Director of Public Prosecutions v Fitzgerald
[2014] VCC 1592
•12 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FITZGERALD |
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JUDGE: | Her Honour Judge Quin | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 September 2014 | |
CASE MAY BE CITED AS: | DPP v Fitzgerald | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1592 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Rountos | |
| For the Accused | Mr S. Johns |
HER HONOUR:
1 John Thomas Fitzgerald, you have pleaded guilty to three charges of dishonestly causing a loss to the Commonwealth, s.135.15 of the Criminal Code, the maximum penalty for which is five years. Additionally, you have pleaded guilty to three charges of obtaining financial advantage by deception, and one charge of attempting to obtain a financial advantage by deception. These latter offences are contrary to s.134.21, and s.11.1, of the Criminal Code. The maximum penalty for these offences is 10 years.
2 The circumstances of this offending are fully set out in the agreed summary of facts, prepared by the prosecution, Exhibit A. Also, part of this exhibit is Schedule A, which sets out in table form the various attendances by you at different Centrelink offices. These charges relate to you being in receipt of Centrelink benefits in your own name, whilst, at the same time, receiving funds in the fictitious names of George Graham Fletcher, Brian Davidson, and Michael Vincent Miles.
3 In respect of the charges relating to the use of the name “Fletcher,” on or about 26 June 2001, you lodged a form under this false name; declared you had never been known by another name; and provided a false place and date of birth. Between 22 June 2001 and 17 November 2002, you received $13,618.39, that being Charge 1. You later lodged another claim, with similar false information; and between 18 November 2002 and 5 April 2012, you received a pension sum in the total of $138,536.66. That is Charge 2. This charge related to the most significant amount of funds that you received.
4 In respect of the charges relating to the use of the name “Davidson,” you provided similar false information regarding your place and date of birth, but also, false information regarding your assets and bank account balances. You had substantial sums in bank accounts in your own name, and in the name of Fletcher, as well as other assets that were not disclosed.
5 Between 30 October 2008 and 16 October 2009, you received $11,512.89, Charge 3. An attempt was also made by you – using this false name and identifying details – to obtain $3,540, Charge 7.
6 In respect of the charges relating to the use of the name “Miles,” you provided similar false information. Between 21 May 2009 and 6 November 2009, you received two different kinds of benefits, in the sum of $7,240.56, Charge 4.
7 The other charges relate to payments received by you, under your own name, provided to you on the basis of false information to Centrelink. In a form lodged on 10 February 2009, you failed to declare the true amount you had in bank accounts – whether in your own name or in a fictitious name – or your ownership of other assets. You received $2,338, to which you were not entitled. Charge 5.
8 Similarly, in the same kind of form that you later lodged, you failed to declare assets or bank accounts on 21 January 2010, and you received $9,997.30. Charge 6.
9 During this whole offending period, you obtained funds in the sum of $183,243.20, from Centrelink, to which you were not entitled.
10 This offending had the following aggravating features. It extended over a long period of time; in respect of Fletcher, over 10 years. The offending involved repeated fraud and providing false information on documentation, attending different suburban Centrelink offices, and seeing different medical practitioners. The total amount of funds that you obtained was significant.
11 These features reflect the seriousness of your offending, though your circumstances are such that the usual sentencing principles applicable to this kind of offending have more limited application. I have not gone into great detail regarding your offending, given that you have a long history of mental illness. You have received Commonwealth benefits in both your own name and, for a significant period of time, under fictitious names. However, your adoption of these different personas was part of your mental illness. In the ordinary course of events, such a persistent defrauding of the Commonwealth would result in a term of imprisonment. However, your particular circumstances are somewhat unique.
