Director of Public Prosecutions v Erserbetci, Selma
[2012] VCC 1639
•25 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-10-01474
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| SELMA ERSERBETCI | ACCUSED |
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JUDGE: | His Honour Judge Stuart | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2012 | |
DATE OF SENTENCE: | 25 October 2012 | |
CASE MAY BE CITED AS: | DPP v Erserbetci, Selma | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1639 | |
EX TEMPORE REASONS FOR SENTENCE
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Catchwords:
CRIMINAL LAW – CONVICTION AND SENTENCE – One Charge of Dishonestly Causing a Loss or a Risk of Loss to a Commonwealth entity totalling $66,503.22 over 6 years – Failure to disclose ownership of a property as an asset (“omission offending”) – No beneficial interest in undisclosed asset – 60 year old woman of frail mental and physical health – Plea of guilty and no relevant prior convictions – Accused released on a Recognisance Release Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Bird | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Tehan QC | Hartleys Lawyers |
HIS HONOUR:
1 Selma Erserbetci, you have pleaded guilty to one Charge of Dishonestly Causing a Loss or a Risk of Loss to a Commonwealth entity, contrary to s.135.1(5) of the Criminal Code (Cth). The maximum penalty for that offence is five years' imprisonment.
2 You come before the court as a 60 year old woman charged with very serious offending. The Indictment specifies that you engaged in the criminal activity for a period of no less than six years between the 28th of August 2002 and the 24th of November 2008.
3 In essence, what occurred was that you and your husband purchased a property at 601 Melbourne Road, Spotswood on the 27th of June 1984. On the 3rd of July 1997, you became the sole proprietor of that property.
4 Throughout the period in question you, on a number of occasions, falsely stated that you did not own or partly own any real estate other than the home in which you lived, which was the matrimonial home and your family home.
5 The total sum of money that you received through social security payments was $66,503.22 and you were not entitled to one dollar of that very large sum of money. You have made, however, repayments up to the present time of some $7,047 and have consented through your Counsel to a Reparation Order to the balance of $59,456.
6 During the course of your Record of Interview you in effect admitted the offence with which you have been charged. On the 12th of August 2010, at a Committal Mention hearing at the Melbourne Magistrates' Court, you pleaded guilty to the Charge now the subject of the Indictment before me. Thus, at the earliest possible opportunity you have confessed and entered a plea of guilty.
7 Had this matter gone to trial, judging simply by the voluminous nature of the materials in the Depositions, this would have been a trial which would have taken at least two weeks, if not longer. You have by your pleas of guilty saved the considerable expense of prosecuting such a complex matter, involving, as I can see, a very large quantity of documentary evidence. Further, I am satisfied that through your plea of guilty and your conduct during the course of the investigation that you have demonstrated remorse in relation to your offending.
8 Offending such as this is indeed, as Ms Bird has suggested, very difficult to detect. I should add, it is difficult to investigate and it is difficult to prosecute. You have at least saved the latter aspect of those matters.
9 The citizens of this country are entitled to assume that only those who are indeed worthy under the criteria set by Commonwealth Parliament to receive social security benefits, get them, and those who are not, don't. It cannot be forgotten that you, in effect, took money from taxpayers in order to receive monies that at no stage you were entitled to.
10 I accept the Crown submission that in circumstances such as this, general deterrence is a very significant factor that I must take into account. To a lesser degree, in your case, specific deterrence is nonetheless still relevant but in this case much reduced.
11 You come before the Court with only three prior convictions, one on the 4th of October 1979 in relation to a charge of theft and you were fined $70, the second on the 24th of June 1986, another charge of theft, and you were sentenced to pay a fine of $100, and finally, on the 26th of September 1989, a charge of unlicensed driving and you were sentenced to pay a fine of $400. It is patent simply from the antiquity of the charges and the irrelevance of the third matter of unlicensed driving that I put those matters entirely aside. I treat you, for all relevant purposes, as a person who has if not had a blameless life, at least one where you come before the Court and are entitled to call upon your excellent prior history in your favour. In effect, I treat you as a person without any prior convictions.
12 I now turn to the issue of the property itself. I have had the benefit of the Opening, which I have read carefully, and Ms Bird's detailed, thorough and most helpful ‘Submissions on Sentence’ which I have taken into account.
13 I further have the benefit of the report of Mr Jeffrey Cummins dated the 23rd of October 2012 which became ‘SE-1’ on the plea.
14 During the course of that report, Mr Cummins indicated that you believed, in effect, you were holding the property in question on trust for your four children. You never received any rent or other benefit from your holding of that property as a joint proprietor, nor when you became the sole proprietor. At no stage did you ever evidence actual ownership over the property. It was in these circumstances that you did not disclose the property as an asset. Indeed, you falsely stated otherwise.
15 I am satisfied in this case that you did have the state of mind that this was property held by you but for the benefit of your children. Any potential benefit to you was a speculative one. At page 558 of the material in the Depositions in answers to a series of questions commencing at Question 88 and going to Question 91 you say this:
Later he (that is your estranged husband) wasn't happy, because I wasn't happy in my marriage, you know, and I thought this one day I will live on one of them and ran two properties and I can live. I don't need the Centrelink.
That, as I say, is as close as it comes to you in fact potentially exercising some right of ownership over the property.
