Director of Public Prosecutions v Andjelic

[2018] VCC 1171

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02555

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASMINE ANDJELIC

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2018
DATE OF SENTENCE:	31 July 2018
CASE MAY BE CITED AS:	DPP v Andjelic
MEDIUM NEUTRAL CITATION:	[2018] VCC 1171

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Dishonestly obtain financial advantage by deception; obtaining Parenting Payment Single to which not entitled; no prior convictions; early plea of guilty; hardship of imprisonment on offender being separated from children; remorse; good prospects of rehabilitation; lack of sophistication in offending; delay; general deterrence; specific deterrence.

Legislation Cited:  Criminal Code (Cth); Crimes Act 1914 (Cth)

Cases Cited:The Queen V Markovic [2010] VSCA 105; The Queen V Newton [2010] QCA 101; Hayes v The Queen [2014] VSCA 309; Desborough v The Queen [2010] QCA 297; Payne v The Queen [2010] WASCA 177; Newton V The Queen [2010] QCA 101; The Queen v Thomson [2009] SASC 237; Yarak v The Queen [2008] NSWCCA 298; DPP v Balmocena [2018] VCC 1575; DPP v Marinakis [2016] VCC 1586; DPP v Morrison [2016] VCC 1622.

Sentence:Two years imprisonment – Released after three months upon entering into recognizance for the sum of $3,000 and agreeing to comply with condition to be of good behaviour for period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Henderson	Office of Public Prosecutions (Commonwealth)
For the Accused	Ms B. Franjic	Martine Marich & Associates

HIS HONOUR: 

1Jasmine Andjelic you have pleaded guilty to three offences of dishonestly obtain a financial advantage by deception contrary to s.134.2 of the Criminal Code (Cth). The deceptions relate to payments of the social security benefit known as Parenting Payment Single from Centrelink to which you were not entitled. The total amount obtained over what was approximately a five-year period was $85,239.48. The maximum penalty for each of these offences is ten years' imprisonment.

2Parenting Payment Single is payable to persons with dependent children under the age of eight years.  The rate of benefit payable is affected by other income including income from employment.  You had been in receipt of Parenting Payment Single since 2010.  During the timeframe of the indictment you were employed by seven different employers at separate times on either a full-time or a casual basis.  You earned $324,947.41 in gross income from that employment.  Accordingly you earned an average income of $2,550.50 per fortnight and you declared only $48,515.42 of that gross income to Centrelink.

3The summary of prosecution opening was tendered as Exhibit A on the plea.  Your offending may be summarised as follows. 

Charge 1

4Charge 1 comprised three periods in which you were required to report your income to Centrelink on a fortnightly basis in order to receive payments of Parenting Payment Single.  This period was 26 February 2011 to 22 April 2011.  On 26 February 2011, you reported your income to Centrelink for the fortnightly period ending 25 February as nil.  That declaration was your sixth consecutive fortnightly declaration asserting no income and as a result you were relieved of the obligation to report and automatically paid the full benefit of Parenting Payment Single for the following four fortnights, ending on 22 April 2011.

5During that time you earned $11,991.45.  You received $3,123.50 in Parenting Payment Single payments; however, you were only entitled to $147.32.  The overpayment attributable to that period was $2,976.18.

6The second period referrable to Charge 1 is 13 January 2012 to 10 April 2012.  During that time you reported on seven occasions using the online web application.  You made five false declarations asserting no income and two false under-declarations. As a result you were paid the full benefit of Parenting Payment Single for that period.  In that time you had earned $16,062.45 and you declared $2,381.42.  You received $4,155.20 in Parenting Payment Single payments but you were not entitled to any of those benefits.  The whole amount constituted an overpayment attributable to that period.

7The third period referrable to Charge 1 was between 17 June 2012 and 26 June 2015, where you reported on three occasions, using the online web application, and asserted you had received no income each time.  As a result you were taken off reporting and you were paid the full benefit of Parenting Payment Single for that period.  During that time you earned $243,674.82 and did not declare any of that income.  You received $57,493.97 in Parenting Payment Single payments, for which you were entitled to $1,911.16.  The overpayment attributable therefore to that period was $55,582.81.

Charge 2

8Charge 2 comprises two periods in which you were not required to regularly report your income in order to continue to receive benefits from Centrelink.  However, you remained subject to an ongoing legal obligation to report an event or change in circumstances, such as the receipt of income.  The first period relates to 30 August 2011, to 3 January 2012.  During that time you failed to advise Centrelink of your receipt of income from employment.  As a result you were paid the full benefit of Parenting Payment Single.

