Director of Public Prosecutions v Iheng
[2018] VCC 1261
•10 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-00566
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLEMENT IHENG |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 August 2018 |
| DATE OF SENTENCE: | 10 August 2018 |
| CASE MAY BE CITED AS: | DPP v Iheng |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1261 |
REASONS FOR SENTENCE
---Subject: Defraud Commonwealth – Family Day Care
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Gullaci with Ms S Holmes | CDPP |
| For the Accused | Ms E. Stevens |
HIS HONOUR:
1Clement Iheng, on 27 June 2018, you pleaded guilty to a change of dishonestly causing a loss to the Commonwealth between 22 January 2015 and 29 November 2015. The maximum penalty for your offence is five years' imprisonment.
2On 27 June 2018, a contested plea hearing was conducted to determine the amount of money you had dishonestly obtained from the Commonwealth. You admitted the sum of $116,295.68 was dishonestly obtained. The prosecution alleged that a further $18,392.60 was dishonestly obtained from the Commonwealth by you.
3On 6 August 2018, I handed down my ruling in respect of the disputed facts relating to that amount of money. I found you have dishonestly obtained the total sum of $134,688.28 from the Commonwealth. The written ruling was handed down to your legal representatives prior to me hearing your plea in mitigation which was conducted later on the afternoon of 6 August 2018. I will attach a copy of that ruling to these reasons for sentence and not repeat those findings.
Circumstances of your offending
4The prosecution tendered a summary prosecution opening dated 8 May 2018. I have called this Exhibit A on your plea and it is also annexed also to these reasons for sentence. This document was originally a trial opening and refers in part to a much larger scheme of offending including references to a group which is known as the Deng Group.
5The Department of Education and Training who was responsible for the administration of the family day care programs and payments. The FDC businesses, that is the providers, had an administrative support role in rebate claims to the Department of Education and Training and the oversight of the FDC educators who provided the actual day care services. You worked as an FDC educator.
6The Department of Education and Training identified a group of FDC providers referred to as the Deng Group as involved in fraudulent activity. In relation to your specific offending, you were engaged in the following activity with the intention of dishonestly causing loss to the Commonwealth between 22 January 2015 and 29 November 2015.
7In that period of nine months, you submitted timesheets through a total of seven different FTC providers, namely Dorsey FDC, Hawii FDC, Hello Children Munhall FDC, Happi FDC, Points FDC, White Butterfly FDC and Pink Luel Meth FDC.
8You did the following dishonestly with the intention of causing a loss to the Commonwealth and these are matters as follows:
(a) You submitted claims for providing child care to FDC providers using your timesheets;
(b) You asserted that you were providing childcare when you submitted timesheets to the FDC providers;
(c) You submitted timesheets through different FDC providers including Deng Group FDC providers, Munhall Hello Children FDC, Hawii FDC and Dorsey FDC;
(d) that you claim that you have provided childcare services which were not in fact provided; and
(e) You were paid for those services which were not provided.9The total amount paid by the Department of Education and Training for claims submitted where you were recorded as the educator for the charged period was a total of $375,308.42.
10Your criminality was manifested in four separate ways:
The first is claims made for caring for your own children and grandchildren.
11Between 22 January 2015 and 29 November 2015, you claimed through various FDC providers to be providing family day care to your children, HA, MA and DA and your grandchildren, MM, IRM and IREM. A total of $116,295.68 in rebate was paid by the Department of Education and Training for these claims.
12You were not eligible to make these claims for the provision of childcare to your biological children or biological grandchildren and you did not otherwise provide this care. These children were in the care of your ex-wife and your daughter, Magdalena Acieny. Acieny, who is your daughter and who has been charged and dealt with was living with you and she cared for the children at Malwell's home. That is your ex-wife's home.
13The timesheets seized from Dorsey FDC for your children were claims for care between 25 May 2015 and 7 June 2015 while you had signed the timesheets, the name on the timesheet was Sarah Maynen.
Secondly, there were claims for work not done.
14Between 23 March 2015 and 9 May 2015, you submitted childcare claims through Hawii FDC for the provision of childcare to Nyanut Manyang’s grandchildren, YM and AM. A total of $18,392.60 in rebate was paid by the Department of Education and Training. Nyanut Manyang has made a statement confirming that she was the grandmother of YM and AM but in 2015, Aruk Acachack worked for Hello Children FDC and started looking after her grandchildren. She does not know a person by the name of Clement Iheng.
