Director of Public Prosecutions v Ater
[2018] VCC 965
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-00567
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATER KUOT ATER |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 June 2018 |
| DATE OF SENTENCE: | 15 June 2018 |
| CASE MAY BE CITED AS: | DPP v Ater |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 965 |
REASONS FOR SENTENCE
---Subject:
Catchwords: Dishonestly Cause Loss to Commonwealth Entity
Legislation Cited: Criminal Code Act 1995, ANew Tax System (Family Assistance) Act 1999, Crimes Act 1914 (Cth).
Cases Cited:
Sentence:Convicted and pursuant to s.20A(b)(1) of the Crimes Act 1914 (Cth), you are ordered to perform a community corrections order for a period of two years.
Reparation Order made in the sum of $36,605.70.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J. Gullaci and Ms S. Holmes | |
For Accused Ater | Mr M. Goldberg |
HIS HONOUR:
1. Ater Kuot Ater on 7 June 2018, you pleaded guilty to one charge of intending to dishonestly cause a loss to a Commonwealth entity contrary to s.135.1(3) of the Criminal Code (Cth). The maximum penalty for this offence is five years' imprisonment. It is an agreed fact that your offending occurred in a confined period of time between 19 August 2015 and 20 September 2015. It is further agreed that the amount of the loss caused to the Commonwealth entity by your offending was $36,605.70.
Circumstances of Offending
2. The summary of the prosecution opening dated 21 May 2018 was tendered at your plea hearing. I have marked it as Exhibit B and a copy of that summary is annexed to these reasons for sentence. You worked as an educator in the childcare program set up under the ANew Tax System (Family Assistance) Act 1999. You worked as a childcare provider for family day care providers. In your case, you delivered childcare services through two FDC providers:
1) Manhale FDC which is a Deng Group FDC; and
2) Discover and Learn FDC.
3. The Discover and Learn FDC work or provider is not the subject of this or any charges or criminal investigation. It is your work and submitted timesheets through the Deng Group FDC that is the subject of this charge and your offending. In summary, you claimed for and was paid for childcare services that you did not provide to any person.
4.
On 19 August 2015, you departed Australia on a flight and returned on
20 September 2015.
5. Manhale FDC submitted childcare claims at the Department of Education and Training where you were purportedly the FDC educator of five children in the care of Martha Mack. The care was ostensibly provided between the dates of 19 August 2015 and 12 September 2015 resulting in the payment of some $29,767.50.
6. The Discover and Learn FDC submitted claims where you were the educator for five children for Martha Mack for a period between 14 September 2015 and 19 September 2015, resulting in a further payment of $6,838.20.
7. You claimed for a total of 50 hours of childcare services you did not provide because you were overseas.
8.
You were interviewed by investigators on two separate occasions, being
16 December 2015 and 21 April 2016.
9. In the first record of interview, you stated as follows:
· You cared for WM aged 15, AM aged seven or eight, MM aged six, KB aged five and DA aged 18;
· You had been caring for the children for about three months;
· You pick up the children from their house at 6.30 in the morning or thereabouts on a school day and take them to school, you then pick them up from school and take them back to their house - to your own home and then take the children back to their home at about 7 or 8 o'clock at night.
· You currently submitted timesheets through Learn and Play FDC. That was at the time of your interview. You submit timesheets every two weeks and they transfer the money into your account.
· When shown a copy of the outgoing passenger card relating to your trip out of Australia on 19 August 2015, you agreed that you had taken an overseas trip.
· You then said you did not know who completed the timesheets whilst you were overseas. You never had anyone else submit timesheets for yourself. You believed the FDCs claim more money than they are entitled to and that they use your name to make those claims.
· You know K. Deng from Learn and Play FDC and you did not query the payments you received from K. Deng whilst you were overseas.
10. At the second record of interview on 21 April 2016, you said as follows:
· You registered with Hello Children FDC for about two weeks before you went to Africa and made claims with them for about six weeks when you came back from Africa. You stopped claiming through them when the government department shut them down.
