Director of Public Prosecutions v Despot
[2024] VCC 384
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01658
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANKO DESPOT |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 March 2024 |
DATE OF SENTENCE: | 26 March 2024 |
CASE MAY BE CITED AS: | DPP v Despot |
MEDIUM NEUTRAL CITATION: | [2024] VCC 384 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dishonestly obtain a financial advantage by deception from a Commonwealth entity; Attempt to dishonestly obtain a financial advantage by deception from a Commonwealth entity; Plan to defraud the Australian Taxation Office; Lodging false business activity statements;
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth);
Cases Cited:The Queen v Pham (2015) 256 CLR 550; Acosta v The Queen [2015] VSCA 94; Karpinski v The Queen [2011] VSCA 94; Tambakakis v The King [2023] VSCA 36
Sentence:Two years and six months imprisonment. Three year recognisance release order
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr L. Mahon | Commonwealth Director of Public Prosecutions |
For the Accused | Mr G. Casement | Daniel Taylor Lawyers |
HER HONOUR:
1Branko Despot, between February 2022 and May 2023 you dishonestly claimed Goods and Services Tax (GST) refunds from the Commissioner of Taxation by lodging a total of seven false Business Activity Statements (BAS).
2On 13 March 2024 you pleaded guilty before me to one charge of dishonestly obtain a financial advantage, namely $104,086, by deception from a Commonwealth entity contrary to sub-section 134.2(1) of the Criminal Code (Cth) (Charge 1) and one charge of attempt to dishonestly obtain a financial advantage, namely $4,100, by deception from a Commonwealth entity contrary to subsections 11.1(1) and 134.2(1) of the Criminal Code (Cth) (Charge 2).
3A plea on your behalf was conducted before me on the 13 March 2024 and it now falls to me to sentence you for your conduct. Your counsel, Mr Casement, conceded that a term of imprisonment was warranted but submitted that you should be released in the near future on what is known as a recognisance release order.
4The prosecutor, Mr Mahon, agreed that a term of imprisonment in combination with a recognisance release order was appropriate. Such a disposition is only available if the total effective head sentence is between six months and three years.
5In determining the sentence, I am required by law to have regard to a variety of factors which I will discuss in these sentencing remarks.[1] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[1] Section 16A of the Crimes Act 1914 (Cth).
Circumstances of the offending
6The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[2]
[2] Exhibit A on the plea
7In short, in December 2021 whilst on remand for burglary and other offences at Fulham Correctional Centre you formulated a plan to defraud the Australian Taxation Office and spoke to an associate about it on the telephone. You told him, essentially, that you knew a very easy way to make money for doing nothing using a myGov account and a linked ATO account. That call was recorded.
8On 21 January 2022 you were sentenced for the burglary and other offending to a total of four months imprisonment which, with time served, resulted in you being released from prison on 6 February 2022.
9On 8 February 2022, pursuant to your plan, you applied online for an Australian Business Number (ABN) representing that you were an ‘individual/sole trader’ carrying on a business of ‘selling furniture to retailers’. You used your own name and residential address, a phone number ending in 775 and an email address of [email protected].
10On the same day you applied online via your ATO account to register the furniture business for GST and nominated a Commonwealth Bank of Australia account in your name, and operated exclusively by you, to receive payments from the Commissioner of Taxation. You represented that the annual turnover of the business would be between $150,000 and $1,999,999 and that you would report GST monthly on a cash basis.
11You were subsequently granted an ABN (205 727 007 06) for the business and it was registered for GST in accordance with your application.
12You then proceeded to lodge fraudulent BAS online by your ATO account. Between 21 February 2022 and 28 July 2022, you lodged six BAS in which you falsely claimed to have paid a total of $109,362 in GST on purchases for your business. Between 25 February 2022 and 28 July 2022, a total of $104,086 was paid into your CBA account by way of GST refund. In reality you were not carrying on a furniture business and you did not make any of the purchases you claimed. This conduct represents Charge 1.
