Director of Public Prosecutions v Dalton
[2020] VCC 1504
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00438
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ALLISON DALTON |
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| JUDGE: | HER HONOUR JUDGE RIDDELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 August 2020 |
| DATE OF SENTENCE: | 28 August 2020 |
| CASE MAY BE CITED AS: | DPP v Dalton |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1504 |
REASONS FOR SENTENCE
---Subject: Dishonestly Obtaining Financial Advantage by Deception
Catchwords: Commonwealth Offence -- Social Security Fraud -- Partial Entitlement -- Family Hardship -- Mental Health -- Plea of Guilty -- Remorse -- Imprisonment
Legislation Cited: Criminal Code (Cth) -- Crimes Act 1914 (Cth)
Cases Cited: R v Verdins (2007) 16 VR 269; DPP v Borg [2020] VSCA 191 -- R v Brown [2020] VSCA 212n -- R v Pham [2014] QCA 287 -- McGuinness v R [2008] NSWCCA 80
Sentence: 20 months Imprisonment -- Recognisance Release Order of 24 months duration in the sum of $5,000 -- Reparation Order
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M. Challen | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis | James Dowsley & Associates |
HER HONOUR:
1Allison Dalton, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception, contrary to s.134.2(1) of the Commonwealth Criminal Code. The facts are summarised in the prosecution opening tendered on the plea. In short, they are as follows.
2Between 3 September 2012 and 28 March 2018, you received payments from the Department of Human Services via Centrelink to which you were only partially entitled. Within that period from 2 June 2016 to 24 April 2017, you were not eligible for any entitlements due to your income. The total amount of moneys you received as a result of the deception is $92,839.61.
3The offending came about in the following way. In May 2010, you gave birth to a daughter. In March 2012, you and her father separated but remained living under the one roof. You were working part time as a disability support worker with Department of Health and Human Services. In March 2012, you made application for a Parenting Payment Single, known as PPS, in relation to your daughter. You received a letter forewarning you about under declaring your income. You were sent an earnings worksheet to assist you keep track of daily hours and income.
4From April until September 2012, you made truthful declarations about your income. On five occasions between September and October 2012, you declared you had nil income. Therefore, at that time, you started to receive an amount above that to which you were entitled. That is reflected in the start date of the offending.
5In October 2012, as a result of those consecutive declarations, Centrelink removed your obligation to continue declaring your income. However, you were still under a lawful obligation to notify them of any change in circumstances, including a change in income.
6From October 2012 to 23 May 2016, you did nothing to correct that misinformation. During that period, you therefore received an amount over and above that to which you were properly entitled.
7From 24 May 2016, your reporting obligations were reinstated on a monthly basis. They then increased in June 2016 from which time you were required to report your income each fortnight in order to stimulate your PPS payment.
8Between 20 June 2016 and 26 March 2018, each fortnight, you reported nil income to the Department. Each of those reports was false because you had received income from employment in each of those fortnights.
9In addition, on 2 June 2016, you applied for a Pensioner Education Supplement, known as PES because you were at that time studying a Diploma of Youth Work with Open Colleges online. Payment of Pensioner Educations Supplement, as the name suggests, depends on a person being eligible to receive a pension. In that period, you were not eligible for PPS and it follows nor were you eligible for PES.
10Nonetheless, given your false declarations of nil income, you continued to receive PPS and during that period, you received PES in the total sum of $1,457.49.
11The offending was initially detected by way of data match with the Australian Tax Office on 1 July 2016. A debt was raised of which you were aware. The Department sent a letter to you on 17 August 2016 advising that the data match had occurred. Somewhat confusingly, the letter stated that no further action was needed by you. The letter did however refer to Social Security Law and remind you that you must advise the Department of any changes in your circumstances within 14 days of the change. No further action was taken by the Department at that time.
12Notwithstanding the letter dated 17 August 2016, you continued to report nil income between 29 August 2016 and 22 May 2017. A further data match was conducted with the ATO on 29 May 2017 and identified your under declaration.
