Director of Public Prosecutions v Cheasley

[2020] VCC 1585

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02441

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

JADE CHEASLEY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July; 28 August; 28 September 2020
DATE OF SENTENCE:	2 October 2020
CASE MAY BE CITED AS:	DPP v CHEASLEY
MEDIUM NEUTRAL CITATION:	[2020] VCC 1585

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Dishonestly cause a loss to the Commonwealth – Give false and misleading information – No prior criminal history – Serious example of offence – High moral culpability – Compromised immune system – Increased risk of COVID-19 infection – Greater burden of imprisonment – Good prospects for rehabilitation
Legislation Cited: Criminal Code Act 1995 (Cth)
Sentence: Total effective sentence of 1 year and 6 months and 14 days imprisonment to be released on recognisance release order after serving 2 months and 14 days – s.6AAA declaration – 18 months imprisonment to be released on recognisance release order after serving 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms A. Dearman	Commonwealth Director of Public Prosecutions
For the Accused	Mr M. White (For Sentence) Mr C. Terry (For Plea)

HIS HONOUR:

1Jade Florence Cheasley, you have pleaded guilty to one charge of dishonestly causing a loss to a Commonwealth entity contrary to sub-s.135.1(5) of the Criminal Code Act 1995 (Cth).  The maximum penalty for that offence is five years' imprisonment or a fine of 300 penalty units, or both.

2You have also pleaded guilty to two related summary charges of giving false or misleading information to a Commonwealth entity, contrary to sub-s.137.1 of the Criminal Code Act 1995 (Cth).  The maximum penalty for that offence is 12 months' imprisonment, or a fine of 60 penalty units, or both.

3You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  I accept that it is evidence of remorse for your offending and it has spared the community and witnesses the burden of criminal proceedings.

4You have no prior convictions and there are no outstanding or subsequent charges in your case.

5An agreed prosecution opening was tendered in evidence and your offending may be summarised as follows - 

6Between 12 March 2013 and 11 May 2018, you were in receipt of the Commonwealth Parenting Payment, Single.  At the time, you were in fact married and had been since 26 February 2009, and you falsely represented to the Commonwealth that you had been separated from your husband, David Cheasley, since 1 February 2013.

7Investigations undertaken by the Commonwealth revealed that you and your husband at all material times, resided together with your three children at premises owned by you in Craigieburn. 

8On 21 November 2016, you and your husband purchased an investment property in Wandong.  You also travelled interstate and overseas on family holidays and held a number of separate insurance policies.  Your husband was then operating a roof plumbing business, and for the 2016 financial year, reported $947,248 in sales to the Australian Taxation Office by way of BAS reporting.

9None of this was reported to the Commonwealth, and for the period of the charge, you received a total of $102,086.55 that you were not entitled to.

10Furthermore, on 9 May 2013 and 8 July 2013, you falsely represented to the Commonwealth in rent certificates that you resided with your mother in
Meadow Heights and were paying her rent.

11Your offending was reported to the Commonwealth and on 17 May 2018, you were offered the opportunity by investigators to participate in a formal record of interview, which you declined.  It is plain from this summary, that your offending may properly be described as systematic dishonesty, which was motivated solely to supplement the family income which in turn was used to fund your entitled lifestyle. 

12There is no evidence of poverty or hardship in this case and in my opinion, your moral culpability for your offending is high.  This is not a low level example of the main offence that you have pleaded guilty to.  In my opinion, it is a serious example of it.

13The principles applicable to sentencing in this case are well-established.  The sentence must be calculated to deter others from offending in this manner and keep the community and the Commonwealth benefits system protected from offending of this type.  You must also be punished for your systematic and dishonest defrauding of the Commonwealth benefits scheme.

14I now turn to your personal circumstances. 

15You were born in Melbourne on
8 November 1988 and are now aged 31.  You are married and have three children aged 12, 6, and 3 years.  Your husband has two other children from a previous relationship, who no longer reside with you.

16Your childhood and developmental years were disrupted by your alcoholic father's abusive behaviour directed to your mother, yourself, and your four siblings.  This in turn, disrupted your education and you left school in Year 10.  You have a limited work history and have been principally engaged in the care of your husband, children, and your step-children. 

17In 2013, you were diagnosed with myeloid leukaemia shortly prior to the birth of your second child.  Your illness responded well to treatment and it is now in remission.  I accept, however, that your medication Sprycel has a number of side effects that impair your quality of life.  This is, however, to a limited degree, although I do accept that your immune system is compromised.  This is a matter of some significance in the circumstances of this case, and I will return to it.

18I have also received in evidence, a psychological report of Ms Carla Lechner, a forensic psychologist detailing your background and psychological profile. 
I accept that you have a longstanding history of depression and anxiety, which is closely related to continuing disturbance in your marriage.  You have undertaken psychological treatment in the past, and you are currently also proscribed Zoloft and have reported mental health issues to your general practitioner.

19Ms Lechner concludes that you suffer from Major Depressive Disorder, and I accept that this condition would compound the hardship of imprisonment in your case.  I also accept that in all probability, your mental health would deteriorate if you are imprisoned.

