Director of Public Prosecutions v Allen
[2024] VCC 1919
•20 November 2024 and 21 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OLIVIA ALLEN |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2024 and 26 September 2024 |
DATE OF SENTENCE: | 20 November 2024 and 21 November 2024 |
CASE MAY BE CITED AS: | DPP v Allen |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1919 |
REASONS FOR SENTENCE
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Subject: Commonwealth Criminal Sentence
Catchwords: Sentence – Commonwealth offending – Dishonestly obtaining a financial advantage by deception from a Commonwealth entity – Knowingly using a false document to dishonestly influence the exercise of a duty or function of a Commonwealth public servant – Business Activity Statements – Australian Tax Office
Legislation Cited: Crimes Act 1958 (Vic)
Cases Cited: DPP (Cth) v Gregory [2011] VSCA 145; R v Newton [2010] QCA 101; Bugmy v The Queen [2013] HCA 37
Sentence: 3 years and 6 months imprisonment with a 20 month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Barry (for plea) Mr J. Daniels (for sentence) | Office of Public Prosecutions |
For the Accused | Ms S. Buckley |
HIS HONOUR:
Introduction
1Olivia Allen, you have pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, one charge of attempting to dishonestly obtain a financial advantage by deception of a Commonwealth entity and one charge of knowingly using a false document to dishonestly influence the exercise of a duty or function of a Commonwealth public servant. The maximum penalty for each of the offences is 10 years' imprisonment. You have also admitted prior convictions.
Circumstances of the offending
2The circumstances of the offending here were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference.
3In brief overview your conduct can compendiously be described as BAS fraud, using a false document to cover up that fraud, and welfare fraud.
4Charge 1 involves you obtaining by deception the total sum of $446,179 as a result of filing 23 BAS statements with the ATO over a period of about
16 months from January 2019 to 27 April 2020. The deception resulted in the total amount of $446,179 being credited and an actual amount of $351,490 paid to you via accounts in the name of your estranged husband and son.5Charge 2 involves an attempt by the lodging of seven BAS statements with the ATO over the period 27 January to 28 April 2020 asserting an entitlement to BAS refunds. The claims were rejected but the amount that you attempted to obtain was the sum of $236,528.
6Charge 3 involves the filing with the ATO on 26 March 2020 of four false documents that sought to justify BAS claims that had previously been made by you in the name of Rodney Allen.
7The final charge, Charge 4 involves the lodging of a false registration application in the name of your son, Rodney, seeking to claim $3,000 under the JobKeeper scheme between 4 and 14 May 2020.
How the offending was effected
8You were born in 1980. The offending occurred between 2019 and May 2020. At that point you were aged between 38 and 40.
9From around 1960 you were married to Barry Allen and had seven children to him now aged between 25 and seven. Your second born son was Rodney who was born in March 2001 and who at the time of the offending was aged around 19. He is currently aged 23. You and Barry Allen have in recent times been living separately and apart under the one roof.
10You have another child, Margaret, now aged three who is now in the care of her father, Mr Thompson.
11At the time of the offending, you were the primary carer of five of your seven children to Barry Allen.
12In December 2019 you and Barry Allen started a horse stud farm known as 'Flowers horse stud'. On 3 January 2019 you registered an ABN number and for GST for Barry Allen. The contact email was [email protected].
13On 6 February 2020 you registered Rodney Allen for an ABN and GST with a contact email of [email protected]. Rodney Allen was not operating as a sole trader and was unaware that he had been so registered. You were the authorised contact with the ATO for both Barry Allen and Rodney Allen and used an email address [email protected].
14In relation to Charge 1 over the period 18 January 2019 and 27 April 2020 you lodged 23 BAS statements with the ATO. The statements contained the usual declarations as to sales, GST on sales, and GST on purchases, and a calculation of the GST refunds which were due to Barry and Rodney Allen.
15Over the period from January 2019 to December 2019 GST refunds were made by the ATO by cheque.
16In January 2020 and for the amended February and December 2019 BAS refunds, they were made by EFT to an ANZ bank account in the name of Barry Allen that had been opened on 8 January 2020. Refund cheques were deposited into an ANZ bank account in the name of Barry Stephen Allen that had been opened on 22 November 2012. A December 2019 cheque was cashed on 24 December by 'Barry Allen'.