Thirdly, there is also an area of exaggerating claims.
15Matur Mathiec has provided a witness statement and states that he has four grandchildren who live with him and he names them.
16In October 2014, he enrolled those children with Kids Future Garden FDC. You would collect the children in the morning and 7 am and take them to school. You would collect the children from school and bring them home about 3.30 pm or later if the children had school activities. You would attend on weekends to assist in taking the grandchildren to activities like going to the park.
17In October 2015, Centrelink stopped the payments for the childcare. The Department of Education and Training records show that you submitted claims to be providing care for these four grandchildren six days a week from 6 o'clock in the morning on most weekdays until school commenced and then until 8.30 to 9 o'clock most nights. You also claimed to provide 11 to 12 hours of care most Saturdays.
18These claims are inconsistent with the statement made by Matua Mathiak. This demonstrates you were exaggerating the hours of care you provided to Mathiec’s grandchildren.
Fourthly, claims after November 2015
19Amand Thiak of White Butterfly FDC has provided a statement which states you ceased working for White Butterfly FDC on 1 November 2015. A compliance visit was unable to occur as you said you were unavailable for a period of two weeks and then you informed White Butterfly FDC that you were not doing childcare anymore. You continued to lodge timesheets through Dorsey FDC and Hawii FDC after 1 November 2015.
20You were the holder of a bank account with the Commonwealth Bank of Australia. Analysis of that account reveals deposits were made to your accounts from various FDCs. The total of these payments from the FDCs to you was alleged to be $228,679.
21You had been in telecommunications with the Deng Group discussing childcare claims and swapping of children and false claims.
22On 2 December 2015, you have said to A. Deng that she had just discussed with her brother that Mangok is meant to look after his children, and that he has no right to look after his own children. A then responded that she did not know that the children were yours and that you and Acieny should come in tomorrow to talk about it, Acieny being your daughter.
23On 16 December 2015, a search warrant was executed at 33 Finsbury Crescent, the premises where you were meant to be providing FDC services. Authorised officers who attended concluded their observations that the residency was not being used as an FDC.
24Other items seized during the course of the execution and search warrant were payment histories for you issued by various FDC providers, an incomplete Hello Children timesheet in your name, educator child in-care list for you and unsigned timesheets for Hawii FDC and Kids Future FDC for you.
25You were arrested and a record of interview was conducted on 7 December 2015. In that interview, you stated that your spouse, Elizabeth Malwal (known as Malwal) and their six children, they were your family. You stated that you lived 33 Finsbury Crescent, Wyndham Vale. You said that your wife, Elizabeth Malwal, lived at 14 Mandora Grange, Tarneit.
26You said that you commenced working in day care about March 2015. You stated you would travel to 14 Mandora Grange, Tarneit which is where your wife - your former wife lived to sometimes, not every day, provide care to Hannah aged 17 and your grandchildren, twins Hannah and Irene.
27You stated that you would sometimes worry that you are being paid so much money by the day care company but they told you it was not a problem that you would sometimes fill out the timesheets and sign it, other times you would give it to someone who had good handwriting.
28Sometimes A. Deng and K. Deng actually put his signature on the timesheets, you said. On occasion when you took your timesheets, K. Deng told you not to worry because they had already submitted them and you would be paid the childcare money into your bank account every fortnight.
29The amounts ranged from $4,000 to $13,000 a fortnight. You stated that you did not know what were you doing was illegal because no one told you it was. You have now come to realise that it was illegal.
30The evidence is that you had submitted the timesheets. The prosecution relies upon the following evidence to demonstrate that you submitted the timesheets which had false information on them to the providers to enable claims to be made to the Department of Education and Training.
31During the execution of the search warrant at 31 Finsbury Crescent, the police located the following documents. As I say, they were incomplete Hawii Children timesheets in your name and Educator Child in Care Lists for you and they were unsigned timesheets for Hawii FDC and Kids Future FDC in your name.