13You used the money you obtained for general expenses, including eBay purchases, car improvements, transferring funds to other individuals and, according to what you told forensic psychologist Ms Cidoni, gambling.
14The offending the subject of Charge 1 was detected in August 2022 when the Victoria Police were examining your mobile phone under warrant in relation to an unrelated matter. By email to your lawyers in January 2023 you were offered a formal interview, but for whatever reason an interview did not occur.
15Notwithstanding the fact that you were charged in relation to the first six fraudulent BAS on 31 January 2023, indeed notwithstanding that you would have appeared at the first mention of those charges on 23 February 2023, you did the same thing again. On 4 May 2023, you lodged another fraudulent BAS in which you falsely claimed to have paid $5,300 in GST on purchases for your alleged business. This time, however, you were unsuccessful because on about 26 May 2023 the ATO audited you and found no evidence that you were in fact carrying on a business. This conduct represents Charge 2.
Your personal circumstances
16Turning now to your personal circumstances which were outlined in defence written and oral submissions, and a report from psychologist Gina Cidoni dated 24 February 2024. Ms Cidoni spoke with you on 22 February 2024 for two hours via videoconference from Fulham Correctional Centre and administered various psychological tests.
17You are now aged 31 and were aged 29 and 30 at the time of the offending. You were born and raised in Club Terrace, Victoria and are the youngest in a sibship of three. You are estranged from your brother who lives in Queensland and is homeless and unemployed. Your sister and her son live in Melbourne, but you have also lost contact with them.
18Your mother is Italian, and your father is Serbian. Your mother worked as a cook and due to her work schedule, as well as her partying and drinking, she was often absent in your youth. She is currently an inpatient at the Alfred Hospital for stage 4 leukemia and may only have months to live. You are very close to her. Your father worked in forest fire management. He struggled with alcoholism and is living in Melbourne whilst he receives outpatient care from the Alfred Hospital for cirrhosis of his liver. You are very worried about their health.
19You told Ms Cidoni that as a child you were surrounded by significant alcohol abuse. You witnessed verbal and sometimes physical altercations at home and between your friends’ parents. You recall being hit by your parents and this has had a lasting impact on you. You report that your siblings left home early because of the environment, and you were largely on your own during your childhood.
20You attended school until the middle of Year 12. Your attendance was irregular and, because of your issues at home, your academic performance suffered. You often skipped school to smoke cannabis, were involved in physical fights with students, had many suspensions and came close to being expelled.
21You left home when you were 17 and lived with friends in Bairnsdale for approximately seven years.
22When you were 19 you commenced an on again off again relationship with Johanna which lasted for seven years. You told Ms Cidoni that you were heavily using drugs and alcohol during this time and that you influenced Johanna to use drugs as well. The two of you often argued about drug use. After you separated you moved to Melbourne and couch surfed for three years but also had months of sleeping on the streets.
23You worked as an apprentice electrician for a brief period but were fired due to inconsistent attendance. Following that you worked as a concreter on and off until around 2017. You have not worked since then, relying instead on Centrelink benefits.
24You have sustained a number of injuries, including to your head, over the years in pushbike, motorbike, motor car, horse-riding, and other incidents.
25You have a long history of drug and alcohol abuse. You began drinking alcohol at 14 and by 16 you were drinking daily and have done so ever since. You started using cannabis at 13, apparently influenced by your mother, and have done so ever since. You took amphetamines as a teenager which led to methamphetamine use by age 18. You have used GHB since your mid-twenties. In the lead up to your arrest on 29 December 2023 for unrelated matters, you were using cannabis, methamphetamine and GHB daily and were also intermittently using cocaine, ecstasy, ketamine, Xanax, and Valium.
26You also reported to Ms Cidoni that you have had a problem with gambling since you were 18.
27The 2019 Gippsland bushfires significantly affected you and your parents. You lost your home, animals, and possessions. You told Ms Cidoni that you ‘lost everything’ and used drugs to manage your emotions.
