Director of Public Prosecutions v Dawes
[2023] VCC 2378
•15 December 2023
*
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-01133
Indictment No. N12727133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIANA LEE DAWES |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2023 and 14 December 2023 | |
DATE OF SENTENCE: | 15 December 2023 | |
CASE MAY BE CITED AS: | DPP v Dawes | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2378 | |
REASONS FOR SENTENCE
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Catchwords: Obtain financial advantage by deception (Cth) - Handling stolen goods - Short history - Scheme re GST refunds $111,000 - Nil repaid - Early plea. - Worboyes v The Queen [2021] VSCA 169 - Some remorse - disadvantage - Bugmy v The Queen [2013] HCA 37; 249 CLR 571 - DPP v Herrmann [2021] VSCA 160f
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Guesdon (2 November) Mr P Pickering (14 December) | Office of Public Prosecutions |
| For the Accused | Mr J Barrera | Barwon South West Lawyers |
HIS HONOUR:
1 Tiana Lee Dawes, you have pleaded guilty to one charge of obtaining a financial advantage by deception (Commonwealth) and one charge of handling stolen goods, state base matter. You have also pleaded guilty to two related summary offences under the Bail Act 1977 (Vic), namely committing an indictable offence on bail and breaching the conduct conditions of that bail undertaking.
2 The maximum penalties are correctly set out in the opening.
3 You are 30 years of age and have admitted a short prior criminal history of no relevance to my task. There are also though some subsequently dealt with matters which are of some relevance as is conceded by your counsel, Mr Barrera.
4 You were arraigned at the County Court at Geelong on 2 November, when I was sitting on circuit down there. The matter was opened by the then prosecutor Ms Guesdon and we went no further as I acceded to an adjournment application made then on your behalf by Mr Barrera. I was told that you had done nothing at all to prepare for the appearance and that you had fallen out of contact with your legal team. That you had really put your head in the sand, as it were. The plea was adjourned to yesterday, 14 December, and it proceeded. You have really not done enough since you were committed to this court in July, or even since I saw you in November, and that much is conceded by your counsel. Really it boils down to this, your failure to take the steps you should have taken has, to a degree, but only to a degree, handicapped Mr Barrera.
5 When the matter was opened to be down at Geelong on 2 November, I was told then by Mr Barrera that the summary dated 31 October was an agreed one. He qualified that statement yesterday, but only in relation to one word in one paragraph and I will come to that in a moment.
6 There is really then no point in my setting out all of the agreed facts in these my reasons. I will sentence pursuant to that agreed statement with that one exception.
7 However, I suppose without some very brief statement as to the factual basis of sentencing, anyone who happens to access these reasons would find it difficult to really understand the nature of your crimes and the reasons for my ultimate sentence. So I will give a very brief summary, but that is really all it is.
8 Charge 1 is a rolled-up charge encompassing the four occasions that you dishonestly obtained GST refunds from the ATO, in the period from mid-January to mid-March of 2022.
9 In 2018, you had applied for an ABN for what is described in the written summary as a ‘fictitious’ cleaning business. Your counsel said his instructions were, that it was in fact a legitimate business. If it was legitimate, it seems strange you were not then registered for GST. The prosecutor on the plea yesterday, Mr Pickering, took me to portions of a statement in the notice of additional evidence materials suggesting that the business had been dormant and had never traded at all. See paragraph 38.3 of the notice of additional evidence, the statement of Benjamin Hollamby. This issue really is not critical for me to determine. Given the large delay between that application in 2018 and the offending that I am dealing with, I am prepared to work on the basis that the business was not at that point ‘fictitious’, that is back in 2018. Nothing really hangs on the precise status of that business, and it would be really I think impossible to conclude against you that the 2018 step taken, was the first step in this fraud. It would be you playing a very long game indeed in that sort of setting.
10 On 19 October 2020, you added your Bendigo Bank account to your profile.
11 On 19 December 2021, you registered for GST on a monthly cash basis. There was no business, legitimate or otherwise at that stage, as was confirmed by Mr Barrera. That is the critical stage.
12 On 11 January 2022, you lodged a false Business Activity Statement ('BAS') for December 2021, reporting as these things do, total sales and claiming a GST credit for the purchases that had been made by the business. Well of course, there was no business and no purchases and no basis for any credit. The ATO acted on your false documentation and a refund of some $11,000 was paid in due course into your linked Bendigo Bank account.
13 This was the same methodology used by you in the next couple of months to obtain all up $111,624.
14 So it was repeated in February for the January period with a $21,624 refund, in February for the month of February to that point, with a $49,000 refund and in March for a $30,000 refund for the March period up to that point. That last refund went into a different account, one held at the Beyond Bank, on 18 March. This is the only account where there is any record of transactions available to me. There is no material available from Bendigo Bank. You had updated your bank account details with the ATO and added the Beyond Bank account number.
15 The funds were quickly spent or disbursed out of your account. See paragraphs 14-16 of the opening. There were many transfers of cash out of your account. The summary says that there were many of those to your partner. That is not correct. I raised that issue with the parties as a matter of fairness, as the bank record did not support that portion of the opening. In fact, there was one payment to him and a number coming from him. By 29 March of 2022, so that is 11 days after that final refund of $30,000, you had only $40 left in your account. In fact, you had blown over $25,000 within a couple of days.
16 You were on bail at the time and on 2 May 2022, you were intercepted driving a car in the very early hours of the morning in breach of a curfew and non-driving condition of your then existing bail undertaking.
