Director of Public Prosecutions v George

[2015] VCC 156

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02027

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMANDA KIM GEORGE

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 February 2015
CASE MAY BE CITED AS:	DPP v George
MEDIUM NEUTRAL CITATION:	[2015] VCC 156

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Schubert
For the Accused	Ms C. Woodward

HIS HONOUR: 

1Amanda Kim George, you have pleaded guilty to one charge of obtaining a financial advantage by deception from the Commonwealth.  It was alleged against you, in the charge to which you pleaded guilty, that between 4 June 2007 and 30 January 2012, by deception, namely by the provision of incorrect information regarding your personal circumstances, you dishonestly obtained a financial advantage, namely the payment of Disability Support Pension payments.

2The details of your offending were set out in the Crown's Summary of Facts, which was read to the court and marked as Exhibit A.  I thank the prosecutor, Mr Schubert, for a very comprehensive and carefully prepared summary, which very clearly explained the circumstances of your offending.  I do not need to rehearse all of those details now for the purpose of these sentencing remarks, save to say that the following salient facts emerge from that summary of facts.  You are 45 years of age.  You have been married since 1991 to Gavin George and you have two children as a result of that marriage, who were born in 1991 and 1993 respectively.  Over the years, your marriage has been marred with significant difficulties, which I will come back to in a moment, which have resulted in periods of separation.

3During one of those periods of separation, namely from July 2005, you informed Centrelink that you were separated and that Mr George had moved out of your residence in Cornwall Crescent, Cranbourne, and you went on to receive disability support benefits on the basis that you were a sole parent.  It would seem that sometime in early 2007, Mr George returned to live with you.  That was evidenced, in part, by the fact that he changed his address on his driver licence back to your address in Cornwall Crescent.

4On 4 June 2007, you provided an update to Centrelink on your living circumstances.  In the course of providing the required information, you advised Centrelink that you were still paying rent and you falsely stated that you did not share your residence with anyone.  As a result of that false representation, Centrelink did not make any further inquiries about your relationship with Mr George, nor did it reassess your entitlement to the Disability Support Pension.  If such a reassessment had occurred, Centrelink would have ceased to pay the Disability Support Pension to you, on the basis of your husband's income.  It is because of that misrepresentation, in June 2007, that you have pleaded guilty to falsely receiving the benefits between that date until January 2012.

5In January 2012, the Department determined that you were improperly receiving the benefit by virtue of the fact that Mr George was living with you, and ceased making the payments to you.  You were informed of what they had discovered, and you were invited to attend for an interview in relation to that matter.  You declined that offer.  However, later in 2012, you agreed to the Department commencing the process of restitution, by deducting $100 per fortnight from your Disability Support payments when they were resumed after you again separated from Mr George.

6Between May 2012 and today, approximately $2,300 has been paid by way of partial restitution, by way of those withholdings from your ongoing Disability Support payments.  The total amount that you obtained by deception, by receiving Disability Support Pension payments to which you were not entitled, was $73,866.46.  As at today, some $71,605.08 still remains unpaid.  I will be making an order in favour of the Department that you continue to make reparation in that sum.

7Having been detected in January 2012 and you having commenced the restitution payments in May 2012, you were not charged for your offending until 26 June 2014.  To your credit, when the matter came on before the Magistrates' Court for committal mention on 18 November 2014, you indicated your intention to plead guilty and the matter was able to proceed by way of what is known as "straight hand up brief."  That is, the community was spared the expense of a contested committal proceeding, and by virtue of your plea of guilty before this court, the necessity of a long and complex trial has been avoided.  I will refer to that matter again in due course.

8Your counsel, Ms Woodward, prepared a characteristically careful and comprehensive plea-in-mitigation on your behalf.  It is clear that your solicitor had already done a great deal of work in gathering the salient information from a wide range of sources.  I compliment your solicitor on the careful work that he has done on your behalf.

9A number of documents were tendered in support of the plea.  They were Exhibit 1, a comprehensive psychological assessment report from Charles Huson.  In that report, Mr Huson describes your diagnosis as follows, at page 5:  "Generalised anxiety disorder, major depression, pain disorder, post‑traumatic stress disorder."  He says that you also suffer low self-esteem, which may take years of treatment to bring up to "a level of reasonable resilience".