17On 20 February 2020 a GST refund in the amount of $22,700 was paid by the ATO into a Commonwealth bank account that was opened on 6 February 2020 in the name of Rodney Charles Allen.
18The offending in Charge 1 involves a total sum of $446,179 credited to Barry Allen's ATO account. There were credits in the account and the physical amounts paid totalled $351,490.
19Charge 1 therefore is a rolled up count involving the 23 BAS statements.
20Charge 2 covers the period 27 January 2020 to 28 April 2020 when you lodged a further seven BAS statements. These statements were also false and asserted GST refunds due to Barry and Rodney Allen. They were not paid by the ATO. The attempt involved total claims of $236,628.
Commencement of ATO investigation leading to Charge 3
21In January 2020 the ATO commenced a review of the business records of Barry Allen and unsuccessfully attempted to contact him on the phone numbers listed to his account. On 5 February 2020 you sent an email to the ATO from the Barry S Allen email asking that all correspondence be done by email. The ATO emailed Barry Allen notification of a review as at that date. Thereafter you, posing as Barry Allen sent emails to the ATO asking them to cancel a BAS revision dated 4 June 2019.
22On 12 February the ATO emailed notification of an audit of Barry Allen. You responded the same day posing as Barry Allen complaining of the audit and you proceeded to send email complaints to the ATO over the period up until 4 May 2020. You responded to requests by the ATO for information and gave excuses as to why the information was delayed. Subsequently the ATO obtained bank details of Barry Allen and could not identify business transactions consistent with the BASs that had been submitted in his name.
23On 13 March 2020 the ATO commenced a review in relation to Rodney Allen by a letter to his email. Thereafter you responded with a number of complaint emails where you were posing as Rodney Allen and not providing the requested information.
24On 26 March 2020 you, purporting to be Rodney Allen and responding to the request by the ATO, sent a number of emails to the ATO that contained four false documents designed to deceive the ATO into believing that Rodney Allen was in fact conducting a business that was providing a basis to lodge the claims for GST refunds. This gives rise to Charge 3.
25On 14 April 2020 you were advised by the ATO, after they had been unsuccessful in speaking to Rodney Allen, that he would need to supply documents to justify business expenses listed in the BAS in his name.
Fraudulent JobKeeper application - Charge 4
26Despite your interactions with the ATO purporting to be on behalf of both Barry and Rodney Allen in relation to their BAS forms, and being aware that the ATO was not accepting their entitlements to BAS refunds, on 4 May at the height of COVID you sought using the name of Rodney Allen to lodge a JobKeeper registration in the name of Rodney Allen. The registration stated that Rodney Allen was operating as a sole trader and as an eligible entity had suffered the relevant 30 per cent fall in turnover that gave an entitlement under the scheme with an earlier email address and the bank account number registered in February 2020. As a result of this application seeking fortnightly payments covering April 2020 in a total sum of $3,000 was paid to the bank account on 14 May and that is the subject of Charge 4.
Your explanation for the offending
27After the ATO finalised its investigations into both Barry Allen and Rodney Allen and their JobKeeper application, you were the subject of an execution of a search warrant and a record of interview on 28 January 2021.
28In the record of interview you admitted that you had made all the relevant BAS lodgements and that Barry Allen was aware that you were lodging in his name but that Rodney did not know that. You stated that you undertook the activity out of desperation as you did not want your parents to find out that both an earlier business that you had established in the Geelong CBD, and the horse business that you had established had failed. Further, your children kept asking you for money. You admitted that you transferred funds from the bank accounts for yourself and that Rodney was not entitled to the JobKeeper claim. You used the money to buy horses, horse feed, to lend money to your children and run the business that you had earlier established.
29You told the police that you were an idiot, and that you did not want to lose the horses and disappoint your children. You also said that you had lent money to your parents.
Assessing the seriousness of the offending
30The overall the BAS fraud perpetrated here was by any measure serious. The amount received, the amount to which you fraudulently claimed entitlement, and the amount attempted were all very considerable.
