Director of Public Prosecutions v Hester
[2016] VCC 32
•29 January 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY MALCOLM HESTER |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 January 2016 | |
CASE MAY BE CITED AS: | DPP v Hester | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 32 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Thompson | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M. Tittensor Ms A. Hennessy | Maloney Anderson Legal |
HIS HONOUR:
1 Gregory Hester, on 16 December 2015 you pleaded guilty to an indictment containing nine charges, being:
· four charges of dishonestly obtaining a financial advantage by deception from the Commonwealth (Charges 1, 2, 6 and 8),
· four charges of dishonestly causing a risk of loss from a Commonwealth entity (Charges 3, 4, 5 and 7), and
· one charge of dishonestly influencing a Commonwealth public official (Charge 9).
2 The maximum penalty for Charges 1, 2, 6 and 8 is ten years’ imprisonment, whilst the maximum penalty for the balance of the charges on the indictment is five years’ imprisonment.
3 Tendered as Exhibit A and read aloud in court was the prosecution opening for plea, a document of some 18 pages that summarises your offending, which occurred during the period from December 2003 until April 2013. I will describe your offending in short compass.
4 Charge 1 concerns the period 3 December 2003 to 8 September 2004, a period of approximately nine months, while Charge 2 spans the period 5 June 2005 to 10 January 2007, a period of approximately eighteen months. During these periods you operated a business, IT Everything. In respect of these charges, by your false representations to Centrelink you obtained from the Commonwealth $6,992.62 and $15,371.27 respectively (see Exhibit A, paragraphs 19–28 both inclusive).
5 Charge 3 to 7 relate to the period when you operated the business Swan Hill Wood Yard, a business that operated on a cash basis, and one that never lodged a tax return. You commenced this business after selling your computer business to an employee. This business was seasonal in nature, with the busiest time being the cooler months from April to September when the business operated on a seven day a week basis.
6 Charges 3, 4, 5 and 7 relate to periods that cover or concern the non-busy period when you represented to Centrelink that you were not working. Because your work was seasonal (see Exhibit A, paragraphs 9 and 10), you placed the Commonwealth at risk of loss. Save for the period the subject of Charge 6, being from 26 March 2009 to 26 August 2009, when you fraudulently obtained $4,831.62, from Centrelink you did not claim benefits during the busy season of this business.
7 Whilst operating the wood yard you were reported to Centrelink, who commenced an investigation into your activities. You were interviewed by Centrelink on a number of occasions, and the lies that you told officers of Centrelink can only be described as brazen (see Exhibit A, paragraphs 48 and 51). At one stage you even alleged that you were being harassed by officers of Centrelink (see Exhibit A, paragraph 57).
8 Between August 2011 and September 2013 you operated a tattooing and body-piercing business called Under Your Skin. In the period between 16 August 2011 and 11 September 2013, a period of over two years, being the period that the business operated, you fraudulently obtained $29,236.41 from Centrelink.
9 On 19 September 2013 Australian Federal Police, with the assistance of Centrelink personnel, executed a search warrant at the Swan Hill shopfront of your business and recovered documents relating to Under Your Skin as well as your other businesses. Under Your Skin was a business registered with ASIC from 1 November 2012 for a year. Over time it employed five workers, leased retail premises, had business insurance, and advertised in the Guardian newspaper and on Facebook. During the period that the business operated, you submitted thirty reports to Centrelink claiming you were receiving no income.
10 Additionally, on 3 April 2013 you attended at the Centrelink office at Swan Hill and produced a profit and loss statement for Under Your Skin showing a profit of just $24. The document was false, or contained false information (Charge 9).
11 You are thirty-eight years of age, and were born in Melbourne. You are an only child. Your father was a truck driver and was often away. Eventually he could no longer make a living out of driving, and the family moved to Taggerty Lake because it was thought that living in the country would be less costly.
12 Your parents separated when you were four years old, and you remained in your mother’s care. Your father moved to Queensland. When you were about ten years of age your mother remarried. In 1989 your family moved to a farm of some 1800 acres near Swan Hill.
13 You were educated at the primary school at Tresco, a small township near Swan Hill, for Years 5 and 6. Your secondary education was mainly at Swan Hill High School, however you completed Year 12 at the Swan Hill Technical School. The next year you commenced a Diploma in Business Marketing at the local TAFE, but you left in the first year, aged just seventeen years.
