Director of Public Prosecutions v Barnes

[2015] VCC 145

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01015

THE QUEEN

v

ROBERT BARNES

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2015
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Barnes
MEDIUM NEUTRAL CITATION:	[2015] VCC 145

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentencing
Catchwords: Two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity – Community Corrections Order – DPP v Boulton [2014] VSCA 342
Sentence: Three year Community Corrections Order with conditions.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms M Curmi	CDPP
For the Accused	Ms A Burnnard	Spicer Lawyers

HER HONOUR:

1Robert Barnes, you have pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to subsection 134(2)(1) of the Criminal Code (Cth).

2Each of the charges involved intentionally providing incorrect information to Centrelink regarding your receipt of income, which resulted in your obtaining payments of NewStart Allowance from Centrelink.

3The maximum penalty for this offence is ten years imprisonment.  You admitted your prior convictions and your counsel took no exception to the Revised Prosecution Opening which was read out in Court.  I sentence you on the basis of the facts set out in that document and I will now only briefly summarise your conduct. 

4You received the NewStart Allowance during the following periods, 16 June 2007 and 26 February 2008, 24 April 2008 and 21 February 2013, and 18 June 2013 to 13 June 2015.

5While receiving this allowance, you were required to report to Centrelink at various times concerning any changes to your circumstances, such as employment and income, which you did by lodging review forms or submitting reports via the internet.

6Charge 1 relates to the fulltime employment you undertook during three periods while receiving the NewStart Allowance on 23 June 2008 and 4 January 2009, 8 January 2009 and 22 January 2012 and between 6 September 2012 and 14 February 2013.

7During these periods of employment, you were paid on a weekly basis and your offending was discovered in relation to each period of employment, as a result of a data match with the Australian Taxation Office on 4 February 2009, 18 February 2010 and 15 February 2013.  Your bank statement showed deposits of NewStart Allowance, a net income from your three employers. 

8During these periods, you made 107 false reports to Centrelink.  In only five of those reports did you declare any income, and each of these declarations grossly understated your true earnings.  You declared earnings totalling $704.00 when you in fact earned a total gross income of $235,044.75.  You received a financial advantage by deception in the sum of $64,364.

9On 8 May 2013, you were sent a letter advising you of all of the amounts unlawfully obtained, as well as inviting you to participate in a record of interview.  You did not participate in a record of interview with Centrelink.  On 21 March 2014, you were served with a charge and summons in relation to your offending and you pleaded guilty on 10 June 2014 at the committal mention.

10The plea hearing listed for 26 August 2014 was adjourned to October, but was further adjourned when the informant discovered that you were continuing to understate your earnings to Centrelink.  To allow this further offending to be fully investigated, the plea hearing was adjourned to 29 January 2015.  You consented to direct indictment on Charge 2 and to proceeding to the plea, even though the full materials in relation to Charge 2 were only served two weeks ago. 

11Your further offending which is the subject of Charge 2 can be described as follows.  You started working causally with Manpower Services Australia on 15 December 2013, while you were receiving the NewStart Allowance.  You were still employed by that company as at 23 December 2014.  Between 15 December 2013 and 9 November 2014, you earned a total gross income of $30,856.56, which was paid on a weekly basis into your account.  However, you declared to Centrelink earnings totalling $10,699.83.

12In a number of reports during this period, you declared no earnings or understated your earnings.  You were not interviewed in relation to this allegation of further offending.  You have paid back approximately $10,000 of the total owed to Centrelink.  The prosecution sought a reparation order in the sum of $62,634.76 which you do not oppose.

13You have two very old prior convictions for dishonesty offences.  One dated 6 May 1997, for which you were fined $75.00 and one dated 27 March 2986, for which you were placed on a $500.00 good behaviour bond.

14Your personal circumstances may be briefly summarised.  You were born in Melbourne in 1956 and were educated to Form 5 level.  After leaving school, you worked as a labourer.  You used heroin in your early twenties, prior to your marriage.  For the next 30 years, you worked as a truck driver.  You were married for around 23 years until the marriage broke up in 2003, due to financial pressures you experienced when running your own business.  You have two sons in their twenties, one of whom lives with you. 

15Between 1998 and 2003, you had your own trucking business, but this business was not successful and you ended up in debt and bankrupt.  You were depressed and did not work for some time after this.  In about 2005, you went back to truck driving, but also resumed using heroin daily at a cost of $500 per day.

16You cashed in your $27,000 superannuation entitlement and used it to buy heroin.  You then used the money obtained from Centrelink to fund your habit and that of your girlfriend.  Between you, you were using up to $1,000 worth of heroin per day. The offending, the subject of Charge 1, occurred during this period of addiction.

17You fell out with your employer in August 2013 and stopped work until around December that year.  You then started working for Manpower Australia and at that time, you stopped using heroin and went onto methadone as prescribed by your doctor, which you continue to take.

18You have not used heroin for the past 12 months.  You suffer from Hepatitis C, diabetes and high blood pressure.  You take medication for diabetes and high blood pressure.  You are also receiving treatment for skin cancer.  You are unable to explain why you offended further.

19Your financial circumstances are very poor.  You continue to receive the NewStart Allowance and work between one to three days a week.  You pay rent each week on your accommodation.  You owe a few thousand dollars to one of your sons and over $4,000 for electricity bills.  You are paying off a number of fines and other commitments totalling more than $6,000 at the rate of $30 per month. 

