Director of Public Prosecutions v Acosta
[2015] VCC 138
•18 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 14-02218
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ALAIN ACOSTA |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2015 | |
DATE OF SENTENCE: | 18 February 2015 | |
CASE MAY BE CITED AS: | DPP v Acosta | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 138 | |
REASONS FOR SENTENCE
---
Subject: Criminal law – Sentence
Catchwords: Dishonestly obtaining financial advantage by deception from the Commonwealth – attempt to dishonestly obtain financial advantage by deception from the Commonwealth
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr M Kalyk | Commonwealth Department of Prosecutions |
| For the Accused | Mr C Terry | Matthew White & Associates |
HIS HONOUR:
1 Alain Acosta, you have pleaded guilty to three counts of dishonestly obtaining a financial advantage by deception from the Commonwealth contrary to s.134.2(1) of the Commonwealth Criminal Code and to four counts of attempting to dishonestly obtain a financial advantage by deception from the Commonwealth contrary to ss.11.1(1) and 134.2(1) of that Code.
2 The circumstances of your offending are as follows.
3 Between about 6 July 2011 and 2 July 2012, you electronically lodged seven income tax returns with the Australian Taxation Office (“ATO”). Of those, two were your own tax returns for the years ending 30 June 2011 and 30 June 2012. One was a return lodged in the name of your father. One was a return lodged in the name of your mother. The remaining 3 were in the names of friends of yours, namely Flinn, Takashi, and Bigay.
4 On each of the returns, the declared taxable income, the amount of tax stated to have been withheld by the relevant employer, and/or work related expenses and deductions were knowingly misstated. The result in each case was that, on the face of the return, the tax refund due from the ATO to the named tax payer was deliberately inflated.
5 In all but one of the cases, the relevant taxpayer had authorised the anticipated refund to be paid into one of your bank accounts. In the case of the Bigay return, the refund was authorised to be paid into the bank account of a person whose identity was never discovered by investigators.
6 In respect of the three returns lodged by you for the 2011 tax year that is in your own name and on behalf of your two parents, a refund was sent by the ATO to a bank account in your name.
7 In respect of the returns lodged on behalf of Flinn, Takashi, Bigay and your return for the 2012 year, in each of those cases, the ATO halted the processing of those respective returns prior to any refund being transferred.
8 In respect of your return for 2011, you received a tax refund of $20,855.90 when the correct information would have resulted in a refund of no more than $16,084. Accordingly, you received a financial advantage of at least $4,771.90 by that deception.
9 In relation to your father’s return, an amount of $16,417.04 was credited to your account when, the ATO, based on the correct figures, should have issued a tax debit of $342. Accordingly, you received a financial advantage by this deception of $16,759.04.
10 In respect of the return lodged in the name of your mother, the total financial advantage gained by your deception was $11,650.46.
11 In respect of the Flinn return, you attempted to gain a financial advantage by deception of $10,926.02.
12 In respect of the Takashi return, you attempted to gain a financial advantage by deception of $16,278.75.
13 In respect of the Bigay return, you attempted to gain a financial advantage by the deception of $23,655.70.
14 Finally, in respect of your own 2012 return, you attempted to gain a financial advantage by deception totalling $5,740.68.
15 The total amount of the financial advantage successfully obtained by you by your deception in respect of the 2011 returns for you and your parents totalled $33,181.40.
16 In respect of the Flinn, Takashi and Bigay returns and your own 2012 return, you attempted to obtain an advantage by deception totalling $56,601.15.
17 The maximum penalty for each of the charges to which you have pleaded guilty is ten years' imprisonment. It should be noted that, pursuant to s.11.1 of the Criminal Code, a person who attempts to commit an offence is punishable as if the offence attempted had been committed.
18 You are aged twenty-nine. You were born in El Salvador. You came to this country with your family in 1988 when you were aged about three. Thereafter, you were raised and educated here in Melbourne.
19 Your parents operated a cleaning business from about 1992. During your childhood and throughout your teenage years, I was informed that onerous demands were placed on you to work in the family cleaning business. From about the age of eleven, I was told that you worked long hours particularly after school.
20 I have been provided with a report from Ms Wendy Northey, a Consultant Forensic Psychologist dated 2 August 2013. Ms Northey obtained a history which she described as approaching a form of child slavery in relation to your work in the family business accompanied by abuse and a degree of violence from your father.
21 Notwithstanding, it seems that you did well at school - but that the combination of diligent study and long hours of work in the family business meant that you missed out on many of the ordinary formative experiences typically experienced by teenagers.
22 On completion of your schooling, you studied at Victoria University where you completed a course and went on to work initially as a para-accountant and then obtained employment as a business manager with Southern Health between April 2011 and May 2012. You ceased that employment in circumstances that I will come to shortly.
