Director of Public Prosecutions v Dennis
[2023] VCC 508
•30 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR-22-02398
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN DENNIS |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 23 March 2023 | |
DATE OF SENTENCE: | 30 March 2023 | |
CASE MAY BE CITED AS: | DPP v Dennis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 508 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Obtain financial advantage by deception
Legislation Cited:
Cases Cited:Black v The Queen [2022] VSCA 125
Sentence:12 months' imprisonment and 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Richard Davis & Associates |
HIS HONOUR:
1 Benjamin Dennis, you have pleaded guilty to five charges of obtaining a financial advantage by deception from the Department of Jobs, Precincts and Regions. The maximum term of imprisonment for that offence is 10 years. You have no prior convictions. The prosecution tendered and relied upon a Summary of Prosecution Opening which is Exhibit A.
2 The basis of the charges is that during 2021 the Victorian Government COVID-19 Business Costs Assistance Program was operating to assist small businesses with the adverse effects of the COVID pandemic. A program was released to assist eligible small to medium businesses in sectors most affected by the May/June 2021 COVID restrictions in Victoria. The program offered grants of up to $7,000 to eligible businesses, including employing and non-employing businesses and depending on the industry sector, location and the number of weeks that they closed. There were a number of criteria for determining eligibility.
3 Successful applicants received a payment and top-up payments to support affected businesses throughout the extended restrictions and those included Business Costs Assistance Program July top-up payments announced on 16 and 21 July 2021.
4 The offences to which you have pleaded guilty are each rolled-up charges. They encompass a total of 53 applications that you made for payments ostensibly for businesses that you purported to represent as an accountant. The 53 transactions resulted in fraudulently-obtained payments to you totalling $329,000. None of that money has been recovered. The applications that you submitted were ostensibly on behalf of trust entities that represented businesses that you claimed to represent. You provided details in relation to each of those businesses that appeared to meet the eligibility criteria for the program, when, in truth, each applicant was not a functioning business entity and the related trusts, on whose behalf you purported to act, were fabrications.
5 The various businesses that you purported to represent included hairdressers, cafés, photography services, sports and recreation businesses, florists, clothing and furniture retailers, video production and administrative services businesses. In making each application you would receive an initial payment and then a further payment and all of the funds were deposited into your bank account.
6 You were detected as a result of the substantial evidentiary trail that you left in making the applications. You were arrested on 28 April 2022 at your business premises in Warragul and were interviewed by police. You made full admissions to your conduct. You stated that you were motivated to commit the offences to cover numerous personal debts, business costs, vehicle leasing costs, living costs and costs connected with your home renovations.
7 Turning to matters personal to you, your counsel provided me with a written outline of submissions which is Exhibit 1 on the plea hearing. You were born in Melbourne, grew up in Shepparton with a brother who was 16 months younger and both your parents. Your father was a chef and your mother a waitress and they both worked in the same hospitality business. You attended school first in Mooroopna and then at Shepparton, where you completed Year 12 in 2002.
8 You commenced a course at Swinburne University in Melbourne when you were still 17, but discontinued that course after completing the first year. You returned to Shepparton and obtained a Certificate IV in Mortgage Broking and Management. Following this you were employed at various locations until you set up your own mortgage broking business in 2018. The business operated from rented premises and employed two other people. However, at the onset of the COVID pandemic business difficulties arose, as they did with many small businesses. They combined with a number of personal difficulties from which you had been suffering at that time.
9
10 You first married in 2013. Your father passed away in 2014. There was a son born to your then wife in 2014. You separated from the mother of that child in October 2014 and you have attempted to maintain a meaningful relationship with that son who is now aged eight. However, you have been involved in ongoing court proceedings and the current court order, at least up until the time you were committed to custody last week, enabled you to collect your son on a Friday and return your son on the following Sunday of each second weekend. You also had FaceTime contact twice a week. I note that your counsel indicates that you are concerned that if you are imprisoned the mother of the child may deny you future contact.
11 You remarried in 2016 and at the time of the offending you had two children, one born in 2016 and the second born in February of 2018. A combination of financial and social stresses led to a breakdown in that marriage. You left the matrimonial home in mid-May 2021 and moved to a flat in Camberwell in late May of 2021. You were running your business, paying business expenses, supporting your wife and children and paying for your own living expenses at the time you committed the offences. You reconciled with your wife and you had a third child on 19 March 2022.
12 You were arrested on 28 April 2022. Your counsel put forward a number of matters which he invited me to take into account in mitigation of sentence, including the fact that you pleaded guilty at an early stage and that you had made admissions to the offending during your interview with police. He submitted that during that interview you expressed remorse and that the plea of guilty that you tendered is an indication of an acceptance of criminal responsibility and remorse. I accept that you are remorseful for your offending.
13 The plea of guilty was entered during the COVID pandemic and you are entitled to a substantial discount of sentence arising from that fact and the fact that the COVID pandemic still requires more stringent conditions of incarceration for people who are serving sentence. I give you full credit for all of those factors and will reduce the sentence that I would otherwise impose accordingly.
14 Your counsel stresses the fact that you have no criminal history. Your offending occurred when you were 36 years of age, you are now 38 and a person of previous good character. There has been a significant extra curial punishment arising from the fact that your mortgage broking business is now gone and that you will not be able to resume that occupation as a result of your conviction for these offences.
