Director of Public Prosecutions v Dewhurst
[2016] VCC 1187
•6 June 2016
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL DIVISION
Case No. 16-00260
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONIE CATHRYN DEWHURST (aka Leonie Cathryn Cassidy, Leonie Cathryn Moseley or Leonie Cathryn Moore) |
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2016 | |
DATE OF SENTENCE: | 6 June 2016 | |
CASE MAY BE CITED AS: | DPP v Dewhurst | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1187 | |
REASONS FOR SENTENCE
Catchwords: CRIMINAL LAW
Subject:Sentence – Plea of guilty – Obtain property by deception (Commonwealth) – Obtain financial advantage by deception (Uplifted Commonwealth charge) – Relevant criminal record – Delay – Solid work history – History of anxiety and depression – Lack of community supports
Cases cited:DPP and O’Neill [2015] VSCA 325; Regina v Andrew Peter White Unreported Judgment dated 20 August 1998 New South Wales Court of Appeal per Chief Justice Wood - BC9804982; Mohamed El Rakhawy [2011] WASCA 209
Sentence:Commonwealth indictable offence convicted and sentenced to 24 months’ imprisonment commencing today and to be released after serving 10 months’ imprisonment on a recognisance release order in the sum of $3,000 to be of good behaviour for a period of three years - Uplifted Commonwealth offence convicted and sentenced to a community corrections order of two years’ duration taking effect immediately after your release from the immediate term of imprisonment imposed – Community Corrections order with both mandatory and other conditions - Ancillary orders reparations orders in respect of both the Commonwealth charge and uplifted summary matter
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions For the Accused | Mr A. Field Mr W. Grimshaw | Commonwealth Director of Public Prosecutions Greg Thomas Lawyers |
HER HONOUR: |
Leonie Cathryn Dewhurst, you have pleaded guilty to one charge of obtaining property by deception, contrary to s.134.1(1) of the Criminal Code (Cth). The maximum penalty for this offence is 10 years’ imprisonment. You have also pleaded guilty to a charge of obtaining a financial advantage by deception pursuant to s.135.2(1) of the Commonwealth Code which was uplifted from the Magistrates'' Court. This offence has a maximum penalty of 12 months’ imprisonment.
The maximum penalties reflect the seriousness with which Parliament regards these offences.
You have pleaded guilty to the offence on the indictment on the basis that you engaged in a continuing course of conduct, rather than on the basis of a rolled up charge. However, the learned prosecutor submitted that, for sentencing purposes, there was no practical difference.
BACKGROUND
In relation to the offence on the indictment, I was told that you were employed by a psychological and psychiatric practice called Positive Psychology as a receptionist. You were employed on a permanent basis from 17 August 2009 to 24 November 2009. You were employed as a contractor from 25 November 2009 to 14 February 2011.
Positive Psychology is owned and operated by clinical psychologist
Peter Kyriakoulis. [1][1] Statement of Daniela Stansfield page 440 [3].
Psychologists at the practice had been allocated a DHS Medicare provider number which enabled Medicare benefits to be paid for services rendered by them to patients[2].
[2] ibid
Patients are referred to Positive Psychology by their General Practitioner (GP) under a GP Mental Health Plan and are eligible for up to six (6) services per referral.[3] These patients are eligible to receive a Medicare rebate.
[3]Statement of Daniela Stansfield page 441 [10]
From June 2007, Medicare Easyclaim was established as a system that facilitates the creation, lodgement, receipt, processing and reconciliation of patient claims. This is done using banking infrastructure, in particular the use of Electronic Funds Transfer at point of Sale (EFTPOS) network to transmit Medicare claims to DHS. Where a benefit is deemed as payable using this method, the benefit is settled into an account attached to a patient's debit card.