14 When you were thirteen your father tried to contact you by phone, the first time since he moved to Queensland, but you were too scared to take the call. Your father died when you were seventeen. You attended his funeral, and became acquainted with his side of the family, who led you to believe that your mother had actively interfered with your father’s attempts to maintain a relationship with you.
15 From 1994 to 1996 you worked in the hospitality industry and did some labouring. You moved to Queensland and spent some time there with a paternal uncle, but there was no work for you, and your first court appearance resulted from you stealing food. You moved back to Swan Hill, then to Melbourne, but work was still scarce, and you appeared for a second time in a criminal court.
16 In 1999, aged 22, you met your ex‑wife. You married in 2001, and there are three children of that union: Ben, born in 2000; Emily, born in 2001; and Matthew, born in 2005.
17 The early 2000s were years of drought in the Swan Hill area. There was little work for you. You had a longstanding interest in, and flare for, computers, and started up IT Everything as a means of earning money from the home whilst supporting your wife in the care of your children. Your wife did not work.
18 Your mother assisted you in starting the business, which commenced with you attending markets to generate work. The business, I was told, really commenced as a hobby; however, it soon produced income. It was put on your behalf that you went onto Centrelink payments because of pressure placed on you by your wife for a regular income, and that you sought to supplement what was said to be a meagre income from IT Everything by Centrelink payments. It was put on your behalf that the records seized pursuant to warrant that relate to IT Everything are somewhat misleading, in that whilst there were many invoices found, not all were paid, and you charged a small margin on parts, and the income suggested by these documents is a gross income, not taking expenses into account. Having said that, you sold the business to an employee for $30,000 in 2006, and with the proceeds purchased a motor vehicle for your wife and invested the balance of $10,000 into the wood yard concern.
19 I was told that your parents invested heavily in the wood yard, buying plant and equipment. You regularly went off Centrelink payments during the busy part of the year for the wood yard.
20 In 2008, financial pressures and the disharmony that they brought to your marriage caused you to separate from your wife. The separation was and remains to this day an acrimonious one. The separation resulted in the family home being sold; however, it was heavily encumbered, and there was no equity to be distributed between you and your ex‑wife. It was put that it was financial pressure arising out of the dissolution of your marriage that motivated you to commit Charge 6.
21 It was put on your behalf that the wood yard business wound up with you receiving nothing out of it. Your mother and stepfather seem to have secured their investment in the business, leaving you with nothing.
22 In 2010 Family Court proceedings left you with shared custody of your children; however, you and your ex‑wife were constantly in dispute, and it seems that the order was ineffective.
23 In August 2011 you started the business Under Your Skin. This was a truly commercial enterprise that involved a $50,000 loan for equipment and fit-out expenses. It was put by your counsel that the business opened in March 2012 and that your wages amounted to only $315 per week.
24 In 2012/13 you commenced a new relationship. You lived in Swan Hill, whilst your partner lived in Wycheproof. After Under Your Skin was shut down, you lived in the caravan park at Wycheproof. In 2013 your partner fell pregnant, and, owing to the ongoing disharmony between you and your ex‑wife, you and your partner decided as a couple to travel to Queensland. I was told that your total joint property at that time was a car, clothing and about $1,000 in cash.
25 In June 2014 your son Jackson was born. Your partner’s parents also moved to Queensland, and there was a period when you shared accommodation together. You found work as a tattooist by knocking on doors. You worked for six months, until the business that employed you closed. Since then you have had no work. You have been supported by your partner and her family. You wrongly believed that because you were the subject to a prosecution for Social Security fraud that you were ineligible for benefits. Accordingly, there has been no arrangement made for reparations from any benefit to which you were entitled.
26 You attempted to assist authorities in Queensland in respect to criminal activity by providing information to them, but the authorities were already seized of the information at the time of your offer.
27 Your relationship with your former wife is still acrimonious. However, you maintain some relationship with your eldest son via mobile phone conversations, but this seems to be the extent of any contact that you have with your first family.
28 You suffer from asthma and osteoporosis in the knees, and have mild reactive depression resulting from these proceedings.
29 Your counsel, Ms Tittensor, emphasised your early plea of guilty, your attempt to assist authorities in Queensland, the financial and emotional pressures that you were placed under by your first wife, as well as your matrimonial difficulties and consequent problems in respect of access to your children, as well as your parlous financial position, to found a submission that mercy should be extended to you. Additionally, she stressed that your offending lacked some of the aggravating features often found in offending of this kind, like the use of false identities and the claiming of multiple benefits.
