Director of Public Prosecutions v Boehl

[2022] VCC 238

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR -21-00400

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONNA LEE BOEHL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	4 March 2022
CASE MAY BE CITED AS:	DPP v Boehl
MEDIUM NEUTRAL CITATION:	[2022] VCC 238

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr P. Botros	Commonwealth Director of Public Prosecutions
For the Accused	Mr D. Sala	Stary Norton Halphen

HIS HONOUR: 

1Donna Lee Boehl, you have pleaded guilty to one charge of dishonestly intending to obtain a gain from the Commonwealth, and one charge of dishonestly causing a loss to the Commonwealth.  Each of those crimes carries a maximum penalty of five years' imprisonment.  You are now 42 years of age.

2You have pleaded guilty to effectively a settled indictment, and there was some history about the settling of the matter which I am fully aware of.  I am prepared to accept that plea of guilty as an indication of remorse, and you must, of course, get the utilitarian benefit of that plea.

3It is now a delay of some four or five years since the offending took place, and I also take that into account without referring responsibility for that to anybody.  It is simply the fact of the matter that during that time you have endeavoured to rehabilitate, and I take that into account.

4You have no prior convictions.  You must get the benefit of the decision of Worboyes in terms of pleading during the time of COVID.  I accept in these circumstances that any sentence of imprisonment would be undergone under COVID circumstances, which involves difficulty; not only in terms of the actual form of incarceration itself, but in terms of trying to have contact, effectively, with the outside world.

5A very brief summary of the offending is, and I point out that the Crown opening is an exhibit and is on file, that you and your partner, in effect, had an approved childcare service.  The simple fact of the matter is that between August 2017 and 18 April 2018 you submitted false data to the department, the relevant department, relating to a number of children.  That resulted in payments being made to your entity in circumstances where it was not entitled to them.

6There were two distinct instances.  One is of an amount of some $233,000, and the second on a one-day occasion is an amount of some four or $5000.  In essence this total amount taken during that eight-month period is in the vicinity of $240,000.  That is a considerable amount.  I have heard discussion about reparation.  I am simply making that order as agreed and I make no further comment on that.

7That is really what happened.  Initially your partner was charged with you, and a lot of the negotiation involved in arriving at this settled indictment involved her participation or non-participation in the matters.  As I have indicated, I think you have no prior convictions and you come before the court to be sentenced at the age of 42 with dependents in those circumstances.

8I am well aware of the provisions of s16A of the relevant legislation.  The circumstances here are that it is a large amount of money.  You were in a position of trust.  Whilst I am not keeper of the public purse, the revenue does have to be protected.

9It was over about a seven-month period.  It was considered, and it is hard to see how it could be said to have been taken for anything other than greed.  As I understand it, the material before me, there was a significant amount of money spent on at least one overseas trip.  So, they are the matters that call for you to be sentenced on.

10It is the situation which obviously calls for the application of general deterrence to a large degree.  Specific deterrence I am not so sure about in your situation.  There must be denunciation and there must be an appropriate punishment.  As I understand it, there has been no offending since and you have continued to, at least in some degree, keep working.

11The Crown submission is one of imprisonment.  The defence initially were seeking a different disposition, but it is my view that, in the ultimate, a sentence of imprisonment must be imposed is simply a question as to whether any of it is to be served.

12I then look at matters personal to you, and I was given very helpful submissions by your counsel.  I also have before me a report from Ms Ferrari, a forensic psychologist.  I have indicated during the course of discussion I am using that document as a helpful notation of your history as you have gone through life.  The diagnoses made in there I am not going to rely upon, and indeed your counsel did not - there is no suggestion here of there being any application of R v Verdins & Ors [2007] VSCA 102.  I do accept that in your overall circumstances that imprisonment would be harder for you than it might be for others, but that is for reasons other than those expressed in cases such as R v Verdins & Ors [2007] VSCA 102.

13You had a very strange background on what you have told Ms Ferrari and what you have told your counsel.  I think it is easiest to firstly just briefly describe your background as you related it to Ms Ferrari.  There are no drugs, there is no alcohol, so they are not a problem in terms of this sentencing process.

14You were born an only child.  Your parents' relationship was toxic and marred by verbal altercations and physical aggression, but you did not see any violence actually between them.  You say that your parents would often lie to each other, and each encouraged you to lie to the other to support their own circumstances.

15Your mother would often give you the 'silent treatment' and would use physical punishment if you did not complete menial household chores.  You described your mother as a, 'Quite horrible lady' who was never affectionate nor nurturing and you were unable to confide in her, and it was your father who took you, for example, to purchase your first bra.

16Your mother apparently never cooked and provided only frozen meals or takeaway, and it would appear she had - or exhibited obsessive compulsive behaviours.  I do not need to go into the other detail of it.  It was some pretty bizarre behaviour on her part.

