Director of Public Prosecutions v Blackborrow

[2021] VCC 207

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01409

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

MICHAEL BLACKBORROW

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2021
DATE OF SENTENCE:	4 March 2021
CASE MAY BE CITED AS:	DPP v Blackborrow
MEDIUM NEUTRAL CITATION:	[2021] VCC 207

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence — dishonestly obtain a financial advantage by deception from a Commonwealth entity — producing a false or misleading document in purported compliance with a law of the Commonwealth — plea of guilty — Newstart Allowance — under-declaration — remorse — gambling addiction — general deterrence — prospects of rehabilitation — recognisance release order — reparation order

Legislation Cited:     Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Social Security Act 1991 (Cth)

Cases Cited:            R v Verdins (2007) 16 VR 269

Sentence:                 Total effective sentence of 24 months’ imprisonment, eight months to be served before release on recognisance of $1000 to be of good behaviour for two years.

Section 6AAA declaration: total effective sentence of two years and three months, to be released on recognisance after serving one year and three months.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr A Murphy	CDPP
For the Accused	Mr Z Menon	Victoria Legal Aid

HER HONOUR:

1 Michael Blackborrow, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is 10 years' imprisonment, or the pecuniary penalty of $126,000.

2 You are also charged with having committed one related summary offence of producing a false or misleading document in purported compliance with a law of the Commonwealth, contrary to s 137.2(1) of the Criminal Code (Cth). The maximum penalty for this charge is 12 months' imprisonment or a pecuniary penalty of $12,600.

3       Tendered on the plea as exhibit 1 was a summary of prosecution opening, which sets out in some detail the full facts and circumstances of your offending. In brief, the circumstances of your offending were as follows.

4       Between 16 March 2012 and 30 August 2018, you were employed as a chef at the BP Energy Laverton service station and received income from two companies for this employment. Between 17 January 2012 and 21 June 2016, you were employed with Footscray Payroll Pty Ltd on a casual basis, earning $163,666.81 in gross income. And between 22 June 2016 and 30 August 2018, you were employed with Expressway VV Pty Ltd on a casual basis, earning $88,857.66 in gross income. Your income between 16 March 2012 and 30 August 2018 came to a combined total of $249,247.70. That is gross income, and that is an average of $1,466.16 gross income per fortnight.

5       You were also in receipt of Newstart Allowance during this period, and you made 170 false under-declarations in relation to your employment income. These declarations were false because you only declared a portion of your total fortnightly income in each declaration, rather than declaring your entire income. As a consequence of your misrepresentations, you obtained $85,014.73 in payments of Newstart Allowance to which you were not entitled. You were aware of your obligation to declare your entire gross income. The details of your overpayments were summarised in a chart set out in the prosecution opening:

Income from Employment			Benefits
Charge Period	Gross Income Earned	Gross Income Declared	Under- Declaration	Benefit Paid	Benefit Entitled	Benefit Overpaid
Charge 1	$249,247.70	$25,578.89	$223,668.81	$85,448.53	$433.80	$85,014.73

6       Turning to the detection of your offending. Your offending was detected by way of a data-match with the Australian Taxation Office on 15 May 2018. The Department sent you a letter on 15 May 2018, advising that a data match had occurred. On 27 May 2019, you were invited to participate in a formal interview with the Department, which you declined on 4 June 2019.

7       I turn now to the summary charge, charge 2. As a condition of receipt of the Newstart Allowance, you were required to satisfy the ‘activity test’, also known as the ‘mutual obligation requirements’ imposed under the Social Security Act 1991 (Cth). This test ensures that persons receiving Newstart Allowance are actively looking for work and participating in activities that will help them into employment. As part of your activity test requirements, you were required to enter into a job plan recording the activities that were agreed between you, a recipient of the Newstart Allowance, and either your employment services provider or the Department.

8       You were on a job plan dated 6 February 2018, which required you to observe a number of mutual obligation requirements, including contacting 12 employers each month, attending weekly Disability Employment Services appointments, and researching potential employers and job applications.