13However, and despite the early identification of a problem, the Department did not make contact with you until 22 January 2018. The prosecution concede there is no explanation for the delay of eight months before such action was taken.
14It seems upon the receipt of the January 2018 letter, which outlined various amounts of moneys owed by you, your offending soon ceased. In summary, you made 52 false declarations to Centrelink. The charge on the indictment is a rolled up charge, representing each of those false claims as well as your period of inaction from October 2012 to May 2016, and encompassing both the PPS and PES payments.
15In summary, had you notified Centrelink of your income from employment, you would not have been entitled to the payments of PES and only entitled to $16,617.30 in payments of PPS.
16Between 3 September 2012 and 28 March 2018, you in fact received $109,456.91 total. That is $107,999.42 in PPS payments and $1,457.49 in PES payments. You therefore obtained payments of PPS and PES totalling $92,839.61 which you were not entitled to receive, that being made up of PPS payments of $91,382.12 between 3 September 2012 and 28 March 2018 and PES payments totalling $1,457.61 between 2 June 2016 and 24 April 2017.
Sentencing Principles
17This is serious offending reflected in the statutory maximum of 10 years' imprisonment. General deterrence is the prevalent consideration in the sentencing for offences of social security fraud. That is so for a number of reasons. First, these are prevalent offences. Many thousands of people in Australia receive government benefits of one form or another. Many of those people are struggling which is often the basis for their eligibility at first instance. The temptation to defraud that revenue is real for many people.
18Secondly, such offences of fraud are difficult to detect, often relying on random computer matching between Centrelink and the ATO. That process and the process of then following up anomalies can be time consuming and laborious.
19Third, these are not victimless crimes. They are crimes which draw on the resources created by payments made by all Australian tax payers. The burden of that fraud falls on the broader community.
20For those reasons, I must impose a sentence which deters others from defrauding Centrelink and which denounces your behaviour on behalf of the community. It is important as the case law bears out that perpetrators of such offences should be aware that if discovered, they will most likely receive custodial sentences. Those custodial sentences must usually be served immediately. That is so even though in these types of cases, courts are frequently dealing with people without prior criminal offending and often of good character.
21In assessing the objective seriousness of your case, I regard it as being at the moderate range for the following reasons. It spanned a period of over five years which is considerable. It commenced despite being forewarned of the risk of under declaring your income. It continued despite twice being notified by the Department of issues with regard to your declaration of income. On your own admission, it continued despite advice from your tax agent.
22For the period from June 2016 to March 2018, it involved fortnightly declarations of nil income. In contrast, for the bulk of the period being October 2012 to May 2016, it involved inactivity and acquiescence.
23The amount itself is not the determinative factor in considering sentence. Here the amount of money involved, namely $92,839.61, is reasonably considerable, but there will always be greater and lesser amounts in other cases. It represents approximately $16,000 per year over and above the amount you were entitled to receive.
24Your offending did not involve false identities or documentation. Your tax was completed in your own name, and your bank account which received your Centrelink benefit and your salary was one and the same. In the main, you were in fact entitled to receive the benefit you were claiming, just not in the amount you claimed.
25In assessing your moral culpability, I take into account your personal circumstances as they relate to your offending. Before I come to those, I will outline your personal history.
Personal History
26That personal history is outlined in the February 2020 psychological report of Ms Carla Lechner and in letters authored by your mother and sister. You are aged 42 years, the eldest of three children born to Monica, now aged 63, and your father Peter. Your father died suddenly in 2018.
27You reported a good relationship with your mother and younger siblings. You have an older half-brother on your father's side but you have no contact.
28You grew up in the eastern suburbs of Melbourne, attending Pembroke Secondary College until the completion of Year 12. You suffered memory recall problems that undermined your learning ability. You stated to Ms Lechner, 'I'm good art and I pushed through and just completed Year 12.'