9You had earned during that period $20,928.26 and did not declare any of that income.  You received $6,432.66 in Parenting Payment Single payments of which you were only entitled to $35.45.  The overpayment attributable to that period was therefore $6,397.21. 

10The second period in Charge 2 relates to 8 May 2012 through to 20 June 2012, where you failed to advise Centrelink of your receipt of income from employment and as a result you were paid the full benefit of Parenting Payment Single for that period. You earned during that period $6,791.54 and declared no income.  You received $2,174.10 in Parenting Payment Single payments, of which you were entitled to $210.00.  The overpayment attributable to that period is $1,964.10. 

Charge 3

11As to Charge 3, that comprises one period in which you were initially required to report your income to Centrelink on a fortnightly basis in order to receive the Parenting Payment Single.  You were taken off reporting following the birth of your daughter on 30 October 2016.

12Between 11 May 2016 and 28 October 2016, you reported on seven occasions using the online web application.  You made 13 false declarations declaring you had received no income.  As a result, you were paid the full benefit of Parenting Payment Single for the period 11 May 2016 to 2 February 2017.  In that time you earned $57,528.09 and declared $2,434.00.  You received $15,018.26 in Parenting Payment Single payments, of which you were entitled to $854.28.  The overpayment was $14,163.98.

13In summary, therefore, your offending occurred intermittently over a period of approximately five years and involved both occasions where you positively misled Centrelink as to your employment and income or alternatively failed to advise Centrelink of your employment and income as you were obliged to do.  You received overpayments of Parenting Payment Single on 128 occasions and each time you received those overpayments you well understood that you were not entitled to receive that money.

14Averaged out you received approximately $17,000.00 per year over that five-or-so-year period, to which you were not entitled.  On two occasions, being 28 May 2012 and 26 October 2016, Centrelink advised you that overpayments had been made because your income had been understated.  Despite those matters being brought to your attention you continued to offend. 

15This offending was detected on 22 January 2016, through an Australian Tax Office data-matching program. Following an investigation, a brief of evidence was provided to the Commonwealth Director of Public Prosecutions on 14 December 2016, and you were charged with these offences on 5 September 2017.  You pleaded guilty at the committal mention of this matter in the Magistrates' Court.  It is accepted that you entered your plea at a very early stage in the proceeding. 

Personal circumstances

16You were born on 7 May 1981, and you are now 37 years of age.  You were aged between 29 and 35 at the time of the commission of these offences.  You are the mother and the sole carer of three young children.  Marcus, born 9 April 2010, aged eight years.  Isabella, born 20 September 2016, aged 22 months and Oliver, born 16 October 2017, aged nine months.

17You have no prior convictions.  You are not currently engaged in paid employment because of your responsibilities to the children.  You come from a close and supportive family as demonstrated by the presence of your mother and father in court during your plea hearing and the content of the personal reference they have both provided.

18Your parents have, throughout their lives, worked in factories to provide for you and your two siblings.  Approximately two years ago, your father, who is aged 60, suffered a heart attack and is now semi-retired and works casually as a handyman.  Your mother works nightshift in a chicken factory.  You describe yourself as having a happy childhood and you did well at school, completing your VCE at Thomastown Secondary College.  Thereafter you undertook a two-year business administration course at Melbourne Institute of TAFE and it seems you have always been an industrious person.

19You started your working life in junior administration roles and over time progressed to more responsible employment in roles such as an executive assistance or project manager.  In July 2008, you commenced what was described by your counsel as a tumultuous relationship with the father of your first child.  After falling pregnant you separated from him but attempted a reconciliation at around the end of 2009.

20The relationship again deteriorated after the birth.  There was some verbal and, indeed, physical abuse.  On two particular occasions police were called to assist you.  Ultimately an intervention order was made in order to protect you from your former partner.  As a measure of the family violence to which you were subjected, your former partner pleaded guilty to recklessly causing injury to you in the Magistrates' Court in 2012 and he was placed on an undertaking to be of good behaviour for that offending.

21You remained in dispute with him as to issues of child support and custody which were not resolved until November 2014.  Although he was obliged to provide child support to you he did so only sporadically and not in a way on which you could rely.  Your first child, Marcus, was born with a unilateral cleft lip and palate.  He underwent surgery at the age of three months and since that time he has been the subject of ongoing medical monitoring with respect to extensive dental treatment, speech therapy and consultations with a plastic surgeon.  Marcus is likely to require bone graft surgery in the future.