23 I was told by your counsel that despite your relative success in the context of tertiary education and your obtaining a good employment position, you suffered from deep-seated insecurities, low self-esteem and distorted body image issues. You fell into a pattern of drug and steroid use from your early twenties. By the time you obtained employment at Southern Health, you were in receipt of an annual salary of $110,000, but were heavily in debt as a result of a significant mortgage, car finance, credit card debt and debts to steroid suppliers. You had fallen into a peer group who used steroids and spent excessively on hotels, drugs, cars and nightclubs.
24 Your lifestyle was described by your counsel as one of decadence and materialism.
25 In and around the period of the offending for which I am to sentence you, you committed other offences.
26 Chronologically, these are as follows:
(a) Between November 2011 and April 2012, you committed offences of obtaining a financial advantage by deception, and of possessing a drug of dependence.
On 13 August 2013 you were sentence d by Judge Gaynor in this Court to four years' imprisonment with a minimum non-parole period of 18 months. I was told by counsel that the Parole Board had scheduled your release from prison on 4 February 2015 but that, on being notified of your current position, the Board has placed your scheduled parole on hold.
I have read Judge Gaynor’s sentencing remarks from that August 2013 hearing, and note that the financial advantage conviction related to the period in which you were employed by Southern Health and involved the production by you of some 139 false invoices ostensibly payable by your employer for work done by contractors. As a consequence, your employer paid some $534,480 into bank accounts of you or your accomplices. Your employment with Southern Health was terminated in March 2012 at the time of your arrest for those offences.
(b) Between 17 October 2011 and 24 October 2011, you committed offences consisting of four counts of making false documents, four counts of using false documents, and one count of possessing an item to make a false document.
These offences, I was told by your counsel, related to the making of a number of false declarations concerning damage to a motor vehicle and a knowingly false insurance claim. You were sentenced to six months' imprisonment, wholly concurrent with the term imposed in relation to the sentence previously imposed by Judge Gaynor.
(c) Between October 2011 and April 2012, you committed six forgery offences. On 3 October 2012 you were convicted and sentenced to a community corrections order for 12 months with conditions relating to assessment and treatment of your mental health and alcohol abuse, and supervision.
I understand that Community Correction Order was completed satisfactorily.
I was told by your counsel that these offences involved you forging documents purporting to be declarations of bankruptcy by other persons.
27 I note that the offending in relation to each of those three other offending and the offending for which you are currently before this court occurred over the roughly the same period in 2011 and 2012.
28 I note and take into account that the offences for which you are currently before the Court involved pre-meditation and planning. The monetary amounts involved were significant.
29 Your offences were committed in the context of greed and not need on your part. You had apparently determined to lead a lifestyle well beyond your means. The description of your lifestyle involving excessive spending on hotels, drugs, cars and nightclubs is not one that attracts sympathy for the position in which you now find yourself.
30 I have read and noted the matters that were put to Judge Gaynor by your then counsel in August 2013 in support of a plea for mitigation in respect of the sentence then under consideration.
31 In particular, I note the comments made by Ms Northey. Her report was tendered in your earlier Court appearance before Judge Gaynor also.
32 In particular, I note from it and accept the account of your unusual and hard upbringing as a child and as a youth. Ms Northey described you as having suffered trauma and cultural dislocation and having been a victim of prolonged and significant childhood abuse. As regard to cultural dislocation, whilst I would be almost certain that your parents suffered cultural dislocation, you came to this country at the age of three and I doubt whether you could legitimately be described as having suffered any cultural dislocation insofar as that is intended to refer to the difference between life in El Salvador and life in Australia.
33 It appears that Ms Northey considered that your fraudulent offending (or at least those offences of which she was aware) was anti-social in origin, and partly a reflection of the environment in which you grew up at the housing commission flats where you and your family lived and where you were exposed to criminal and anti-social behaviour.
34 Your use of anabolic steroids seems to have been a factor in your emotional instability and was, in Ms Northey’s opinion, a result of your slight build, low self-esteem and distorted body image issues.
35 I take into account that you had attended Ms Northey for therapy and that prior to your imprisonment in August 2013, you had attended some 26 sessions with her.
36 Ms Northey diagnosed you as suffering from a personality disorder together with a mixed episode mood disorder with anxiety, depression, and disturbed conduct - sufficient to cause marked impairment in your social and cognitive functioning. She was of the view that you had responded well to counselling. She thought that you had been brought into a far more realistic view of your offending, your life, and your future prospects. She was of the view that you had positive prospects for overall rehabilitation.