28In 2023 you moved back to your parents’ home in Club Terrace due to their hospitalisation. When released you hope to care for them and help restore their farm.
29You do not have any formal mental health diagnosis. When previously incarcerated you attended two mental health sessions with a psychologist but did not continue.
30Ms Cidoni opined that you have significant cognitive deficits in verbal comprehension and working memory which would likely affect your decision making, impair your actions and thought processes and compromise your logic and abstract thinking skills. You also fit the criteria for substance use disorder and gambling disorder, both in early remission. Whilst you exhibit symptoms consistent with Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, Somatic Symptom Disorder and Borderline Personality Disorder, Dr Cidoni considered a more prolonged period of abstinence was required to make those diagnosis.
Objective gravity of your offending and moral culpability
31Two factors of central importance in determining your sentence are the objective gravity of your offending and your moral culpability. If there was any doubt about the seriousness of your offences, the maximum penalties of 10 years imprisonment for each make it clear.
32Further, Charge 1 is a course of conduct charge involving six separate deceptions.
33You told Ms Cidoni that your involvement in the offending stemmed from financial desperation. You cited influence from someone you met in prison who advised you on 'scamming the system' upon their release in 2022. You acknowledged substance abuse during the time of the offence including heavy use of methamphetamine, alcohol, and other substances. She opined;
'Mr Despot's substance addiction played a significant role in the offending. The impairment caused by substances such as methamphetamine, cocaine and GHB could have compromised his judgement, impulse control and decision making abilities, leading to reckless behaviours such as attempting to obtain a financial advantage through deception. Alongside this, his problematic gambling addiction further fuelled his financial desperation and contributed to his involvement in fraudulent activities as a means to obtain funds for gambling. His cognitive deficits likely played a role in his offending behaviour, in his ability to fully understand the legal and ethical implications of his actions and to plan and execute decisions effectively. Furthermore, his cognitive deficits may have influenced his susceptibility to influence from others, potentially making him more vulnerable to engaging in crimes, especially in the context of his substance use and gambling addiction.'
34Whilst it may be true that the idea was given to you by someone else and also that you were taking drugs and alcohol during the 15 month total period of the offending, you enthusiastically embraced the idea whilst you were in custody at which time you would have been sober. You then immediately implemented it in a most brazen way upon your release even though you were then subject to an 18 month correction order.
35Drug and gambling addictions are never mitigating, but that aside, this was not a case of you committing a spontaneous crime under the influence of drugs. This was planned and sustained criminal activity involving multiple different acts over many months. Not only did you make the initial fraudulent applications for an ABN and GST registration and then lodge the seven different fraudulent BAS, every single time you withdrew money from your bank account you were dishonest. You knew you were spending money that was not yours and you did so over a long period. You had ample time to reflect on what you were doing and stop it, but you did not. You did not even desist after your offending was discovered.
36The fact you decided to commit the fraud and induct others into the scheme whilst on remand for burglary demonstrates complete contempt for the law and legal process, as does the fact you implemented the scheme two days after you were released from prison after being sentenced for that burglary and whilst on a correction order. Those matters tend to undermine your claim to Ms Cidoni that you only became involved because you were financially desperate and also her opinions as to the reasons for your conduct. I have no doubt you knew what you were doing was legally, morally, and ethically wrong and that you were acting completely of your own accord.
37Further, it appears the only reason the offending the subject of Charge 1 ceased was because you were remanded in custody for unrelated dishonesty, driving and firearm offences on 5 August 2022. You remained in custody for those offences until 28 April 2023 at which time you were released after having been sentenced to time served. It is bad enough that within a week of your release you lodged your seventh fraudulent BAS, but the fact you did so even though by that stage you had been charged for the conduct amounting to Charge 1 is breathtaking.
38That said, I accept that although planned and premeditated, your offending was not terribly sophisticated in the sense that you used your own identity and were on JobSeeker at the same time as you were pretending to operate a very successful furniture business. Further, the fact that a supposedly successful business was operating from a very small country town was obviously questionable. It could not be said however that the scheme was necessarily doomed to fail, as Mr Casement submitted, because data matching is not automatic. Your first six false BAS were paid out and their falsity was only detected when police were investigating you for something else.
