Director of Public Prosecutions v Godkin

[2019] VCC 320

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00790

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE GODKIN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2019 & 8 March 2019
DATE OF SENTENCE:	15 March 2019
CASE MAY BE CITED AS:	DPP v Godkin
MEDIUM NEUTRAL CITATION:	[2019] VCC 320

REASONS FOR SENTENCE
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Subject:

Catchwords:  Dishonestly obtaining a financial advantage by deception from a Commonwealth entity; General deterrence; Specific deterrence; Complex personal circumstances; Verdins; Recognizance Release Order; Rehabilitation

Legislation Cited:

Cases Cited:DPP v Dalgleish (2017) 349 ALR 37; Hili v The Queen (2010) 242 CLR 520; Markovic v The Queen (2010) 30 VR 589; R v Verdins (2007) 16 VR 269

Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Queen	Mr D Sagnelli	Commonwealth Director of Public Prosecutions
For the Accused	Ms D Caruso	Stary Norton Halphen

HIS HONOUR:

1Michelle Joy Godkin, you have pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s.134.2(1) of the Criminal Code (Cth).  The maximum penalty for that offence is 10 years imprisonment. 

2You pleaded guilty at committal mention, and I have taken your early plea into account in your favour in mitigation of sentence.

3You failed to appear at two initial filing hearings before the Shepparton Magistrates Court and it appears that, in part, this was because you had moved your residence to Bacchus Marsh.  In all probability, your failure to appear was related to your unstable mental health and personal circumstances, and I do not regard it as evidence of you seeking to avoid the jurisdiction of the court.

4On 11 April 2018, your legal representatives sought to have the matter now before this court heard summarily in the Magistrates Court and wrote to the Commonwealth DPP with this application.  On 13 April 2018, the application was refused by the Commonwealth DPP and it is accepted by the parties that in such circumstances, the Magistrates Court does not have jurisdiction to make an order for summary jurisdiction by reason of s.4J of the Crimes Act (Cth) 1914.  Such an order may only be made with the consent of the prosecutor and the defendant.

5It would appear that there are no specific guidelines in relation to the exercise of consent by the prosecution, and it was submitted on behalf of the prosecution that the figure of overpayment of "about $60,000" is used as a benchmark.

6The refusal of the prosecution to consent to summary jurisdiction in this case means that the maximum penalty is 20 years imprisonment, whereas if the matter had been heard in the Magistrates' Court, the maximum penalty would be 4 years imprisonment.

7Whilst I must sentence you on the basis of the maximum sentences available in this court, I do not accept, as was submitted by the prosecution, that the maximum penalty available to a magistrate would have been inadequate in all the circumstances of this case to address your criminality.

8You have admitted two prior court appearances, namely, on 22 November 1983 at the age of 17.  You were placed on probation for 52 weeks in relation to charges of burglary and theft.  And more significantly, on 5 December 2011 at the Shepparton Magistrates Court, you were sentenced to three months imprisonment but released on a Recognizance Release Order for 12 months in relation to two charges of obtaining a financial advantage from a Commonwealth entity. This offending also concerned Commonwealth benefits you were not entitled to in the sum of $19,328. 

9Your offending in relation to Charge 1 in this case would appear to be a breach of your recognizance and the breach proceedings will be heard when this matter is finalised.  The fact that you have a prior conviction for the same offending is clearly a significant sentencing consideration in your case, and your offending continued despite you being placed on a Recognizance Release Order.

10However, you were not the subject of any supervision by a correction agency on that order.  And whilst, as I have said, your prior conviction is significant, it is not the only factor or the only significant factor in the synthesis that I am required to undertake in your case.

11The prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows –

12Between 13 April 2010 and 1 January 2013, you were in receipt of the Commonwealth Parenting Payment (Single).  You were required to report all other income to Centrelink as a condition of that benefit.  During the period of the first charge, you were employed part-time as a resident care provider at Mercy Health and Aged Care, and as a casual employee for two months at the Shepparton Retirement Village.  You did not declare this income and received over the period of approximately two years and nine months the sum of $31,534 that you were not entitled to.