29You could not recall social problems but it is clear your schooling years were not easy. You say you were obese, eventually having a gastric sleeve inserted which saw you go from 170 kilograms to 100 kilograms. You also had some continence issues at school and your self-esteem was low. You were bullied by your peers and by others from the nearby local school. You told Ms Lechner that you cannot catch public transport as a result of those traumatic memories.
30Your father drank heavily and ‘pushed your mother around’. You have stated 'Dad was tough, we were scared of him.' There was tension in your relationship with your mother as a teenager but that has now resolved and she is supportive of you, attending your court hearing.
31After leaving school, you report that you worked at Kmart from 1995 until 2006. To your credit, you decided to take yourself back to study, completing further training and you moved into a position as a disability support worker, where you worked for over 10 years. You were employed by the Department of Health and Human Services.
32You suffered some workplace bullying requiring psychological support. More recently, you were accused of assaulting a client, a claim you vehemently deny. That allegation, which was eventually withdrawn, resulted in you quitting your job in 2018.
33In the interim, your sense of self-worth deteriorated significantly and you required regular and ongoing psychological support.
34You first serious relationship was with a man who was psychologically abusive towards you, constantly putting you down. He cheated on you with other men. You were fearful of breaking up with him and endured the relationship for some 10 years before finally leaving. After that relationship ended, you recall 'I went on a destructive path. I was promiscuous. Craig was one of the random men I slept with.' Craig became your partner from that time. You fell pregnant unexpectedly and your pregnancy was difficult, culminating in an emergency caesarean section at 32 weeks' gestation. Your older daughter was born in 2010.
35Your relationship with Craig has been difficult and marred by his abuse of you. You and he separated but remained living under the one roof. That status was confirmed by Centrelink, when assessing your eligibility for single parent payments.
36You and he were drinking a lot during the early part of your relationship. Craig is a person with mental health issues. You described the relationship as a rollercoaster and specifically that he has threatened to kill himself if you leave. That is a threat you have taken seriously on account of your children.
37In addition to your 10 year old daughter, you and Craig also have a three year old daughter together. However, that pregnancy did not signal the resumption of the relationship.
38You sleep in a room with your daughters while he is in another room in the house. Your efforts to encourage him to move out and to find him alternative accommodation over the years have failed. You are fearful he will kill himself and your daughters will somehow blame you.
39You say when Craig is intoxicated, he is 'psychotic.' Your mother confirms that he suffers from depression and anxiety and is medicated. He has a mental health diagnosis and is on a disability support pension in view of his mental health issues.
40His violence and unpredictability led you to apply for intervention orders (“IVOs”) in relation to yourself and your older daughter in both 2011 to 2013. Copies of those orders were tendered on the plea as well as an application made by your mother in 2012, for her own order against Craig. Those documents speak of his violence towards you and his threatening behaviours.
41Your mother's application refers to police applying for an order to protect you. Your mother told Ms Lechner that Craig manipulated you and treated your badly. She says 'She's too frightened to leave.' She also said 'I'm frightened of him, it's like Jekyll and Hyde. If we stand up to him, he takes it out on Allison.'
42Your mother's application against Craig was also granted by the Magistrates' Court. The intervention order protecting you and your older daughter ran through until 2014.
43During the period of your offending, you report that Craig controlled your money. In fact, his pension and yours were paid into the one account. That fact has been confirmed by the prosecution. He had access to your money and would use it for gambling and drinking. Very fairly, Mr Challen on behalf of the prosecution confirmed that your bank statements demonstrate you were living from week to week during the period of the offending. That is consistent with your report to Ms Carla Lechner that 'I never look at my bank balance. I'd tap until there was none left and I keep cash in my wallet, that's what I spend.' There is no suggestion of a lavish lifestyle or any real enrichment.
44You say that Craig was the one responsible for initially and from time to time filling out Centrelink forms relevant to your offending. You do not rely on that as any defence to this charge. You do not claim you were not aware of your obligations. You are in fact forthright in admitting that your tax agent told you in 2014 that there was a problem with the benefits. However, it is apparent that Craig was controlling and the relationship was too conflictual for you to confront him about your over payments and the likely debt, and so you buried your head and ignored it.