Positive Psychology was authorised by DHS Medicare to use stand-alone HICAPS Electronic Funds Transfer (EFT) terminals. This enabled patients to make an electronic payment to Positive Psychology for a service rendered to them and then, in another transaction, to receive an electronic Medicare rebate in relation to that paid account.[4]
[4]Statement of Daniela Stansfield page 442 [17]
10. Your usual duties included the making of patient appointments, the creation of accounts and receipt of payments. You were authorised to access and use the HICAPS machine and the computer system containing patient records.[5]
[5]Statement of Daniela Stansfield page 444 [27] to [29].
11.According to records held by Positive Psychology in relation to your personal details, Stephen Horsfall was recorded as your husband, which was, in fact, the case.
12.You are registered for the Medicare program on a Medicare card in the name of Miss L. Dewhurst.
13.DHS Medicare records showed that you and Mr Horsfall were nominated as having the same residential addresses for Medicare purposes on several occasions.
OFFENDING
14.In relation to the offending itself, between 26 October 2009 and
12 February 2011, you used the practice software to create false services and generate online claims that were later submitted to Medicare via the Medicare Easyclaim System. During this period, you created and lodged 1,199 online claims in the names of 265 people for services not rendered to them by the providers working at Positive Psychology. The 265 people were either current or former patients at the practice or people who had never been patients at the practice.15.For each of these claims, you used a bank debit card attached to bank accounts which you operated or had access to and had the benefit deposited into the corresponding account.
16.On each occasion that a bank-debit card was used to receive a benefit, the last four digits of that individual card were captured by DHS Medicare data.
17.Between 26 October 2009 and 17 November 2009, you used a bank debit card ending in 6154 on 34 occasions to claim $3,942.90 in benefits that you were not entitled to receive. This card was attached to a Commonwealth Bank account which ended in the numbers 9179 in the name of S.R. Horsfall.
18.Between 1 December 2009 and 27 July 2010, you used a bank debit card ending in the numbers 2223 on 245 occasions to claim $29,176.65 in benefits you were not entitled to receive. This card was attached to a Commonwealth Bank account ending in 9179 in the name of
S.R. Horsfall.19.Between 15 December 2009 and 20 April 2010, you used a bank debit card ending in the numbers 7347 on 123 occasions to claim $14,465.75 in benefits you were not entitled to receive. This card was attached to a Bankmecu account ending in the numbers 1083 in the name of
L.C. Dewhurst.20.Between 9 March 2010 and 29 June 2010, you used bank debit card ending in 2207 on 91 occasions to claim $10,706.15 in benefits you were not entitled to receive. This card was attached to a Commonwealth Bank account ending in the numbers 5851 in the name of S.R. Horsfall and
L.C. Dewhurst.21.Between 8 June 2010 and 9 December 2010, you used a bank debit card ending in the numbers 2725 on 491 occasions to claim $63,289.20 in benefits she was not entitled to receive. The card was attached to a Bankmecu account ending in the numbers 1083 in the name of
L.C. Dewhurst.22.Between 17 August 2010 and 8 February 2011, you used a bank debit card ending in numbers 5333 on 102 occasions to claim $12,301.35 in benefits you were not entitled to receive. This card was attached to a
St George Bank account ending in numbers 7126 in the name of
Stephen R. Horsfall.23.Between 10 August 2010 and 8 February 2011, you used bank debit card ending in the numbers 2665 on 90 occasions to claim $11,343.55 in benefits you were not entitled to receive. This card was attached to a Commonwealth Bank account in the name of S.R. Horsfall and ending in the numbers 9179.
24. Between 20 January 2009 and 12 February 2011, you used a bank debit card ending in numbers 2262 on 23 occasions to claim $2,755.40 in benefits you were not entitled to receive. This card was attached to a Bankmecu account in the name of L.C. Dewhurst ending with the numbers 1083.
25. On numerous occasions you made multiple claims and used multiple cards on the same day to enable Medicare benefits to be deposited into your accounts.
26. As a result of lodging these Easyclaims online, you received $147,980.95 in benefits you were not entitled to receive.