39I consider that this relative lack of sophistication does reduce the objective gravity of your serious offending to a degree, but it does not reduce your moral culpability. Nor do I consider your difficult upbringing, which I take into account in a general way, or your cognitive limitations, have any significant bearing on your moral culpability, which I consider to be very high.
Impact of your offending
40I am required to take into account any injury, loss or damage resulting from your offence and any victim impact statement tendered.[3] You may have seen what you were doing as a victimless crime, but of course it is not, as crimes such as yours affect all taxpayers and society in general.
[3] Section 16A (2)(e) and (ea) of the Crimes Act 1914.
Current sentencing practices
41To promote consistency of approach in sentencing, particularly the application of relevant principles, I must have regard to sentences imposed in other cases, including, since this is a Commonwealth matter, sentences considered on appeal in other states and territories.[4] Comparable cases may also reveal discernable sentencing practices and sentencing ranges, although no two cases are ever truly the same and there is no single correct sentence.
[4] The Queen v Pham (2015) 256 CLR 550 at [18] and [23] in the case of Commonwealth offences.
42Cognisant of the limitations involved in such an exercise, I have had regard to the table of sentences provided by the prosecution. Both parties agreed that the case of Acosta[5], which happens to be a Victorian matter, is the most comparable and I agree, although it is obviously dissimilar in a number of ways.
[5] Acosta v The Queen [2015] VSCA 94.
43Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of guilty, co-operation and remorse
44You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage. In so doing you facilitated the course of justice and took legal responsibility for your crimes. The fact the case against you was overwhelming does not detract from the utilitarian value of your plea of guilty. I am not however satisfied that you are entitled to any greater discount for your plea of guilty because of the pandemic, the effects of which on the court system had passed by the time this matter resolved in September 2023.
45Ms Cidoni said you ‘expressed remorse for what you did’ and were motivated to turn your life around especially because of your parents. I do not know how you expressed your remorse to Ms Cidoni, but it is hard to reconcile you being genuinely remorseful with the chronology of all your offending which I have already outlined. I accept that you may regret your actions because of the predicament you now find yourself in, but in the end, I am not persuaded that you feel anything more than that. Specifically, I am not satisfied that your plea of guilty is accompanied by a true acknowledgment of the societal harm caused by offending such as yours and a commitment to change.
Your character and risk of reoffending
46Your criminal history is concerning. Although your first court appearance was not until you were 25, since then going to court, and indeed being imprisoned, has been a regular occurrence. You have committed a range of offences consistent with your history of drug abuse. You have been convicted of offences relating to drugs, dishonesty including burglary, driving, assaults, weapons, and firearms. You have received a range of dispositions, starting with fines, then a correction order, which you breached, and then imprisonment. Nothing has deterred you and so far, nothing has rehabilitated you.
47You told Ms Cidoni that you had not engaged in any substance use treatment programs prior to your incarceration and that the only time you were abstinent was when you were in prison, but you would relapse upon release. However, I do note that the community correction order you received in 2021, and which was confirmed after breach in 2022, did include treatment and rehabilitation conditions for drug abuse and dependency as well as mental health.
48Since you were remanded in December 2023 you have made the most of your time which is to your credit. You work six days per week in landscaping the internal grounds of the prison. For that you receive a small wage and that is your sole source of income. You have completed vocation courses in occupational health and safety, safe food handling and traffic management. You have completed an illicit drug rehabilitation program over seven weeks called Skating on Ice and you say that this has afforded you a new perspective on ice and how it affected you. You spend your spare time in prison working on your fitness and attempting to read in the library.
49Ms Cidoni said that you present a moderate risk of reoffending given your history of repeated criminal behaviour and ongoing struggles with substance abuse. She said your extensive criminal record characterised by theft, deception and drug related offending indicate a pattern of recidivism and suggests a propensity for future criminal behaviour.