17 The agreed summary marked as Exhibit A describes how the matter came to light. This was not a matter of you voluntarily desisting. You were contacted by the ATO by a phone call in April 2022 and then a letter was sent out by them spelling out that a review had been held and the determination made that you were not running a business and that you had no entitlement to the refunds that you had been claiming. You were invited to respond. You ran silent at that stage.
18 On 19 December 2022, a warrant was executed at your address in Corio. The police found a large number of stolen documents including licences, bank statements, bank cards and other personal cards. One bag contained 42 identification cards. Hence Charge 2, is a charge of handling those various stolen goods . There were notes with email addresses and bank account details found in your possession. I note one ended with the words ‘make money’ in capitals. See page 242 of the depositions.
19 You were interviewed by the police on 19 December 2022 and made a no comment interview as was your right. The summary refers to your then ex-partner being captured on CCTV making an ATM withdrawal on 18 March. Beyond that though, there was no evidence that he was involved in committing any aspect of the fraud. No submission has been put forward on your behalf suggesting that he was or that you were in any way under any pressure from him or anyone else to act in the way that you did. Indeed, there has been a silence as to the genesis of the scheme, as to how you worked out how to do what you were doing. Your ex-partner has been charged with a fraud utilising the same scheme, but he is not a co-accused and he has been prosecuted in the lower court.
20 So much then for my brief summary of the summary. That is all it is and as I have said, I will sentence pursuant to the more detailed agreed summary dated 31 October 2023 and marked as Exhibit A. Your formal prior criminal history is of no relevance to my task. The same cannot be said of the subsequently dealt with matters I have marked the updated LEAP history as Exhibit B. Virtually all of those offences dealt with on the 9 May 2023 consolidation at the Geelong Magistrates’ Court predated the offending I am dealing with. I will not set them all out. The document does that. There were some dishonesty offences. I was told that the attempt to obtain financial advantage by deception charges related to you endeavouring to obtain a number of small false loans. There is also a handle stolen goods and dealing in property suspected of being the proceeds of crime. There were offences committed on bail and a breach of a conduct condition matter as well. I was told that four of the offences, including the weapons offence and possession of a drug charge, occurred in April 2023. So they post-dated the matters I am dealing with.
21 As I said, that consolidation of charges was dealt with in the Geelong Magistrates' Court on 9 May of this year and I was told at the first listing date back in November by your counsel, that those matters arose from nine different commission dates. The fact that you were on bail for dishonesty matters and other matters is clearly a matter of some relevance to my task. You were ultimately placed onto a community corrections order at the Geelong Magistrates Court on 9 May 2023 and I have been told that you have not been doing that well on that order.
In mitigation
22 Mr Barrera conducted the plea in mitigation on your behalf yesterday. He had filed written submissions dated 12 December 2023, and relied upon a personal reference from your mother and a report from a psychologist,
Mr Austin Campbell. Your mother joined the hearing by Webex yesterday, but explained in her letter why that was so. It was certainly not indicative of any sort of lack of commitment to you or support for you and she has joined the hearing again today by way of Webex.
23 Either by reference to the oral or written submissions, your mother's reference or the report of Mr Campbell, Mr Barrera informed the court of your personal, educational, relationship, drug use and mental health history.
24 He made submissions to the court on a variety of topics, not limited to, but including the level of objective gravity of the offending and the relevant sentencing purposes in play in this case. He conceded the relevance of your subsequent criminal history. He took me through the chronology in some detail. He detailed the support that you had available to you and he made submissions as to your prospects of rehabilitation.
25 In the thorough plea conducted on your behalf, Mr Barrera relied chiefly upon the following:
· Your early guilty plea with heightened benefit owing to the global pandemic backlog (Worboyes[1]);
· The presence of some remorse;
· A level of disadvantage in your early background (Bugmy[2]/Herrmann[3]).
[1]Worboyes v The Queen [2021] VSCA 169
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[3]DPP v Herrmann [2021] VSCA 160 (‘Hermann’)
26 He argued that it would be open to impose a community corrections order or failing that, a term of imprisonment, but one with immediate release onto a Recognisance Release Order. So really the thrust of his submission is that you should not be sent to prison at all.
Prosecution
27 The prosecutor Mr Pickering on the plea, it was Ms Guesdon on the initial plea back in November, but Mr Pickering yesterday made some brief sentencing submissions, dealing with the nature of your conduct and the level of planning and methodology involved. It was not he said, a victimless crime. It was not an obtaining by some omission to advise or detail some change in circumstances, or by way of exaggerating or overclaiming in relation to something where there was some entitlement. It was all completely false. Here there were the positive statements that you made and not just one statement, but rolled up and the money was just spent by you, and not on necessities. Greed was in evidence here the Crown argued and that much was conceded by Mr Barrera.
28 The prosecution argued that general deterrence was of real significance here and challenged your counsel’s ultimate submissions as to disposition. There was perhaps a minor dispute as between the parties as to your prospects of rehabilitation and how they might be characterised. I really wonder if there is actually much difference between ‘reasonable’ and ‘guarded’? The prosecution submitted that a community corrections order was not open here and that prison was warranted and that it would not be open in the sound exercise of my sentencing discretion to wholly suspend any term imposed by way of immediate release onto a Recognisance Release Order.
29 The prosecution submission to me as to the ultimate sentencing outcome is no more binding upon me than your counsel submitting that actual prison can be avoided. Of course I will not ignore any submission made by either party, but I have to reach my own view, as to the appropriate sentences to be imposed here. It is after all this court that is exercising a sentencing discretion, not the parties.
