Director of Public Prosecutions v Kuol

[2017] VCC 1516

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -17-00504

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTHA ANNE KUOL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2017
DATE OF SENTENCE:	18 October 2017
CASE MAY BE CITED AS:	DPP v Kuol
MEDIUM NEUTRAL CITATION:	[2017] VCC 1516

REASONS FOR SENTENCE

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Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Gullaci Ms S. Holmes	Commonwealth Director of Public Prosecutions Office of Public Prosecutions
For the Accused	Mr A. Lewis

HIS HONOUR:

1Martha Anne Kuol, on 16 October you pleaded guilty to one charge of dishonesty causing loss to a Commonwealth entity contrary to s.135.1(3) of the Criminal Code (Cth). The maximum penalty for this offence is five years' imprisonment. It is an agreed fact that between 8 June 2015 and 7 December 2015 you dishonestly caused the loss of $119,657.54 to the Commonwealth.

CIRCUMSTANCES OF YOUR OFFENDING

2I turn to the circumstances of your offending.  The prosecution tendered a summary of prosecution opening dated 11 October 2017.  This document became Exhibit A on the plea and is an annexure to these reasons for sentence.  The Department of Education and Training was responsible for the administration of 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 oversight of the FDC educators who provided the actual day care services.  You worked as an FDC educator.

3The Department of Education and Training identified a group of FDC providers, referred to as the Deng Group, as involved in fraudulent activity.  Rosa Riak is the mother of Kuol Deng and Achai Deng.  These three people conducted the Deng Group FDC Provider businesses.  In September 2015 the federal investigators had set up telephone intercepts on the Deng Group.  You worked for the Deng Group as an FDC educator.  You were also intercepted on telephone intercepts speaking with members of the Deng Group.  In this particular investigation into the Deng Group you were one of the nine FDC educators charged as a result of the dishonest claims on the Commonwealth.

4I turn to your specific offending.  During the offending period you did the following dishonestly with intention of causing loss to the Commonwealth:

(1)you submitted claims to FDC providers using timesheets; 

(2)you asserted that you provided childcare when you submitted those timesheets to the FDC providers; 

(3)that you submitted timesheets through five different FDC providers, namely Nyier FDC, Manhal FDC, White Butterfly FDC, Favour FDC and Dorsy's FDC. 

(4)you claimed that you provided childcare services that were not, in fact, provided by you;

(5)you were paid for services that you did not provide; 

(6)you were paid a substantial amount of money over the offending period.

5The total amount paid out by the Department of Education and Training for claims submitted where you were recorded as the FDC educator for the period 8 June 2015 to 16 December 2015, was a total of $291,539.87.  You accept that of this sum a total of $119,657.54 was dishonesty received by you for childcare services that you did not provide in accordance with the legislation underpinning the childcare system.  You obtained these payments by charging excessive hours, overlapping and inconsistent claims and knowingly submitting claims and timesheets that were false.  You did this in complicity with members of the Deng Group.  In your claims, through the Deng Group specifically, you received a total of $215,000 for the period of your offending that is between June and December 2015. 

6The conversations between yourself and members of the Deng Group recorded on the telephone intercepts clearly set out your dishonesty in relation to the claims made and payments received by you.  I refer to the summary that was part of Exhibit A for the detail of those conversations and do not propose to detail them in this sentence.

7A warrant was executed at your home on 16 December 2015.  Your tax returns and other business documents were seized.  SMS messages on your phone between yourself and the Deng Group were identified and recorded.  You were arrested and interviewed by investigators on 16 December 2015.  You admitted you completed and signed all the timesheets for childcare payments.  You answered "no comment" when asked questions about your childcare claims whilst you were under Australian Federal Police surveillance. 

8You have pleaded guilty on 16 March 2017 at the Magistrates' Court.  The prosecution agree that this is an early plea and to be treated as such. The outstanding issue was the amount of money that was dishonesty obtained by your fraud from the Commonwealth.  The agreed sum is a recent development and settlement between you and the prosecution resulting in your plea of guilty in this Court.

9You are one of nine educators who have been charged with this offending in the Deng Group.  At the time of your plea and sentence only one of the other eight educators, Adiol Dahl, had been sentenced for similar offending.  I will return to this when dealing with the issue of parity.