45You told Ms Lechner, and I accept, the confrontation with your partner engendered fear and anxiety and you felt unable to tackle the issue with Centrelink yourself.
46Your reports of Craig's abuse towards you are not simply your self-report. They are corroborated by the report of your mother as well as a close friend and colleague, who has been close to you for 10 years. They are also confirmed inferentially in the report of your general practitioner and of course in the documented intervention orders.
47A letter from your general practitioner and the IVOs reflect records which are contemporaneous to the offending.
48You have had your own mental health struggles. As well as your formative years, which I have described, it is apparent that your abusive relationships have scarred you mentally and have left you somewhat dependent. I received a letter from your general practitioner, stating you suffer from significant anxiety and depression and have been seeing him for mental health treatment since 2014.
49Ms Lechner confirms that you currently evidence symptoms of major depressive disorder and a high level of anxiety. Ms Lechner also opines that you present with symptoms of borderline personality disorder. She says you are easily overwhelmed by social and emotional factors that undermine your judgment and decision making. You presented to her as highly emotional and you report a high level of psychological distress, coupled with learned helplessness and a fear of abandonment of being alone. It is the latter fact that is impeding your belief that change is possible. You engage, according to her, in denial and disassociation as a form of coping. This possibly having its origins in childhood trauma.
50You have been regularly been seeing psychologist Vicki Zombolas over a course of three years, commencing in March 2016, which was within the charged period. You have found the process of being charged and attending court as most salutary. In Ms Lechner's opinion, you need a range of intensive supports to help you develop more adaptive coping skills, including the life skills of financial management.
R v Verdins
51It was submitted, though not pressed, that the borderline personality traits described by Ms Lechner enliven limb 1 of Verdins[1]. I note the Court of Appeal decision in Brown v The Queen[2] handed down this week confirmed the general applicability of Verdins considerations to personality disorders. However, the Court of Appeal made clear that applicability in a particular case would depend on the severity of symptoms exhibited and clear, cogent expert evidence causally linking the disorder to the offending.
[1] R v Verdins (2007) 16 VR 269
[2] Brown v The Queen [2020] VSCA 212
52I do not accept that limb 1 of Verdins applies in your case. However, I take into account your personality structure as described by Ms Lechner and your history of anxiety and depression in a general sense in helping to explain your offending without reaching that high hurdle.
Care of Children and Family Hardship
53You have the ongoing care of your two girls who are now aged 10 and three. You are their primary carer. You are still breastfeeding your three year old at night and you co-sleep with her. Your 10 year old is a child suffering anxiety and according to the letter from your mother, has engaged in some self-harming. You have been very involved with her teachers in helping her deal with her issues. It is apparent some of those at least relate to her father's behaviours.
54I was provided with a psychological report from Yarra Valley Psychology where she has been seen regularly since March 2019, having been referred by a general practitioner. That report states 'Part of our work also involves her mother, so that the child can receive guidance at home to implement strategies that can help her to better regulate her emotions.' It is clear you play a primary role with your daughter and in her treatment.
55Although you live with Craig, he plays very little parental role for your daughters. He does not drive and does not assist in any of their extracurricular activities, appointments or schooling. You report that although he is medicated and his behaviour is much improved, he stills goes out drinking and pre-COVID would often stay out into the early hours of the morning.
56Your primary concern in the face of imprisonment is that you will be separated from your young daughters. Although you have ongoing support of your mother, she is someone who works part time and assists her adult son who has his own issues; she assists in care for his son over weekends. Your sister has a new baby and another child to care for. You and your mother hold real fears in relation to Craig being left with your girls, both in terms of his capacity to cope but also in relation to his mental health history and his capacity for and demonstrated history of domestic violence.