30 So I am not bound by either of the submissions placed before me.
31 I will come back a bit later to consider these various submissions made by the parties.
Background
32Firstly though, I will turn to your background and I am going to do that quite briefly, and that is because I have no reason not to accept the personal and family background placed before me. I just see no need to set it all out. There is much detail in the written outline, in your mother's reference and in the expert report.
33By way then really of an executive summary I suppose is what it is, you were born in December 1993 and so as luck would have it, you turned 30 yesterday. My remand of you into custody was no doubt a most unwelcome present.
34You had a pretty unhappy and dysfunctional background, I say that at the outset. Your parents separated, but your father was still a presence and a pretty bad one, flashing in and out of your life and your mother's life and when he did, he brought family violence with him. Your mother moved to try to avoid him, but to no avail. He was a significant drug user and was in an out of prison. In fact, he is still problematic and I am told is still violent towards you.
35You were raised primarily in Geelong, but with some periods in Warrnambool and also over in Adelaide. Your mother speaks of the significant difficulties in your early and developmental life. When your mother re-partnered, when you were about five I believe it was, your step-father also had issues with a serious mental illness and alcoholism.
36You were sexually assaulted on two occasions, though not by a family member. Those events are described in the materials, and I do not see any need to further detail them.
37You completed Year 9 at school, though schooling was pretty fragmented as is made plain. You worked as an apprentice chef for a couple of years, but that was going back some time between 2011 and 2013 and also then as a hospital cleaner from 2017-19 or thereabouts.
38Your own intimate relationships have not been successful. You formed a relationship with Mr Bingham-Kenny when you were about 16. Your mother speaks of the destructive nature of that relationship. You separated in about 2020, but you continued to associate, including in the course of this offending.
39There are three children of that relationship: Azaiah, Ravee and Ollie. So a nine year old, an eight year old and a six year old. All those children have quite serious issues which are spoken of in your mother's reference and all are in your mother's care and have been for some years. You have been receiving or paying twice weekly visits.
40Aside from family violence at the hands of your former partner, I was also told you had a later problematic relationship with another person who is named in the materials. That also has had serious issues which are described in the materials placed before me.
41
There is a description of the circumstances said to have given rise to the children being removed from you, see paragraph 21-22 of the outline.
Mr Barrera concedes it was no doubt far more complicated than just the happening of that accident. The fact is of course, that drug use has been very much problematic in your life. You started out with cannabis, but serious issues developed with ice from about the age of 26. Your mother is obviously a very big support and she has, to her credit ‘stepped up’ and taken on the fulltime care of the three children. It is not easy for her. She has been in that situation, as I understand it, for three years. She describes the connections that you are trying to build with the children and the concerns that she holds for you and them, should you be confined.
42I need no convincing that you had an early life that was beset by a level of disadvantage, instability and dysfunction. You no doubt saw and experienced much you should not have experienced or seen, and it had significant impacts upon you then, and no doubt since. That is just the way these things play out. A history of disadvantage in one's developmental years is not just some matter of historical curiosity for a court. I am sentencing you, the person with that background and we know that these things leave their mark. They can deeply intrude on a person’s future life and life choices, as no doubt they have in your life. They may explain to a degree, the faltering trajectory of your life. None of this though is to suggest that you are powerless in all of this. Of course, you are not and you have got to make better choices. Even people from the most challenging of backgrounds can strike free and succeed. You obviously have not.
43I believe it was an unenviable background and I give it full weight in the way in which that term is employed in the case law, including cases such as Bugmy, Herrmann and Sabbatucci[4], and as more recently discussed in cases of Newton[5] and Dhal[6]. I do accept your counsel’s submission in this regard and I take your background into account in the general fashion referred to in that case law. Amongst other things, it leads here to some reduction in your culpability. Those cases I have cited and many before them though, make clear it will always be a matter of what weight to attribute to evidence of a disadvantaged background. The cases stress that social disadvantage will not attract the same weight in every case or in the same way. The weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, but also the nature of the crime and the relative importance in a particular case of sentencing considerations, including deterrence, community protection and rehabilitation (see the case of Terrick[7]). It seems clear enough from the case law that where there is a strong nexus or causal relationship, then the mitigatory value will rise (see the case of Snow[8]).
[4]Sabbatucci v The Queen [2021] VSCA 340
[5]Newton (a pseudonym) v The King [2023] VSCA 22
[6]Dhal v The King [2023] VSCA 289
[7]DPP v Terrick [2009] VSCA 220 (“Terrick”)
[8]DPP v Snow (a pseudonym) [2020] VSCA 67 (“Snow”)
44 Your counsel was not suggesting there was any causal connection or nexus or direct relationship here, but none is required for the general approach that he asked me to apply here, which I do apply.
45I have mentioned already your prior criminal history. It is of no concern and so it does not inform my task at all. The absence of any significant prior history is actually more telling, given that background that I have mapped out. There would have really been no surprise to see a 15-page criminal history in such a setting as that and yet I do not. It is of concern that you have committed other dishonesty offences and that you were on bail at the time of the serious conduct the subject of Charge 1.
46Your counsel told me about three outstanding cases, all listed I believe today for mention. Various allegations involving driving and Bail Act offences and also one charge of theft, so three separate alleged commission dates, 4 April 2023, 1 April 2023 and 27 July 2023. The 27July matter if proven, would breach the existing community corrections order imposed in May in Geelong. Well these matters are all outstanding. Apparently no decision has been taken as to what your plea will be. In those circumstances, I put those matters aside altogether. They have no role to play in any judgment that I make as to sentence here.