SCHEDULE TO PROSECUTION OPENING
27.A table marked Schedule A was tendered at the plea hearing and set out all of the services claimed and paid to you by Medicare.
FORMAL OFFER OF A RECORD OF INTERVIEW
28. Your dishonest conduct came to light in November and December 2010 as a result of two former patients of Positive Psychology contacting the DHS Fraud Hotline to report that their Medicare history showed a number of claims for psychology services which they had not received. An investigation was commenced in March 2013 - over two years after these reports were made.
29.On 24 October 2014, a formal letter offering a record of interview was sent to you but no response was received from you, and therefore, no interview took place at that time.
HISTORY OF PROCEEDINGS
30. You were committed by way of straight hand-up brief in the
Magistrates'' Court at Melbourne on 24 February 2016, entering a plea of guilty to the charge in the same terms as the indictment.
Re Uplifted charge:
31. In relation to the uplifted charge, I was told that you had been in receipt of social security payments intermittently since 23 September 1993. Relevant to the charge, you had been in receipt of Newstart Allowance between 28 November 2008 until 9 August 2013 when your payments were cancelled. You were not in receipt of payments as at 3 August 2015.
32. Eligibility to receive Newstart Allowance is affected by income earned from employment. Whilst in receipt of these payments, you received income from four employers under the name ‘Leonie Cassidy.
33. You were engaged as a self-employed independent contractor by Industrial Labour Solutions Pty Ltd between 4 April 2011 and 20 August 2012.
34. You were employed on a full-time basis as a call centre operator by
JAAW Unit Trust trading as National Home Doctor Service between
21 August 2012 and 12 October 2012.
35. You were employed on a full-time basis in a clerical role by
Specialist Diagnostic Services Pty Ltd between 12 November 2012 and
6 February 2013.
36. You were employed on a casual basis as an administrative assistant by Aspen Medical Centre Pty Ltd between 16 April 2013 and 28 June 2013.
37. During the charge period, you earned $71,577.43 from these employers, or an average of $1,301.41 per fortnight.
38. During the charge period, you were subject to a fortnightly reporting regime where, on each reporting date, you were required to declare all gross income earned in the preceding fortnight.
39. You did not advise Centrelink of your employment and earnings. Although you earned $71,577.43 during the charge period, you made 50 false declarations of nil income during that period. As a result, you obtained social security payments to which you were either not entitled or only partially entitled.
40. An overpayment was raised initially on 2 November 2012 in relation to employment income received from JAAW Unit Trust trading as
National Home Doctor Service between 15 September 2012 and
18 October 2012. The bulk of your offending was later detected on
23 October 2014 as a result of a Pay As You Go data match with the Australian Taxation Office (ATO) which identified discrepancies between income declared to Centrelink and income declared to the ATO. A further overpayment was raised on 28 April 2015.
41. You were not interviewed in relation to this matter.
42. As a result of your actions, you were paid $22,945.79 to which you were not entitled. You have not made any repayments. The prosecution seek an order for reparation in relation to the the total sums which are the subject of each of the charges to which you have pleaded guilty.
43. Ms Dewhurst, your offending in respect of each of the charges is serious, especially the offence on the indictment. In relation to that matter, you engaged in a sustained course of conduct over a period of about 15 months which involved a considerable degree of endeavour and deceit on your part, as the numerous transactions reveal. Further, as Mr Field for the prosecution pointed out, you attended the Magistrates' Court on
18 March 2010 and pleaded guilty to one charge of obtaining a financial advantage by deception, the financial advantage being $17,869.
44. Breathtakingly, the day before your court appearance, you had made five fraudulent claims on Medicare. You attended court on 18 March 2010 and consented to the making of a community-based order which had treatment conditions attached. However, you made two false claims on 23 March 2010 and six false claims on 24 March 2010. Then, on 30 March 2010, you made 19 false claims, and on and on and on your fraudulent claims went, in breach of the community-based order that was imposed upon you with your consent.