32In your answers during the record of interview you stated you would sometimes fill out the timesheets and sign it, other times you would give it to someone who had a good handwriting, sometimes A. Deng and K. Deng put in their signatures on the timesheets. On occasion when the accused took the timesheets, K. Deng told him not to worry because they had already been submitted.
33Now that is the evidence that backs up you submitting all these timesheets. You were paid for the claim submitted by the providers. I find that you have received at least $134,688.28 which is dishonestly obtained from the Commonwealth. The prosecution are unable to prove beyond reasonable doubt any greater amount but I accept that you have unlawfully received more than the sum which cannot be established with mathematical certainty.
34I sentence you on the basis that you have fraudulently obtained the amount is at least $134,688.28.
Personal circumstances
35At the time of the offence, you were a 54 year old man. You are now 57. You have seven children between the ages of 30 and 11 years old. You live with one of your daughters, Ms Acieny and her family. As I have said before, she was a co-accused.
36You were born in South Sudan. You lived with your family until you were aged 11. Your father was a farmer. The first Sudanese war finished and your family returned to Yirol in South Sudan. You then returned to school which you described as free schooling.
37As a young adult, you then moved to Khartoum which was in North Sudan where you initially worked as a labourer. You then moved to Port Sudan where you worked as a porter, tre://ftr/?label="CC 7-3"?datetime="20180810112707"?path="\\svr_vgrs_fs01\Criminal"?Data="56f6b940"loading ships and a courier to transport goods. At the age of 25, you were married to Elizabeth, the mother of your seven children. You continued to work between Port Sudan and Kassala until the outbreak of the further hostilities in Sudan in the Year 2000.
38You were a Dinka working in the predominantly Arab Northern Sudan and the fighting forced you and your family to escape to Cairo. In total your family was five years in a refugee camp in Egypt near Cairo. The conditions were harsh and you relied on the UN ration carts. Ultimately you were accepted as refugees on humanitarian grounds and you came to Australia in 2005.
39On your arrival in Australia, you initially lived in Darwin for approximately one year. In December 2006, you moved your family to live in Perth. Some of your children had difficulty adjusting to the new environment and were getting into trouble with the law.
40On a domestic front, you had differences with your wife about the discipline regime that you wanted to exercise over your children. In 2009-10, you and your wife separated over that dispute. The children lived with your wife.
41In 2014, your wife and children moved to Melbourne. Later on you followed them. Whilst you were in Perth, you worked in a chicken factory and collected supermarket trolleys for work. You suffered repetitive strain injuries to your right wrist as a result of that employment. At the request of your children, as I said, you moved to Melbourne in late 2014.
42You met Rosa Riak, one of the providers at childcare and they encouraged you to commence childcare work as it paid better than your previous work. She was right about that.
43The offending that brings you before the court then commenced. You subsequently worked for the Eltham Constructions but that work has finished. You were hopeful that your employer's future projects may afford you some further employment later on in 2018. You are currently in receipt of Centrelink payments and as part of that work, as I understood it, you work in a place called Blockhouse mending furniture, bicycles and printing T-shirts.
44It was submitted on your behalf that you are an uneducated and unsophisticated person. I find that you are fully aware of the criminality of your offending as it went along. The amounts of money regularly being paid to you for childcare not performed by you was very clear to you as a criminal and dishonest act. Shifting the blame to Rosa Riak, your recruiter, or the Government, your payer, does not lessen your moral culpability for this offending. You are old enough and wise enough to know better than to engage in this fraud.
45I accept the diagnosis of Mr Cummins that you suffer from major depressive disorder now, but at the time of the offending the more likely diagnosis was an adjustment disorder with depressed mood as a result of the traumas you faced in Sudan.
Sentencing considerations
46The most significant consideration when sentencing federal offenders such as yourself is s.17(a) of the Crimes Act which provides as follows,
" A court shall not pass a sentence of imprisonment on any person unless the court having considered all other available sentences is satisfied no other sentence is appropriate in all circumstances of the case".
47A term of imprisonment is the only appropriate sentence for your offending. Section 16A(2) of the Crimes Act sets out an non-exhaustive list of factors a court must take into account and take into consideration when sentencing a federal offender such as yourself. There are many factors I must take into account in sentencing you and as I say, they are set out in s.16A(2) of the Crimes Act.