37 It should be noted however that her report, as I say dated in August 2013, and notwithstanding 26 prior counselling sessions, contains no mention of the offences for which you are currently before the Court and which had been committed well before the date of that report. Nor, for that matter, does it appear that Judge Gaynor was ever made aware of these offences, notwithstanding that police had attempted to interview you in relation to at least some of them in the latter part of 2012.
38 It certainly could not be said that you put all of your cards on the table in the course of your counselling sessions with Ms Northey or in Court before Judge Gaynor.
39 Nevertheless I accept that you do appear to have reasonable prospects for rehabilitation.
40 I accept that you made a relatively early plea of guilty, once charges were brought against you. I accept that your plea has a utilitarian value. The costs of a trial have been avoided. A large number of potential witnesses will now not have to give evidence at a trial.
41 I take account of the fact that the amount of the excessive refunds received by you has been fully repaid, but I understand it was repaid by your parents and not by you.
42 I accept that, in view of these and the other offences referred to, you may find it difficult to obtain employment in the future in any position of trust. I consider that the principal cause of that difficulty will be the convictions relating to your dishonesty and deception occurring in the course of your employment with Southern Health.
43 Your counsel submitted that an important sentencing consideration here was the delay between your offending or at least the time your offending appears to have come to the notice of the ATO, and the time at which you were charged with these offences and brought before this court.
44 Whilst you did not actively assist the investigation of these offences by agreeing to take part in an interview with police initially, you do not appear to have done anything to actively hinder the investigation.
45 The prosecutor did not proffer any explanation for the delay between November 2012, which is when the informant first sought to interview you, and November 2014 when the charges were laid.
46 Your counsel submits that a consequence of the delay is that you lost the opportunity of submitting that the sentence for these offences should be wholly or partially concurrent with the sentence imposed in respect of the offences that went before Judge Gaynor in mid-2013.
47 I accept that there has been a loss of that opportunity but I do not accept that the earlier bringing of this matters to Court would have necessarily resulted in a sentence for these offences that was wholly concurrent with the offences that were before Judge Gaynor. In particular, I note that the offences that are before me are of a quite different nature than the offences for which Judge Gaynor sentenced you.
48 I was referred to and take into account the judgment of the High Court in Mill v The Queen and also the judgment of the Victorian Court of Appeal in Scott v The Queen.
49 I accept that I should have regard to the principle of totality with regard to all of the offences referred to and consider what the likely course of events would have been had these matters been brought before the Court along with the offences that were before Judge Gaynor.
50 Your counsel has submitted that a sentence which permitted you to be paroled forthwith would be appropriate.
51 It was submitted that the delay has caused a psychological burden on you as you had known of these charges since mid-2012 and had been unable to get finality until now. I do not accept that you knew these current charges were likely to be brought as early as mid-2012. Of course, you were aware of the offences for which you are currently before the Court from mid-2012. You may have been aware of some prospect that charges might be brought in respect of them sometime later in 2012.
52 It was also submitted on your behalf that the delay is relevant in that your circumstances have changed dramatically since the commission of the offences. Whilst, in some circumstances, an offender might be able to point to positive changes in the period prior to trial - here, I consider that a substantial part of the period between your offending and the date of this sentencing hearing, has been spent in custody in respect of the other charges and the absence of any further offending could not, in itself, be said to be demonstrative of any positive change of character or behaviour. The fact of the matter is that you were in detention.
53 In respect to current sentencing practices, both counsel referred me to a number of sentencing authorities.
54 I accept that principles of general deterrence are paramount in offences of this type.
55 In your case, over the period of 2011 and 2012 you demonstrated persistent and wanton dishonesty and disregard for the law. In those circumstances, principles of specific deterrent have application. You have already been sentenced by Judge Gaynor in respect of some of those offences.
56 I consider that the sentence I impose should be one that adequately takes into account the matters set out in s.16A and 17A of the Commonwealth Crimes Act. In particular, I note that I am required to impose a sentence that is of a severity appropriate in all of circumstances of the offences. I have taken into account your harsh upbringing, your plea of guilty, and principles of general deterrence, your potential for rehabilitation and the principles of totality to which I have previously referred.
57 Taking all of the circumstances into account:
(a) I do consider that these offences should be punished by a term of imprisonment. A sentence that did not involve a period of immediate incarceration would not, in my view, satisfy the general sentencing principles to which I have referred.
(b) I do not consider that it would be appropriate to impose a sentence that, in effect, was wholly concurrent with the sentence imposed by Judge Gaynor in August 2013.
58 Alain Acosta, you are sentenced to a term of 24 months' imprisonment commencing today. This is an aggregate term in respect of each of the seven offences to which you have pleaded guilty.