31The offending was persistent and covered the period from January 2019 to April 2021, a period of some 16 months. Even after the ATO was seeking to audit the account of Barry Allen in early 2021 you continued to file BAS statements although by then the ATO generally refused to make payments to you.
32The business that you were seeking to assert an entitlement to BAS refunds was asserting a turnover of around $4.5m, yet all the horse stud consisted of was a handful of stock.
33The offending involved the use of false identities of Barry and Rodney Allen and manipulation of their email addresses and bank accounts. You impersonated them in your interactions with the ATO and in seeking to throw the ATO off your trail, and in giving effect to the false documents the subject of Charge 3.
34When the ATO sought to investigate your conduct, you resisted their investigation even to the extent of making complaints against the investigator.
35Your conduct in relation to Charge 3 was the blatant creation of false documents in response to requests by the ATO officer. It was calculated conduct in the face of the investigatory action by the ATO.
36In relation to Charge 4, your conduct in seeking to falsely represent your son Rodney as having an entitlement to the COVID related wage subsidy scheme, when he had no such entitlement and was in fact employed, was a blatant grab for cash under the newly created covid emergency scheme.
37The deeper explanation for your offending was, as you admitted in the record of interview, your incompetence in the small business that you first established in the Geelong CBD in 2018, which failed, and then with a love of horses established the stud without any proper planning and without being able to face business realities.
38Although you were the breadwinner of the household with five dependent children and a husband who at that stage was not working, your offending could be described as being motivated by greed rather than need. As a result of your failed business acumen, you needed funds for the horse stud and you turned to the light touch BAS system to provide those funds, as well as other demands on you within the household.
Matters in mitigation
Prior convictions
39You have admitted a criminal record that includes Children's Court convictions which I ignore. You have 2001 convictions for theft and obtaining property by deception where you were placed on a community based order for six months. This has little relevance given the age of the conviction and you were aged only about 21 at the time.
40You also have an antecedent of a conviction for obtaining property by deception where you were fined $1,000 on 10 June 2022. The full details of this did not emerge. This has some minor relevance to your prospects of rehabilitation.
Personal circumstances
41Your personal circumstances are set out in your plea submissions and also in the reports of Carla Lechner, psychologist. You are now aged 44. You were born in Bendigo. Your parents separated when you were aged three. You have a younger brother and a half-sister, but are not close to them.
42You continued to have access visits with your father until age 13, and he had been diagnosed with schizophrenia. Your mother re‑partnered, and you have had a good relationship with your stepfather.
43You grew up in the Geelong area and attended the local primary school and the high school and completed Year 9. At that point you were sent to live with your grandmother in the Western District for a period and completed half of Year 10 at the local high school. You found school difficult, were bullied, got into trouble, began drinking alcohol and truanting.
44For a period of eight months during your teen years you went to live with your father because he allowed you access to alcohol and cigarettes. He had perpetrated sexual abused on you before your parent's separation, and he resumed his sexual abuse of you at that time. You told Ms Lechner that the abuse at the hands of your father has destroyed your life. You were also the subject of physical abuse by him, and you retain intense anger directed against him.
45After you left school you had periods of transience including a period with an abusive partner in the Latrobe Valley in your late teens and early 20s. You then moved to Lismore in the Western District and met Barry Allen, who at that point was 11 years older than you. You married when you were 21.
46Mr Allen has a physical injury he did not work and you were the sole breadwinner and there was physical and emotional abuse within the relationship. You worked in a range of jobs including in a piggery, managing a local hotel, and you have certificates in aged care and disability work. You also worked with Telstra in a Telstra shop and most recently at a liquor shop.
47As noted, you and Barry Allen have seven children aged between seven and 25. The oldest boy engaged in sexual abuse of his three younger sisters and was ordered to leave the home. This caused you immense grief, the sexual abuse perpetrated on his younger sisters. Your children, including Rodney and the four girls, suffer a number of behavioural issues that are set out in the report of Carla Lechner. Three of your children were in Court to support you on the plea.
48You also have a three-year-old daughter who is in the custody of her father and your new partner.
49You provided the Court with a heartfelt detailed letter (Exhibit 5) as to your love of your children and the impact of a term of imprisonment will have on you and on them, and I have taken it into account.