57Although the last intervention order lapsed in 2014, his proven abusive violent behaviour extended over a number of years. Despite the IVO lapsing, your current anxieties are no doubt based on your lived history.
58Further, your mother describes Craig's current state, that includes daily drinking and regular passing out. She confirms he is medicated but expresses a fear for his behaviour should he be non-compliant.
59It was submitted that these matters in relation to your daughters and their father raise exceptional hardship in your case. True it is for any mother, separation from children by way of imprisonment is a particular hardship, but there are factors here which lead me to agree with the submission made.
60In summary, they are the young age of your children; the fact that your older daughter suffers a mental health condition and is under treatment; it is the type of condition which will be aggravated if separated from you; you play an important role in supporting that treatment and implementing it at home; you are the primary carer for both girls and still breastfeed your younger daughter. If incarcerated, they would be left with their father who has mental health issues and a past history of violence, including towards you and at least your older daughter. Although more stable, he continues frequent drinking which in the past has precipitated violence.
61In many ways, your factual scenario is on all fours with those reasonably considered by the Court of Appeal in DPP v Borg[3]. In Borg, the offence committed was of a very different nature. Ms Borg pleaded guilty to four charges relating to misuse of public office as a clerk of the Magistrates' Court. Each of those charges had a maximum penalty of 10 years' imprisonment, the same as here. The appellant was a 40 year old woman with no prior criminal history. She had the care of her five year old and five month old children. She had endured a relationship which involved family violence which was ongoing at the time of the plea. She was diagnosed with Post-Traumatic Stress Disorder and was concerned at the prospect that her five year old would be left in the care of her husband, necessitating a notification to DHHS. Those facts were held by the Court of Appeal to compel a finding of exceptional hardship.
[3] DPP v Borg [2020] VSCA 191
62Even if I am wrong in accepting that your case enlivens that finding, in my view, they would not fall far short of being exceptional and to that end, warrant serious consideration in the sentencing synthesis.
Verdins – Limbs 5 and 6
63It was submitted that you would find any term of imprisonment particularly onerous. That submission was made on a number of bases. First, you will no doubt be extremely anxious about separation from your children in the circumstances I have described.
64Second, you are a person with a mental health history. That impairment raises considerations under Limbs 5 and 6 of Verdins. That submission was not disputed by the prosecution. I accept that submission on the basis of the evidence of the expert, Ms Lechner. In addition to what I have outlined already, she notes your report of panic attacks and fear of small spaces, in particular she says given your borderline personality traits, major depressive disorder and high level anxiety and what she summarises as your parlous mental health means you are likely to find immediate incarceration very difficult to cope with and it will likely result in a decline in your mood state. She says you lack the emotional robustness to cope with the rigours of a prison environment.
Covid-19
65Third, the custodial setting has become a more onerous place due to the COVID-19 pandemic. I have received an affidavit sworn by Ms Jennifer Hosking outlining restrictions within the prison system and outlining steps taken by Corrections Victoria to ensure prisoners are both kept safe and also have the access to various facilities. I accept that Corrections Victoria have taken a range of steps to address those issues and further that the women's prisons are less affected than their male counterparts. That does not alter the following reality which is that new prisoners are required to be isolated in their cells for a period of 14 days. Visitors are not permitted. Access to remote contact with family and friends via iPads and the like is somewhat limited due to demand.
66Education and rehabilitation programs are suspended and work is limited. Mental health supports are occurring but over telehealth.
67As with the broader community, prisons are places of heightened anxiety in the COVID-19 setting. Prisoners however are unable to make autonomous choices about social contact and distancing. How long restrictions in the broader community, let alone in the prison system, remains unknown. I take those matters into account.
68Fourth, in your case, you are what the law describes as an eggshell skull. That is your mental health history, as I have described including your
pre-existing major depressive disorder for which you are medicated is likely to be exacerbated by the impact of COVID within the prison setting. I also take that into account.