12 It is necessary to consider events over the last five years or so of your life, in placing this offending in its proper context. On 15 October 2009, you were involved in the commission of a number of assaults, to which you ultimately pleaded guilty in this court, before Her Honour Judge Pullen, on 15 July 2013. Issues arose in respect of those other matters, regarding your fitness to plead, and a number of psychiatric reports were obtained. I was provided with a number of reports in relation to this issue, and some more current information, and I rely on all the information contained in them. The reports tendered were from the following professionals: (1) Acting Professor Duran Singh, Clinical Director, Aged Persons’ Mental Health Peninsula, 7 August 2014; (2) Dr Andianov, (indistinct) Family Medicine, report and letter dated 11 August 2014 and 23 December 2013 respectively; (3) Dr Claire McInerney, consultant psychiatrist, Forensicare reports dated 25 January 2013 and 21 February 2013; (4) Dr Catherine Siva, Senior Psychiatry Registrar at the Victorian Institute of Forensic Mental Health, co-signed by Dr Douglas Bell, consultant psychiatrist, Assistant Clinical Director, Prison Operations, Forensicare reports dated 8 July 2013 and 13 May 2013; and (5) report by Dr Anthony Sidoni, psychiatrist, report dated 21 August 2011. This report refers to you as “Brian Morgan.”
13 In the Forensicare report dated 25 January 2013, information regarding your personal and psychiatric history was considered, in providing an opinion as to your fitness to plead at that time. You were admitted to the Acute Assessment Unit at Melbourne Assessment Prison, on a number of occasions, whilst you were in custody during 2011 and 2012. In September 2010, you were referred to Thomas Embling, for a more thorough assessment of the issue of your fitness to be tried. Various assessments were carried out at Thomas Embling, where you remained until December 2012. Reference is made in that January report to the limited factual information about you, though there is reference to you maintaining the identity of “George Fletcher” in the course of various assessments. The author at that time concludes, “I find no plausible mental health or cognitive explanation for this assertion regarding his identity, or the apparently disorganised behaviour.” Dr McInerney could find no evidence of psychosis or significant mental impairment.
14 However, an updated report was provided by the same author, dated 21 February 2013, after a comprehensive collateral history was taken, provided by your sister. It states as follows: “The question of fitness to be tried arises because he has given an unusual reason for a plea of ‘not guilty’, which is that he is not John Fitzgerald, but rather, George Fletcher. In my initial interview, he provided a theory that this confusion regarding his identity has occurred as a result of Centrelink error, or fraud, several years ago. The unusual denial of his true identity may also reflect another symptom of his current psychotic episode.”
15 As was evident in the course of discussion with counsel, I have difficulty accepting the submission made on behalf of the prosecution, that “the degree of application of planning involved in these crimes, over a long period of time, is inconsistent with the notion that he was continually suffering from florid psychotic episodes, over the lengthy period of time during which the offending was committed.” And later, “Accordingly, it cannot be said that there is a clear and direct relationship between the offending and the mental illness.” See paragraphs 18 and 19 of the Crown’s submissions on sentence.
16 The Crown pointed to the attendance by you of different suburban Centrelink offices, depending on the name being used, and the receipt of medical information from different doctors, both, it was argued, to ensure your fraud was not detected. Further, it was argued that such an approach was consistent with planning, and that you deliberately and consistently had provided unique details for each identity, without intertwining the identities, by setting up the separate bank accounts.
17 However, these matters are not necessarily inconsistent with the adoption, by you, of different personalities, and illustrative of symptoms that you were suffering a mental illness. Consistent with the latter view is your situation at the time, that you were maintaining an itinerant lifestyle. I note that your sister provided information regarding your homeless state over this period, that is that you were homeless for about 10 years. This is consistent with much of the documentation relied on by the prosecution, which lists as your address Sacred Heart, St Kilda.
18 Additionally, your counsel highlighted your circumstances as unique in this kind of offending, with no evidence of betterment or even use of the funds for the purposes of existing on a day-to-day basis by you. The money was not accessed, and it earned interest while in various bank accounts. All of the money has been recovered.