50She also said that your impaired cognitive functioning and adverse childhood experiences further exacerbated your vulnerability to negative influences and maladaptive coping strategies which increased your likelihood of reoffending.
51Ms Cidoni also noted your stated remorse and desire to care for your parents upon your release as positive factors.
52She considered that you need intensive multifactorial therapy and assistance to reduce your risk of reoffending, which was unlikely to occur in prison. I direct that her report be provided to the prison authorities.
53Your ability to remain offence free is undoubtedly linked with your ability to remain drug and alcohol free but it also requires an attitudinal change on your part.
54Mr Casement submitted that I should find your prospects as reasonable. I am not that optimistic. Indeed, at the present moment I would have to assess your prospects of remaining offence free as dubious, although I hope the dire situation with your parents and the experience of having being charged with serious offences in the County Court may have finally operated to make you reassess your life and values.
Renzella time
55You have been in custody since your arrest on other matters on 29 December 2023. Those matters are yet to be determined in court. Until I revoked your bail on this matter at the plea, you had not spent any time in custody on this matter. I take the time you have spent in custody since 29 December into account in the manner envisaged in the well–known case of Renzella as subsequently endorsed by the cases of Karpinski[6] and Tambakakis[7].
[6] Karpinski v The Queen [2011] VSCA 94.
[7] Tambakakis v The King [2023] VSCA 36.
The burden of imprisonment
56In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to affect you and in that regard, I do take into account that your time will be harder because of your concern for your parents. You are worried that your mother may die before you are released. I am not satisfied that Verdins limb 5 applies because the state of the evidence does not go that far. At the moment you have not been diagnosed with any of the mental health conditions Ms Cidoni suspects that you may have.
Purposes of sentencing
57I am obliged under Commonwealth law to ensure that my sentence achieves the sentencing purposes of adequately punishing you, deterring you and others from committing this sort of offence, and promoting your rehabilitation. General principles require that I not impose a more severe sentence than is necessary to achieve those sentencing purposes and imprisonment must be a last resort.[8] As I have already said, Mr Casement properly conceded that the only appropriate sentence in your case was imprisonment, although he submitted that you should be released in the near future on a recognisance release order.
[8] If imprisonment is ordered a Court needs to explain why no other sentence is appropriate and cause those reasons to be entered into the records of the Court. Crimes Act 1914 s 17A(2).
58My sentence will require you to spend some further time in prison and you will not be released in the near future but it will be a matter of months.
59In the case of revenue fraud, general deterrence is a very important sentencing consideration. Because such crimes are lucrative and difficult to detect, the system depends on honesty and the revenue needs to be protected. Because of your criminal history there is also an obvious need to specifically deter you from committing further crimes.
60Your rehabilitation will be facilitated by releasing you on a recognisance release order with conditions. The primary focus of the conditions will be to promote your rehabilitation, although I have taken into account that they are a burden in themselves.
Sentence
61Weighing up the competing considerations as best I can, you are convicted on each charge and sentenced to terms of imprisonment as follows:
62On Charge 1 which is the dishonestly obtain a financial advantage by deception from the Commonwealth, you are sentenced to two years.
63On Charge 2 which is the attempt to dishonestly obtain a financial advantage by deception from the Commonwealth, you are sentenced to eight months.
64The sentence on Charge 1 will effectively be the base sentence and I direct that that commences today.
65The sentence on Charge 2 is to commence two months before the expiration of the sentence on Charge 1.
66So that leads to a total effective sentence of two years and six months' imprisonment.
67 I order that you be released under paragraph 20(1)(b) of the Crimes Act 1914 after serving 10 months of that two years and six months upon you giving security by recognisance of $500 to comply with conditions that you:
a) be of good behaviour for a period of three years;
b) be subject to the supervision of a probation officer for a period of one year;
c) obey all reasonable directions of the probation officer;
d) not travel interstate or overseas without the written permission of the probation officer;
e) undertake such treatment or rehabilitation programs that the probation officer reasonably directs including;
1) assessment and treatment for alcohol abuse or dependency;
2) assessment and treatment for drug abuse or dependency;
3) mental health assessment and treatment;
4) any other programs to reduce reoffending as directed by your probation officer.