30 Whilst the amounts involved in your offending are not large, your offending continued over a long period of time, and occurred in circumstances where you conducted three separate businesses. You made very many false statements to Centrelink throughout the course of your offending, and in respect of Charge 9 you constructed a false profit and loss statement to influence a Commonwealth public official. Whilst from time to time you stopped making fraudulent claims, you soon returned to that practice. You finally stopped offending only after the intervention of the Federal Police.
31 Social Security fraud is widespread, easy to commit, and difficult to detect. General deterrence must play a prominent part in the exercise of my sentencing discretion, as must specific deterrence because of the frequency and duration of your offending.
32 As against that, you pleaded guilty at the earliest opportunity, and are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse, and it has utilitarian benefit, in that it facilitates the course of justice.
33 Whilst you have no relevant prior convictions, your prospects for rehabilitation must be viewed as guarded because of the length and frequency of your offending and your present personal circumstances.
34 I take note of the matters drawn to my attention by your counsel this morning in respect to the way in which you have been housed whilst on remand. Would you please stand up.
35 By this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of a similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you as follows:
36 On Charge 1, I sentence you to four months’ imprisonment.
37 On Charge 2, I sentence you to eight months’ imprisonment.
38 On Charge 3, I sentence you to four months’ imprisonment.
39 On Charge 4, I sentence you to four months’ imprisonment.
40 On Charge 5, I sentence you to four months’ imprisonment.
41 On Charge 6, I sentence you to four months’ imprisonment.
42 On Charge 7, I sentence you to four months’ imprisonment.
43 On Charge 8, I sentence you to twelve months’ imprisonment.
44 On Charge 9, I sentence you to six months’ imprisonment.
45 I order that the sentences imposed on Charges 1, 2, 4, 5 ,6, 7 and 8 commence today.
46 I order that the sentence imposed on Charge 9 commence three months prior to the expiration of the sentence imposed on Charge 8.
47 I order that the sentence imposed on Charge 3 commence one month prior to the expiration of the sentence on Charge 9.
48 It is my intention that you be sentenced to eighteen months’ imprisonment, and I order that you be released on a recognisance release order in the sum of $500 after having served nine months’ imprisonment.
49 I declare that you have spent 44 days by way of pre-sentence detention.
50 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to thirty-six months’ imprisonment and released you on a recognisance release order in the sum of $500 after having served eighteen months’ imprisonment. You may be seated.
51 MS THOMPSON: To enable to me to complete the recognisance release order could you indicate the period of good behaviour? You are required to specify a period after release during which Mr Hester is required to be of good behaviour.
52 HIS HONOUR: That will be nine months.
53 MS THOMPSON: There was also the matter of the reparation order.
54 HIS HONOUR: Yes, just pardon me a for a moment, do you have a copy of that order there?
55 MS THOMPSON: I have a draft, yes, Your Honour.
56 HIS HONOUR: Thank you.
57 MS THOMPSON: I'm sorry I haven't updated that, I have prepared it with the December date on it.
58 HIS HONOUR: No, that is fair enough too.
59 MS THOMPSON: Can I also hand up to Your Honour the draft recognisance release order for you to consider.
60 HIS HONOUR: Thank you very much. Now Mr Hester, my associate will bring to you the document which sets out the recognisance release order, that is after serving nine months' imprisonment you will be released. Effectively, in Victorian terms, you are placed upon a bond or a recognisance to be on good behaviour for the balance of the sentence that I have imposed upon you and you are required to sign that recognisance. Ms Thompson, my recollection is that the original stays with the Commonwealth, is that the case?
61 MS THOMPSON: I beg your pardon, I'm sorry?
62 HIS HONOUR: The original stays with the Commonwealth from recollection?
63 MS THOMPSON: Ordinarily the original stays on the court file I believe when you are content with the copy.
64 HIS HONOUR: All right. That can be done. So a copy will be provided to the Crown, to Ms Hennessy and also a copy for your own records to go with your personal records, Mr Hester. Can you give him a copy please? Are there any other matters that arise?
65 MS THOMPSON: I don't believe so, no.
66 MS HENNESSY: No sir.
67 HIS HONOUR: I would like to thank counsel for their assistance in this matter, you may remove the prisoner. Sine die.
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