48These factors include the following;
(a) the nature and circumstances of your offence and I will set those out;
(b) if the offence forms part of a course of conduct consisting of a series of criminal acts, in this case submitting timesheets regularly;
(c) any injury loss or damage resulting from the offence, in this case a loss to the Commonwealth revenue;
(d) the degree which a person has shown contrition for the offences, in your case, remorse has been confirmed by your plea of guilty in part;
(e) that you have pleaded guilty to the offence;
(f) that the deterrent effect of any sentence or order under consideration may have on you, that is specific deterrence;
(g) the deterrent effect that any sentence or order under consideration may have on the person who are like-minded to defraud the Commonwealth, that is a general deterrent factor;
(h) the need to ensure you are adequately punished for your offending;
(i) your character, antecedents, age, means and physical or mental condition; (j) the prospects of your rehabilitation; and
(k) the probable effect of any sentence or order under consideration may have on you or your family.49At the time of your offending, you were 54 years old. You had no prior convictions and no subsequent court appearances or outstanding matters to be dealt with by the courts. You are to be sentenced as a person of previous good character. You are entitled to draw on your previous good character and law abiding life in the sentencing process.
50Nevertheless, a person of your age and life experience would have also known that your offending was serious and you continued with it over an extended period of nine months. This factor increases your moral culpability for this offence despite your previous good character.
51As I have said before, you pleaded guilty to this charge. Your plea of guilty was indicated at a reasonably early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certain outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
52Your plea also is a clear indication and an acknowledgment by you that you now accept responsibility for your criminal behaviour on this occasion. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea to the charge indicates and demonstrates some remorse on your behalf.
53Your plea of guilty in this case is particularly significant due to the number of witnesses and the complexity of the evidence which would be necessary to be presented at a trial. I accept you are ashamed of your offending and that your remorse is now genuine.
54You have conducted a contested plea before me in respect of the amount of the total money you have defrauded from the Commonwealth. You were entitled to do so. I will not repeat my findings in that regard here but such a process highlighted the difficulty of detecting offending such as yours when the revenue is defrauded in a systematic manner such as this one.
55Further, in your record of interview, you did not or could not adequately explain where the money defrauded by you from the Commonwealth was spent. You refer to paying private school fees for your grandchildren, sending money to your family in South Sudan and buying a car for your daughter. You also say you - and this is my word, invested or contributed to a Sanduk. You also supported your family here in Australia.
56By way of explanation in the record of interview, you stated the following:
“When you do something, if you work and then the government just give you this much money, the government has to be responsible to know that this money are too much money to be given to a person because if that much money is given to an individual or person, then they will actually - they will try to reduce their involvement because that much money is a lot of money to give individuals".
That was part of your answer to Question 816 in the record of interview.57I interpret that answer from you to be trying to shift the blame from your offending to other persons including the government for paying such large amounts of money to you. You go on in your record of interview to describe the providers in this offending as criminals. You are right about that assessment.
58You have been examined by Mr Jeffrey Cummins, forensic psychologist, on 1 June 2018. He prepared a report dated 20 June 2018. It was Exhibit 2 on the plea. He diagnoses you as probably suffering from trauma related adjustment disorder with depressed mood. This is based on your childhood experiences in Sudan. He now diagnoses you as suffering from major depression disorder which is not being treated.
59I take into account the principles in Verdins case, particular Limbs 5 and 6 and I accept that a term of imprisonment actually served will be more burdensome on you because of your psychiatric condition than it would be on a person without those psychological/psychiatric difficulties.
60In this case, the prosecution submitted that you were the third in the hierarchy of non-educators who have offended in the same manner as yourself. The hierarchy is based on the amounts of money defrauded from the Commonwealth. The hierarchy was set out in a chart which had been submitted to me during the course of these proceedings.
The principle of parity of sentencing is relevant in your case. A significant number of educators have been sentenced for similar offending to yourself. The most relevant offenders to your offending are Adut Deng and Martha Kuol. In your case the circumstances are different from Adut Deng in many respects but the main difference is Deng pleaded guilty early and undertook to give evidence in the trials about this whole fraudulent scheme. The trials relating to these matters became pleas. Deng's cooperation with authorities was the catalyst for the change from complex contested trials and the pleas of guilty by you and co-accused. This is a major and significant difference to your case.