Plea of Guilty
69I also take into account your plea of guilty. It is a plea of guilty entered at the earliest opportunity. You were charged in October 2019 and entered your plea at a mention hearing in March 2020. Your plea has facilitated the administration of justice. It has had a utilitarian benefit in that it has saved the time and expense of a trial. You could have delayed this matter beyond March which would have inevitably led to delays well into 2021.
70Your plea therefore is of particular benefit during the current pandemic where delays in trials are considerable. That matter was noted by Her Honour Justice Dixon in the matter of DPP v Bourke[4].
[4] DPP v Bourke [2020] VSC 130
71In your case, I accept your plea of guilty as a reflection of your remorse and contrition for your offending. You have expressed that remorse to those close to you and also to Ms Lechner. In addition to those expressions, you have made tangible efforts to demonstrate your remorse by way of repaying the debt you know owe. You have been making repayments towards the debt with fortnightly deductions of your current benefits. The prosecutor fairly outlined the fact that you have elected to make repayments over and above standard minimum amounts. You have already repaid over $7,500.
72Initially, Ms Karapanagiotidis submitted delay was a relevant consideration here, though that was ultimately not pressed in its original form. Mr Challen was also able to clarify some matters about the chronology. I make the following comments while acknowledging the hundreds of thousands of individuals on benefits and the difficulties that creates, in particular cross-matching employment records creates delays. However, a debt was raised and letter first sent to you in August 2016 when the anomaly in your entitlements was discovered.
73The wording of the letter is unfortunate in that it does not in any way refer to the debt or overpayment, rather it says clearly no further action was required by you. It is unfortunate that no further action was taken by the Department at that stage to mitigate the loss and therefore stop the offending from continuing. Similarly, it is unfortunate that eight months elapsed between the data matching made in 2017 before you were contacted and debts levelled against you. That cuts both ways of course in that you were on notice on several occasions and yet the offending continued.
74Even after the letter in January 2018 however, you were not asked for an interview until May 2019, some 16 months later. I understand that was because the Department were chasing employment records. Of course delay and its considerations do not depend on blame. What is critical is that it is not caused by the offender. That is the case here. In other words, the delay in bringing this matter to a prosecution was not your doing. I take the delay into account but only in a limited way up to March 2018, given the offending was ongoing to that time.
75Delay is relevant in terms of whether an offender has effected any rehabilitation in the meantime, how that bears on both the need for specific deterrence and on the prospects of rehabilitation, which I will now turn to.
Prospects of Rehabilitation
76You are a person without any prior criminal history. You have not reoffended in any way. I have read a number of references from people close to you. They all describe this offending as out of character. Your colleague who worked alongside you as a disability support worker with the Department of Health and Human Services for 10 years says you have shown yourself to be a dedicated, caring, respectful and responsible person. You were trusted with additional responsibility in that role many times, performing the task of house supervisor and being responsible for clients with disabilities and for other staff. Employment in the area of disability is not easy. It demands a high level of care, honesty and integrity.
77In my view, your prospects of rehabilitation are very positive. That is I suspect it is highly unlikely you will ever offend again. I make that finding whilst still recognising there is a need for specific deterrence in circumstances of sustained and repetitive offending such as here. However, in support of my conclusion that your prospects of rehabilitation are very positive, in addition to your previous good character, I also take into account the fact that in 2016, you were referred by your GP to Fern Hills Clinic to deal with workplace issues of anxiety and depression. You have attended upon Vicki Zombolas for counselling at various times over the years and I received evidence of invoices dealing regular attendance in 2016 through to 2018.
78Most relevant to my considerations, you re-referred yourself in 2019 and have been seeing her again until recently. Therefore, you are effecting your own rehabilitation.
79I also note you are currently medicated with antidepressants which should have a positive effect on your mood and your ability to cope with life's vicissitudes.
80You have put a considerable road block in your future path. This offending will mean your capacity to find employment will be more limited. Through Centrelink, you have recently commenced the ParentsNext Program, which is designed to help you transition back into the workforce and to reassess your employment options.