· You signed Hello Children FDC timesheets for the period you were overseas.
· You told Hello Children when you were going overseas and they said they were still going to pay you for the period.
· You signed the timesheets when you got back and you stated that you were still working but could not explain how you cared for children when you were not in Australia.
11. You were one of nine educators charged with this offending as a part of the Deng Group prosecution. You are the ninth highest or put another way, you are the lowest of the group when looking at the amount of money claimed. Your offending is confined to a discrete period of one month when you claimed and were paid for child services whilst you were overseas and not providing those services here. The prosecution accepts that before and after the charged period you have legitimately provided and been paid for childcare services.
Personal Circumstances
12. You are now 46 years old. You are the eldest son of your sibship. You were brought up in South Sudan. Your father was part of the civil government in South Sudan. At the age of eight, you and your family left your home to go a refugee camp on the Ugandan border. As a child, you witnessed many violent acts against men, women and children. You were forced to act as a carrier of supplies for the South Sudanese rebels. This involved walking through the bush for days. At the age of 16, you were shot and left to die. Some local villagers rescued you.
13. In 1999, you, your wife and two children went to Uganda and lived in a refugee camp for three years. You were then accepted as a refugee and came to Australia. The remainder of your family is still in Sudan.
14. You became an Australian citizen in October 2007. Your first employment was in the construction industry in New South Wales. You then worked in the security business and were promoted to an operations manager at a central control room.
15. In 2012, you moved with your then partner to Melbourne. That relationship has since finished. You have re-partnered and have two children from that relationship. You work in a recycling business in Cooper Street, Epping. Your work is full-time and involves training fellow employees.
16. In total, you have six children to support. Your father died recently and your mother remains in Sudan in poor health.
17. You have one prior court appearance in 2010. You were released from court on a bond on a charge of stalking. The prosecutor conceded that this prior criminal history was not a relevant sentencing consideration in these proceedings. You have no matters that are outstanding.
Sentencing considerations
18. These are the same as your co-accused but I am going to read them out to you.
19. The most significant consideration when sentencing a federal offender such as yourself is set out in s.17A of the Crimes Act, which provides:
"A court shall not pass a sentence of imprisonment on any person unless the court having considered all other available sentences is satisfied that no other sentence is appropriate in the circumstances of the case."
20. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing a federal offender such as yourself. There are many factors I must take into account when sentencing you which are set out in s.16A of the Crimes Act. These factors include:
a) the nature and the circumstances of your offence;
b) if the offence forms part of a course of conduct consisting of a series of criminal acts - in this case submitting time sheets regularly;
c) any injury or loss or damage resulting from the offence, in this case loss to the Commonwealth revenue;
d) the degree to which a person has shown contrition for the offences - in your case, the remorse is confirmed by your plea of guilty;
e) that you have pleaded guilty to the offence;
f) that the deterrent effect of any sentence or order under consideration may have on a person - that is specific deterrence to yourself;
g) the deterrent effect that any sentence or order under consideration may have on other persons - that is the general deterrence factor.
h) the need to ensure that you are adequately punished for your offending;
i) your character, antecedents, age, means, physical and mental condition of yourself;
j) the prospects of your rehabilitation; and
k) the probable effect that any sentence or order under consideration would have on you or your family.
21. I accept that your intention was to plead guilty to this charge at an early stage. The conduct of a committal was for the purpose of narrowing down the precise circumstances and extent of your offending. Your plea of guilty was confirmed on 19 April 2018.
22. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There was a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and investigative resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect our community.
23. Your plea also has a clear indication and acknowledgement by you that you accept responsibility for your criminal behaviour. On this occasion, your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates remorse on your part. Your plea of guilty in this case is particularly significant due to the number of witnesses and the complexity of the evidence which would be necessary to be presented in this trial. I accept you are ashamed of your offending and that your remorse is genuine.
