Director of Public Prosecutions v Galanos

[2016] VCC 522

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00909

DIRECTOR OF PUBLIC PROSECUTIONS

v

TINA GALANOS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2016
DATE OF SENTENCE:	2 May 2016
CASE MAY BE CITED AS:	DPP v Galanos
MEDIUM NEUTRAL CITATION:	[2016] VCC 522

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr T. Crouch	CDPP
For the Accused	Ms J. Hession	Victoria Legal Aid

HIS HONOUR:

1Tina Galanos, you have pleaded guilty to one count of conspiracy to dishonestly influence a Commonwealth public official, contrary to s.135(4) of the Criminal Code.  This involved you conspiring with another (one to whom I shall refer as "AC") to dishonestly influence an officer of Trade Recognition Australia (TRA), a business unit of the Department of Education, Employment and Workplace Relations.

2You came to an agreement with AC after he approached you with a proposal in late 2006.  He was a customer at your coffee shop in Coburg.  During his first meeting with you, he explained to you that students were coming to him asking for hours of work experience for the purposes of a Trades Recognition Scheme then in place, which would provide assessments and ultimately an ability to apply for permanent residency.

3He would pay you $250 in cash per student, if you were prepared to provide a verification letter and confirm with TRA or the Department of Immigration and Citizenship (DIAC) when contacted by these agencies, that the students had completed 900 hours of work experience.  AC agreed to provide you with copies of work reference letters in relation to each applicant, and he would sign on your behalf on most occasions.

4You were aware you were providing false information when you were falsely verifying the work experience information.  Although AC asserts he told you to give the applicants as much training as possible in your shop, it was understood between him and you that, in most cases, no training at all would be undertaken.  You also mentioned to AC that you were undergoing IVF treatment, so it would be convenient to you if AC signed the references on your behalf.  Thereafter, AC would speak to you about twice a week by phone, and you would contact him on most occasions when TRA or DIAC had contacted you.  This was an arrangement until 2009.

5Just to clarify the context in which the agreement was struck, I will summarise the regulatory scheme briefly.  Under the the general skilled migration program (GSM), students from overseas can apply for GSM visas in Australia.  These applications are assessed by age requirement, language skill and either existing skills, qualifications or fulltime study, or recent work experience.  The program is managed by Department of Immigration and Citizenship and involves 115,000 migrants each year.

6The GSM visa holders can stay and work in Australia as long as the visa conditions permit, entitling them to apply for residence in Australia, permanent or otherwise.  Such residence enables the holders to access citizenship, some social security benefits, subsidised healthcare, and other benefits.

7A GSM visa applicant must first have their skills assessed as one of the criteria mentioned above.  The aim of this assessment is in order to obtain a positive skill assessment.  The assessment is carried out under the authority of the Department of Education, Employment and Workplace Relations by a business unit of that department, namely TRA.  The applicants submit their applications to TRA, including a number of documents, in particular proof of training or work experience, together with contact details to enable the TRA officer, the Commonwealth public official in question, to confirm the validity of the information provided in order to carry out the assessment.

8At the relevant time, between February 2005 and December 2009, the TRA required visa applicants to, amongst other things, demonstrate that they had undertaken not less than 900 hours of relevant work experience under the supervision of a suitably qualified person.  Such work experience need not have been paid work, but had to be capable of being verified by evidence of payment, written work reference, and/or telephone verification checks with the provider of that reference.  When such a verification was enabled, a positive assessment was usually issued where appropriate, and TRA then provided a pre-immigration skills assessment application outcome, which was a required component of a visa application under the GSM program.

9You were the co-owner of a café and cake shop in Coburg.  Following an investigation in 2008, it was discovered that 114 separate TRA applicants had submitted work references wherein your shop identified itself as the provider of work experience.  Six applicants had applied twice, in fact, so that there existed 120 applications using your shop as a work reference.  The majority of those applicants subsequently applied for visas and of those, 59 were refused, six were cancelled, 12 were pending, one was invalid and 14 were granted.

10Of the 120 work references, AC had signed at least 104 in your name, pursuant to your agreement with him.  You were paid in cash $250 per reference, which subsequently increased to 300 at your request.  You kept a record of the applicants' names, date of birth, work experience, start and finish dates if any, and hours completed.

11The investigation into the principal offender, AC, uncovered that he created false work references for many applicants in the names of about 40 different businesses or employers which he had struck agreements with, including your own.  The references were pre-dated, as provided by him.  He had enlisted a large variety of employers for these purposes, from restaurants to motor mechanics; hairdressers to nurseries.

12When investigators discovered parallel documents in their searches of his records, they found that these related to over 260 individuals seeking positive skills assessments or visas, not yet lodged with a Commonwealth authority, and 348 individuals identified through false documents which were subsequently lodged with a Commonwealth authority.