61There are other differences such as a greater amount of money taken, the age of that offender and the personal circumstances of that offender. Deng was sentenced to a recognisance release order with a wholly suspended period of imprisonment.
62Martha Kuol was sentenced by me. She admitted the sum defrauded by her was $119,657. Her period of offending was six months, not the nine months in your case. Significantly in a revenue offence, Ms Kuol through the operations of the Proceeds of Crime Act have repaid all of the money defrauded from the Commonwealth and lost her equity in her own home to the extent of $200,000. Ms Kuol was only 24 at the time in her offending. She was also the sole carer of three children who were in her care at the time of sentence.
63The principle of parity of sentence is based on the notion of equal justice and the need for consistency in sentencing. The principle is to avoid giving rise to a justifiable sense of grievance to a co-accused person based on the sentence of another offender.
64In particular, in comparison Ms Kuol who is the closest in sums of money defrauded by you, the difference sentencing factors are as follows;
(1) your ages, she was 24, you were 54;
(2) the amount of money, she defrauded $119,000 approximately, you defrauded $134,000;
(3) the period of offending, she offended over a period of six offences, you offended for 50 per cent longer time, a period of nine months;
(4) the personal circumstances, she was a single parent caring for three young children, you had no similar responsibilities; and
(5) reparation, she had been forced by the operation of law and all of the money that she had defrauded and her equity in the home has been taken from her. In your case, you are consenting to a reparation order.65I find there are significant differences between Ms Kuol and yourself when assessing sentencing considerations and hence the principles of parity in sentence do not dictate that both sentences should be effectively identical in their application.
66I do not accept or give more weight to a forfeiture order over a reparation order. It amounts to one law for the rich and one of the poor or put another way, a person with means can buy their way out of gaol, in this case, Ms Kuol. Kuol has lost her money. This case is all about protecting the revenue. Both offenders had the money in the same manner from the Commonwealth, one has paid it back.
67I have had regard to a folder of comparable cases handed to me by the prosecutor. As was conceded, none of these cases are on all fours with your case. The common themes of those cases was that these types of offences are difficult to detect. Further, the protection of the revenue is paramount and the system of childcare relies on the trust by the Commonwealth of the operators to perform that service honestly and appropriately.
68All of those issues were addressed and applicable in your case. Each case of this type of offending has its own particular facts and your case is just one of them.
69I assess your prospects of rehabilitation as reasonably good. Your prior good character and work history hold you in good stead. You have a family, that is your daughter, to return to after your imprisonment and that will be a stabilised influence in your life.
70Finally, the consideration of general deterrence is high in this case where the protection of revenue is paramount. This case is a serious example of that type of offending. You knew this was fraudulent behaviour and persisted with it for nine months. It involved constantly filling out false timesheets, communications with the Deng Group and overcharging for services. You exploited a flawed and poorly administered system designed to improve the provision of childcare in the community.
71I find in your case a term of imprisonment reflects the seriousness of the offending and the need to satisfy the requirement of general deterrence and just punishment. For the reasons expressed, it is appropriate to suspend part of your sentence.
72Would you stand please?
73On Charge 1, you are convicted and sentenced to a period of 18 months imprisonment and I order that you are to be released after serving 6 months of that term of imprisonment on a recognisance release order and the sum of $2,000 to be of good behaviour for a period of two years.
74Pursuant to s.6AAA but for your plea of guilty, I would have sentenced you to an immediate term of imprisonment of 18 months. I make the reparation order when it is handed up to me.
75MR DE PASQUALE: My instructor will also complete the recognisance release order ‑ ‑ ‑
76HIS HONOUR: Yes, prepare the recognisance release order. Yes. Thank you. You can take a seat. Further, I have to declare four days pre-sentence detention.
77MR DE PASQUALE: Yes.
78HIS HONOUR: Is it four? It should be four.
79MS STEVENS: I believe it is, Your Honour.
80HIS HONOUR: Monday, Tuesday, Wednesday, Thursday. Four excluding today.
81MS STEVENS: Yes, Your Honour.
82MR DE PASQUALE: Yes, Your Honour.
83HIS HONOUR: Is it correct with that? Yes.
84MS STEVENS: Thank you, Your Honour.