19 It is also significant that once Dr McInerney had a fuller picture of your psychiatric history, she was able to conclude that your refusal to accept that you were not Fitzgerald may reflect a symptom of your psychiatric condition. This is in circumstances where, without that history, she did not attribute your insistence on the false identity as referrable to a mental illness.
20 The psychiatric material reveals a lifelong battle with schizophrenia, no doubt being suffered over some periods of this offending. Though it would be difficult to pinpoint exact times when the symptoms were more or less extreme, I accept your moral culpability for this offending is significantly reduced. Both counsel conceded that the principles in Verdin are applicable to your circumstances, though the Crown maintained the position that the principles of specific and general deterrence were not eliminated but, rather, moderated. Given the matters referred to above, regarding your functioning during this time, I am of the view that these sentencing principles have minimal application to you.
21 You are currently aged 70 years. You have two brothers who reside in Queensland, and a sister who lives in Melbourne, who provides continuing support to you. You completed an honours degree at university in physics and mathematics, and worked briefly as a teacher, although your career was cut short by the psychiatric difficulties that you began experiencing in your 20s, whilst you were residing in the United Kingdom. You were flown back to Australia, and treated in a psychiatric facility in Sydney, but returned to Melbourne soon thereafter. Over the years, you have spent periods in and out of involuntary care. There was no record of you, or any of the names that you have adopted, receiving any psychiatric treatment in this state for the period between 2000 and 2011. (See the January 2013 Forensicare report.) During this time, you were homeless, and you were not taking any medication.
22 As previously indicated, you came to the attention of authorities in October 2009, when you were arrested. You then spent periods on remand, some of which were in the Acute Assessment Unit at MAP, and some at Thomas Embling. You were placed on a Community Treatment Order, under the Mental Health Act, on release from Thomas Embling. You were discharged from that order on 7 January 2014.
23 The Forensicare report dated 8 July 2013 states, “There is evidence Mr Fitzgerald has made a meaningful response to treatment with the provision of a reliably administered regime of treatment, with long-acting injectable antipsychotic. His previous delusional beliefs regarding his identity, and paranoid delusional systems, which involved both Centrelink and the judicial system, have now abated.” In the opinion of those authors, you remained in need of treatment in the future.
24 The fact that your offending was directed to the Commonwealth of Australia was what is sometimes incorrectly described as a victimless crime. But it does not excuse the commission of this offence. However, given that it is difficult to see any motive in you perpetrating this fraud – that is, the money was not spent by you – it is clear you are in a different position to an offender who uses funds for their own benefit. As previously indicated, you did not access any of the funds, and the amount obtained fraudulently has been recovered.
25 The community, by your plea, has been spared the cost and time of a trial. Your plea was entered at the earliest time, given your circumstances and mental health. I understand your legal advisers were liaising with the prosecution regarding the continuance of these proceedings, given your mental state. I accept that you pleaded to these matters at the first opportunity. Your pleas of guilty have facilitated the course of justice, in the sense that they have resulted in an expedited and certain outcome to the proceedings against you.
26 A number of prior court appearances were alleged against you. You had no recollection of these. Most of these were dealt with many years ago, and I am conscious that they were not admitted by you. I disregard them for the purposes of sentencing you today.
27 The sentencing principles of just punishment and specific and general deterrents would usually have application to you and this kind of offending. I accept, however, that your moral culpability for this offending is reduced, and those principles have limited application.
28 As to your current circumstances and rehabilitation prospects, you are currently residing in a unit in Frankston, and manage most of your day-to-day activities independently, though your sister does provide you some assistance. In terms of your current mental state, I note the following passage from the most recent report: “Currently there were no overt positive symptoms of his illness, such as delusions or hallucinations. He does, however, in my opinion, have negative symptoms, including apathy and amotivation. In terms of his current mental state, Mr Fitzgerald presented as stable. He did not display any evidence of formal thought disorder. There was no evidence to suggest prominent mood disturbance. He consistently denied any psychotic symptoms, and objectively did not appear to be responding to non-apparent stimuli. He was compliant with treatment and follow-up appointments.” It does appear that as long as you are compliant with treatment, and accepting of supports from family members, you can continue to maintain a proper and stable lifestyle.