20On 28 July 2020, when this matter first came on for hearing before me, Victoria was in the midst of the second wave of the COVID-19 pandemic although Stage 4 restrictions had not yet been introduced.  On that occasion, I raised with the parties my concern in relation to imprisoning you, due to your pre-existing medical condition. 

21The matter was then adjourned to 28 August 2020 to enable further medical and financial evidence to be obtained and written submissions filed.

22It was also intended to allow the course of the pandemic to be considered insofar as it was relevant to your case.  When the matter resumed on that day, a number of exhibits and further submissions were filed, and the matter was further adjourned as the Stage 4 restrictions had been introduced, and the situation in Victoria had deteriorated.  I was then concerned to ensure that imprisonment did not expose you to a significantly increased risk of infection from COVID-19 and that arrangements could also be made for care of your children who were not at school.

23Your case posed a significant and unique sentencing issues for me.  I indicated, however, that on the material then available to me, a term of imprisonment would nevertheless probably be imposed in your case.  The matter was adjourned again due to the pandemic.

24The further medical evidence, which was tendered on your behalf, confirms that your immune system was compromised by reason of the chronic myeloid leukaemia that you suffer from.  For this reason, you are at an increased risk of infection from COVID-19.

25This increased risk is assessed by Dr Rachel Cooke, a consultant haematologist at the Northern Hospital at between 9 per cent to 14 per cent, when compared to the rest of the general population.  Dr Cooke notes that you are compliant with your medication and you have well-controlled disease.

26In response to this evidence, the prosecution tendered an extensive affidavit of Jennifer Hosking, the Assistant Commissioner of the Sentence Management unit at Corrections Victoria.  The affidavit sets out the protective measures taken by Corrections Victoria, to address the risk of transmission of COVID-19 into the prison system and the steps taken to prevent its transmission within the prison system.

27I accept that these measures are extensive, and they will also involve significant further restrictions on you including the fact that you will not be able to have personal visits from your children.  This in turn will no doubt further compound your psychological vulnerability. 

28Whilst it is not possible to be certain that the risk of you contracting COVID-19 has been eliminated by the strict measures adopted by Corrections Victoria, I am satisfied that the risk is a manageable one in your case.

29In that regard, it is also relevant that during the period of the adjournments of your case, the spread of COVID-19 in Victoria has been brought under control by the Stage 4 restrictions and an easing of restrictions has been foreshadowed by the state government.  Nevertheless, it is still not possible to predict how the situation will unfold.

30I accept that the burden of imprisonment upon you, will be much greater due to your chronic myeloid leukaemia, and I have significantly moderated the sentence that I would otherwise have imposed in this case for that reason.  I also accept that you will be separated from your three young children, and your husband will be responsible for their care, which in turn, may impact on his capacity to carry out his employment.

31Yours has been a complex and difficult case for the Court to resolve, and it is a good example of the impact of COVID-19 on the work of the Court, and how this has informed the formulation of the appropriate sentence to be imposed in this case.

32The reparation order will be made in favour of the Commonwealth and I accept that in due course, arrangements will be made to the repayment of the monies dishonestly obtained by you. 

33Finally, I accept that your prospects of rehabilitation are good, and it is unlikely that you will reoffend in the future.

34In the result, the sentence of the court is as follows -

35On related summary offence two, you are convicted and sentenced to be imprisoned for 14 days.  I direct that this sentence commence today, 2 October 2020.

36On related summary offence three, you are convicted and sentenced to be imprisoned for 14 days.  I direct that this sentence commence today, that is,
2 October 2020.

37On the charge of dishonestly causing a loss to the Commonwealth, you are convicted and sentenced to be imprisoned for 18 months.  I direct that this sentence commence on 16 October 2020.

38I further direct that you be released on a recognizance release order after having served two and half months of the sentence. 

39The recognizance release order will be in the sum of $500.  Do you agree to entering a recognizance release order on that condition, Ms Cheasley?

40ACCUSED:  Yes, Your Honour.

41HIS HONOUR:  Thank you. 

42I will make the ancillary orders sought by the prosecution, in particular, the reparation order. 

43I declare that you have served four days by way of pre-sentence detention, not including today. 

44But for your plea of guilty, I would have imposed a total effective term of imprisonment of
18 months and directed that you be released on a recognizance release order after having served six months' imprisonment.

45MS DEARMAN:  I have just received some instructions that if the accused does need to sign the order and have it witnessed, and so the effect of the order can be explained.

46Ms Cheasley at the conclusion of two and a half months, less four days, you will be released from prison, and you will then be placed on a recognizance release order.  My reasons for arriving at the conclusion in formulating the sentence in the way that I have; I have just explained to you.

47During the period of the recognizance that you have entered into, you must be of good behaviour; that is, you must not commit another offence.  In the event that you do, you can be brought back to the Court and dealt with for breaching the recognizance release order, and you may be re-sentenced.  Do you understand that?

48ACCUSED:  Yes, Your Honour.

49HIS HONOUR:  All right, thank you.  All right, so if there is anything further that needs to be raised, Ms Dearman, raise it with Mr Morrison and the order or recognizance release order, if it has to be done in writing, that can be done and conveyed to Ms Cheasley at Dame Phyllis Frost and she can enter it the appropriate manner there.  All right, thank you.  That completes the proceeding.  I will make the reparation order.  Thank you all for your assistance.  The Court will now adjourn.