47I make it plain to you that you do not fall to be sentenced a second time for any of your past proven crimes. You received those past sentences and served them. Your prior criminal history does not in any way aggravate this offending. Nor the fact of the commission of the subsequent matters. I must pass proportionate sentences for the crimes before me. Your being on bail at the time of the matters I am dealing with, is a matter of some aggravation.
48The criminal history has some role in my task because I have to endeavour to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community in my sentencing exercise.
49I was told by your counsel on the plea of various things that you claim to have done, many of them in the shadow of this court case. So drug and alcohol treatment first attended a fortnight ago. A mental health care plan obtained two days ago. Anti-depressant drugs prescribed drugs four days before the plea. There was reference to study for a Certificate 3 in cleaning and then the hopes that you held of attending a Diploma of Business Administration. So a flurry of activity, some of it in the lead into this hearing, with virtually none of it documented. I am told by Mr Barrera that you have not done particularly well on the existing community corrections order. Your legal team have obtained verbal reports from Corrections.
Guilty plea
50 I turn then to the other matters raised on the plea. The first matter is the fact of your guilty plea. It was a plea at the earliest opportunity. You have taken this early responsibility for your crimes.
51 As a result of your guilty plea, the time, the cost and the effort of a hearing in the Magistrates' Court or a trial up in this court has all been avoided.
52 You have facilitated the course of justice and you must be rewarded for doing so.
53 This matter settled earlier this year and you were committed by way of a straight hand-up brief in July and pleaded guilty before the Magistrate on that day.
54 At that stage, up in this court, we had not yet cleared the backlog referable to the global pandemic.
55 I believe we are actually close to the point in time now, where any future decision to plead guilty will not be met by any heightened sentencing benefit. That is because not only have we moved beyond the pandemic, but the pandemic backlog in this court has now actually been cleared. We are operating at pre-pandemic levels as the Chief Judge announced quite recently to the profession. But I suppose we are not the only court and there is still a backlog in the lower court. The fact is though, this case settled at an earlier point in time, when we still had a backlog and so I will treat your guilty plea as worthy of some extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.
56 I take these various matters into account in mitigation.
Remorse
57 Mr Barrera argued that there was some remorse on display here. He referred to the reference from your mother, the expert report and also your plea. The expert report is strangely silent as to your account of the offending. This was not minor offending and it required a fair bit of effort to be expended. Mr Campbell’s report does not set out any aspect of what you said led you into the offending. He talks in his report of ‘distal precipitation’. He in no way really explains it at all by reference to your actual statements made to him, if any. Nor for that matter by you on this plea.
58 Mr Campbell does not set out any exchange from you, which permits me to know what you told him about the offending and to assess why he says you are remorseful in his view. That sort of statement from him, an opinion in a vacuum, has real limitations. I do have your mother's statement and that is of more use to me in this regard. I also of course have your guilty plea, one made at the earliest opportunity and a guilty plea is usually indicative of some remorse. I have considered these matters overnight and I am prepared to find that you do have some remorse and I take that into account in your favour.
59 I have mentioned the expert report and it does not really take me very far. There is no reliance on any of the principles from the case of Verdins in this case. The report does set out your background and that level of detail and your mother’s reference are of use to me, in making the Bugmy/Herrmann type allowance that I have already mentioned. I repeat that the report does not really grapple with the seriousness and the sophistication of this offending. Mr Campbell provides some insight into what he believes as to your prospects of rehabilitation. I do not really know if he knew about the matters you were on bail for, any of the details there. It seems highly unlikely. You do have support, that much is obvious from your mother’s presence in the hearing and from her reference.
Mr Campbell speaks of some treatment possibilities down the track and your distress at the thought of being sent to prison. That is not being relied upon in a Verdins[9] fashion, but I do not ignore it, of course I do not. He speaks of the many things that you have to do, all the things that you will need to do and lists a number of them. They are really conditions to your ongoing rehabilitation. I take into account the report and much of what I have said in this portion of the sentencing remarks goes then to the issue of your future rehabilitation. I turn to that issue now.
Rehabilitation
[9]R v Verdins [2007] VSCA 102
60 Mr Barrera argued that you had ‘reasonable’ prospects of rehabilitation.
Mr Pickering took issue with that and said that that was overly optimistic and that the court really should be ‘guarded’. Well I am sitting up here observing that argument between counsel, but those opinions are not too far apart, it seems to me. Mr Barrera was conceding that you had not done what you should have to maximise your chances. You had your head in the sand when you went missing from your legal team earlier in the year. You have not backed it up that well. I see you were 45 minutes late for the expert assessment with Mr Campbell. You were two and a half hours late for the plea yesterday and with no materials placed before me confirming the steps you say you have taken recently. The community corrections order has not to this point been a great success. Mr Barrera was relying on what you told him you had done in recent times. Well are you drug free? I really would not have a clue in that respect.
61 You are still young enough, at least from where I sit, and you have a limited criminal history. You pleaded guilty and there is some remorse. You do have some supports, that much is obvious, and yes there are some treatment needs. There are some pretty obvious ones. You will need to deal with your drug addiction. Your efforts on the community corrections order have not been strong Mr Barrera said. He said that there were some failures to attend for supervision and also treatment, but he was suggesting that perhaps the recent steps that had been taken were suggestive of a change of approach.
62 He pointed out that you did have some employment history and you had the motivation to change, provided by the desire to take on a more pivotal role in your children’s lives. I suppose you have always had that motivation. It did not stop you from offending.