81You have continuing family support and the motivation of your children.
Current Sentencing Practices and Case Law
82It was accepted by your counsel that general deterrence is a primary sentencing consideration in cases of social security fraud and that specific deterrence and adequate punishment are also of importance.
83I have considered the cases helpfully provided by both your counsel and the prosecution[5]. As usual, there are differences and similarities however I have found the decisions of R v Pham[6] and McGuinness v R[7] instructive.
[5] Ord v R (2008) 186 A Crim R 475; R v Lovel [2007] QCA 281; Thomas v R [2006] NSWCCA 313;
DPP (Cth) v Parfrey [2010] VSCA 212
[6] R v Pham [2014] QCA 287
[7] McGuinness v R [2008] NSWCCA 80
84The Court of Appeal in the Queensland case of Pham allowed Ms Pham's appeal against a sentence of three years' imprisonment and nine months to serve, reducing the period to be served to six months. Ms Pham was a 35 year old woman who pleaded guilty to two charges of obtaining financial advantage by deception against a Commonwealth entity, similar to yours. The two charges however reflected two different methods used by her. The period of offending was four years and 10 months and the total amount just shy of $126,500.
85Ms Pham had used false identities including different names and dates of birth. She had carried that charade on pretending to be two different people even when being interviewed about her offending. She was a person with a prior conviction for dishonesty; that is in 2000, she had been dealt with for attempted criminal deception, obtaining property by deception, stealing and unlawfully damaging property. She was sentenced to imprisonment for a little over five months and a community service order was imposed.
86The critical factor in allowing her appeal against sentence was that at the material time, she was subjected to threats and intimidation from a violent former partner to supply him large sums of money to support his drug habit. The report of that violence was supported in a letter from a co-worker and Ms Pham's son. Combined with the threats and intimidation, the court noted her personal history which bore some hardship, though not unique, ‘is nonetheless also demanding of considerable sympathy’.
87In relation to the threats and intimidation, there was no suggestion of a defence. However, their Honours found that that does not mean that the facts relating to the duress to which she was subjected are not capable of being a mitigating factor on penalty. They went on to say the fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequences that if the cause of the fear is removed, the offender would be unlikely to offend again.
88I accept that yours is not a case where direct threats were made to intimidate you into making the false claims of benefits. However, the atmosphere of abuse and control in which you lived necessitating court-ordered protection for several years of your offending and your desire to avoid any conflict had its part to play. In my view, that does reduce, though not eliminate, your moral culpability.
89In the case of McGuinness, the court said,
'A sentencing judge does has a wide discretion as to the appropriate period of imprisonment, if any, which must be served before an offender is released on recognizance.
'While it is rare for a person dealt with for social security fraud to avoid prison, a discretion is available to the judge where the criminality is of a lesser order such as in that case where the fraud was not perpetrated by the use of false identities or other sophisticated schemes.'
90That described your case also.
91In light of the factors operating on you during the period of the offending and the manner of the fraud, being for the bulk of the time a lack of action, I have formed the view that your moral culpability is at a lower end for offending such as this.
92I have also formed a view, as I have described, that your current situation in relation to your young daughters is exceptional. If I am wrong in that finding, I find nonetheless that it warrants a degree of mercy.
93Your counsel submitted a community correction order would adequately address the sentencing considerations here, though that was not pressed. I disagree. Terms of imprisonment must flow from this type of offending.
94The prosecutor, Mr Challen, submitted that a term of imprisonment was warranted with a short period of actual imprisonment to be served.
95In all the circumstances I have described, I agree that a term of imprisonment is the only appropriate sentence here. That is a significant sentence on a first time offender. Having given anxious consideration to whether you must serve a portion of that term, I have concluded in the exercise of my discretion that a recognizance release order which sees you released forthwith is the appropriate order.
96Ms Dalton, on Charge 1 of dishonestly obtaining a financial advantage by deception, you are convicted and sentenced to 20 months' imprisonment. That sentence is to commence today, 28 August 2020.
