Director of Public Prosecutions v Angell

[2012] VCC 841

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No.

DIRECTOR OF PUBLIC PROSECUTIONS

v

WARWICK ANGELL

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JUDGE:	His Honour Judge Dean
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 June 2012
CASE MAY BE CITED AS:	DPP v. Angell
MEDIUM NEUTRAL CITATION:	[2019] VCC 841

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Curmi	C.D.P.P
For the Accused	Ms A. Centrone	Sleigh and Associates

HIS HONOUR:

1 Mr Warwick Miles Angell, you have pleaded guilty to two charges of defrauding a public, namely Centrelink, contrary to s.29D of the Crimes Act 1914, (Cth), and two charges of dishonestly obtaining property belonging to a Commonwealth entity, contrary to sub-s.134.1 of the Criminal Code (Cth).

2 The maximum penalty for the offences charged under the Crimes Act is ten years' imprisonment, or a fine of 1000 penalty units, or both. The maximum penalty for the offences charged under the Criminal Code is ten years' imprisonment or a fine of 66,000, or both.

3 The offences charged under the Crimes Act occurred between 5 May 1998 and 23 May 2001, and the offences charged under the Criminal Code occurred between 24 May 2001 and 8 June 2010. On 23 May 2001, s.29D of the Crimes Act was repealed, and accordingly, your continuing offending was thereafter a breach of sub-s.134.1 of the Criminal Code.

4       A statement of facts was read to the court and tendered in evidence, and your offending may be summarised as follows -   

5       Between 5 May 1998 and 8 June 2010, you obtained social security payments in the form of a disability support pension, and rental assistance from a Commonwealth entity, namely Centrelink.  You were not entitled to the payments you received, which totalled the sum of $180,914.20.

6       You were not entitled to the payments because you owned significant assets above the value applicable to the asset test limit, and you are not entitled to rental assistance, because you owned the place and residence that you lived in, and were not renting it as represented to Centrelink.

7       At the time you first applied for a disability support pension, on 5 May 1998, you owned your principal place of residence and two further commercial properties located in Rose Street, Essendon.

8       In May 1998, the commercial properties were valued at a total of $600,000 and were unencumbered.  By the end of the charged period in June 2010, the properties were valued at $1,350,000.  Between October 2003 and March 2010, you received rental in respect of the two commercial properties averaging between $2000 and $3780 per month.

9       Between 1 January 2001 and 1 January 2010, you maintained a savings account with ING in the name of Dr Warwick Angell, which account contained substantial savings reaching, on 1 January 2006, the sum of $361,468.  You were not a doctor and falsely represented to ING that you were, apparently in order to obtain the sum of $100.

10      On 21 October 2004, you purchased a unit in a retirement village in Woodend for the sum of $160,000.  None of these assets or income were disclosed to Centrelink as was required of you.

11      In order to obtain rental assistance, the subject of Charges 2 and 4, you created false receipts in the number of Myles Real Estate Pty Ltd in respect of rent which you claim to have paid on your home in Moonee Ponds, which in fact you owned outright.

12      After 12 years of receiving a disability pension and rental assistance, your offending was detected on 28 April 2010 by an Australian Taxation Office data match, and your disability support pension and rental assistance were cancelled on 8 June 2010.

13      You declined to participate in a record of interview with Centrelink investigators, and repaid the sum of $180,914.20 to Centrelink in December 2010. 

14      It is clear from this summary that your offending is a serious example of defrauding the Commonwealth over an extended period of time. Your offending was fraudulent from the outset and was not motivated by any pressing financial necessity.  In fact, you were a relatively wealthy man during the period of your offending, and you had no dependents to provide for.  Whilst I accept that there is no evidence of excessive spending or what may be described as an indulgent lifestyle, you nevertheless accumulated considerable assets during the period of your offending, and all of your properties were unencumbered.

15      You pleaded guilty at the first available opportunity, and I have taken your plea into account in your favour in mitigation of sentence.  You have no prior convictions, and I accept that you are of otherwise good character, although that is not an uncommon circumstance in cases such as this.

16      You were born on 1 March 1945, and are now aged 67 years.  As I have already noted, you have no dependents, and your only living relative is your cousin, Mrs Gwen Clarke.  I have received in evidence a letter from Mrs Clarke dated 25 May 2012, in which she describes your family background and current personal circumstances.

17      I accept that you live an extremely lonely existence, and that you are essentially incapable of caring for yourself.  I have also received in evidence a medical report of your treating medical practitioner, Dr Tamsin Rhodes, detailing a range of medical conditions that you suffer from.  You are morbidly obese and suffer from severe pulmonary hypertension and diabetes.  You also suffer from osteoarthritis and require pain relief for this condition.