85HIS HONOUR: I declare that you have served four days pre-sentence detention in respect of this sentence. I have always had difficulty with Commonwealth sentences. Have I got the format of this sentence correct?
86MR DE PASQUALE: They are correct, Your Honour.
87HIS HONOUR: Yes. Thank you.
88MR DE PASQUALE: I will just have a look at the recognisance release that is being prepared.
89HIS HONOUR: Thank you.
90MR DE PASQUALE: Your Honour, that is ready.
91HIS HONOUR: Thank you. Ms Stevens, you can approach the dock to explain to your client.
92MS STEVENS: Thank you, Your Honour.
93HIS HONOUR: Thank you. And he can sign it.
94MS STEVENS: Thank you, Your Honour.
95HIS HONOUR: Thank you. I will that copied and you will be getting a copy. Ms Stevens, when the reasons for sentence have been fully typed up which takes some time along with all the other ones that I have handed down this week, I will publish them basically but you will be sent a copy of them.
96MS STEVENS: Thank you, Your Honour. That is much appreciated, Your Honour.
97HIS HONOUR: Yes. All right. So will the prosecution obviously but ‑ ‑ ‑
98MR DE PASQUALE: Thank you, Your Honour.
99HIS HONOUR: ‑ ‑ ‑ they go up on the website. There is just a delay between the typing of them and the putting them up. From now and the time you (indistinct). Thank you. If you could remove the prisoner. Thank you.
100MS STEVENS: Your Honour, if I might the court's indulgence. Whilst there is an interpreter, I was just hoping to have a quick conversation with Mr Iheng.
101HIS HONOUR: All right. Stop. Yes, thank you. If you can just hold for a minute. I will stand down and you can do that, Ms Stevens.
102MS STEVENS: Thank you, Your Honour. That is much appreciated.
103HIS HONOUR: Mr Interpreter, thank you again for your assistance. Thank you.
‑ ‑ ‑
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00566
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLEMENT IHENG |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2018 | |
DATE OF RULING: | 6 August 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Iheng (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC | |
RULING
---Subject: CRIMINAL LAW
Catchwords: Finding of fact relating to one charge of dishonestly causing a loss to the Commonwealth contrary to s135.1(3) of the Criminal Code (Cth)
Legislation Cited: Criminal Code Act 1995 (Cth), s135.1(3)
Ruling: Accused fraudulently obtained the disputed amount of $18,392.60 from the Commonwealth by dishonestly providing false information about family day care in respect of two grandchildren.
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J Gullaci | Commonwealth Office of Public Prosecutions |
HIS HONOUR:
1 Clement Iheng, on 27 June 2018, you pleaded guilty to one charge of dishonestly causing a loss to the Commonwealth contrary to s135.1(3) of the Criminal Code Act 1995 (Cth). The matter then proceeded to a contested plea. It was appropriate that I make a finding of fact in respect of the disputed facts before the plea in mitigation was heard by me.
The disputed facts
2 The Prosecution allege that the total amount that it can demonstrate was fraudulently claimed from the Department of Education and Training (“DET”) for services not properly claimable was $134,688.28. This amount was a combination of two amounts:
(a) $116,295.68 - this amount is not disputed;
(b) $18,392.60 - this amount is the disputed fact.
3 The above amounts are set out in paragraph 77 of the Summary of Prosecution Opening.
4 The Prosecution allege that the DET paid a total of $375,308.42 to you as a Family Day Care (“FDC”) educator for the period between 22 January 2015 and 29 November 2015.[1] You do not dispute this amount of payment to you by DET.
[1]See paragraph 61 of the Prosecution Summary
5 The Prosecution Summary sets out the circumstances of your offending in respect of the sum of $116,295.68 as follows:
6 Paragraph 62 reads:
“Between 22 January 2015 and 29 November 2015 the accused claimed through various FDC providers to be providing family day care to his children HA, MA and DA and his grandchildren MM, IrM and IreM.
a. A total of $116,295.68 in rebates has been paid by the DET for these claims.
b. The accused was not eligible to make these claims for provision of child care to his biological children and grandchildren or did not otherwise provide this care. These children were in the care of the accused’s ex-wife and Magdalina Acieny’s mother, Elizabeth Malwal. Acieny (also Iheng’s daughter and another charged educator), who resided with Iheng, cared for children at Malwal’s home.
c. Timesheets seized from Dorsy’s FDC for the accused’s 3 children were for claims for care between 25 May 2015 and 7 June 2015. While the accused has signed the timesheets, the educator’s name on the timesheets is Sarah Mayuen.”
