Director of Public Prosecutions v Clarke

[2018] VCC 522

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -17-02244

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVIN LESLIE CLARKE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	18 April 2018
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2018] VCC 522

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr S. Linehan	Oakleys Law

HIS HONOUR:

1Davin Leslie Clarke, you have pleaded guilty to 17 charges of obtaining property by deception.  That crimes carries a maximum penalty of ten years' imprisonment.  You are now 50 years of age.  You pleaded guilty at the earliest reasonable opportunity and made significant admissions to police.  You have no prior convictions and it is fair to say on the material before me, have been of exemplary character other than for this offending.  The matters could have been dealt with in the Magistrates' Court, they were not at the insistence of the police apparently and I will not buy into that.

2A summary of the offending is that at the time you were interviewed you were 48, residing in Korumburra.  In 1989 you had commenced working with Woolworths in the bakery department in Wonthaggi.  You had worked as the bakery manager up until 2004 when you were diagnosed with a serious heart condition.  Various health issues arising from that left you unable to work. 
In November 2004 you were the recipient of a heart transplant and continued with medical treatment and have continued with that since.

3In 2004 you lodged a claim for income protection benefits through your employer as you were no longer able to perform your duties.  Your claim was listed as "heart failure, cardiomyopathy".  Woolworths' insurance company is "One Path".  They admitted the claim and commenced payments of monthly income protection benefits to you at your annual rate of pay of $47,500 per annum which, as I understand it, would have been indexed had it continued into the future from now.

4That insurance policy required you to submit quarterly medical forms to prove ongoing disability and - disablement, sorry, and inability to return to work.  It is necessary for one part to be filled in by you and one part to be filled in and signed by the assessing medical practitioner.  Those forms were filed and in reliance on them you received payments from around 2006 to 2015 and in slightly less than half of those claims the signature of the medical practitioner was not genuine.  The investigations into it began in around March 2015 and worked backwards.

5The circumstances of you having to provide those medical certificates were somewhat onerous as contained with the policy that you were operating under.  It is quite clear from the psychiatric material that has been tendered on your behalf, that is Exhibit 1 while I think of it, that you have depression and matters such as that and having practiced in the civil jurisdiction I am aware of the onerous nature of some of these circumstances where claimants are required to attend on a regular basis for medical appointments.

6In any event there are a couple of things to note about this.  One, you did forge those doctor's signatures on 17 occasions and that has to be regarded as serious and has to call for the application of general deterrence.  In your circumstances I do not think specific deterrence are a problem and insofar as denunciation is concerned I suspect - not suspect, believe that any normal member of the public would understand the circumstances in which you found yourself. 

7It is also important and I am operating on what your general practitioner has said in relation to this as well as what your counsel has told me, that there was no suggestion that you were able to work at any stage during this period of time.  There are 17 forged certificates saying you are unable to and as I understand it another 20 genuine ones during that period of time saying you are not able to work.  In those circumstances what you have done is obtained something to which you would have been entitled to in any event by the use of forgery when there was absolutely no rational need to do it other than your own personal circumstances. 

8That is a very unfortunate situation for you to be in.  I accept that it does not involve the dishonesty which is normally associated with this type of offending but the fact of the matter is you did forge the documents and you cannot do it.  The insurance company have estimated that the payments were around about $13,000 per offence.  There is no claim for compensation and I would not have granted one if there had been. 

9In any event the police have interviewed you in 2016 and you explained your circumstances, that you have been a fit and active young man and I will come to that in a moment, that you worked for Woolworths for 15 years, are well regarded at work by both management and staff until you suffered this heart condition.  You had explained to them that you were continuing a course of
anti-rejection medication which had an effect on your immune system which caused further medical complications and that there was a great deal of stress involved in all this.  You showed the police the terms of what you had to do to comply with that insurance policy of loss of wages assistance and I am aware of that from what your counsel has told me.  In any event you told the police that you were unable to make appointments which is why you created those false documents.  I accept this is the case, your health is still in a poor state both physical and mental and you are still genuinely unable to work. 

10As your counsel pointed out to me, you will receive no payments under this insurance policy with these convictions that I must impose.  You will, obviously, be unable to insure yourself elsewhere and in a long term way of looking at it, the loss of income to you because of your conduct will be dramatic.  There is no other word for it.  You are going to have to live with this for the rest of your life and that is very, very unfortunate in my view.  In any event, as I have said, it is serious offending. 

11Your background is an impressive one.  You, up until 2004 when your medical problems arose, you had been a genuine, I accept, employee and a good worker.  You had a good work record to that point in time.  As I have pointed out, no prior convictions.  You have been very much a part of local sport in the Gippsland area.  You have played for many years for Leongatha and played representative football for the Gippsland League and you, in fact, as I glean from my own knowledge, coached Fish Creek to a premiership. 

12You have been involved, as the references tendered on your behalf prove, in social activities, fundraising, sporting, coaching and all the things that a country town needs for it to survive and those matters can now be claimed very much by you on your behalf.  You are described as having devoted yourself to those matters.

13You also have a reference from the parents of the boy whose heart you received back in 2004 and you clearly have a good relationship with them.  As I said to counsel it is pretty hard to imagine a better reference. 

14The psychiatrist who continues to see you says that you are suffering from a chronic major depressive disorder with significant problems with lowered mood, social withdrawal, motivation and concentration.  Your GP confirms that, "…since then he has been unable to work due to chronic fatigue, poor sleep pattern, major depression and anxiety" and I take all those matters into account on your behalf.

15It is a difficult sentencing proposition when you are unable to work and
I discussed it with both counsel.  A community corrections order, which may have been the appropriate disposition would be a complete waste of time because you will be unable to comply with any of the conditions of it.  I have taken the view after again discussion with counsel that the appropriate disposition here is a suspended sentence even though I really do think that is probably above and beyond what the offending calls for.  However, that disposition cannot be imposed on Charges 16 and 17 and in the overall sentencing situation
I propose to give you a suspended sentence, wholly suspended sentence, on Charges 1-15 and with a conviction adjourned disposition on Charges 16 and 17.

16The prospects of your rehabilitation insofar as criminality are concerned are obviously excellent.  In my view the risk of you re-offending is absolutely zero. 

17I do not think I need to go through any more of the other matters.  It is just an extremely unfortunate situation in which you found yourself and no matter what this court did you would be suffering from your actions for basically the rest of your life.

18However, doing the best I can, on Charges 1-15, an aggregate sentence of six months' imprisonment wholly suspended for a period of 12 months because
I believe it is in the interests of justice to do so.  On Charges 16 and 17 you are placed on, if you a degree, a with conviction adjournment for a period of 12 months.  There will be no conditions other than that of good behaviour.

19In that situation I do not do a s.6AAA I am pretty sure.

20MR DEVLIN:  No.

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