22In 2015 you formed a relationship with the father of your two younger children.  That relationship was short lived and ended before your youngest child, Oliver, was born.  The father of those children now pays you $100.00 per week in child support and you maintain a positive relationship with him.  He sees the children regularly.  Despite that support, the younger children are very much dependent on you as their primary carer.  For example, Oliver is still being breastfed three times a day. You currently live in a rented unit in Tullamarine and are heavily reliant on the practical and financial support of your parents. 

23As to your offending, Ms Franjic, who appeared on your behalf, pointed out that at the time you first received the Parenting Payment Single you were eligible to do so.  The offending commenced in the setting of your relationship breakdown which, as I have already described, involved serious family violence.

24Counsel was careful to point out that you did not seek to use that difficult time in your life as an excuse for your offending but it was a relevant feature of your background and contextualised the commencement of the offending.  It appears that by the time your circumstances had stabilised you had become somewhat dependent on the extra income these payments provided.  It was not suggested that you were struggling to pay the bills.

25You clearly enjoyed a level of comfort beyond that ordinarily experienced by social security recipients but by the same token, did not lead a lavish or extravagant life style.  You readily accept that you were wrong to misrepresent your employment and income and have taken responsibility from an early stage of these proceedings through your plea of guilty. 

26Ms Franjic referred to s.17A of the Crimes Act 1914 (Cth) that stipulates that a court cannot pass a sentence of imprisonment for a Commonwealth offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. It was contended by her that a sentence, "other than one of immediate imprisonment" was open in this case.

27Counsel particularly relied upon the distress and anxiety you will undoubtedly experience in being separated from your three young children were you to be imprisoned.  It was not contended that the children themselves would incur such hardship as to amount to exceptional circumstances enabling that consideration to be taken into account for the purposes of sentence.

28Although your mother works full time on nightshift in a chicken factory, arrangements have apparently been made for her to take time off work to enable her to assume the care of your children should you be incarcerated. 
Ms Franjic relied on the principle articulated in The Queen V Markovic [2010] VSCA 105 at paragraph 20. There the court stated,

"The effect on the offender of hardship caused to family members by his or her imprisonment is quite a separate matter.  An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor.  For example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation.  These are conventional issues of mitigation and they are not subject to the exceptional circumstances' limitation".

29I take the view that the very young age of your two youngest children and the fact that the eight-year-old child has ongoing medical needs will mean that your separation from those children, were you to be imprisoned, would make the experience of imprisonment particularly onerous for you.  That is a significant mitigating feature of your personal circumstances.

30The other matters that were relied on to mitigate your position included a plea of guilty made at a very early stage of proceedings, the fact that your offending involved less sophistication, in that you worked under your own name and did not use false identities, bank accounts or the like.  Remorse, as being implicit in the plea, and attested to in the person reference of your parents, your lack of prior convictions, the fact of delay between detection and charging in respect of this offending.

31Indeed the plea hearing itself was protracted because of some difficulties with your representation.  Your prospects for rehabilitation, it was argued, should be regarded as being very good, having regard to the level of family support you have, your strong educational and work history, your otherwise good character and your capacity to discharge your responsibilities as a single parent of three young children.

32Ms Henderson, who appeared on behalf of the Commonwealth Director of Public Prosecutions provided extensive and very helpful written submissions as to sentence.  It was argued that general deterrence must be the primary sentencing consideration in respect of offending of this kind.  The social security system relies and trusts in the honesty of its beneficiaries.  If that trust is abused it should be denounced and, clearly, punished.

33Offences of this type are prevalent, relatively easy to commit and difficult to detect.  They also tend to undermine the integrity of the social security system and make the task of applying for benefits more difficult for legitimate beneficiaries.  Moreover our social security system accounts for a significant component of taxpayer revenue and the burden of frauds of this kind falls on the whole community.

34It is the case that with improved methods of detection through the kind of data matching that occurred in this case.  Offending of this kind may more easily be detected than was previously so.  That is particularly so where the fraud is less sophisticated.  Here, as I have already mentioned, no false identities or false bank accounts and the like were utilised.  Accordingly, working under your own name as a taxpayer gave rise to quite a strong likelihood of detection.

35Taking this matter into account I adopt what was said by Chesterman JA in The Queen V Newton [2010] QCA 101 at paragraph 9,

"Accepting, however, that there is now a greater likelihood of detection then before and to that extent the need for deterrence is diminished, it still remains a significant factor in the sentencing discretion".

36Mr Henderson also submitted that there was a role for specific deterrence to be reflected in the sentence despite the lack of prior convictions.  This was so given the number of acts of deception and the fact that the offending continued after overpayments had been detected.