45. Moreover, about two months after employment with Positive Psychology came to an end, you commenced the offending which is the subject of the uplifted charge. You defrauded Centrelink until 17 May 2013.
46. The learned prosecutor referred me to a salient passage from
Regina v Andrew Peter White, an unreported judgement dated 20 August 1998 from the New South Wales Court of Appeal per Chief Justice Wood – Reference - BC9804982. In respect of Medicare fraud, His Honour said:
“It needs to be understood that this is not victimless crime. The remainder of the community suffer when the public purse to which they contribute, and out of which the sick and deserving are entitled to assistance, is plundered by the dishonest. Medicare and social security fraud is difficult to detect, and the public morale is affected if it is thought that people who practice it can get away with it or are treated leniently. Absent strict compliance, the costs of administering these funds necessarily increase. The benefits provided to the needy may decrease and the processing of claims may be delayed, with consequent hardship if they have to be processed and checked minutely on every occasion for possible fraud.” (page 14)
47. Further, you were placed in a position of trust by your employer and effectively, by the community. You were entrusted with access to patient’s confidential files and with access to the rebate scheme for Medicare which is funded by the public purse. You repeatedly breached the position of trust you had been placed in, which is an aggravating feature of your offending.
48. You have one prior matter which is the matter to which I have previously referred. This matter was dealt with on 18 March 2010 at
Ringwood Magistrates Court and you were sentenced to a 12 month community-based order with conditions for unpaid community work, supervision, assessment and treatment for drug and alcohol addiction as well as psychological and psychiatric treatment conditions. I am not aware as to whether you actually received any psychological or psychiatric treatment at that time, but according to the order, you should have. There was also a compensation order for you to repay $17,889.64. I do not understand that you have repaid any of this sum.
49. Obviously, this prior matter is most relevant to the matters before me, and it is also relevant that you were given an opportunity to reform at that time but you failed to do so. In fact, as previously referred to, you flagrantly continued to offend, taking money from Medicare and after this, taking Centrelink money.
50. By way of explanation for your offending in respect of Medicare, I was told that, at the time, you were in a state of fragile mental health and that you were financially supporting your husband, Stephen Horsfall and your adult son. Although each of these people were receiving unemployment benefits, there was a significant financial burden placed upon you. Mr Horsfall was a heavy drinker and expected you to provide for him. The financial burden increased when the principal of Positive Psychology presented you with a contract of employment which took the place of you working as an employee at the practice with all of the benefits which this status afforded you. Understandably, you felt that you had no option but to sign the contract which resulted in you taking an effective cut in your remuneration.
51. In a bid to relieve your financial stress and symptoms of anxiety and depression, you turned to playing poker machines. You had some wins at first. In fact, I was told that you took some friends on a holiday with your winnings. However, inevitably, your luck ran out and you lost ever increasing sums on the poker machines. Your counsel submitted that you became enmeshed in a cycle of self-loathing, but, perversely, you turned to gambling in order to deal with these feelings, that it was in this context that you committed these offences.
52. I now turn to the psychological report prepared by Gina Cidoni on 17 May 2016. She assessed you over a three-hour period on 24 March 2016 this year and then conducted a telephone interview on 17 May. Having conducted psychological testing of you, she was of the opinion that you were of average intelligence with no test signs of cerebral dysfunction. However, she said that your mental health was impaired with the assessment revealing a considerable level of disturbance. You reported previous diagnoses of an adjustment disorder with depression and an eating disorder. She said that your treatment for depression with antidepressants had continued.