9       However, you were entitled to obtain a temporary exemption from the requirements of your job plan on medical grounds. On 28 March 2018, you lodged with the Department a medical certificate in the approved form and signed by Dr Sufian Habib, a medical practitioner, opining that you were experiencing ‘tiredness and difficulty breathing’, and were consequently unfit for work between 19 March 2018 and 19 April 2018 inclusive.

10      On 29 March 2018, the Department granted you a temporary exemption from the meeting of your mutual obligation requirements on medical grounds, because of the information contained in the medical certificate. In fact, you were fit to work during this period. During the three fortnightly pay periods covered by the medical certificate, you undertook paid employment for Expressway VV Pty Ltd for a total of 65.5, 64.5 and 69 hours, respectively. You earned a total of $5,622.90 in gross income from the work that you undertook during these fortnights. That is a factual summary of your offending.

11 Turning now to sentencing principles. Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take into account a number of different matters, if they are relevant and known to me. In arriving at your sentence, I take into account the following matters which were raised at your plea hearing.

12      I begin with your plea of guilty. You pleaded guilty on 20 October 2020 at a committal mention hearing. This is an early plea which has saved the witnesses and the community the cost of a trial. Your plea therefore has utilitarian value, which is heightened in the present circumstances facing the criminal justice system of this State. Notwithstanding that the COVID-19 pandemic may be abating as a public health crisis, its effects upon the administration of criminal justice remain, with considerable delay occurring in running jury trials, which is likely to continue into the foreseeable future.

13      By virtue of your plea of guilty, you acknowledge criminal responsibility for your actions, and I am also prepared to find that your plea of guilty is indicative of some remorse on your part. You have also made some attempts at repaying the money which you dishonestly obtained, albeit only $3,653.83, but you are a person of very limited resources and I accept, in accordance with the submissions of your counsel Mr Menon, that notwithstanding the very modest amount you have managed to repay, it is nevertheless demonstrative of remorse on your part.

14      I turn now to your background and personal circumstances. You were born on 6 February 1980 and you are presently 41 years old. You were born in Bundaberg in Queensland and you grew up there. You completed both primary and secondary school there. Your parents separated when you were 19 years old and your father moved to Mornington in Victoria. You have one sister who has struggled with drug addiction.

15      You moved to Victoria in 1988. This was a difficult period in your life, as you were diagnosed with testicular cancer at this time. You lived with your father, but returned to live with your mother in Bundaberg after your cancer diagnosis. Fortunately, you have been in remission for some time. You are reviewed every three years.

16      You alternated between living with your father and mother until your mother died in 2001. You have had a difficult relationship with your father. You spoke with consultant psychologist Gina Cidoni on 20 August and 5 October 2020, and Ms Cidoni prepared a report which was tendered at your plea. Ms Cidoni's report says you ended contact with your father after a major falling out with him in 2010. In written submissions prepared and tendered on your behalf, it states that you have not spoken to your father since 2003. I am unclear about the timeframe but, in any event, it is clear that you are estranged from your father and also from other family members, including your cousin, who at one point was supportive of you and allowed you to live with her, and also sadly from your sister and her children. You appear to be an isolated individual, although I am told you are now in a relationship with a woman whom you hope to marry.

17      After leaving your cousin's home in around 2011, you experienced homelessness, sometimes sleeping rough and other times in insecure short-term placements.

18      In terms of your employment, you had difficulty working from the time of your cancer diagnosis at the age of 18, until the age of 28. Thereafter, you have worked in a number of different jobs, until you began working as a chef in 2012. You qualified as a chef from Bundaberg TAFE. You ceased employment in March 2020 and are presently on JobSeeker payments.

19      You have some ongoing health problems. Your testicle was removed because of your cancer and you had chemotherapy. You have ongoing respiratory complications arising from your chemotherapy. Your doctor, Dr Habib, says he is currently treating you for depression and anxiety, prescribing an antidepressant. Your depression and anxiety are largely referable to these criminal proceedings.

20      There was no submission made that Verdins principles were engaged in sentencing you,[1] but I do take into account your mental health difficulties generally when assessing the effects of imprisonment upon you. I also take into account that if sentenced to a custodial sentence, this would be your first time in custody, and also the current restrictive conditions in prison necessitated by the COVID-19 pandemic.