7 The disputed sum of $18,392.60 arose from the following circumstances:
“ii) Claims for work not done:
63. Between 23 March 2015 and 9 May 2015 the accused submitted children care claims through Hawwi FDC for the provision of child care to Nyanut Manyang’s grandchildren YM and AM.
a. A total of $18,392.60 in rebates were paid by DET.
b. Nyanut Manyang has made a statement confirming:
i. She is the grandmother of YM and AM.
ii. In 2015 Adut Akechak worked for Hello Children FDC and started looking after her grandchildren;
iii. She does not know a person by the name of Clement Iheng.”
8 In simple terms, this is work you claimed payment for in circumstances where you did not perform the work. The relevant granddaughter, Nyanut Manyang, does not know you, Clement Iheng, but you claimed for looking after her grandchildren.
9 In resolving this disputed fact, I have to be satisfied beyond reasonable doubt that you submitted the timesheets to the relevant FDC to make the claims for payment. In resolving this disputed fact there was no viva voce evidence given in Court. The Prosecution relied on three separate exhibits:
Exhibit A: Record of Interview with accused on 17 December 2017
Exhibit B: (i) Payment Advice dated 14 May 2015
(ii) Educator Children Base Report dated 12 May 2015
Exhibit C: Translation of a telephone intercept between the accused and Achai Deng on 2 December 2015.
10 The starting point is the Payment Advice for the period 27 April 2015 to 10 May 2015 (exhibit B). This document is for Clement Iheng through his work for Hawwi FDC. On the list of children are included Nyanut Manyang’s grandchildren, Ayuel Manyuat and Yac Manyuat. Page 2 of the document sets out the payment of $6,988.50 to Mr Iheng for the two-week period.
11 The second document in exhibit B is entitled “Educator Children in Care Report”. Clement Iheng has listed Aycel Manyuat and Yac Manyuat as being in his care for 60 and 45 hours respectively for the week 11 May 2015 to 17 May 2015. The dates for the In Care Report are the week immediately following the Payment Advice document period.
12 The system for these claims for childcare was the Educator (Iheng) would fill in the timesheets and give them to the Provider (Hawwi). The Provider would process the claims with DET and the payments were made to the Educator through the Providers. The documents in exhibit B are part of the documentation facilitating payment to Mr Iheng. The Prosecution rely on the inference being drawn that Mr Iheng provided the information to Hawwi (timesheets) so that payment could be made to him for children for whom he did not provide care.
13 Mr Iheng was interviewed by the Australian Federal Police about the totality of his offending on 17 December 2016. Mr Iheng had the assistance of an interpreter in the interview. Mr Iheng clearly admits to the system of filling out timesheets in order to claim for payments.[2]
[2]Questions and Answers: 337; 346; 397; 430-439; 446; 447; 564-567; 668-669
14 Mr Iheng knew about the payment system.[3]
[3]Questions and Answers: 450-464
15 Mr Iheng also understood the problem with dishonesty in the claims.[4] He admits to such money being given by government to individuals and that it was not right.
[4]Questions and Answers: 670-672; 803-805; 816-817
16 The answers given by Mr Iheng in the Record of Interview clearly admit to engaging in the filling out of timesheets with false information or if he was late, knowingly allowing claims to be made on his behalf that he knew to be false.
17 If there was any doubt about Mr Iheng’s state of mind when dealing with the Providers, the conversation set out in exhibit C dispels that doubt absolutely. Mr Iheng knew the system, he knew the criminal risk and he could not resist the easy money being derived from this family day-care activity.
18 I draw the inferences that Mr Iheng filled in and submitted the timesheets at Hawwi in order to facilitate the false claims to Nyanut Manyang’s two grandchildren from March 2015 to May 2015.
19 I find beyond reasonable doubt that Mr Iheng obtained $18,392.60 from the Commonwealth by dishonestly providing false information about family day care in respect of those two grandchildren.
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