13AC was paid various amounts for false work references and documents he created, and although the precise amount actually gained by him from his offending is unclear, it was clear that he had made a substantial profit from these unlawful activities, around the $1 million mark, it being a conservative estimate.  See the sentence of Her Honour Judge Cannon at pp.11 and 12, 4 November 2011.

14Five examples were included in the summary which was tendered in relation to false references in your name.  I will not recite each, but in each instance the reference falsely attested to the hours worked, and on three occasions phone confirmations had been obtained from you.

15It is notable that in relation to one application, Patel, the applicant had approached you directly requesting a false reference, which I am told this morning was subsequently signed by AC.  While she worked for between 216 and 270 hours, you confirmed falsely that she had worked more than 920 hours.  For this, Patel paid you $3,000 in cash.  Your culpability in relation to this particular transaction is, in my view, slightly higher and more direct than other instances of your conduct pursuant to the unlawful agreement you struck with AC.

16In total, it has been verified that you falsely confirmed the work experience of 31 applicants when contacted by telephone by TRA officers.  Call records between AC and you between January 2007 and August 2009 showed that he contacted you on 311 occasions, from which his assiduous interest and encouragement can reasonably be inferred.

17The precise amount which you obtained is also unknown.  The reasonable estimate is between $28,500 and $34,200 in cash, plus the $3,000 from Ms Patel.

18This offending is serious.  The GSM program is one which depends on the integrity of the documents applied and the information contained therein.  This process, which had been in place for the orderly entry into this country of significant numbers of migrants was clearly hindered and jeopardised, if not corrupted, for the base greed of the principal offender AC, and consequently your own.

19The principal offender had created a business of creating false documents of some sophistication and careful planning.  The scale of the offending involving you was of course limited by comparison, but still potentially or in fact, your behaviour affected the outcome in many applications.  It was a course of conduct over a three year period which consequentially had no doubt created expense and harm to the scheme in terms of time, in terms of effort, and actual expenditure to remedy the fallout from your conduct.

20Although the offending may not have resulted in a direct loss of revenue to the Commonwealth, it would have reasonably led to an expenditure of revenue to remedy its consequences.

21It must be acknowledged that, as it was at the plea of AC, that he was the recruiter of people such as yourself to assist in the offending.  AC, it was there said, "Put temptation and corruption in the way of others, and many succumbed to it".  AC in fact drew people into his fraud.  You were drawn in.  You succumbed.

22It must, however, also, as I have previously noted, be said that when you were approached in person, you appeared to be keen to extend your unlawful conduct into a more direct fashion, dealing directly with the applicant and extracting a more substantial reward.  I consider that the inherent criminality in your culpability is much lower than AC's, but nevertheless, this was a deliberate, risky, and relatively sophisticated enterprise which you lent your name to, and which brought about some tangible benefits.

23The Commonwealth and the community would look to the court to denounce such behaviour as totally unacceptable, and to seek to justly punish this behaviour.  The levels of deception discussed during the plea were not limited to the provision of a false reference, but enhanced by the advice which you gave to applicants, the provision of viva voce confirmation, and the monetary benefit derived, as well as the continuing nature of the course of conduct over a number of years.

24I take into account your personal circumstances.  You have no prior convictions.  I accept that your plea is offered, accompanied by remorse for your actions.  This is not only demonstrated by your plea, but by your demeanour at the plea and during the period in which you have been awaiting a determination, during which time you have sought to contribute to the community in a positive fashion.

25Although the plea was not entered at the earliest opportunity, it was, I accept, made to facilitate the course of justice and has a utilitarian value which can be ascribed to it, which I take into account in the sense that it has enabled the matter to be concluded without an expensive and lengthy trial, with its attendance costs and inconvenience to individuals and to the court.

26You are now 50 years of age and have no matters pending.  I received a letter from your husband Constantinos Sarvanidis, a pastry chef.  He attests to the offending being out of character, and in complete contrast to the comportment of your life.  He writes of your remorse and distress at your predicament.  He writes of the difficulties experienced by the two of you since 2007, when IVF treatment first commenced, and the numerous failed attempts.  By 2014, you decided to attempt IVF once again, this time overseas, which proved successful in giving you a set of twins, which are now just over a year old.

27He speaks of your shame in the context of the community in which you live and work, and of your decision to remedy this concern with involvement in voluntary work and fundraising activities for aged care facilities in your community, which has served as some expiation of the conduct engaged in and confirmation of your good character by acts of compassion and generosity to neighbours and persons with special needs.

28I accept his description of you as a decent, hardworking and trustworthy person, not only in your personal life but in the life of the community.  He remains supportive of you, as are your family and friends.