50On your account to Ms Lechner, you personally have major behavioural problems. Further, your daughter Maggie aged 20 has been diagnosed with a generalised anxiety disorder and is medicated but is undertaking university studies. Matilda, aged 18, is undertaking VCAL and has been diagnosed with an intellectual disability. Your child Montana, aged 16, has a severe eating disorder and engages in self-harm. You are extremely concerned for her welfare. Your 15-year-old has anxiety and asthma and your seven-year-old has behavioural issues.
51You, yourself, have been engaging in self-harm and have suicidal ideation.
52These five children have been in your custody to date. I am satisfied that a sentence of imprisonment will have a very significant impact on your psychological health. Not only have you had a traumatic childhood yourself, but it is clear from what you have put to Ms Lechner that the various conditions of your children, including the fact that the three girls have been the subject of abuse by their older brother, has had a major impact on you. Thus, your separation from your children will have a major impact on you as well as on them. The separation of you from your three-year-old daughter is also a major consideration. It will impact on you and also impact on your daughter.
53A sentence of imprisonment will also be more burdensome for you given your mental health conditions. I take all those matters into account in your favour. The prosecution accepted that a sentence of imprisonment would be more burdensome for you.
54I direct that the prison authorities must make immediate efforts to arrange for an assessment and appropriate treatment of your mental health conditions.
55Further, the authorities must take immediate action to check the welfare of your children given the matters that you have raised in your letter to the court and in your instructions to Ms Lechner.
56In formulating a sentence in this matter to the extent that I am able, I have taken all these matters into account.
Your mental health condition
57A key issue on the plea is your apparent mental health state and its impact on your offending and on any sentence.
58The initial Report of Carla Lechner dated 9 May 2023 indicates that at the time you were suffering from major depressive disorder and that your current medication regime was not improving your symptoms and required review. It appears that such a review had not been undertaken and indeed you were advised to undertake a mental health assessment in the record of interview back in January 2021, but it appears you have not done that.
59You were also found in the first report of Carla Lechner to have symptoms of complex PTSD. The examiner opined that this condition is:
… characterised by chronically low self-esteem, interpersonal mistrust, emotional and behavioural dysregulation and hypervigilance to reminders of the original trauma. These symptoms seem to permeate her life and have been aggravated by successive experiences of abuse within her intimate relationship.
60She found that you severely psychologically distressed and at risk of suicide.
61Ms Lechner provided two later reports dated September 2023 and September 2024. These reports contained similar conclusions although your mental condition has deteriorated as this matter has moved towards resolution. Further you are now showing symptoms of borderline personality disorder. She notes that persons with BPD:
… often have a history of trauma that has undermined the development of the personality, resulting in impairment in all areas of their lives.
62She again confirmed that you would benefit from psychotherapy. When asked to opine as to the relationship of your mental health condition to the offending she stated:
Ms Allen’s mental health is likely to have adversely impacted on her decision-making and judgement. It is not likely to have impacted her ability to appreciate the wrongfulness of her conduct, obscure her intent to commit the offence, made her disinhibited or contributed to the commission of the offence.
63She further notes that your depressed mood undermined your judgement and decision-making at the time of the offending.
Depression affects one’s ability to think clearly about the 'big picture' and focus, concentrate and make decisions whilst considering all potential ramifications. [She goes on] I note that she was also using cannabis, which likely further contributed to poor consequential thinking. Persons with BPD tend to be impulsive in their decision-making but given the protracted nature of her offending this cannot be said in this instance.
64She goes on to say that your deep feelings of childhood deprivation and adverse childhood experiences appear to have contributed to your unrealistic fantasy of owning horses and your desire for emotional comfort override your common sense about the financial practicalities of making decisions.
65Your counsel submitted that for the purposes of Verdins your mental health should lead to a reduction in your moral culpability for this offending.
66The learned prosecutor disputed this and said that there was not sufficient nexus between the offending and your mental conditions that you have to call for a reduction in moral culpability.
67Here I accept the prosecution submissions that as your conduct involved persistence and sophistication, this may be taken into account in determining the causal link between your offending and your mental impairment. The lengthy period over which the offending was perpetrated is such that your moral culpability is not to be reduced significantly. However, as indicated by Ms Lechner, your depressed mood and sense of failure together with the desire to gain approval of people in your life, including not disappointing your mother, and seeking to overcome feelings of childhood deprivation may provide an explanation for persisting with the misguided business venture of a horse stud and the offending needed to finance that venture.