59 Further, I order that you be released on a Recognizance Release Order in the sum of $1,000 after serving six months of that sentence. The Recognizance Release Order shall be of 18 months' duration.
60 What that means is that you are sentenced to a total of 24 months or two years' imprisonment as an aggregate or total term in respect of all of the seven offences. After serving six months in prison from this date, you will be released on a Recognizance Release Order, a condition of which is that you will be of you being of good behaviour for a further period of 18 months from that date.
61 This sentence is separate and discreet from the sentence imposed in August 2013 by Judge Gaynor. It should be looked at separately, especially insofar as it relates to any parole period. Judge Gaynor’s sentence referred to a minimum term before being eligible for parole. Parole issues relating to that sentence remain a matter for the Parole Board. At the conclusion of the six months of imprisonment that you must serve under the sentence imposed by me today, the Parole Board may order that you be released on parole or it may not. That is a matter for it to decide. Its decision may depend, in part, on how you have conducted yourself in prison and on all of your circumstances at that time.
62 Is this a matter, Mr Prosecutor, that I should make a declaration under s.6AAA of the State Sentencing Act?
63 MR KALYK: Yes, it is, Your Honour.
64 HIS HONOUR: If you had not pleaded guilty to these charges, I would have sentenced you to a term of imprisonment of two and a half years on each of the charges, to be served concurrently but wholly cumulative to the sentence imposed by Judge Gaynor in August 2013.
65 Orders for restitution, if any, or has the money in fact been repaid?
66 MR KALYK: I just need to get some instruction.
67 HIS HONOUR: I think it has, has it not?
68 MR KALYK: No, Your Honour, there are no orders.
69 HIS HONOUR: So what remains? The paperwork in relation to the Recognizance Release Order, is that right?
70 MR KALYK: Yes, Your Honour and I have completed a copy of that, which I can hand up to Your Honour.
71 HIS HONOUR: Mr Terry, have you been given a copy of this proposed order?
72 MR TERRY: No, Your Honour.
73 HIS HONOUR: Well have you got a spare copy or do you want me to hand this one down? I think you should have a look at it. I mean it seems in order to me.
74 MR KALYK: Mr Acosta has to sign that as well.
75 HIS HONOUR: Yes. Well perhaps if I sign it and then I will give you a moment to discuss it with your client. Yes.
76 MR KALYK: The only other matter, Your Honour, is a start date. Your Honour must specify a start date.
77 HIS HONOUR: Of this sentence?
78 MR KALYK: Yes, Your Honour.
79 HIS HONOUR: I thought I had spelled it out that it was from today.
80 MR KALYK: You may have, Your Honour, I did not hear that.
81 HIS HONOUR: Let me just see what I said. I said you are sentenced to a term of 24 months' imprisonment, commencing today.
82 MR KALYK: My apologies, Your Honour.
83 HIS HONOUR: I think I said it. If I did not say it, I will say know. Do you want me to leave the bench briefly or how long do you think you will be?
84 MR TERRY: I am going to see Mr Acosta downstairs anyway, so I will just take this up and he can - I was just speaking to my learned friend and this is something that Mr Acosta has to sign.
85 HIS HONOUR: He does.
86 MR TERRY: So there is not much choice in the matter.
87 HIS HONOUR: Sorry?
88 MR TERRY: There is not much choice that he has at the moment.
89 HIS HONOUR: No, well there is, he could decline and then I would reconsider his sentence.
90 MR TERRY: I did speak to him about the operation of these orders, he understands what they are.
91 HIS HONOUR: Yes, well I think, I'm not so sure I should leave the bench permanently unless he has signed it. So why don't I leave the bench and you can have a few minutes with you client?
92 MR TERRY: Certainly, Your Honour.
93 HIS HONOUR: Yes. I do not know that I explained to him fully was the $1,000 he would have to pay if he breached the terms of it, namely to be of good behaviour for that additional 18 month period.
94 MR TERRY: Yes. He understands the operation of these orders.
95 HIS HONOUR: I am sure he will but I am conscious that I think the document says that it has been explained to him, he acknowledges before he signs that it has been explained to him and I would like to make sure it has been explained to him.
96 MR TERRY: Certainly, Your Honour. I will take just a few minutes.
97 HIS HONOUR: All right, I will leave the bench.
98 MR TERRY: Thank you, Your Honour. I have explained that and Mr Acosta has signed it, Your Honour.
99 HIS HONOUR: Good, thank you. Is there anything else that concerns me?
100 COUNSEL: No, Your Honour.
101 HIS HONOUR: I should just say one final note, Mr Acosta, that should you come back before this court or I think any other court on a matter that relates to dishonesty and money, it is virtually certain that you would spent a substantial amount of time afterwards in prison.
- - -
0
0
0