29 I was provided with copies of authorities for similar kinds of offending, and some of the relevant circumstances that are the same in your case, such as your mental condition and age. I have had regard to these materials, though the assistance they can provide is limited, given the different circumstances in each individual case.
30 You were sentenced by Her Honour Judge Pullen, on 23 August 2013, to a Community Treatment Order, for a period of five years, with conditions aimed at monitoring your mental health. That sentence is currently on foot, but subject to appeal to the Court of Appeal. I take this sentence into account, in accordance with the principles of totality.
31 The prosecution submitted that given the serious nature of this offending, the only sentencing option was the imposition of a sentence of imprisonment, but that the court could exercise its discretion and not require you to serve an immediate term. Your counsel urged me to impose a disposition pursuant to s.19B(1)(d) of the Act, effectively a bond. I accept that in the ordinary course of events, a s.19B bond should not be used in cases involving dishonesty, or when the offending is serious, notwithstanding the personal circumstances of the offender. It is arguable that that course should only be adopted if the circumstances are exceptional. However, I am satisfied that the circumstances are exceptional in this case. Pursuant to s.16A of the Crimes Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) obliges me, in sentencing you, to take into account the matters referred to within that section, as are known to the court, and I have done so.
32 I think it is clear from these reasons that I regard your case as out of the ordinary, and although those matters are taken into account, they have limited application to you. In all the circumstances, I propose to place you on an order, under s.19B(1) of the Act. I am satisfied having regard to your age, health, and mental condition that it is expedient to release you on probation, and order, under s.19B(1)(d) that you be discharged forthwith, upon a recognisance of $1,000, to be of good behaviour for a period of two years. It is a condition of this order that you are to continue treatment under your current psychiatrist, Acting Professor Singh, or such other mental health professional as directed by him, for a period of two years.
33 I am required to explain the purpose and effect of the order; the consequences that may follow if you, without reasonable excuse, do not comply with the condition imposed; and that any recognisance can be discharged or varied under the Act. The purpose of this order is to attempt to ensure your continued rehabilitative progress and treatment, as well as meeting other sentencing principles. If you are of good behaviour over the following two-year period, and continue with your psychiatric treatment over the next two years, that will be the end of the sentencing process as far as this court is concerned. If you are not of good behaviour, or do not comply with the conditions applicable, application can be made for the recognisance order to be varied.
34 Now, Mr Fitzgerald, do you understand that order? Mr Johns, could you please explain that to him as well?
35 MR JOHNS: I will explain it to him in detail. I will.
36 HER HONOUR: Now, Ms Rountos, is that order able to be prepared?
37 MS ROUNTOS: Yes, I have prepared a draft order, Your Honour.
38 HER HONOUR: Thank you.
39 MS ROUNTOS: I can hand that up now.
40 MR JOHNS: Your Honour, this is a little bit unusual. But I can just have a couple of minutes, perhaps, with my client?
41 HER HONOUR: Yes, no, I did actually say to my associate to go with you.
42 MR JOHNS: Yes. Yes.
43 HER HONOUR: So if you could, yes, that is fine.
44 MR JOHNS: It might just take a little bit of time to explain too.
45 HER HONOUR: Yes, sure. Yes, no problem. Look, I might stand down.
46 MR JOHNS: Yes, thank you, Your Honour.
47 HER HONOUR: Okay.
48 (Short adjournment.)
49 HER HONOUR: Okay, Mr Johns, have you had an opportunity to speak to your client?
50 MR JOHNS: Yes, I have, thank you for that, Your Honour. He signed the order, and the bond, and understands.
51 HER HONOUR: Great. Okay, thank you very much. All right, so that order, in those terms that I just expressed, is made. Thank you, and you are excused from the court.
52 MR JOHNS: Thank you, Your Honour.
53 PRISONER REMOVED
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