68Having considered the competing submissions I therefore do accept that there should be some reduction in your moral culpability for the offending by reason of your underlying mental health conditions.
69The same considerations are also encapsulated in the submission by your counsel that your blighted upbringing leads to the invocation of the principles articulated by the High Court in Bugmy and call for a lessening in your moral culpability for the offending.
70At the same time, I also regard it as appropriate to lessen considerations of general deterrence given your blighted upbringing including sexual and physical abuse, and your abusive marriage, and the vicissitudes that you have faced with your children.
71It is clear that all these matters have impacted on your mental health and remain impacting on your mental health and right-minded members of the community would not see you as a strong vehicle for general deterrence.
Prospects of rehabilitation
72It is clear from the report of Carla Lechner that your mental health is such that you require specialised treatment and assessment. Should you avail yourself of that treatment then your prospects of rehabilitation can be considered as reasonable. This assessment is supported by the fact that although you have a recent antecedent for dishonesty, the details of which did not emerge, your age, the salutary impact of these proceedings and any sentence on you, your prior work history, your concern for the welfare of your children, and your early plea of guilty, and your insight, as well as the opinion of Ms Lechner, support reasonable prospects of rehabilitation and I take that into account in your favour.
Delay
73Your counsel also relied on the issue of delay in her plea. There has been some delay between when you were interviewed and when you were charged and then from the time that the matter was in the Magistrate’s Court to when it was brought up for trial in this Court, but these are in a sense the usual delays. Thereafter the matter was due to be the subject of a plea hearing in September 2023 but you did not attend and subsequently the matter was listed for a plea in May this year, when the plea occurred. It was adjourned until September and again, you did not attend the hearing. You have explained why you did not attend, in your letter to the Court and I have taken that into account.
74You are not entitled to the benefit of delay that has been caused as a result of your failure to attend court hearings but I do take into account that you have had the matter hanging over your head from the time that you were first interviewed in January 2021 and save for the antecedent that you have admitted, it is clear that you have not reoffended over that period and the fact that it is hanging over your head has had an impact on you and on your mental health, which has deteriorated, according to Ms Lechner. I take all those matters into account in your favour.
75I also take into account in your favour your plea of guilty. The plea was entered at the committal mention on 9 March 2023, and you are entitled to the benefit of an early plea of guilty. You generally cooperated with the police in the record of interview and you are entitled to the benefit of that.
76I also take into account that your plea has facilitated the course of justice and there is a significant utilitarian benefit in your plea, and you have insight into your offending.
77I also accept that your plea of guilty is evidence of your contrition. In your letter to the Court, you also express remorse for your offending and I accept that it is genuine and give it weight.
Sentencing considerations: Sentencing in relation to revenue fraud cases
78The learned prosecutor filed a submission setting out the principles that are to be applied by courts in dealing with cases of fraud on the revenue. The relevant principles have been repeated in a number of cases which emphasise that in relation to GST fraud, which involves self-assessment, fraud on the system involves a breach of trust which calls for denunciation.
79The principles to which I must adhere are set out in the following quote from a leading case: DPP (Cth) v Gregory:[1]
[51] Further, as the High Court recently observed in Hili, detecting offending of this kind is not easy and serious tax fraud is offending that affects the whole community. As Ormiston JA recognised in R v Liddell, while the Australian Taxation Office is the ostensible victim, serious tax fraud will inevitably have a flow on effect to the incidence of tax to the honest taxpayer.
[52] In seeking to ensure that proportionate sentences are imposed the courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime and that good character cannot be given undue significance as a mitigating factor, and plays a lesser part in the sentencing process. In the case of taxation offences general deterrence is also given special emphasis in order to protect the revenue as such crimes are not particularly easy to detect and if undetected may produce great rewards. 'Deterrence looms large' as the present process of self-assessment reposes on the taxpayer a heavy duty of honesty. Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospects of incarceration.
[53] In many if not most cases, imprisonment will be the only sentencing option for serious tax fraud cases in the absence of powerful mitigating circumstances.