63 The sentence I impose I am sure will deter you to a degree. Against all this of course, I have the undoubted seriousness of Charge 1. That crime involved rolled up separate criminal acts of some sophistication and at a decent monetary level. I have long term issues with drugs of dependence and the fact that you were on bail for dishonesty matters at the time. It seems to me, on review of all this material that I can only really be quite guarded in my assessment, but I certainly will not write you off, I said as much yesterday.
64 In fact, I do conclude that you do have reasonable prospects of rehabilitation. Those future prospects will very much be determined by you. By whether you have the ability to abstain from illegal drugs and to distance yourself from such criminal associates as you have mixed with in the past. These things have been problematic, at least according to
Mr Campbell. You obviously have a risk of re-offence and it is plainly not illusory when I consider the chronology and the nature of this offending.
65 Mr Barrera also mentioned the impact upon the children of your being sent to prison. There was reference to that matter in the letter of your mother, where she spoke of the toll which will be taken on the children who knew nothing about this appearance. Your mother spoke also of the impact upon you of being in prison. Mr Barrera conceded that the material before me was not particularly satisfactory. There is no expert material for instance. It is very hard to make any judgement as to the degree of impact upon the children in the circumstances. Nonetheless, I do not ignore that submission. I acknowledge that in the federal regime, there is no longer any need to establish exceptional hardship, courtesy of the decision in the NSW case of Totaan[10], which was approved in our Court of Appeal in Mohamed[11]. The State sentencing exercise though, still requires satisfaction of the Markovic[12] threshold, it has to be truly exceptional to take into account third party hardship on the State level.
[10]Totaan v R [2022] NSWCCA 75
[11]Mohamed v The Queen [2022] VSCA 1361
[12] Markovic v The Queen [2010] VSCA 1059
66 You committed these crimes when, as I understand it, the visiting arrangements were in place. It was pretty much inevitable that your acts would lead on to this outcome and the cessation of visits, nonetheless you continued to act. Of course, the children are innocent of all of this.
67 There was very limited material available to me as to the impact upon the children. There is a level of speculation involved. You are not the primary caregiver and you have not been for some years. So we are not dealing with that sort of absence. You see the children twice a week. Of course they will miss those visits and I take that into account in the way that I can in the Federal sentencing exercise, where exceptional hardship is not required. It is though not a matter of any great significance in the Federal sentencing exercise in my view.
68 It falls way short of exceptional circumstances in the State sentencing exercise. It is the sort of thing which is just commonplace or routine when a person is sent to prison, often enough even a primary caregiver.
69 On both State and Federal sentencing tasks though, I accept that you will miss the visits and that your custodial burden is made a bit more onerous as a result of that fact. That is not a third party hardship argument, as it pertains to the impact upon you and I do take that into account. It is not a sizable matter at all, but not something I ignore and I recognise that it will increase your burden as you buckle down to serve what is your first term of imprisonment.
The Offences
70 The agreed summary describes your offending and there is little need for me to say much more about it. The conduct the subject of Charge 1, was planned offending, at an unmistakably serious level. You really could have been under no illusions as to how serious it was. You were creating false Business Activity Statements. You were setting out false sales and non-existent purchases and doing all this so as to obtain a GST refund. It was relatively sophisticated offending. It obviously required planning. It required the registration and then the lodging of returns. Each step along the way, you have had the opportunity to pause for thought and to consider the seriousness of what you were actually doing. Regrettably, you went ahead. Greed is the answer here. That is conceded. I note reference in the paragraphs dealing with the way in which money was spent, at least the money which can be tracked. There is reference in the depositions to a week spent at a Geelong Hotel. Why? Why was it necessary? It is not clear to me.
71 Other purchases made by you and cash spirited away either by ATM transactions or by transfers. Why? Well, I am not told. You spirited away over $111,000 of Commonwealth funds, in a system that depended to a large degree, on the honesty of those who were utilising it. You had no business utilising it at all. Your conduct was deeply dishonest and Charge 1 as I say, was not some single act. It is a rolled-up charge with a number of acts taken by you, to facilitate that crime. It was serious criminal conduct, as is conceded.
72 Charge 2, the State matter, is less serious obviously, but again, it shows the extent of your dishonesty in that phase of your life. Look at what you held, look at the items, look at the number of them, look at the document with a list of things to do and ending with the words ‘make money’. You were, in this phase of your life, for whatever reason, deeply dishonest and greedy.
73 Despite such moderation as is brought about by the Hermann principles that I have discussed, your culpability is still quite high. It is obvious that a fair bit of planning and effort went into these crimes.
74 You were on bail at the time for dishonesty offending.
75 So it is conceded that this offending was serious. It was.
Purposes
76 I have to consider a number of purposes of sentencing. I have the State sentencing regime, where I find the various principles set out within the Sentencing Act. I have also the Federal offence, where I have various principles and purposes set out. I take into account the matters that are set out within the relevant provisions of the Crimes Act 1914 (Cth), in particular those to be found at ss16A(1) and (2).
77 I am not going to be dancing in these reasons between the terminology in each of those Acts, for at the end of the day, though words and terminology might differ slightly, it comes down to the same principles, broadly speaking. Prison is always a disposition of last resort. Sentences must always be proportionate. Rehabilitation is always relevant. So too deterrence, both general and specific. So too punishment and community protection. So too the need to conduct an assessment of the gravity of the offence. So too consideration of sentencing practices. So too totality and so too, the fact of a guilty plea and stage of that plea and the existence of otherwise of contrition or remorse. As I say, the terminology differs, but the principles are very much the same.