53. Ms Cidoni said that your depression extended to suicidal ideation and she described in detail the characteristics of your personality disorder, depression and anxiety. She said that you had disabling guilt and obsessions that no longer controlled your anxiety. Ms Cidoni said;
"Hysteria was reflected through Ms Dewhurst being naïve, suggestible and having a lack of insight into her own and others’ behaviour. She looks for simplistic and concrete solutions to her problems that do not require self-examination. She endorsed items relating to extremely low ego-strength, indicating that she can be unreliable, egocentric and irresponsible. She is unable to learn from experience or to plan ahead and her resources for coping with stressors and problems as they arise in her life are very reduced."(page 7)
54. Ms Cidoni was of the view that your personality profile was indicative of schizotypal personality disorder. She said that this disorder was indicative of difficulties in maintaining relationships with others and that there was usually cognitive or perceptual distortions as well as eccentricities in behaviour. She said;
"Individuals often have ideas of reference, odd thinking, suspiciousness, inappropriate, constricted affect, odd, eccentric, peculiar behaviour, lack of close friends and social anxiety. It typically leads to significant distress or impairment in social, work or other areas of functioning. There is a pattern of seeking treatment for the associated symptoms of anxiety, depression, or other dysphoric affects as evidence in her history."(page 7)
55. Ms Cidoni said that your thought processes could be disturbed and distorted and that there could be phases of psychosis.
56. She then said that there also appeared to be a gambling disorder which had operated since at least 2009 and that during the offending period, there was evidence that there was a pre-occupation with gambling, loss of control, gambling when feeling distressed, lies to conceal the extent of involvement with gambling, loss of significant relationships and jobs and reliance on others, including criminal behaviour, to provide money to relieve desperate financial situations caused by gambling.
57. She said:
"Given the above, it is likely that Ms Dewhurst was affected by mental illness during and predating the offending periods and her symptoms interfere with decision making and judgment and clear thinking across most situations." (page 7)
58. I note that a number of the matters referred to by Ms Cidoni were of a general nature rather than what she specifically found in you. She has had fairly limited time in which to make her assessment. I note that you have very recently attended a psychologist, Dr Morris, who has said that, after two sessions, it was still too early to be able to confirm any diagnosis, but says that you have shown remorse for your actions. I do accept that you have battled mental health issues for a considerable time,
Ms Dewhurst. In that regard, I was provided with a discharge summary from Pinelodge Clinic in respect of your admission there in 2001 and I was told about those circumstances of your difficulties in the course of the plea hearing.
59. Addiction to gambling, as such, is not a mitigatory matter. It may well explain what you did with the money that you took from Medicare and it might be that you took solace from your financial issues and mental health issues and financial pressure through gambling, but that is the extent of the way in which I could factor in your gambling addiction.
60. I have considered the nature of your mental health issues, as found by
Ms Cidoni. You suffer from a form of personality disorder, although symptoms associated with this are anxiety and depression.
61. In the recent case of DPP v O’Neill the Court of Appeal said that the principles in Verdins did not apply to personality disorders as such, but that such a diagnosis could still be relevant to the sentencing synthesis and help to explain the behaviour of an offender. Such a condition might still bear upon assessing the seriousness of an offender’s conduct and their moral culpability, but would not attract the level of mitigation that must be allowed where Verdins considerations are concerned.
62. I accept that you were suffering anxiety and depression at the time of your offending which somewhat impacted on your judgement. However, in view of your repeated offending over a period of 18 months which involved considerable effort and deliberation and also in view of the diagnoses of a personality disorder and the case of O’Neill, I make a fairly limited reduction in your moral culpability. I marginally reduce the weight that would otherwise attach to general deterrence and specific deterrence, on the basis of your symptoms of depression and anxiety which were present at the time and presently.
63. In the case of general deterrence, having made such reduction, the weight that I attach to it is still fairly strong, for the reasons set out in the passage that I referred to in the case of Regina v White and in a bid to deter others from behaving as you have. I also allow for the fact that any time in gaol would be harsher for you than for someone without your symptoms of depression and anxiety.
64. In view of the prolonged and deliberate nature of your offending, as well as matters raised in Ms Cidoni’s report about your inability to learn from experience and lack of capacity for self-examination, I have some concerns about your prospects of rehabilitation. I accept that you are remorseful, although the extent of this is somewhat limited by your personality traits and ability to have proper insight into the wrongfulness of what you have done.