13In relation to Charge 2, you were also employed by Mercy Health and Aged Care and for the period of the charge - namely, three years and six months - you did not declare this income and received $42,539 that you were not entitled to. 

14You are the subject of an agreement between yourself and the Commonwealth that the overpayment be repaid at the rate of $30 per fortnight, and you are currently in receipt of a Disability Support Pension. 

15Your offending involved either false declarations that you had received no income during the relevant period or the understatement of that income. It must have been known to you that data matching routinely undertaken by the Commonwealth would, in all probability, reveal your crimes.

16In my opinion, these are not sophisticated offences and there is no evidence of significant enrichment, false identities, or the planned defrauding of the Commonwealth which is not uncommon in cases of this type.  However, deceptions on the Commonwealth undermine the entire social welfare and taxation system, and it is the responsibility of this court to protect that system and Commonwealth revenue and expenditure.

17The sentence that I impose must be calculated to deter others from offending in this manner, and having regard to your prior conviction, specific deterrence is also a consideration in your case.  You must also be punished for your persistent offending which took place over a period of six years. 

18I accept that a sentence of imprisonment to be served is open to me in the circumstances of this case. However, it is also incumbent upon me to comply with s.17A of the Crimes Act1914 (Cth) in arriving at an appropriate proportionate sentence in your case. 

19I now turn to your personal circumstances.  You were born on 12 June 1966 in Laverton and are now aged 52.  You have two siblings.  Your formative years were disrupted by the extreme physical abuse of your mother by your father.  Your father also behaved in a sexually inappropriate way towards you and your siblings.  Your parents separated when you were ten years old, and your mother thereafter had numerous other partners.  You were evicted from the family home by your mother when you were 15.

20Your childhood and developmental years were plainly disrupted and tragic, and this in turn disrupted your secondary school education, during which you were bullied and were an isolated individual.  You have a history of two significant relationships with violent and abusive men.  Your son from your first relationship suffers from polysubstance abuse disorder and is also of a violent disposition.

21Your daughter Kasey, who is now 15, was born during your second relationship.  She suffers from an intellectual disability and you are her only carer.  You gave evidence on your plea that there is no other person who can care for her in the event that you are incarcerated, and I accept that this is the practical reality of your difficult and complex personal circumstances. 

22Kasey attends the Melton Specialist School where she is well settled, and she will remain there until she is 18.  She has a mild intellectual disability and currently functions as an 11 year-old child.  Your incarceration would obviously have a seriously disruptive impact upon her welfare, and in my opinion, this is an important consideration in your case.

23I have not proceeded on the basis that the principles set out by the Court of Appeal in Markovic v The Queen (2010) 30 VR 589 are engaged in your case such that the impact of your incarceration on Kasey amounts to exceptional circumstances. But as I have said, it remains an important factor for me to take into account in your case.

24You suffered abuse as a child and as an adult during the course of two significant relationships, and I have received in evidence a psychological report of Dr Aaron Cunningham setting out your background and psychological history.  Dr Cunningham expresses the following opinion:

"Ms Godkin's personality profile indicated significant elevations on personality disorder, dimensions of schizoid avoidance, melancholic, schizophrenic, bipolar, borderline and paranoid.  She evidenced clinical elevations on general anxiety, persistent depression, post-traumatic stress, schizophrenic spectrum, major depression and delusional disorder.

Her profile indicated a largely fractured and fragile psyche, most likely resulting from the experience of trauma and her psychological vulnerability.  She evidences significant periods of depression and anxiety. 
She evidenced a tendency towards self-destructive behaviour, endorsing several items in this category.  She presented with a tendency towards suicidal ideation and self-harm.  She tends to disconnect from others and become paranoid.  She has longstanding feelings of worthlessness and guilt.

Ms Godkin was highly anxious at the time of my first assessment. 
She reported initiating sleep through the assistance of medication. 
She was receiving medication for a diagnosis of bipolar affective disorder.  She was prescribed lithium esomeprazole and desvenlafaxine. 
She reported a cycling mood between periods of heightened energy and significant depression.  She becomes suicidal and has self-harmed. 
She is paranoid and mistrustful of others.