[1][2011] VSCA 145 at 52–54.
80Considerations involving welfare fraud, which Charge 4 involves, were expressed in Queensland case of Newton[2] where Justice Chesterman said:
… one can always sympathise with those convicted of this kind of offence. They are inevitably low-paid and poorly skilled members of society, for whom life is a struggle and who succumbed to temptation to lighten the financial burden they daily face. Offences against the welfare system lead to public loss of confidence in the integrity and worth of the social security system, and creates a risk of demonising the genuine and needy who require assistance. As a deterrent to them and others who might feel similarly tempted.
[2][2010] QCA 101.
81Applying these comments to this particular case it is clear that general deterrence, although tempered, must play a prominent role in sentencing. Personal circumstances carry less weight but they are not to be ignored however.
82In sentencing you I must have regard to current sentencing practices and comparable cases.
Comparable cases
83I was provided with a number of cases of relevant appellate decisions, both local and interstate, said to reflect current sentencing practice for this type of offence. The decisions provide a yardstick against which to assess the circumstances of this offending, noting that a sentence is not a precedent but rather is what is required is consistency of approach. The cases show that the quantum of offending is a significant matter, and personal considerations are given less prominence, and denunciation plays an important part.
84Each case will be different and the method of offending will be different, as will be the personal background of the offenders. Cases involving BAS fraud I found to be of most assistance and in particular the cases of Phillips, Noble, Edwards, and Warden, but I have considered all cases referred to me in formulating a sentence in this matter.
Sentencing submissions
85Your counsel submitted that a disposition that did not require you to serve any term of imprisonment was appropriate here.
86The learned prosecutor submitted that a sentence of imprisonment to be served was appropriate.
87Given the seriousness of your offending, I accept the Crown submissions that a sentence of imprisonment, part of which is to be served, is the appropriate sentence. In reaching this conclusion I have taken into account the principles of parsimony and all the considerations in s16A of the Crimes Act and the admonition that imprisonment is a sanction of last resort.
88Considerations of general deterrence are prominent as I have indicated however, in this case lesser weight is appropriate given your blighted background and your underlying mental health condition.
89Considerations of specific deterrence have some relevance given the persistence of your offending.
90As discussed, I have also had regard to your reasonable prospects of rehabilitation.
91The learned prosecutor submitted that there should be some cumulation in relation to each of the individual counts.
92I do not accede to that submission. I regard your conduct as a course of conduct and therefore having regard to considerations of totality, I consider that full concurrency between the sentences on each charge is appropriate.
93Having considered all the matters put to me by your counsel and the relevant sentencing considerations in s16A, I sentence you as follows. Could you please stand.
Sentence
94On Charge 1 you are sentenced to three and a half years' imprisonment.
95On Charge 2 you are sentenced to two years' imprisonment.
96On Charge 3 you are sentenced to one years' imprisonment
97On Charge 4 you are sentenced to three months' imprisonment.
98I direct that all sentences commence this day.
99I order that you have served six days' presentence detention.
100I direct that after you have served 20 months' imprisonment you are to be released upon you agreeing to enter a recognisance to be of good behaviour in the sum of $1,000 for a period of three years.
101I declare that had you not pleaded guilty I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.
102I must explain the sentence to you and I will ask your counsel to explain it to you in a moment, after she shows you the recognisance release order. After taking into account all the matters put on your behalf I have sentenced you to three and a half years' imprisonment. I have directed however that after you have served 20 months' imprisonment then you are to be released, provided you agree to be of good behaviour for a period of three years. There is to be a bond or an agreement of $1,000 to that effect.
103I have declared that had you not pleaded guilty, I would have imposed a total effective sentence of six years with a four year non-parole period.
104So I have had the recognisance release order engrossed. I will hand it to both parties and they can peruse it and I would ask Ms Buckley to explain it to Ms Allen and get her to sign it, and then I will resume.
105MS BUCKLEY: Yes, Your Honour.
106HIS HONOUR: Any matters arising?
107MR DANIELS: The Crown are seeking a reparation order. I understand it is not opposed. I can hand up a copy.