[1] See R v Verdins (2007) 16 VR 269.

21      You have a prior criminal history, both here and in Queensland, but your prior offending has been relatively minor. You have only one appearance for a dishonesty offence, and you have been dealt with by way of fines or good behaviour bonds and have not received a criminal conviction.

22      Your counsel submitted that I should regard you as a person of hitherto good character but as I indicated at the plea hearing, I give only very limited weight to your good character, given that the offending for which you fall to be sentenced spans some six and a half years.

23      I am told your offending is explained by your gambling addiction. You told Ms Cidoni that you began drinking and gambling heavily in around 2011. You frequented RSL clubs where you drank and gambled, as well as betting on horseracing and playing Keno. You had some wins but mostly losses, and your offending, I am told, was to recuperate your losses. In this way, while it is the case that you were motivated by profit, I accept the submission of your counsel that you were not accumulating wealth or seeking to accumulate wealth, but merely trying to support yourself in the face of your gambling losses. It must be emphasised, however, that this in no way excuses your offending. It merely explains the context of your offending.

24      I regard your offending as objectively serious and a moderately serious example of the offence of obtaining financial advantage by deception. Your offending was protracted and entails 170 discrete incidents of false reporting. The amount you obtained is not insubstantial. You were a person in skilled employment, earning a reasonable income. You had no dependants and did not offend in order to provide for others in need, such as young and/or sick children.

25      Although your offending was not sophisticated and lacked aggravating features, such as multiple benefits or the use of multiple false identities, this does not diminish the obvious seriousness of your offending. Further, you did not voluntarily desist from offending. Rather, your offending was only brought to an end when your payments were suspended due to a failure to comply with job-seeking requirements.

26      I was referred to comparative cases by both the prosecution and defence. These cases were of some assistance in my consideration of what is an appropriate sentence for you, but ultimately it is my duty to sentence you on the facts and circumstances particular to you.

27      In sentencing you, I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community's denunciation of your conduct, but I must also promote, if possible, your rehabilitation. I am required to impose a sentence no longer than is required in all the circumstances of your case. Specific deterrence is engaged here, given the longstanding nature of your offending. The predominant sentencing consideration is general deterrence.

28      This is not victimless offending. Social security is the only source of income for very many vulnerable people in society. It is open to abuse, and when this occurs, the integrity of the entire system is undermined, the consequences of which are that welfare recipients may be demonised and additional stringency and regulations put in place, which may affect or cause hardship to legitimate recipients of social security.

29      In terms of your rehabilitation, I accept that you have fair prospects of rehabilitation. You have undertaken some counselling for your gambling addiction. I accept that you have been hampered in your efforts because of your lack of means and your inability to afford the help that you need.

30      The prosecution submitted that a period of actual custody was required in order to adequately reflect the gravity of your offending and to give effect to the principal of general deterrence. Defence urged me to consider releasing you immediately on a recognisance release order.

31      Taking into account all the various matters I am required to, I intend to sentence you as follows.

32      You are convicted on both charges 1 and 2. On charge 1, you are sentenced to a term of 24 months' imprisonment. On charge 2, you are sentenced to a term of two months' imprisonment. I direct that both sentences commence today, the effect of which is that your total effective sentence is 24 months' imprisonment

33      I direct that you must serve eight months' imprisonment before being released on a recognisance release order in the amount of $1,000 for a period of two years with the following conditions. You must attend at the Werribee Community Correctional Services within two clear working days of your release from custody. You must be under the supervision of a community corrections officer for a period of two years. You must undergo any medical assessment and treatment, that may include general or specialist medical treatment or treatment in a hospital or residential facility, as directed by the regional manager. You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological or psychiatric treatment in a hospital or residential facility, as directed by a regional manager. And you must participate in programs and/or courses that address factors relating to your offending behaviour and your gambling addiction, as directed by the regional manager.

34 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of two years and three months, to be released on a recognisance release order after having served one year and three months.

35 Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), you have served nil days on the sentence I have passed, and I direct that this be entered into the records of the Court.

36      I make the reparation order sought by the prosecution, which was unopposed.

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