65. I take into account your plea of guilty and the stage at which you entered this. As the position in respect of Commonwealth matters in this particular area is yet to be settled by the Court of Appeal, I will follow the well-established approach in this regard, which encourages offenders who are facing charges to facilitate justice by taking responsibility for their wrongdoing sooner rather than later, sparing witnesses and the community time, trauma and expense.
66. In your case, you are entitled to a significant discount in facilitating justice by entering a plea at such an early stage. In doing so, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense involved in contested proceedings.
67. I note the learned prosecutor’s indication at the plea hearing that my allowance in this respect would not be a point taken by the Commonwealth Director in any appeal which might be brought by the prosecution in respect of the sentence that I impose. Today, he brought to my attention a ruling of the Chief Judge of this Court, which affirms the approach that I have taken.
68. The learned prosecutor also spelt out the Commonwealth Director’s position which is said to be taken to be in keeping with High Court authority. In the absence of clarity in this regard, I take the view that offenders who plead guilty to Commonwealth offences ought not be in a worse position than those who plead guilty to state offences. One would have thought that all relevant entities at Commonwealth level would have an interest in saving witnesses the time and trouble of giving evidence and in saving the immense cost of contested proceedings, as well as encouraging offenders to plead guilty sooner rather than later, by appropriately recognising their facilitation of justice.
69. I factor in that there has been significant delay in this matter which has meant that you have had the anxiety of matters hanging over your head from the time that your offending came to light. While you might have assisted in reducing the delay and therefore anxiety caused by it, by making full admissions in a record of interview rather than taking the stance that you did, this is not really to the point, So, I make some allowance in this regard. I make it very clear that you were perfectly entitled to take the stance that you did in respect of the proposed record of interview and you are not to be punished for this.
70. In the delay between the last of your offending against Centrelink and now, you have not committed further offences, so you have used the intervening period to rehabilitate yourself. Of course, the same cannot be said as to the period after your last Medicare fraud and the present. I was told that in the last 12 months, you have refrained from gambling without the need for any treatment in doing so. But rather, you realised that it had caused you financial difficulties and you were able to stop. I factor these matters in when assessing your prospects of rehabilitation and the weight that I need to give to specific deterrence and protection of the community.
71. I take into account your background. You are 54 years old and you have two adult children who are estranged from you.
72. You had a very deprived upbringing. Your mother suffered from a severe mental illness and your father was an alcoholic who physically abused your mother, as he had no insight into her illness. Your father was a fitter and turner and then a concreter. A work accident however saw him unemployed for a good deal of your childhood. You felt trapped at home as it largely fell upon you to look after your brother, who was 14 years younger than you. While these events are somewhat remote in time, it is understandable that these childhood difficulties have had lasting effects in respect of your makeup as a person, and the mental health issues you have experienced.
73. You are currently single but you have been married three times. Your first marriage was to the father of your two adult children. Mr Dewhurst was a heavy drinker and was violent toward you. As testament to this, a complaint and intervention order instigated by you in 1997 was tendered at the plea hearing.
74. Your second marriage was also a difficult one, which culminated in you being admitted to a private psychiatric care clinic in the mid-2000s. You then received treatment for 12 months for anorexia and anxiety. Although your second husband was rather well off, when he took a redundancy package at Telstra, he expected you to earn income. He then took a low paid job and had an affair with the receptionist at his workplace. The end of your marriage triggered the need for your hospitalisation and subsequent treatment. I have received documentation in relation to that today to which I have previously referred. You were only married for two and a half years and so you did not receive much from the property settlement.
75. Your third marriage was to Mr Horsfall, which partly coincides with the period of your offending and this was also difficult. I have previously referred to the circumstances of that relationship.
76. You have a solid work history which is a matter that counts in your favour. You left home when you were 17 years old and embarked on university studies. But then you entered the workforce, and, save for the period that you were receiving psychiatric treatment, you have continued to be employed, mainly in clerical or administrative positions. The longest period for which you held one position was for eight years when you worked for a Commonwealth government department.