108HIS HONOUR: Yes. I omitted to indicate the Crown are seeking a reparation order. I will make that order. I have made a reparation order for the ATO of $354,490.
109Do you want to stand down for a moment?
110MS BUCKLEY: No, Your Honour, I don't. I have taken her through the order and I just understand that one of Your Honour's associates might need to witness her signature on the order.
111HIS HONOUR: All right.
112MS BUCKLEY: Thank you, Your Honour.
113HIS HONOUR: Ms Allen, as I have indicated to you, you are required to serve 20 months' imprisonment before being released. I have directed that the authorities look after you in prison, they are going to be provided, if they haven't already done so, with three reports of Carla Lechner. I have also directed that the authorities be provided with the Carla Lechner reports and that the welfare authority, the Department of Families get onto looking after your children, so that will give you some comfort in the period that you are in custody.
114I want to thank counsel for their assistance in this plea, Ms Buckley, Mr Johns and Mr Barry who is absent today.
115Any other matters?
116MR DANIELS: Nothing further, Your Honour.
117MS BUCKLEY: As Your Honour pleases.
118HIS HONOUR: I will stand down.
UPON RESUMING ON 21 NOVEMBER 2024 FOR FURTHER SENTENCING HEARING
1I propose to substitute a non-parole period of 20 months for the recognisance release order of 20 months that I imposed following the imposition of the head sentence of three and a half years, yesterday. My reasons are as follows.
2The prosecution in this matter has brought to my attention that under the provisions of s 19AC and s 20 of the Crimes Act 1914 (Cth), in the event of a head sentence above three years then a non-parole period must be imposed rather than a recognisance release order.
3In those circumstances the sentence that I imposed yesterday was unlawful. I reclaim that sentence. Having considered the submissions of both counsel and my reasons for decision, I have determined that the appropriate non-parole period that should be set for a head sentence of three and a half years in this case is 20 months.
4It was put to me that Ms Allen should have a period of certainty and that such a sentence substitution would be an injustice on her. There is no injustice in correcting an unlawful sentence, so I do not accept that submission by Ms Buckley. The principles for setting a non-parole period in the face of a head sentence, or a recognisance release order are similar. They are designed to serve the interests of the community by allowing an offender to serve part of their sentence in the community, in the event that they are allowed conditional release by the Parole Board.
5The setting of the non-parole period is designed to reflect the minimum term that a person must serve in custody before being eligible for parole, or in the event that a recognisance release order or the sentence is under three years in custody, to serve all the interests of the sentencing under s16A of the Crimes Act, which include general deterrence, specific deterrence, denunciation and rehabilitation.
6In the present case, I am satisfied that a period of 20 months for a non-parole period on a head sentence of three and a half years is the appropriate sentence, having regard to all the sentencing factors that I considered in my sentence, and that is the sentence that I impose.
7MS BUCKLEY: As Your Honour pleases.
8HIS HONOUR: So I declare that she has served seven days, not including today.
9Now, Ms Allen, I am required to explain the sentence to you. As I explained to you yesterday, I determined that after you serve 20 months you would be released on a recognisance release order, which is effectively a bond to be of good behaviour. It has been brought to my attention that I had no power to do that.
10Your counsel has said I should revisit the head sentence, I have rejected that submission. I still regard the appropriate total effective sentence, having regard to your offending, which was serious, is three and a half years' imprisonment.
11I have determined that after you have served 20 months you can make an application to the Parole Board to be released to serve the balance of the sentence in the community. That is to reflect my determination that it would be in your interest to have a period of supervised release from custody to allow you to have the Parole Board address your mental health, supervise your continued mental health program that you should get now that you are in prison, and that would be in the interests of the community to prevent you recidivating, and also allow you to re-engage with your children.
12So for all those reasons I have set that 20 month period as a non-parole period rather than a recognisance release order. That is all I want to say.
13I want to thank both counsel for their assistance. I will have both sets of reasons revised and handed to the parties as soon as I can.
14COUNSEL: As the court pleases.
15MR JOHNS: It is my view that a further order is not required but I just note a reparation order was made yesterday.
16HIS HONOUR: Yes.
17MR JOHNS: My position is that is still a valid order that has been made.
18HIS HONOUR: I made it, yes, yes, all right.
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