29It was not claimed that the stress of IVF treatment was the causation for any behaviour in any fashion by way of justification, but it may provide some context in your circumstances during the continuation of your conduct.

30You grew up in Melbourne and obtained a Bachelor of Herbal Medicine in the late 80s, and practised in the 90s in naturopathy and massage up until you opened the café shop.  I accept that your prospects of rehabilitation are excellent, and that your risk of reoffending is very low.  It seems to me that your travails through the criminal justice system have had of themselves a salutary effect.

31I take into account the delay in this matter, a factor which in my view should go to ameliorate the sentence from the point of view both of having had this matter hanging over your head for a considerable period of time, and in the sense that the time elapsed between charge and sentence has been substantial, and more importantly a time during which you have been of demonstrable good behaviour.

32A search warrant was executed in 2010 and you were asked if you would like to be interviewed by Immigration officials.  I accept that at that time, as was put in the plea, the "Offending crystallised in your mind".

33You were only charged at the end of 2013.  Of itself, I consider that to be a lengthy delay.  Without being critical of anyone, given that such investigations are often complex and voluminous, nevertheless this was not due to any behaviour on your part.

34Thereafter, the committal proceeded in a timely fashion in May 2014, and a trial date was set in early 2015.  It was then that you were overseas, undergoing what ultimately proved to be successful IVF treatment and the trial was adjourned.  In March 2015 the children were born.  You returned from Greece in July-August 2015 and negotiations then resulted in the matter setting into a plea in December 2015.  Overall, although the delay is not exceptional, I will take the fact of delay into account in the way in which I have outlined.

35Although it is clear that any time in reclusion would be rendered more difficult by your separation from your very young children, and would render your husband's work situation difficult, the effect on your family was not, and correctly, relied on as an exceptional circumstance for me to take into account.  Nevertheless, I take the likely distress of the raising of the children as a motivator to be of good behaviour.  Those are relevant matters.

36There can be no doubt that general deterrence must be the primary purpose of imposing sentence.  In my view, specific deterrence is not as central in this determination because of the factors specific to your background and circumstances.  I must also express the denunciation of the court and impose a just punishment, together with relevant considerations of prospects of rehabilitation.

37I was provided the cases of the sentence of CA and of Zhou in the Court of Appeal 2014, VSCA 123, a similar case of conspiracy.  And although they provide some measure of general guidance in these matters, they do not go on beyond well-known principles of sentencing to be applied.  I do not consider that parity is properly a matter to be given great, significant weight in relation to CA, given that the level of criminality is substantially different.

38While immediate imprisonment is commonly imposed for frauds which may be classified as somewhat similar, like social security frauds, it is not always the case.

39The central question remains whether the factors in mitigation are sufficiently significant to outweigh the primary purpose for imposing sentence, namely general deterrence, which would otherwise call for immediate incarceration. Although finely balanced, in my view they are.

40I consider that the relatively low, though important role you played in the actuation of the conspiracy; the influence of AC in the offending; the relatively contained benefit you derived; your previous and subsequent unblemished record; your acceptance of wrongdoing and effort at making amends in the community; your age; and the period which has elapsed until this determination combine to allow you to avoid immediate imprisonment.  That is, imprisonment which has to be served at this time.

41Of course, should you not avail yourself of this opportunity, and if you are not of good behaviour, immediate imprisonment is inevitable.

42In coming to this decision, I have taken into consideration the relevant provision of s.16AAA and 17E of the Crimes Act.  The scheme of these provisions is that a sentence of actual imprisonment should be a punishment of last resort, and I should be satisfied before such a punishment is ordered that no other sentencing option is appropriate.  It appears to me that a release on a recognisance is an appropriate option in all the circumstances.

43Would you please stand, Ms Galanos?

44On the count of conspiracy, a charge which carries ten years' imprisonment and/or 600 penalty units, you are convicted and sentenced to 18 months imprisonment.  The sentence is to begin immediately, and you are to be released forthwith on entering into a recognisance in the sum of $2,000 to be of good behaviour for three years.

45Had you not pleaded guilty, I expect I would have sentenced you to 24 months imprisonment, and have required you to serve 12 months of that sentence before being released.  Take a seat.

46The documentation in relation to the recognisance, perhaps that can be prepared, and you can sign it.

47MR CROUCH:  Yes, Your Honour.  I have a pre-prepared form.  I'll just need to fill it in.

48HIS HONOUR:  Certainly.  Ms Galanos, you can step out of the dock.  Just come and sit behind your counsel.

49MR CROUCH:  Just to clarify, Your Honour, it was a $2,000 recognisance?

50HIS HONOUR:  Yes.  Thank you.  I will just stand down.  I have another matter at 10.30.  Thank you.

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