77. Your current employer does not know about your offending. You do not hold a position at that company which involves handling money or accounts. I was told that you love your current job, and the loss of this would have a profound impact upon you.
78. I was told that a term of imprisonment would have a devastating effect on your ability to earn income, that you are presently single and have no assets. Unfortunately, Ms Dewhurst, that is the position of many people who go to gaol. However, I take these matters into account.
79. In sentencing you, I have borne in mind that if you were to go to gaol, that this would be your first time there and that you have little in the way of community support. Therefore, your time in gaol would be rather isolated. I factor in these hardships as well.
80. Your lack of community support is also relevant to your prospects of rehabilitation. In this regard, a friend was present at the plea hearing and I have considered the reference from a work colleague in respect of positive aspects of your character. I have taken that character reference into account in your favour.
81. I am concerned that you only obtained treatment from a psychologist very recently, despite the need for you to do so for a significant period. You have sought help in the past when you felt the need to do so. However, your counsel told me that you had attempted to source some help but that you had trouble in obtaining a mental health plan referral. In the end, you funded the psychologist yourself without the benefit of a referral. I must say I found it very difficult to accept that you had such trouble in obtaining a mental health plan referral, especially in view of your mental health history.
82. In any event, your treatment has only started and you are on limited income, which means that without a mental health plan, your treatment would be difficult to sustain.
83. In view of your sustained, repeated offending in respect of Medicare and Centrelink, your struggles with your mental health and diagnoses, your prior conviction and your continued offending after attending court for this as well as your limited community support and gambling propensity, but also factoring in your solid work history, your lack of offending since 2013 and your cessation of gambling, I rate your prospects of rehabilitation as fair.
84. I place less than moderate weight on specific deterrence, after making the appropriate reduction to which I previously referred.
85. I give moderate weight in respect of the need to protect the community.
86. As the learned prosecutor submitted, this offending warrants strong general deterrence, albeit that the weight I attribute to this will be marginally reduced.
87. Your counsel submitted that a recognisance which involved you avoiding an immediate gaol term was appropriate in your case.
88. The prosecution submitted that a term of immediate imprisonment was warranted, although it was submitted today that a community corrections order might also be imposed on the uplifted charge.
89. I was provided with some material to assist me in determining current sentencing practice in offending of this kind and I have had regard to this, as far as I could, whilst bearing in mind that no two cases are ever identical. In this regard, I have considered the chart provided and the case of Mohamed El Rakhawy [2011] WASCA 209 which set out a summary of a number of sentence decisions. However, as was observed by the court in that case, the assistance that could be gleaned from these was limited as there were so many variables. Apart from some mentioned by that court, some of the offences themselves were different and had different maximum penalties to the matters before that court, or before me, for that matter. It was not possible for that court to discern a range of sentences for the purposes of its decision.
90. I bear in mind the desirability of attempting to achieve consistency of sentencing in matters of this kind on a national basis. The learned prosecutor submitted that the case of El Rakhawy itself was perhaps the closest to your offending. However, in that case, the offender was a doctor and, to my mind, was even more morally culpable that someone in a position such as you. On the other hand, he had made full restitution, albeit that he may have been in a better financial state to do so, and had not committed other frauds, as you have. It appears that his matter was completed in a more timely manner than yours so there was not the delay aspect that your case has. I have had regard to this case, so far as I can.
91. Without determining what disposition was appropriate in your case, I had you assessed for a community corrections order and I have now received the report, which deems you as suitable. However, that is not the end of the matter, which I made clear at the plea hearing and again today. I must determine whether it is appropriate to effectively suspend a gaol term and impose a community corrections order upon you.
92. I can only impose an immediate gaol term if that is the only penalty which will adequately address the weight that I must give to all sentencing considerations.
93. In the end, I am afraid that I have come to the view that it is not possible to adequately address these sentencing considerations with anything less than a custodial sentence involving an immediate term to be served. Although, I am of the view that a community corrections order is also warranted and that will also be imposed in your case with your consent..