18      I have also received in evidence the report of Dr Lester Walton, a consultant psychiatrist, and a further report of Mr Bernard Healey, a clinical and forensic psychologist.  It is clear from the contents of these reports that you also suffer from a mixed anxiety and depressive order, and you have a history of severe alcohol abuse.

19      Dr Walton, in his report, notes that as a result of your medical and psychiatric condition, in all probability, any term of imprisonment will be served by you in either St John's Hospital at Port Phillip Prison or the St Augustine's Ward at St Vincent's Hospital.

20      The disabilities identified in the medical evidence that I have referred to formed the basis of your application for a disability pension, and are now relied upon by you in mitigation of sentence.  I accept that your medical and psychiatric condition means that any term of imprisonment served by you will be onerous.  Although, as noted by Dr Walton, in all probability, you will be housed in a medical facility and will there receive treatment and care.

21      I also accept that your age and social isolation will mean that imprisonment for you will be a lonely and isolated experience.  I accept that specific deterrence is not a significant sentencing issue in your case, and that it is most unlikely that you will re-offend in the future.  I also accept that you are remorseful for what you have done, and in the circumstances, I accept your prospects for rehabilitation are good.

22      In DPP (Cth) v. Milne [2001] VSCA 93, Acting Chief Justice Winneke said, "An actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate cheating of the social welfare system, because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose for the imposition of a sentence in such cases, namely general deterrence".

23      Generally speaking, persons in receipt of a disability pension will suffer from physical or psychological disabilities.  But in my opinion, those disabilities cannot mean that where a disability pension and other associated benefits, such as rental assistance, are obtained fraudulently, the principal of general deterrence referred by Acting Chief Justice Winneke should be moderated in a way that leads to a term of imprisonment not actually having to be served.

24      I accept that your physical and psychological disabilities are significant, and I have taken these disabilities into account in arriving at a significantly shorter term of imprisonment to be actually served than would otherwise be required in cases of this type.  The sentences that I will impose in relation to each count on the Indictment have been arrived at by reference to the differing periods of offending, and the other relevant facts and circumstances applicable to each count during the period charged.

25      In the result, in relation to Charge 1, you are convicted and sentenced to be imprisoned for 12 months.  I order that sentence is to commence on 18 December 2013.

26      In relation to Charge 2, you are convicted and sentenced to be imprisoned for six months.  I order that that sentence is to commence on 18 September 2014.

27      In relation to Charge 3, you were convicted and sentenced to be imprisoned for two years.  I order that that sentence is to commence on 18 June 2012, that is today.

28      In relation to Charge 4, you are convicted and sentenced to be imprisoned for nine months.  I order that that sentence commence on 18 September 2014.

29      This makes for a total effective term of imprisonment of three years.  I order that you serve nine months of that sentence before being released on a recognisance in the sum of $500.  I declare that you have served 12 days imprisonment, not including today, by way of pre-sentence detention.  But for your plea of guilty, I would have imposed a sentence of three years and nine months' imprisonment, and order that you serve 18 months before becoming eligible for release.  Thank you.

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MS CURMI:  If you allow me a moment, Your Honour - - -

HIS HONOUR:  Yes, could you prepare the recognisance?  Thank you.  Could you check those start dates as well, please, Ms Curmi, to ensure that the sentence that I've arrived at is properly calculated?

MS CURMI:  Yes.

HIS HONOUR:  I'm pretty confident it is.

MS CURMI:  All right.  Excuse me, Your Honour?

HIS HONOUR:  Yes?

MS CURMI:  The term of the recognisance that the accused is to be of good behaviour - - -

HIS HONOUR:  Yes.  Does that have to be the same length of the - as what's owing under the term of imprisonment?

MS CURMI:  No, it doesn't.  It can be to a maximum of five years, Your Honour.

HIS HONOUR:  All right.  Well, I'll make it for a period of three years.

MS CURMI:  Yes, it all looks correct, Your Honour.

HIS HONOUR:  Thank you.

MS CURMI:  If I could hand this up?

HIS HONOUR:  The vagaries of Commonwealth sentencing aren't - I need to be - one needs to be careful.  Thank you.  Ms Centrone, you'll have to get your client to sign the recognisance, thank you.  If you could - you can approach the - - -

MS CENTRONE:  Thank you, sir.

HIS HONOUR:  - - - dock and ask him to do that, and then you just witness it.

MS CENTRONE:  Does Your Honour wish me to witness that signature?

HIS HONOUR:  No, my associate will do that.

MS CENTRONE:  Thank you.

HIS HONOUR:  I think that's provided for.

MS CENTRONE:  It is.

HIS HONOUR:  You can - you can make a copy.  I'll just adjourn now.  We'll adjourn until half-past ten, thank you.

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