78 One such purpose that I have mentioned is rehabilitation and I do not ignore that. I have said you have reasonable prospects. However, sentencing is not all about you and what is best for you. If it was, it would be so very easy. No one would ever be imprisoned in that setting. I do pay regard to your prospects as I must, but the fact is, there are other purposes in play apart from your prospects of rehabilitation.
79 Punishment for instance. I must punish you justly and proportionately.
80 I must also must denounce your conduct.
81 Specific deterrence relates to the need to deter you and it has some importance here, as is conceded correctly by your counsel, given the offending and the chronology. I must deter you from offending in the future. It was serious offending and you were on bail. This principle would undoubtedly be given more weight if you had a very lengthy prior criminal history or you had failed on many past court orders, but that is not the position facing me at all.
82 Community protection is also of some relevance. I believe it can be moderated here owing to the absence of any sizable history and the nature of the crimes that I am actually dealing with.
83 Then there is general deterrence. Well general deterrence relates to the need to deter future offenders, and that is a matter of real significance in relation to Charge 1 in particular. That was a crime involving significant enough planning, one that was designed to defraud the Commonwealth. It was calculated offending and it netted over $110,000. The fact that the Commissioner of Taxation is defrauded, does not somehow make this a victimless crime. The Commonwealth does not have an unlimited pool of funds. Further, as I have said, this scheme, as many tax schemes do, relied on the honesty and the integrity of those registering and using it. You had no business using it at all. You deliberately set out to defeat that scheme. It was not spontaneous offending by any stretch of the imagination. It was easy enough to do, but it obviously took some real thought and effort and planning. General deterrence must loom large in this case and that is conceded. I have got to send future likeminded offenders a message, in an endeavour to cause them to reconsider their position and not offend in the way that you did. It is the sentence imposed, which must cause those future likeminded offenders to reflect on their conduct and alter their course. An inadequate sentence will not achieve that purpose at all.
84 I must pay regard to the maximum penalties.
85 I also must pay regard to current sentencing practice.
86 Current sentencing practices are not a single controlling factor.
87 I have looked at the Sentencing Advisory Council online data in relation to the two indictment offences.
88 I have looked at some instances of sentences imposed in the past for the offences on the indictment, but I really do not need much assistance in terms of coming to grips with sentencing practices for either crime on the indictment.
89 The amount obtained will always be of importance and your counsel focussed on that amount. I was told by your counsel that the amount in Charge 1 fell outside the jurisdictional limit of the Magistrates' Court. I accept that it is, relative to other matters brought before this court, a quite small sum. But that is ‘relative’ to other cases brought before this court. There is nothing small about the sum of $111,000 and it was made up of those four transactions, each of them netting a sizeable amount.
90 Some frauds can be committed in a very unsophisticated manner. Some large amounts, even massive amounts, can be obtained with a single stroke of a pen or a single keystroke or a single act. There can be very little planning. There can be an opportunistic act, something that is spontaneous. I am not dealing with that sort crime at all. I am dealing with multiple acts rolled into Charge 1, a total of over $111,000 and an obvious level of planning to get the ball rolling and to commit this crime. This was serious calculated offending.
91 I have mentioned the statistics, but they have inherent limitations. All the many details which would explain the reasons for a particular sentence are omitted from the data. No amount of looking at other cases, or the statistics, can ever provide the answer to my sentencing task. Sentencing is not a statistical or mathematical exercise.
92 Each case has to be determined on its own facts. There is no such thing as one correct sentence.
93 I am a sentencing you for your crimes, taking into account the matters in mitigation and aggravation in your case.
94 I have mentioned the principle of totality and I have got to have regard to that principle in my task and reflect on the overall effect of the sentences imposed by this court, to ensure that it is commensurate with your criminality.
95 Prison is a disposition of last resort. It always is. Your counsel does not concede that prison is warranted and he argues that I might proceed by way of a standalone community corrections order here.
96 If such a disposition could achieve all the purposes of sentencing, I would be required to deal with you in that way and that is because a court is never permitted to impose a more severe sentence, than is actually required to achieve the various purposes of sentencing. That is so whether dealing with the State or the Federal sentencing exercise.
97 It is clear to me though that in the circumstances of this case, a standalone community corrections order is simply not open on Charge 1. Such an outcome would not adequately reflect the need to punish or deter you. It certainly would not adequately deter others. It would send entirely the wrong message as far as I am concerned.
98 I do not have available, a combination type disposition for the Federal offence, as it is a Commonwealth matter. Nor in fact does the guideline judgement in the often-cited case of Boulton[13] apply to my task in that exercise, for it is a Federal sentencing task. see the case of Atanackovic[14]
[13]Boulton v The Queen [2014] VSCA 342
[14]Atanackovic v The Queen [2015] VSCA 136; 45 VR 179
99 You counsel’s secondary submission was that if a prison term was required, I could order your immediate release onto what is described as a Recognisance Release Order. That would have the effect of being a type of wholly suspended sentence, with the prison term hanging over your head, only to be served if you breached the terms of your release. That type of order is still available in the Federal sentencing regime, but not in the State regime where suspended sentences were abolished some years back.
100 Mr Barrera is arguing then that you should not serve a single day in custody here.
101 At the end of the plea yesterday, I did not believe that such an outcome was open to me and hence, I remanded you in custody yesterday. Well you went in your direction, not the direction you were hoping to go in and I went home last night and started the process of writing my reasons. To do that I read all the filed materials again. I considered the various matters that had been raised on your behalf by Mr Barrera, as well as the submissions made by the Crown. I have read all the defence material that has been filed, including of course the letter of your mother and the expert report. I regret to say though that my position has not altered. I do not believe that such an outcome is open here. It would simply not adequately reflect the need to punish and to deter you and others.