15 It was pointed out that the offending occurred during a period of substantial personal and financial pressure and, whilst those may be attributed to poor business decisions, the pandemic undoubtedly had a significant impact on your business. At the time of the offending you were separated from your wife and children.
16 It was pointed out that the offending was relatively unsophisticated and that lack of sophistication led to detection of your offending. It may be said that the nature of your offending, and the audit trail that you left in the offending conduct, was inevitably likely to lead to detection. It was also submitted that you have excellent prospects of rehabilitation and that I should take that into account in assessing your suitability for a sentence which includes a community correction order.
17
Mr Batten, on behalf of the Crown, submitted that the sentencing principles that apply for offences of this nature require a sentence of imprisonment which would also require a non‑parole period. He conceded many of the factors that were relied upon by Mr Lavery on your behalf in mitigation of sentence. He also provided me with a deal of information upon which I am able to determine current sentencing practice, referring to a number of authorities.
18 I need only refer to one in particular for present purposes and that is Black v The Queen [2022] VSCA 125 in which the court referred at paragraph 21 to the applicable sentencing principles in cases such as this. I am not going to go through all of those principles, but I note in particular that the first principle referred to is that general deterrence is the primary sentencing consideration for such offences and it was noted that:
'Offences relating to the social security system are widespread, relatively easy to commit and can pass unnoticed. A social security system relies on the honesty of its recipients. Fraud creates a heavy burden on the Australian government's revenue, the community and taxpayers. Those who abuse the system can engender public loss of confidence in the social security system and create the risk of demonising those who genuinely need such assistance.'
19 The same principle applies, in my judgment, to this case and the scheme that was operated by the Victorian Government to assist small businesses during the pandemic. For those reasons a sentence of imprisonment is required to satisfy the need for general deterrence and just punishment.
20 I accept that you have excellent prospects of rehabilitation and for that reason I ordered a report from Community Corrections as to your suitability for a community correction order. Such a report has been received and it assesses you as being suitable for a community correction order. The two special conditions that are recommended are community work and supervision.
21 I indicate to you that I propose to sentence you to a term of imprisonment, coupled with a community correction order. I cannot impose such an order without your consent. I have no doubt that you have discussed the proposed order with your counsel, but it is necessary for me to take you to the terms of the order before I ask you whether you consent to be the subject of a community correction order.
22 The order that I propose will be for a period of 18 months commencing upon your release from your term of imprisonment. You will be required to attend the Warragul Justice Service Centre at 12 Queen Street, Warragul, Victoria, 3820, within two clear working days after the commencement of the order.
23 The mandatory terms which apply to all community correction orders are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations which requires you not to turn up to supervision visits or to your unpaid community work commitments whilst drunk or drug‑affected, that kind of thing;
· you must report to and receive visits from the Secretary of the Department of Justice, or his or her delegate;
· you must let a community correction officer know within two clear working days of your changing your address or job;
· you must not leave Victoria without first getting permission to do so from the Secretary of the department or his or her delegate; and
· you must obey all lawful instructions from and directions of the Secretary of the department or his or her delegate.
24 In addition to those conditions:
· you will be required to perform 200 hours of unpaid community work over the period of 18 months during which the order is in force as directed by the regional manager - if you fail to comply with that order the Secretary of the Department of Justice, or his or her delegate, may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act; and
· you must be under the supervision of a community corrections order for the period of 18 months during which the order is in force.
25 Benjamin Dennis, do you understand the terms of the order that I have just read out?
26 OFFENDER: Yes, Your Honour.
27 HIS HONOUR: Do you consent to comply with those terms?
28 OFFENDER: Yes, Your Honour.
29 HIS HONOUR: I should warn you that if you fail to comply with the terms of the order you could be brought back to this court, and probably before me, and sentenced for up to three months for merely breaching the order. You may also be resentenced for these offences and if that were to occur you would almost certainly be required to do more gaol time. Do you understand the consequences of breaching the order?
30 OFFENDER: Yes, I do, Your Honour.
31 HIS HONOUR: Are you still willing to comply with the terms of the order?
32 OFFENDER: Most definitely, Your Honour.
33 HIS HONOUR: In those circumstances I will take your indication as to consent to be placed on the order and we will note that on the terms of the order. Mr Lavery, I take it that you are satisfied that your client understands what he is being asked to agree to?
34 MR LAVERY: Yes, Your Honour, I am.
35 HIS HONOUR: Yes, thank you.
36 Well, the sentencing order that I make, therefore, is as follows: on each of Charges 1 to 5 on the indictment you are convicted and sentenced to imprisonment for 12 months. Each of those sentences will run concurrently, making a total effective sentence of imprisonment for 12 months.
37 I declare seven days as time to be reckoned as served on the sentence that I have imposed.
38 In addition, on each charge on the indictment I order that you be the subject of the community correction order, the terms of which I have read out and the period being for 18 months.
39 But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years with a non‑parole period of two years.
40 Are there any other orders, Mr Batten?
41 MR BATTEN: No, Your Honour.
42 HIS HONOUR: Thank you. I am now signing the order to which you have agreed, Mr Dennis.
43 Mr Dennis, I note that I've also taken into account in passing sentence the fact that you are separated from your family, your children, and are unable to fulfil your obligations and your duties as a father to each of your children, including the child of your first marriage. I take that into account in that it will make your period of incarceration during your sentence harder for you to bear.
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