20Counsel for the prosecution submitted that your offending is serious in that you stole a considerable amount of money from the Commonwealth, over a lengthy period of time, that is five and a half years.  An aggravating factor is that you continued to offend, even after you were charged in relation to Charge 1.

21In the light of this further offending, it is submitted that your prospects of rehabilitation are only fair.  It was submitted that as general deterrence looms large in sentencing for social security frauds, a custodial sentence would ordinarily follow, unless there are very special circumstances justifying some lesser order.  The custodial sentence should be longer if the fraud is based on greed rather than need.

22Your counsel conceded that your offending is serious, that general deterrence looms large and that regard has to be had to the principles of specific deterrence, just punishment and totality. Section 17A of the Crimes Act provides that a sentence of imprisonment is a last resort.

23Your counsel relied on a recent decision of the Court of Appeal in Boulton's case, in support of her submission that a Community Corrections Order is an appropriate disposition in your case, because such an order can meet the sentencing requirements of general and specific deterrence, just punishment and rehabilitation.  Your counsel asked that you be assessed for suitability for a CCO and this was done on 29 January 2015. 

24The report indicated that you are assessed as suitable for a Community Corrections Order and recommended that a number of conditions be attached, including unpaid community work, supervision and assessment and treatment for drug addiction.

25Counsel for the prosecution did not address me upon the implications of the decision in Boulton's case.  The Court of Appeal there noted that the availability of Community Corrections Orders, “dramatically changes the sentencing landscape” and that a Community Corrections Order “may be suitable, even in cases of relatively serious offences which might previously have attracted quite substantial terms of imprisonment”.

26In that case, the Court of Appeal stated that a Community Corrections Order can achieve just punishment, specific deterrence, general deterrence and rehabilitation at the same time.

27In determining whether to sentence you to a Community Corrections Order, I must first assess the objective nature and gravity of the offence and your moral culpability.  There was no dispute that your offending is serious.  I take into account however that in the context of the failure of your business and your marriage and your ensuing heroin addiction, that you were at the time of your offending quite disadvantaged.

28I also acknowledge that your offending lacked any sophistication in that no accounts were set up in different names, but rather all Centrelink payments, as well as salary payments, went into the same bank account where they were bound to be discovered once matching was performed.

29I therefore consider that in the first period of offending, your moral culpability may have been somewhat reduced by your personal circumstances, particularly since the money obtained from Centrelink was used to fund your own heroin addiction and that of your girlfriend.

30However, as you were not using heroin during the period reflected in Charge 2 and the later offending occurred after you had already been charged in relation to the offending the subject of Charge 1, I am unable to reach a similar conclusion in relation to the further offending.  That further offending must be regarded as an aggravating feature of your conduct.

31On the other hand, you have pleaded guilty at the first available opportunity and have today repaid approximately one-tenth of the total amount obtained from Centrelink.  This is indicative of your remorse.  You have abstained from heroin for the past 12 months and are taking methadone as prescribed by your doctor.

32You suffer from a number of medical conditions requiring medication and from skin cancer, which will require surgery to a shoulder lesion.  For this reason, you would find imprisonment more onerous than an offender who did not suffer from these conditions.  Your financial position is precarious, but you are working part time and paying off various loans and other commitments, in addition to continuing to repay Centrelink the money owed to it.  This demonstrates that you have reasonable prospects of rehabilitation.

33In all the circumstances, I am not convinced that your offending is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment.  Rather, I consider that a CCO would enable satisfy the requirements of just punishment, whilst at the same time enabling rehabilitation to occur.

34This is because a CCO is intrinsically punitive; its mandatory conditions affect your liberty and autonomy: You must report to and receive visits from the Secretary; you must notify the Secretary of any change of address or employment; you must not leave Victoria without the Secretary's permission; and you must comply with any direction given by the Secretary to ensure compliance.

35The additional conditions imposed are also punitive.  I am satisfied that in your case, a Community Corrections Order will enable all of the purposes of punishment, that is just punishment, general and specific deterrence and rehabilitation to be satisfied.

36On Charges 1 and 2, you are convicted and sentenced to a Community Corrections Order for a period of three years.  In addition to the mandatory conditions, I order that you complete 150 hours of community work, that you undergo drug assessment and treatment in relation to your heroin addiction and that you be subjected to supervision. 

37In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders.  These are that you must not commit any other offences during the period of the order being in force, that is three years from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment.

38You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Dandenong within two clear working days of today.  Also you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections Office of any change of address where you live or work within 48 hours of that occurring, and finally you must obey all lawful instructions from and directions of Community Corrections officers.  Do you understand the conditions I have imposed and the general terms that apply?

39OFFENDER:  Yes, Your Honour.

40HER HONOUR:  Thank you.  Before you consent to the making of such an order, you must understand that the contravention of any condition attached to the Community Corrections Order, except for a contravention of a direction by the Secretary is itself an offence, punishable by three months' imprisonment.  Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences.  Do you consent in those circumstances to the imposition of an order?

41OFFENDER:  Yes.

42HER HONOUR: All right, thank you. Also, in light of your lack of opposition to the imposition of a reparations order, I will order that you pay reparation pursuant to s.21B of the Crimes Act 1914, payable to the Department of Human Services in the sum of $62,634.76. So we will have the order prepared.

43MS BURNNARD:  Yes.

44HER HONOUR:  You probably do not need to wait - it needs to be signed.  I will just adjourn briefly while the order is being prepared, thank you.

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