10In relation to the impact upon you of a sentence of imprisonment to be served immediately, it is the opinion of Mr Huson that you would find imprisonment, "significantly more difficult."  He explains as follows:

"For much of her life, she has acted out of fear when confronted by violence and anger.  I believe that she has acted out of severe domestic necessity and concern for the welfare of her family.  I believe imprisonment would be an inappropriate response from the justice system.  It would also place another very substantial burden on an already over-burdened woman.  I believe it would have an adverse effect on her mental health."

11Also tendered was a psychological report by Bernadette Bomford, marked as Exhibit 2.  That report, dated 11 February 2015, explains that Ms Bomford has been treating you since September 2014, you having been referred to her for psychological treatment by your general practitioner, Dr Rodriguez.

12You have already undergone six one-hour sessions of psychological counselling with Ms Bomford.  You are about to commence another program of ten further sessions, pursuant to a fresh mental health plan that was prepared by your general practitioner, Dr Rodriquez, on 12 February 2015.

13In her report, Ms Bomford says that you have been suffering both depression and anxiety symptoms.  She describes you as "a very nervous and anxious woman who has been living in an abusive relationship with her husband, off and on, for 15 years."  You have two daughters, both of whom are very dependent upon you.  She says that you are very remorseful about having wrongfully received Centrelink payments while you were living with your husband.

14You have explained to Ms Bomford that the main motivation for going on receiving those payments was to survive and to put food on the table.  You have also explained to Ms Bomford that you hated begging and pleading for money from your abusive husband, who was a heavy drinker.  His drinking had led to severe financial difficulties, usually resulting in minimal funds being available to pay for basic needs, such as food and electricity.  You explained that from time to time the electricity had been disconnected.  Eventually, your financial circumstances were so dire that you were forced to sell your house and the vast majority of the proceeds were used to repay accumulated debts.  You further explained that both your daughters suffered from their own financial difficulties and you felt responsible to assist them.  I should interpolate, I understand that you did not suggest that these matters excused your conduct, but they do provide an extenuating explanation.

15In terms of your husband's abusive and intimidatory treatment of you over many years, you gave examples to your psychologist. These included him attending your workplace, walking up and down outside the shops where you worked waiting for you to finish work, and then abusing you and insulting you such as referring, amongst other things, to your weight and telling you to kill yourself.  I do not need to go into these matters in any greater detail other than to say that I accept without reservation that you have lived for many years not only with depression and anxiety but, as Ms Bomford puts it, with feelings of "helplessness and hopelessness."  I can only hope that with ongoing and intensive support from Ms Bomford and others, that you will be able to rebuild your sense of resilience and to move forward.

16I mentioned your general practitioner, Dr Rodriguez.  A short letter from her was tendered, marked as Exhibit 3, and the mental health plan was attached.  The material from your general practitioner in Exhibit 3 confirms that you have been prescribed anti-depressant medication over the years, Pristiq, together with Tramal, a powerful analgesic, which you have been taking to deal with your chronic back pain.  You have suffered chronic back pain for many years as a result of a motor accident in 2002.  That in itself, I suspect, would have aggravated your depression.

17Other documents tendered included a comprehensive letter from your friend, Lynne Richards.  It bears out, in graphic and tragic detail, the life which you have led as you have struggled to deal with your abusive husband and the severe financial circumstances and difficulties which you have had to face, together with each of your daughters' difficulties.  I also received a letter from your daughters and your mother, which again bear out the matters which I have briefly summarised and which are set out in comprehensive detail in the psychological reports.

18The prosecutor, quite properly, correctly urged upon me as a matter of law  that offences such as these call for the imposition of a sentence, which is designed to achieve the sentencing objective of general deterrence.  That is, to deter other members of the community from engaging in this sort of fraudulent conduct, what is called a "fraud on the revenue."  It undermines the whole system of social welfare if people dishonestly take advantage of it.

19On the other hand, the prosecutor fairly conceded that, whilst a sentence of imprisonment, bearing in mind the objective gravity your offending, is called for, whether or not it should be served immediately was a matter for the court.  On that issue, your counsel put forward powerful submissions.  She described your offending as being a reflection of a woman who has struggled to support herself and her children whilst living in an abusive relationship.

20She emphasised that your plea had been entered at the earliest possible opportunity.  That, in itself, as the prosecution conceded, entitled you to a significant benefit.  As Justice Calloway pointed out many years ago in the case of Duncan [1998] 3 VR 208 at 215, an early plea is not only relevant in determining what sort of sentence should be imposed, but if a sentence of imprisonment was nevertheless called for, it is relevant in determining how that sentence should be served. That is, in determining whether or not it should be suspended.