She presented as extremely psychologically fragile.  She was engaged with mental health support through Ballarat Mental Health Services. 
She stated that this is her first experience of reaching out and engaging with support.  She is visited by this service every week."

25I have also received in evidence a medical report of your treating psychiatrist, Dr Priya Alencherry, detailing your psychological and psychiatric treatment, and the medication prescribed to you.

26The prosecution accept that limbs five and six of the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269, are engaged in your case, and the evidence before me clearly supports this.

27It is also plain from that evidence that at the time of your offending, you had suffered long lasting trauma from the abuse you had suffered as a child, a teenager and an adult, and it is in this context that your offending occurred. 
In my opinion, that trauma would have impaired your capacity for reasoned decision making and your offending continued.

28I accept that you now understand the seriousness of that offending, and your risk of reoffending is low if you have appropriate support and guidance. 
The sentence that I impose will also have a deterrent effect upon you.

29In arriving at an appropriate proportionate sentence in your case, it is incumbent upon me to consider all other available sentences.  And for this reason, I had you assessed for suitability for a Community Correction Order, a disposition you have not previously been the subject of.  I have received a report from Corrections Victoria stating that you are suitable for that disposition.

30Having carefully balanced the competing sentencing considerations in your case, I have come to the conclusion that whilst a term of imprisonment is appropriate in all the circumstances of your case, I am satisfied that it is also appropriate for me to impose upon you a Recognizance Release Order which will mean that you will not be required to serve that sentence now.  And further, that you be the subject of a Community Correction Order that will provide for your support and supervision in the community.

31In Hili v The Queen (2010) 242 CLR 520, at 533, the High Court of Australia said as follows:

"In Ruha, the Queensland Court of Appeal went to some lengths to emphasise the cardinal importance of beginning consideration of the sentencing of any federal offender by examining the applicable statutory provisions, particularly Part 1B of the Crimes Act.  The Court of Appeal summarised the effect of the relevant provisions of the Crimes Act in three propositions, but neither the summary nor any of the individual propositions is or was intended to serve as a substitute for the statutory language.

The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order.  As the Court of Appeal rightly said, s.16A(1)(2) 'make it plain that in all the circumstances, including the matters in the non-inclusive list in s.16A(2), must be taken into account in making recognizance release orders just as they must be taken into account imposing a sentence of imprisonment.'  In determining what recognizance release order is to be made, s.16A(1) requires the sentencing court to 'make an order that is of a severity appropriate in all the circumstances of the offence.'  What is the 'severity appropriate' determined having regard to the general principles identified by this court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen."

32More recently, these principles were restated by the High Court of Australia in DPP v Dalgleish (2017) 349 ALR 37. In arriving at an appropriate proportionate sentence in your case, I have had regard to the relevant provisions of the Crimes Act and these principles referred to in Hili v The Queen and, as I have said, more recently in Dalgleish.

33In my opinion, the circumstances of your case, unusual and exceptional as they are, mean that the disposition that I have decided to impose will give effect to the purposes for which this sentence is to be imposed and will provide for your ongoing rehabilitation. 

34In the result, the sentence of the court is as follows.

35On Charge 1, you are convicted and sentenced to be released on a Community Correction Order for a period of two years on the core conditions provided for in the Sentencing Act.

36I further order that during the period of the order you be under the supervision of a Corrections officer, undertake mental health assessment and treatment as directed, and complete unpaid community work for a period of 150 hours.

37Do you agree to entering an order on those terms, Ms Godkin?

38OFFENDER:  Yes, I do.

39HIS HONOUR:  On Charge 2, you are convicted and sentenced to be imprisoned for 15 months.  Such sentence is to start today, 15 March 2019. 
I order that you be released forthwith on a Recognizance Release Order in the sum of $500 for a period of two years.

40But for your plea of guilty, in the circumstances of this case, I would have imposed a total effective sentence of 18 months imprisonment and imposed a recognizance release order providing for your release after serving six months imprisonment.  I have made the reparation order sought on behalf of the Commonwealth.  Were there any further orders required?

41MR SAGNELLI:  No, Your Honour. 

42HIS HONOUR:  Thank you.  We will adjourn now to 10 am.  Thank you. 

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