37The prosecution relied on a schedule of comparable cases that were said to have features that were somewhat similar to this case and those cases were Hayes v The Queen [2014] VSCA 309, Desborough v The Queen [2010] QCA 297, Payne v The Queen [2010] WASCA 177, Newton V The Queen [2010] QCA 101, The Queen v Thomson [2009] SASC 237 and Yarak v The Queen [2008] NSWCCA 298. The decision in Newton itself surveys a number of similar cases that provide some further assistance as to what might illustrate but not confine the possible range of sentences available.

38According to the prosecution these cases support the submission that a just and appropriate sentence requires a component of immediate custody to be served.  In addition, I have reviewed some of the more recent decisions of this court in seeking some further guidance including DPP v Balmocena [2018] VCC 1575, DPP v Marinakis [2016] VCC 1586 and DPP v Morrison [2016] VCC 1622.

39As to my findings, in my view the authorities referred to overwhelmingly support the Crown's position. In assessing these submissions I have been particularly mindful of the legislative command in s.17A of the Crimes Act 1914 (Cth) that this court cannot pass a sentence of imprisonment unless it is satisfied that there is no other sentence appropriate in all of the circumstances, but ultimately I have come to the view that no other sentence is appropriate. The seriousness of the offending by reference to its duration, its quantum and the number of times where positive dishonesty was used to effect the deceptions, compels the conclusion that a term of imprisonment with a component of actual time to be served in custody must be imposed.

40I do, however, accept the matters raised by Ms Franjic in mitigation to which I had already referred.  In my view, the combination of those matters significantly ameliorates the sentence that might otherwise be imposed. 

41Ms Andjelic would you mind standing please. 

42On each of Charges 1, 2 and 3 you are to be convicted and sentenced to two years' imprisonment and I will order that each of those sentences should commence today, 31 July 2018, and be served concurrently with each other.

43I will further order that after the service of three months' imprisonment, you be released pursuant to s.20(1)(b) of the Commonwealth Crimes Act upon you entering into a recognizance the sum of $3,000 and to comply with the condition that you be of good behaviour for a period of two years. 

44Would you mind taking a seat for a moment please, Ms Andjelic? 

45I wonder, Ms Henderson, whether that document might be prepared by your instructor.  I understand that is the procedure that is generally adopted.

46MS HENDERSON:  Yes, Your Honour.

47HIS HONOUR:  Whilst that is done I think I should explain to Ms Andjelic the effect of the orders that I have made.  Ms Andjelic remain seated and let me explain what all of that means.  From today's date you must serve three months in actual custody.  After the service of that three months, you will be released with the balance of 21 months of imprisonment hanging over your head.  You will need to promise to be of good behaviour for two years and if you are not of good behaviour and you breach that promise then you would likely be brought back before me and you would be very much at risk of having to serve all or most of that 21 months that is hanging over your head.  You would not be required to pay to $3,000.00. You would be required to pay that only if you breached the order.  You understand the effect of what is - what I have pronounced?

48OFFENDER:  Yes, I do, Your Honour.

49HIS HONOUR:  I need also to make an order, a reparation order, in the sum of $85,239.48.  I should make it clear that that reparation order is not a condition of the recognizance release order.  Is that clear Ms Henderson?

50MS HENDERSON:  Yes, Your Honour.

51HIS HONOUR:  Yes.  Just remain there Ms Andjelic.  It's necessary for you to sign some documents.

52OFFENDER:  That's fine, Your Honour.

53MS HENDERSON:  I have the recognizance release order, Your Honour, to be signed.

54HIS HONOUR:  Thanks very much.  If that could be shown to counsel.  We'll first have Ms Andjelic enter into the recognizance.  Ms East it needs to be witnessed by you.  Ms Franjic could I ask you to assist Ms East.  Your client will need to enter the recognizance and that needs to be witnessed by my associate.

55MS FRANJIC:  Certainly, Your Honour.

56HIS HONOUR:  Ms Henderson, is there any matters arising out of those orders that you need to raise?

57MS HENDERSON:  No Your Honour.

58HIS HONOUR:  Ms Franjic?

59MS FRANJIC:  No Your Honour.

60HIS HONOUR:  Just to be clear there was no pre-sentence detention?  Is that the position?

61MS FRANJIC:  That's correct, Your Honour.

62HIS HONOUR:  Yes.  Ms Andjelic you understand the nature of the orders that ‑ ‑ ‑

63OFFENDER:  Yes I do, Your Honour.

64HIS HONOUR:  ‑ ‑ ‑ have now been made.  Ms Franjic, I'll leave the Bench.  I won't ask that your client leave just yet, so that you perhaps can have a word to her here if you need to.

65MS FRANJIC:  Thank you, Your Honour, much appreciated.

66HIS HONOUR:  Thanks, Mr Carlisle.

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