68Now, there are some other conditions which are necessary to give effect to those rehabilitative conditions and they are:
a) that you are to report to the Bairnsdale community correction centre within two clear working days upon your release from custody;
b) that you report to and receive visits from a community correction officer;
c) that you notify an officer of the Bairnsdale community correction centre of any change of address or employment within two clear working days after the change.
69I need to inform you of what will happen if you breach the recognisance release order but before I do that I want to make sure that you understand the sentence I have imposed.
70So it is two years and six months but you are to be released after 10 months, upon giving that security by recognisance of $500. You do not have to pay the $500, it is something you may become liable to forfeit to comply with the conditions that I have set out, that is, the three years being of good behaviour, the one year of being subject to supervision by a probation officer, obeying the directions of the probation officer, not travelling interstate or overseas without the permission of the probation officer and undertaking the treatment and rehabilitation programs that the probation officer reasonably directs. Do you understand that?
71OFFENDER: Yes, Your Honour.
72HER HONOUR: Do you consent to that recognisance release order?
73OFFENDER: Yes, Your Honour.
74HER HONOUR: Are you willing to comply with that order?
75OFFENDER: Yes, Your Honour.
HER HONOUR: So, I need to inform you of what will happen if you breach the recognisance release order. If you do breach it, then that is an offence in itself and you will then be charged with breaching the order. There is a range of things that can happen then, but essentially you will be brought back before me and I can fine you, or I can amend the order to extend the period of your good behaviour, I can revoke the order, I can make a community correction order, or – and this is the thing that will worry you the most if you breach it – I could revoke the order and order that you be imprisoned for the rest of that term of two years and six months, or I could take no action, but it is unlikely that I would take no action.
76So you have to regard this as something like a suspended sentence, that is the safest way to think of it because if you do breach it there is the real possibility that you will have to serve the rest of that two years and six months. Do you understand?
77OFFENDER: Yes, Your Honour.
Pre–sentence detention
78HER HONOUR: I declare you have already served 13 days of that sentence, not including today, and I order that this declaration be entered in the records of the court and that the period be deducted administratively.
Section 6AAA
79If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of three years with a non-parole period of two years and four months.
Ancillary orders
80Now the prosecution have made an application for reparation in the sum of $104,086 which was not opposed so I will make that order. It is not part of your recognisance release order. In other words, if you do not pay that sum it does not mean that you have breached the recognisance release order. It is a separate order, it is like a debt that you are going to have hanging over you unless you pay it and they can, I presume, take enforcement measures in whatever way debts are normally enforced.
81MR MAHON: Yes, through the ordinary civil processes.
82HER HONOUR: Now I will hand down to the parties the recognisance release order that I have prepared just so you can check it.
83MR CASEMENT: That looks fine, Your Honour.
84MR MAHON: Your Honour, there's no issue with that order.
85HER HONOUR: Okay, thank you. So, Mr Despot, I signed this recognisance release order and I will have it sent to you in prison for you to sign. You need to sign it before someone, that person witnesses it and puts their name and title on the document and then it will get sent back to us. The form that is being sent to you just has you signing and acknowledging that you have had explained to you by me the purpose and effect of the order, the consequences that may follow if you fail to comply with that reasonable excuse with the order and also – and this is something I did not explain – the order may be discharged or varied under s20AA of the Crimes Act 1914, so there is an ability to vary the order you would have to apply and also you agreeing to be bound by the order and agreeing that you have been given a copy of the order.
86So you understand, Mr Despot, that form is going to be sent to you and then you sign it.
87OFFENDER: Yes, Your Honour.
88HER HONOUR: All right. Well unless there is anything else then I will leave the Bench.
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