102 I must impose a prison sentence on Charge 1 and I believe you must serve a period in custody. I will make provision for your release after a relatively short sentence, so you will need to wait until the end of my orders, as it will only be then that you will have a true understanding of the effect of these orders and the period that you will be required to serve initially.
103 I am sorry to have taken so long to get to this point, but I will have you stand now and I will pronounce sentence. If you would stand up then please.
Compensation
104 Application is made for a compensation order under the provisions of 21B of the Crimes Act. There is no opposition taken to the making of that order. The relevant preconditions are satisfied in my judgment. There is obviously a loss here and I order that you make reparation to the Australian Taxation Office, at the address in the document, to the tune of $111,624. So I have signed that order.
Sentence
105 On Charge 1, which is the charge of obtaining a financial advantage by deception, I convict and sentence you to a term of 15 months imprisonment. I will deal with the commencement in one moment and also the extent of that sentence that you will need to serve immediately.
106 On Charge 2, the charge of handling stolen goods, you are convicted and sentenced to one months' imprisonment. That will be the State base sentence.
Summary matters
107 On the two related summary matters, I believe an aggregate sentence is both open to me and appropriate in the circumstances. You are convicted and sentenced to an aggregate period of seven days imprisonment on those two charges.
Section 16(3C)
108 In the State exercise, I do otherwise direct under s16(3C) of the Sentencing Act, to avoid double punishment. As I have treated being on bail as a matter of some aggravation, to cumulate the penalties as well would represent a doubling up of punishment.
Concurrency and Total Effective Sentence (State)
109 That seven-day aggregate term will be served concurrently then with the one month imposed on Charge 2 on the indictment. You are probably battling to follow all this, but the State total effective sentence then is one month.
110 I will have you sit down. I have to go through this in some detail. I do not want you standing up, so grab a seat if you want. The 15 month Federal sentence commences today. I order that you be released from the Commonwealth sentence after serving five months of that term, upon giving security in the sum of $2,000 to comply with the following conditions:
· That you be of good behaviour for a period of two years following your release on this recognisance.
111 I am obliged to explain to you the effect of this order. I wish they would use different language, in the Crimes Act. They do not. Think of it as a suspended sentence and you will not go far wrong. You will serve immediately the first five months of that 15 month Commonwealth term of imprisonment. You will then be automatically released from prison upon entering that promise in the sum of $2000 to be of good behaviour for the period of two years after your release. So unlike other prisoners around you, you will not be anxiously waiting for some result of a parole application to the Adult Parole Board. You will serve five months, then you will be released.
112 Should you commit any further offence in that two-year period upon your release, should you not be of good behaviour, you would breach that order. You would be liable to forfeit the sum of $2,000, but more significantly, you would be liable to be brought back before me in breach of that recognisance. Recognisance is a promise, that is all it is. Now a court in that sort of setting has a variety of options to consider and I would be duty bound to consider them all, but there would be a real possibility - I think you really should work on the strong likelihood of you being ordered to serve the balance of the term of imprisonment on the Commonwealth sentence, being that 10 months. That is, if you breach the terms of your release. If you comply with your promise to be of good behaviour, you would not ever serve that additional 10 months.
Section 17A
113 Under s17A of the Crimes Act (Cth), I am obliged to state my reasons for proceeding to impose a term of imprisonment on Charge 1. It is clear to me that no other sentence was appropriate in this case, given the nature and the gravity of the crime. My sentencing remarks will set out in detail the reasons why I took the view that there was no other alternative but to imprison you.
Section 18 pre-sentence detention
114 You have already served one day of your sentence by way of pre-sentence detention and that is declared pursuant to s18 of the Sentencing Act and that will be entered into the records of the court.
Section 6AAA
115 I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to two years four months imprisonment. I would have fixed a release mechanism operating after you had served 15 months. Let me just see if there is anything else. I will need to get you to sign this order. Let me just have a look at it.
116 I will hand the order down in a moment, unless your instructor is preparing it Mr Pickering, but any other matters that I need to deal with, either of you?
117 MR BARRERA: Just one query, Your Honour.
118 HIS HONOUR: Yes.
119 MR BARRERA: What's the commencement date for the State sentence?
120 HIS HONOUR: Well it commences on the day that it's passed, I've got no option - - -
121 MR BARRERA: It's concurrent?
122 HIS HONOUR: There's no cumulation at all.
123 MR BARRERA: Yes, Your Honour.
124 HIS HONOUR: It's not one of those cases where I think there's a need to defer the operation of the Federal matter to bring about cumulation. It'll be subsumed by the service of the other sentence.
125 MR BARRERA: As Your Honour pleases. Thank you for that clarification, Your Honour.
126 HIS HONOUR: Yes all right. From your perspective Mr Pickering, is there anything else I need to deal with or not?
127 MR PICKERING: No that answers that question, Your Honour.
128 HIS HONOUR: The Federal sentence will commence today and likewise, the State sentence. I will hand down a document, have a look at it. I am probably also meant to explain that there is a power to apply to discharge or to vary this type of order, but it is hard to contemplate any circumstances in which an application could be sensibly made. Just have a look and see if that satisfies or mirrors my stated intention then.
129 MR PICKERING: Yes, Your Honour.
130 HIS HONOUR: What I will need to ask your client about is whether she is going to enter it. Will she enter that Mr Barrera, do you want to speak to her or not?
