis, as well as having a possible diagnosis of Lupus.
90 I was told that in 2013 you were bullied in a workplace environment and developed a diagnosis of Anxiety and Depression, although these issues may have been pre-existing to some extent. I was also told that you had been consulting a psychologist since 2014, although the report I received appears to be from a counsellor who is performing a role similar to that of a psychologist. However, you still suffer from severe panic attacks, which can present with similar symptoms to angina attacks, and which may well have been what you were experiencing when you collapsed at Court several weeks ago. This is not clear.
91 You have been prescribed a number of medications and have regular appointments with your general practitioner and diabetic clinic in order to monitor your health. You also have a medical alarm unit which monitors you twenty-four hours a day. In the absence of a proper expert report concerning your mental health, I am not prepared to apply any Verdins principles which would impact on moral culpability, specific and general deterrence and other factors in relation to sentencing. However, I take into account the remarks of your counsellor in a more general way, and I also accept that your poor medical condition would mean that time in gaol for you would be far more difficult than for someone without your various ailments.
92 While I cannot find that you have expressed any contrition for your offending, which causes me some concern, in view of the fact that your offending and subsequent offending occurred a number of years ago, and in view your poor health and lack of further offending in the past four-and-a-half years, I find that your prospects of rehabilitation are guardedly fairly good. I place some weight on specific deterrence in these circumstances.
93 Your counsel submitted, in his written submissions, that there was real doubt as to whether you might receive adequate medical care in a custodial environment and that your health might well deteriorate if you were imprisoned. Ms Wittahatchy, I am concerned about this position, however, you should know that if you commit offences in the future, poor health will probably not save you from serving a term of imprisonment. Do you understand that?
94 OFFENDER: Yes.
95 HER HONOUR: However, in circumstances where your offending, although serious, was fairly low level, and given your plea of guilty, poor health, and the delay in this matter, during which time you have not committed further offences, I am prepared to give you an opportunity to stay out of gaol. Make no mistake, if you commit any further offence you will be very hard-pressed to convince me that you ought not go to gaol immediately. Do you understand that?
96 OFFENDER: Yes.
97 HER HONOUR: All right. You can remain seated while I actually announce the sentence that will be imposed in this matter.
98 In respect of all offences on the indictment and the two summary matters you are convicted. You are sentenced you to an aggregate term of two years’ imprisonment in relation to the charges on the indictment, but I direct that you be released immediately upon giving security by Recognizance in the sum of $2,000, to comply with the condition that you be of good behavior for a period of five years from today. I am sorry, I should have indicated that the aggregate term of two years' imprisonment is to commence today.
99 I have made these orders because of the seriousness of the offences with which you have been charged and the weight which I have given to all relevant sentencing principles, but because of the matters in mitigation I have decided to release you immediately providing that comply with the condition of this order, that is to be of good behavior for a period of five years.
100 If you fail to comply with the condition to be of good behaviour for the next five years then you will be brought before the Court, and you may be required to pay the security sum of $2,000 and to serve two years' imprisonment immediately.
101 In this regard you should know that if you commit any further offence which breaches this recognisance release order, your ill health will probably not save you from going directly to gaol.
102 I should also add that your failing to comply with the recognisance order would mean that in order to avoid going to gaol immediately and perhaps being ordered to pay the security sum of $2,000 you would have to show a reasonable excuse for the reoffending.
103 I should also tell you that the recognisance release order can be varied or discharged under S.20AA of the Commonwealth Crimes Act upon application by you or a person who has standing pursuant to S.20AA(1) of the Commonwealth Act.
104 If not for your pleas of guilty to the offences on the indictment I would have sentenced you to an immediate gaol term of four years' imprisonment with a non-parole period of three years.
105 In respect of the summary matters, having taken into account the submissions made by your counsel this morning concerning your financial situation, I consider that a fine of $1,500.00, that is an aggregate fine of $1,500 for the charges is appropriate. I will grant you a stay of six months to pay this fine, unless there is a submission otherwise.
106 MR RICHTER: Six months is appropriate, Your Honour.
107 HER HONOUR: All right. Now, before the recognisance release order is signed by Ms Wittahatchy, Madam Prosecutor, is there anything in the way that this sentence has been expressed that is of concern from your point of view?
108 MS CURMI: No, Your honour, it all looks perfect, thank you.
109 HER HONOUR: All right. Thank you. We'll have the recognisance release order handed to Ms Wittahatchy. Thank you.
110 Mr Richter, if you could assist your client, please.
111 MR RICHTER: Yes, if I can be excused from the Bar table temporarily.
112 HER HONOUR: Yes, thank you.
113 MR RICHTER: Thank you, Your Honour.
114 HER HONOUR: Thank you. We'll now adjourn.
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