97I order that pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth) that you be released forthwith on a recognizance to be of good behaviour for a period of two years.
98Pursuant to s.21B of the Crimes Act 1914 (Cth) I make a reparation order against you in the sum of $85,268.68.
99In relation to s.6AAA, that is but for your plea of guilty, the sentence I would have imposed on you would have been a sentence of three years' imprisonment for you to be released on a recognizance release order after serving 18 months' imprisonment.
100Are there any issues to raise, Counsel?
101MR CHALLEN: May it please Your Honour, in relation to the recognizance, it is required that you set an amount. I did not hear amounts.
102HER HONOUR: Sorry, the sound cut out. I did wonder about that but I did not realise that was a requirement as opposed to discretionary. So I am required to set a security amount, Mr Challen, ‑ ‑ ‑
103MR CHALLEN: That is correct.
104HER HONOUR: ‑ ‑ ‑ which is payable if the order is breached?
105MR CHALLEN: That is correct, Your Honour, yes.
106HER HONOUR: Yes. In my view, the appropriate amount of the security on the recognizance release order is $5,000.
107MR CHALLEN: As Your Honour pleases.
108MS KARAPANAGIOTIDIS: As Your Honour pleases.
109HER HONOUR: Thank you. Now, I understand Ms Dalton must sign that order; is that correct, Mr Challen?
110MR CHALLEN: That is correct. Your Honour, in the normal course of events, Your Honour would sign the order.
111HER HONOUR: Yes.
112MR CHALLEN: Your Honour would then hand it down to your associate and your associate would take it to the dock.
113HER HONOUR: Yes.
114MR CHALLEN: And Ms Dalton would sign it and your associate would witness that signature but we are in a ‑ ‑ ‑
115HER HONOUR: Yes.
116MR CHALLEN: ‑ ‑ ‑ in a virtual environment, so I did try to raise this with my learned friend the other day but we have not had a chance to discuss the practicality of this.
117HER HONOUR: Yes. Well, obviously this is happening regularly with things like community correction orders and the provision of sex offender registration documentation, for example.
118So what I propose is this; that I will sign the order and it will be provided to you, Ms Karapanagiotidis, and I will ask that you and your instructor make some arrangement so that that can be signed by Ms Dalton today and returned to the court by the end of today please ‑ ‑ ‑
119MS KARAPANAGIOTIDIS: Yes, Your Honour.
120HER HONOUR: ‑ ‑ ‑ as of course the imprisonment order would take effect (indistinct) the recognizance.
121MS KARAPANAGIOTIDIS: That is so. Yes, Your Honour, we can do that.
122HER HONOUR: Does that need to be witnessed as such, Mr Challen, or you just say normally the associate is there and witnesses the signing?
123MR CHALLEN: That is the normal practice, Your Honour, but in the circumstances, I would not be averse to the idea that Ms Dalton signs it perhaps in the presence of her mother and upon receipt of the signature, your associate endorses the fact that he has seen the signature and he signs it as well.
124HER HONOUR: All right. Thank you very much. That is very fair of you.
125So, Ms Dalton, that concludes your matter except for the fact that you are required to sign the recognizance release order. That must be signed and returned to the court today. If it is not signed and returned to the court today, then the imprisonment will take effect and you would be liable to be arrested and imprisoned. So it is imperative that that comes back today.
126Ms Karapanagiotidis will explain to you how that is going to occur and also the fact that the $5,000 that I mentioned by way of the security is not payable upfront. That is a sum payable if you breach the recognizance release order. So you are to be of good behaviour for a period of two years and of course any breach would have its consequences both in terms of the payment of that security and potentially in relation to imprisonment.
127All right. Thank you very much, Counsel, for your assistance in this matter. We will now adjourn. Thank you.
128MS KARAPANAGIOTIDIS: Thank you, Your Honour.
129OFFENDER: Thank you.
130MR CHALLEN: May it please Your Honour.
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