131 MR BARRERA: If I can just briefly speak to her?
132 HIS HONOUR: Of course you can. Yes, take down the document if you want and I will have my associate come down in a moment, once you tell me it is right to be signed.
133 MR BARRERA: Thank you.
134 HIS HONOUR: Off you go, yes.
135 MR BARRERA: Thank you, Your Honour. Thank you for that time, Your Honour. Ms Dawes wishes to address Your Honour before agreeing to the order and I don't - - -
136 HIS HONOUR: No, I will not permit that and - - -
137 MR BARRERA: Yes, Your Honour.
138 HIS HONOUR: - - - she could either sign it or she does not sign it. I suppose that is the reality and I am not here to debate the sentence and she will have her rights in relation to what I have done and I will - - -
139 MR BARRERA: Yes, Your Honour.
140 HIS HONOUR: - - - revise my reasons as soon as I get them back and you will be able to give her advice in terms of her rights in relation to what I am proposing, but at the moment I am not here to debate what I have done, what I have said, what you said, what the prosecutor said. I have passed - I am proposing - I propose this sentence, I cannot pass it without her signing the order. If she does not, there is only one other direction I can head in.
141 MR BARRERA: Yes, Your Honour.
142 HIS HONOUR: And she has got you. You are appearing, you have done everything you could do for her. That is the reality. So it is not for her to be addressing me when you are briefed. So it is a matter really as to whether she will sign the consent to this release. It is a release mechanism, that is what it is and - - -
143 OFFENDER: I will sign it, Your Honour, but it's - - -
144 HIS HONOUR: So anyway look it's - - -
145 OFFENDER: The - you know, the story hasn't been portrayed correctly, I mean this isn't - - -
146 HIS HONOUR: All right, well anyway I am not going to have two people running a plea. You are running it, you have run it and - - -
147 OFFENDER: My (indistinct), but this is all out - - -
148 HIS HONOUR: - - - so it is a matter of whether she will sign it, it is as simple as that.
149 MR BARRERA: Yes, Your Honour. It seems as she has indicated she will, so if I can just take it to her for her to sign it.
150 HIS HONOUR: Yes. In fact I will have my associate come down and have it signed then.
151 MR BARRERA: May I accompany your - - -
152 HIS HONOUR: Yes of course.
153 MR BARRERA: Thank you, Your Honour.
154 HIS HONOUR: I think I need to sign that now do I? All right, just from where you sit then Ms Dawes, I will just ask you, do you confirm then that you have signed this document?
155 OFFENDER: That's correct.
156 HIS HONOUR: Yes and do you agree to enter this recognisance? You make this promise to be of good behaviour. Is that so upon your release?
157 OFFENDER: Yes.
158 HIS HONOUR: We will get a copy of this made for all of you. So there is nothing else from either of you? I made the custody management directions yesterday, so I would not have thought there is a need for those to be repeated Mr Barrera. Are you wanting me to put any further custody management directions at all or not?
159 MR BARRERA: Just one, Your Honour.
160 HIS HONOUR: Yes.
161 MR BARRERA: And this has come from Ms Thomas, her mother, but there were some concerns raised about self-harming, if that could just be addressed on the custody management issues as well.
162 HIS HONOUR: Very well.
163 MR BARRERA: About the risk of self-harm.
164 HIS HONOUR: I can just repeat the orders and say it is her first - what did I say yesterday, it is her first time in custody. I will just - what did I say yesterday? First time in custody, she has been diagnosed with depression and anxiety. She is taking an antidepressant and should be seen by a doctor or nurse, something to that effect. What do you want me to add to that then?
165 MR BARRERA: May be at risk of self-harm.
166 HIS HONOUR: I will add that to it, that she may be at risk of self-harm. Let me just have a look at - well maybe it is appropriate that I refer to them - the report of Campbell then you think?
167 MR BARRERA: Yes, Your Honour.
168 HIS HONOUR: At this stage I mean. She is now sentenced prisoner and there is reference at paragraph 29 to that aspect of distress that I mentioned in my reasons and there is no issue with me doing that?
169 MR BARRERA: If I can just have a moment to refresh my memory on paragraph 29, Your Honour?
170 HIS HONOUR: Yes of course.
171 MR BARRERA: No issue with that, Your Honour.
172 HIS HONOUR: All right, well look I will add then she may be at risk of self-harm, please see the report of Austin Campbell, psychologist dated 1 December 2023, particularly paragraph 29.
173 MR BARRERA: As Your Honour pleases.
174 HIS HONOUR: You will go down and see your client today?
175 MR BARRERA: Yes certainly, Your Honour.
176 HIS HONOUR: She is entering prison for the first time, she did yesterday, and it is a bit of a bewildering experience for her. I can remember acting for people in that sort of setting and likewise, for mothers and relatives and the like. Is someone going to walk her through the practical realities in terms of visitors and all that sort of stuff or not?
177 MR BARRERA: Yes, Your Honour, I've done part of that yesterday, but obviously the emotions are running high.
178 HIS HONOUR: Of course
179 MR BARRERA: That process will continue.
180 HIS HONOUR: Very well. If I get these reasons back from VGRS, I will revise them on the day I get them and you might have access to them before the end of the legal year, but I am in the lap of the gods in terms of VGRS, but - - -
181 MR BARRERA: Your Honour pleases, I'm grateful.
182 HIS HONOUR: - - - that completes the matter then. So if Ms Dawes can be removed now and Mr Barrera will come down and see you Ms Dawes.
183 MR BARRERA: As Your Honour pleases.
184 HIS HONOUR: All right, I have signed that order formally, so 9:30 on Monday then please. Thank you.
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