24. I find that your prospects of rehabilitation are good. You have gained and maintained employment since this offending. You have a stable domestic situation with its attendant responsibilities. Your offending was over a confined period of one month and you ceased offending prior to detection by authorities.
25. The prosecution submitted that you were ninth in the hierarchy of nine educators who had offended in the same manner as yourself. The hierarchy of offending by the educators was based on the amount of money defrauded from the Commonwealth. In your case, you have a confined period of one month for your offending and you had ceased offending, as I said, before any investigation was known to you.
26. The principle of parity sentencing is relevant in your case. Ms Dhal was sentenced to 12 months' imprisonment to be suspended for a period of two years. She was released on a recognizance release order in the sum of $1000 to be of good behaviour for that period of two years. The condition of her release order was that she was to see a psychologist for her gambling addiction.
27. Ms Kuol was sentenced to 12 months' imprisonment to be suspended for a period of two years. She was released on a recognizance release order in the sum of $2000 to be of good behaviour for a period of two years.
28. Ms Adut Deng was sentenced to 18 months' imprisonment to be suspended for 18 months. The recognizance release order was in the sum of $500 to be of good behaviour for the 18-month period.
29. I have sentenced your co-accused Morris Winpea to nine months' imprisonment, wholly suspended for two years on a $2000 recognizance release order. You have been in court when I sentenced him and heard my sentencing remarks in respect of him.
30. I have regard to a folder of comparable cases handed to me by the prosecutor. As was conceded, none of these cases were on all fours with your case. The common theme of those cases was that these types of offences are difficult to detect. Further, the protection of revenue is paramount and the system of childcare relies on trust by the Commonwealth of the operators to perform that service honestly and appropriately. All of these issues are addressed and applicable in your case. Each case of this type of offending has its own particular facts. Your case is but one of them.
31. I find that the parity of sentence has a significant part to play in fixing a just sentence for your case and the consideration of general deterrence is a significant factor in cases where the protection of the revenue is at risk.
32. You have exploited a flawed system designed to improve the provision of childcare in this community. The learned prosecutor submitted in your case that the imposition of a community corrections order was within the range of an appropriate sentence, taking into account all of the factors peculiar to your case.
33. I have had you assessed for the suitability of a community corrections order. You have been assessed as suitable to perform the requirements of a community corrections order. Would you stand please?
34. On Charge 1, you are convicted and pursuant to s.20A(b)(1) of the Crimes Act (Cth), you are ordered to perform a community corrections order for a period of two years. The conditions of the community corrections order are as follows:
1. You are to be supervised by the Community Corrections Service;
2. You are to perform 150 hours of unpaid community work; and
3. You are to report to the Melton CCS by 4 pm on 19 June 2018.
35. But for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, I declare I would have sentenced you to a period of six months of imprisonment to be served immediately.
36. I make the reparation order in the sum of $36,605.70. Thank you. Take a seat.
37. COUNSEL: As Your Honour pleases.
38. HIS HONOUR: Mr Goldberg, that is the community corrections order and I have made the reparation order.
39. MR GOLDBERG: Thank you, Your Honour. May I assist Mr Ater?
40. HIS HONOUR: Thank you.
41. Mr Ater, I have just placed you on a two-year community corrections order. The conditions are that you are to be supervised; that you do 150 hours of unpaid community work; and that you attend at Melton CCS by next week. I just want to remind you that during that period of time, if you offend, you come back here on a breach of the CCO and I will deal with you. Do we understand one another?
42. OFFENDER ATER: Yes.
43. HIS HONOUR: Thank you. You can take a seat. Now, that they have signed up I think they can be released from the dock.
44. MR GULLACI: Yes, sir. Yes, sir.
45. HIS HONOUR: Thank you, gentlemen, you can step out of the dock now. You both can, yes. Mr Goldberg, Mr Langton, thank you very much for your assistance in these matters.
46. MR GOLDBERG: Thank you, Your Honour.
47. HIS HONOUR: Thank you.
48. MR LANGTON: Thanks Your Honour.
49. HIS HONOUR: Thank you.
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