17Your father was apparently an avid AFL supporter, and you were not allowed to play weekend sport as it would conflict with his attending games.  Your only outlet was swimming whilst you were at school, and your father again seems to have been a strange individual.

18He was affectionate towards you only when your mother was not present, otherwise he maintained a distant stance to mirror your mother's attitude.  He would rarely leave you unattended with your mother as apparently he did not trust her behaviour towards you.

19Their joint behaviour was extremely odd.  For example, from what you have said, that they would leave dog leads and cars and clothes as decoys at camping grounds so no one else would come near them.  They would leave you unattended to swim down the Murray River back to the campsite after dropping you several kilometres away, or your father would dig a deep hole in the beach and leave you all day to endeavour to escape from it.  Your belief is that these bizarre practices were so they would not have to entertain you.

20Your mother attempted suicide when you were around about the age of 17 and ultimately, after having spent a period of time staying at friend's places on weekends to avoid your parents, you moved out of home at the age of 19.

21You have now formed a relationship with your current partner, and your parents have become estranged for 18 months, as I understand it, because of that contact and because of that relationship, and you have not had contact with them in over 12 months.

22You were a reasonably good student at school, and you clearly have a good, if it can be described as that, work record.  You have operated a café with your current partner, and in terms of relationships you were in a 10-year relationship with your first partner, Mark, from about the age of 17.  You have three children, and they all reside with you and your current partner.

23You have both been working in childcare and your current partner has four children, who are apparently also grown up, as well as two grandchildren.  So, at one stage at least during the course of your relationship, you and your partner have had all seven children residing with you.  You have had difficulties in terms of relationships.  I do not need to go into that.

24You have had persistent depression since you were a child and I accept that, and that has persisted into adulthood, and in your present circumstances I accept that you are depressed and indeed frightened as to what the consequences of all this will be.

25You have never, it would seem, had any psychological treatment in the past as you did not believe there was a need, and more recently you have endeavoured to gain some sort of assistance in that respect.  You at one stage were diagnosed with borderline personality disorder, but I do not have the material relating to that.

26Clearly, from what you describe as a childhood, there would be residual mental difficulties arising from all that, and I accept that your relationship with your parents has been a toxic one, which has left you pretty unstable.

27I do not think I have to go through the other matters that are contained in the report.  As I have indicated, the diagnoses I am not satisfied with.  They may be true, but they are not going to make much difference in this situation.  I do accept, however, that your psychiatric presentation is somewhat complex, and I would accept that involves emotional, psychological, and physical abuse by your mother and by, in effect, your father as well.

28The risk of you reoffending, I think, has to be regarded as low.  Rehabilitation is, I would have thought, underway, and I take all those matters into account.

29In the end I am satisfied there has to be a period of time to be served in this process.  General deterrence demands it.  I think the amount is too great, and despite your better efforts over more recent years, there must be also a form of denunciation.  People who are minded to defraud the public person in this way must be deterred.

30It is the situation where in your particular circumstances I do not think that needs to be a lengthy gaol sentence, because I believe that a gaol sentence with you will have a more significant effect than it would upon many others, and would act as a very significant specific deterrent if, in fact, that is needed.

31So, in the end, bearing in mind that Charge 2 would have attracted a custodial sentence if it was heard in isolation, I am sentencing you as follows:  on Charge 1, 12 months; on Charge 2, one month.  Those sentences are each to commence today and there is no PSD.

32If you agree you would only be released after a period of four months on an undertaking for two years to be of good behaviour with a reconnaissance of $500.  If you agree to that - do you agree to that?  Does your client agree to that?

33MR SALA:  Yes.  She just said yes just before you - just before it was unmuted, Your Honour, and is Your Honour content hearing it from me?

34HIS HONOUR:  Yes.

35OFFENDER:  Yep.

36MR SALA:  Yes, thank you.

37HIS HONOUR:  Yes, I just heard it then.  That is fine.

38MR SALA:  Thank you, Your Honour.

39HIS HONOUR:  Five hundred dollars pursuant to s6AAA, I say that but for your plea of guilty you would have been sentenced for a period of 18 months with six months of that to serve.  Though I point out clearly that in this complicated set of circumstances, that is verging on a fiction.  As I understand it, because of the COVID provisions, I can take that undertaking orally and note that upon the document when I receive it.

40MR SALA:  I am content with that course, Your Honour, unless my learned friend objects to it.

41MR BOTROS:  Yes, Your Honour, I have no issues with that.  My instructor will draft the order and circulate it for it to be signed here in (indistinct).

42HIS HONOUR:  All right.  I'm pretty sure that I'm - it's an undertaking to the court.  It doesn't have to be in writing.  It always is as proof of it.  But, as I understand the COVID provisions I can now take - accept that undertaking orally, and that's marked upon the document, 'Accepted orally in open court' and we go from there.

43MR BOTROS:  Thank you, Your Honour.  No issues with that at all.

44HIS HONOUR:  All right, thank you for that.  Thank you, gentlemen.

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