94. Could you please stand up, Ms Dewhurst?
95. You are convicted of each of the offences:
96. I make an order for reparation to the Commonwealth in the sum of $147,980.95 in relation to Charge 1 on the indictment.
97. In relation to the uplifted matter, I make an order for reparation in the sum of $22, 945.79.
98. In respect of the indictable offence, you are sentenced to 24 months’ imprisonment which will commence today. I direct that you be released after serving 10 months’ imprisonment on a recognisance release order in the sum of $3,000 to be of good behaviour for a period of three years.
99. This means that you are to serve a term of 10 months’ gaol immediately but you will be released after this period. You will then have the balance of that gaol term, 14 months’ imprisonment, hanging over your head for a period of three years. If you commit another offence within three years of your release, then unless you can give a justifiable excuse, you will be required to serve the additional 14 months’ imprisonment and you may also be required to pay the sum of $3,000.
I have imposed this sentence because of the serious offence you have committed and to give appropriate weight to all relevant sentencing principles in your case but I have decided to release you after 10 months’ imprisonment because this is the minimum period which I consider is appropriate in all of the circumstances, including matters personal to you.
I am required to tell you that the recognisance order can be varied or discharged under s.20AA of the Crimes Act 1914 (the Act) upon application by you or a person described in s.20AA(1) of the Act .
In respect of the uplifted charge, I propose to impose a community corrections order which would run for two years and would take effect immediately after your release from the immediate term of imprisonment that I have imposed. I can only impose a community corrections order if you consent to it, so please listen carefully to what I propose in this regard..
I intend to place you on a community corrections order for a period of two years, which will commence after your release from imprisonment.
The conditions of the CCO would be as follows;
Firstly, the mandatory terms that apply to all community corrections orders, which are:
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 2011;
You must report to, and receive visits from, the Secretary to the Department of Justice or his or her delegate;
You must report to the Sunshine Community Corrections Centre before 4.00pm within two clear working days of your release from gaol.
You must let a community corrections officer know within two clear working days of you changing your address or job;
You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;
You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
The conditions which apply in addition to the mandatory terms to which I've referred are as follows:
Supervision
You must be under the supervision of a community corrections officer for a period of two years.
Treatment and Rehabilitation
You must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.
You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
You are to be assessed for gambling addiction and undergo any program or treatment deemed necessary by the Regional Manager.
HER HONOUR: Do you consent to the terms and conditions of the proposed community corrections order?
OFFENDER: Yes.
I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me. You will then be sentenced in relation to the breach and you will be resentenced in relation to the charge. In which case, you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
HER HONOUR: Do you understand this?
OFFENDER: Yes.
HER HONOUR: Do you maintain your consent to the order?
OFFENDER: Yes.
Therefore, in relation to the uplifted charge, you are sentenced to a community corrections order in the terms and conditions that I have just set out.
If not for your pleas of guilty to the two charges before me, I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of three years’ imprisonment.
Take a seat for a moment, please, madam.
HER HONOUR: Counsel, is there any difficulty with the orders that I've pronounced?
MR FIELD: I do not find any flaws with that sentence, Your Honour.
HER HONOUR: Thank you. Now, a documentation has been prepared, the recognisance and community corrections order. If you might
assist - - -
MR GRIMSHAW: Yes, Your Honour.
HER HONOUR: - - - your client in relation to the signing of those documents. Thank you. I've signed the document, the community corrections order. Is there anything further?
MR GRIMSHAW: Not from me, Your Honour.
MR FIELD: Nothing further.
HER HONOUR: All right. I want to indicate that I'll alert authorities as to the need to perhaps especially monitor your client in view of her mental health issues.
MR GRIMSHAW: Yes. I think that's wise, Your Honour.
HER HONOUR: Yes. All right. Thank you. Yes, if you could please remove Ms Dewhurst.
0
2
0