21Not only did you plead guilty at an early stage, but in this case, there has been a significant delay.  During the period of delay, you have conducted yourself appropriately.  It is now more than three years since you were first aware that you were in deep trouble.  This matter has been hanging over your head since then.  As the court pointed out in Miceli [1998] 4 VR 588, a delay of this kind is punishment in itself and ought to be taken into account in sentencing.

22The Court of Appeal subsequently pointed out that if during the delay period, the offender has taken steps towards their rehabilitation, that also should be taken into account in the assessment of their prospects of rehabilitation.  You have done that.  Over the last few years, whilst you have waited for this matter to be dealt with, you have sought out appropriate treatment and you have undergone a course of intensive psychotherapy, which will continue.

23I take into account also that, in your case, apart from your plea, there is evidence of genuine remorse.  It is spoken about in the reports and in the other material.  In particular, Bernadette Bomford, who has seen you on numerous occasions, says that you are "very remorseful" about having applied for Centrelink benefits while you were living with your husband.

24Bearing in mind these matters, including your mental and physical health, which I accept would make a period of immediate imprisonment unduly harsh for you, I have decided to impose a sentence of imprisonment but to order your immediate release on a reconnaissance release order.

25On the charge of dishonestly obtaining a financial advantage by deception, you are convicted and sentenced to be in prison for six months.  I order that you be released immediately on a reconnaissance release order.  I fix a reconnaissance in the sum of $1,000.  You will not have to pay that amount, but if you breach the order, that amount will be payable.

26The conditions of the order are that you be of good behaviour for a period of two years.  Also, a special condition that you continue to undergo psychological counselling and treatment at the direction of your general practitioner, Dr Rodriguez, and/or your psychologist, Ms Bernadette Bomford.  Do you understand those conditions?  Thank you.  That document will be prepared by the prosecution.

27In other words, between the two of them, your GP and your psychologist, if you need further treatment, one of them will tell you and you must obey their direction, do you understand?

28OFFENDER:  I do.

29HIS HONOUR:  In other words, if you came to the end of the treatment with Ms Bomford and the GP felt you needed some more help psychologically or psychiatrically, she might refer you to a psychiatrist for some further treatment, bearing in mind that that can be covered by Medicare without a mental health plan.  That will take a few minutes now to prepare that order.  I think I will just leave the bench.  The prosecutor will prepare the order for you, which I will then sign when I come back and Mrs George will sign that in about ten minutes time.

30MR SCHUBERT:  Just to prevent any further delay, Your Honour, can I just confirm the I have the details of the sentence recorded correctly, six months to commence today, but ordered to be released forthwith on a reconnaissance for a period of two years.

31HIS HONOUR:  Yes, two years good behaviour.

32MR SCHUBERT:  To be of good behaviour, the reconnaissance of $1,000.

33HIS HONOUR:  Correct.

34MR SCHUBERT:  And a special condition to continue to undergo psychological or psychiatric counselling and treatment at the direction of your general practitioner, Dr Rodriguez, and/or your psychologist Ms Bomford.

35HIS HONOUR:  Yes, that is it, perfect.  Thank you Mr Schubert.  I will just be out the back.

36MR SCHUBERT:  Just one further matter to be raised, Your Honour.

37HIS HONOUR:  Yes.

38MR SCHUBERT: Just in relation to confirming the reparation order will be made pursuant to s.21B Crimes Act.

39HIS HONOUR:  Yes, I also order pursuant to s.21B for the Commonwealth Crimes Act 1914 that the defendant pay reparation in the sum of $71,605.08 to the Department of Human Services, GPO Box 9822, Sydney, 2001.

40We will ask Ms George to sign this and it will need to be witnessed then by you, Ms McInerney.  So if you take this down to the Bar table, and join Ms Woodward and the two of you - can you come forward please, Mrs George.  Ms Woodward will explain it to you and then you will sign it, Ms George, and then you will witness it, Ms McInerney.

41Mr Schubert, thanks so much again for your assistance today.  And Ms Woodward, as usual, thanks for your assistance.  I have already complimented your instructor, I do not need to say any more.  But this is obviously very carefully prepared a great deal of very helpful material.

42Ms George, I wish you well with your rehabilitation on behalf of the community.  You understand that if you commit any further offence within the next two years, you will be liable to be breached on that undertaking, brought back before me and punished, do you understand?

43OFFENDER:  Yes.

44HIS HONOUR:  All right, thank you.

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