16 For these reasons I do accept, as I have indicated, that you had in real terms no proprietary interest in the property other than it was being held in your name. That in no way excuses your conduct. You knew what your obligations were as you had demonstrated in past transactions with Centrelink a knowledge of your rights and entitlements or disentitlements. But it does explain, in my view, your conduct.
17 In so explaining your conduct your moral and, in my view, legal culpability is much reduced.
18 Mr Cummins in his most helpful report details your family, medical history and it is plain, without me going through passages of that material, that you have suffered mental and physical ailments of a very significant kind for very long periods of time and that you present now as a person who is mentally and physically frail.
19 The history that is set out in Mr Cummins' report also indicates that you have throughout the latter part of your life suffered much trauma as exampled by the murder of your mother in Turkey by a relative in gruesome circumstances in 1995. This, I accept, has caused you much anxiety and it would appear, a post‑traumatic stress disorder.
20 You have many ailments and you have lived in a marriage which was abusive. In short, when one looks at what has happened not only to you but to at least two of your children, your life has been a difficult one.
21 The maximum penalty for this offending is five years' imprisonment. The delay here is a very significant one, being in the order of four years, through no fault of your own. You, as I indicated, participated in a record of interview on the 16th of January 2009 and entered a plea of guilty at a Mention in the Magistrates' Court on the 12th of August 2010.
22 Thus, through no fault of your own, but because of the legal uncertainties involving omission and commission offending, this matter has been delayed and the proceedings protracted. I understand from Mr Tehan there has been something in the order of seven Mentions in this Court alone arising from issues concerning the legal status of Charges such as this.
23 The upshot of this is that you, a woman of physical and mental frailty, have had to bear the consequence that for a very long period of time you did not, and could not know your fate.
24 The Prosecution has indicated that in the circumstances, a 12 to 24 month period of imprisonment would be within the range for this offending, with either six months to serve or wholly suspended. As Ms Bird indicated to me during the course of discussion, that range was premised upon no finding by me as to whether or not you were holding the property effectively on trust for your children and not as the beneficial owner yourself.
25 Having found that you were indeed holding the property on trust for your children, it is appropriate then to consider the sentencing range at the bottom of that proposed sentencing range.
26 Taking into account all the matters that have been canvassed during the course of discussions with both Ms Bird and Mr Tehan, and the written submissions provided by Ms Bird, and the matters I have just referred to, the appropriate sentence in this case is a period of 12 months' imprisonment. I direct that you be released forthwith on a Recognisance Release Order for a period of 12 months in the sum of $500 and I will make the order in relation to restitution.
27 MR TEHAN: If Your Honour pleases.
28 HIS HONOUR: Does that cover the matters?
29 MS BIRD: Certainly, Your Honour. Your Honour just needs to declare that the sentence commences today.
30 HIS HONOUR: The sentence commences today.
31 MR TEHAN: I was just looking at my back sheet, Your Honour. My briefing in this matter goes back to June 2010. It is probably more in the order of about, I think it is about seven mentions, Your Honour. I don't know that it was in fact as high as ten, it is at least six or seven.
32 HIS HONOUR: I'll make it seven, Mr Tehan.
33 MS BIRD: I have lost count, Your Honour.
34 MR TEHAN: There are certainly many.
35 HIS HONOUR: Many. Yes, very well.
36 MS BIRD: My instructor has prepared that Order. It just needs to be signed by yourself.
37 HIS HONOUR: Yes, thank you.
38 Do I have to make a declaration under s.6AAA?
39 MS BIRD: You don't have to but it is our position that it applies.
40 MR TEHAN: It does apply, Your Honour.
41 HIS HONOUR: I will indicate that but for the plea of guilty I would have imposed a sentence of 18 months' imprisonment and wholly suspended that period of imprisonment by release on a Recognisance Release Order for a period of 18 months.
42 Ms Erserbetci, the end result is that you have been sentenced to a period of imprisonment of 12 months but I have decided to release you immediately on a bond on an undertaking or promise that you be of good behaviour, in effect, for a period of 12 months, do you understand? Should you breach this undertaking you may be brought back before me. Is that sufficient, Ms Bird?
43 MS BIRD: Yes, Your Honour.
44 HIS HONOUR: I'll ask that she be asked to sign the document. What is now going to be provided to you ‑ provide it to Mr Tehan's instructor and you can have my leave to attend the dock, Mr Tehan, if you wish to do so or your instructor, whichever.
45 MR TEHAN: I am happy enough to do that, Your Honour.
46 HIS HONOUR: Thank you.
47 (Recognisance Release Order acknowledged and signed.)
48 HIS HONOUR: There is the other Restitution Order.
49 MS BIRD: Yes, Your Honour, that is a separate order to the bond.
50 HIS HONOUR: Do you have that now?
51 MS BIRD: It is just an order that Your Honour makes.
52 HIS HONOUR: So I don't have to ‑ ‑ ‑
53 MS BIRD: There isn't a form for it.
54 MR TEHAN: It is $59,456.02.
55 HIS HONOUR: If I simply state that I order that there be restitution to the Commonwealth in the sum of $59,456.02.
56 Is there anything further that's required to be done?
57 MS BIRD: No, Your Honour.
58 HIS HONOUR: Yes, you may be released.
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