YOUR PERSONAL CIRCUMSTANCES

10I turn to your personal circumstances.  You are now 26 years' old.  At the time of your offending you were 24 years' old.  You were born in South Sudan.  Your father was killed in the civil war in Sudan.  Your mother and brother escaped to Kenya initially.  You were left in the care of your grandmother, as I understood it, until you were about eight years' old.  An uncle returned to Sudan and rescued you and re-united you with your mother and brother, Makok, in the refugee camp in Kenya.  You resided in the famous or truly described, infamous, Kakuma refugee camp.  In 2003 the perimeter of that camp was breached by Tukaman and other referral groups.  There was killing, looting and destruction of the meagre infrastructure within the camp.  You were there and saw it all.   

11In 2005 you and your family migrated to Australia. You were 14 years' old. 
At that time you had no education, either in Sudan or Kenya.  You did not speak English.  You commenced an English language school in Noble Park in 2005.  In 2007 your family moved from Noble Park area and settled in Werribee.  In 2008 you commenced high school at Mary MacKillop College, which is in Werribee.  You were assisted by a woman by the name of Karen Bowdery, an integration aid at that school.  In her reference she speaks admiringly of your hard work and personal resilience in the face of your many challenges when you were at the school.

12You became pregnant with your first child in 2011 and this caused friction within your family home.  You left home and went to live in a refuge.  Your first baby was born on 25 May 2012, his name is Isaac.  In 2012 and 2013 you returned to education at the Wyndham Community Centre and completed Year 12 VCAL.  In 2013 you commenced childcare work at New Hope Foundation. 
You completed a Certificate III in Childcare whilst you were pregnant with your second child.  On 28 November 2013 Lloyd was born.

13In 2014 you continued your education and obtained a Diploma of Early Childhood Education and Care from Metro College of Technology.  In 2014 you commenced your own childcare educator business in the sense you were operating as a childcare operator.  Your youngest child, Bobby, was born on
14 November 2015.  This birth was in the middle of your offending period in this case.  The father of all of your children, Mywin, left the relationship at the end of 2015. 

The present position is your youngest son, Bobby, lives with you and a cousin.  The older two boys live with your mother.

14Since your arrest you have worked as a coordinator in a day care centre until August 2016.  Since August 2016 you have worked two part time jobs as a casual packer for three to four days a week and 20 hours a week as a mail sorter.  Your average hours of work per week are approximately 50 hours and you are assisted in looking after your youngest child by your cousin who looks after him while you are at work.

15On 13 October 2017 you consented to orders under the Proceeds of Crime Act 2002 to forfeit your family home at 13 Maclaren's Close, Wyndham Vale and approximately $152,000 which was in a National Australia Bank account held in your name. Those monies were forfeited to the Commonwealth. In respect of the property at Maclaren's Close it was estimated to be valued at $550,000. The mortgage on that property was $340,000 and that equity you had in that home was at least $210,000, which has been forfeited to the Commonwealth. This sum is a matter which I must take into account when sentencing you, pursuant to s.320(c) of the Proceeds of Crime Act. 

16The prosecution dispute that the $32,000 difference between the $152,000 in the bank account and the amount of your fraud, $119,657.54 is a matter that
I should take into account. The prosecution rely on s.329 (1) (b) of the Proceeds of Crime Act to make this submission.  For the purpose of sentencing you
I disregard the extra $32,000 forfeited from your bank account.  However the forfeiture of your home and the $210,000 equity is a significant consideration in arriving at a just sentence in your case.

17In the context where the prosecution rely on a total of $215,000 payment to you through the Deng Group for the period of offending representing a fraud of $119,657.54 the forfeiture of a $210,000 equity in a home can only be regarded as significant.  The fraudulently obtained funds is more than adequately repaid by the bank funds of $152,000.  The prosecution of you is about the protection of the revenue and deterring others from fraudulently attacking the revenue in this manner.

18I reviewed the report of Carla Lechner, psychologist, dated 24 September 2017.  I accept that you are ashamed for your offending and are remorseful.  You suffer high levels of high anxiety but disguise it behind your resilience and independence forged over your life experiences at a young age. 
Your explanation for offending was you were overwhelmed financially and emotionally.  I accept the emotional explanation that you were overwhelmed by three children and you partner leaving you.  On the financial position I do not accept you were overwhelmed. Your offending was driven by greed.

SENTENCING CONSIDERATIONS

19I turn to sentencing considerations. The most significant consideration when sentencing a federal offender such as yourself is s.17A of the Crimes Act (Cth) which provides:

" … a court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case". 

20A term of imprisonment is the only appropriate sentence for your offence. Section 16A of the Crimes Act sets out a 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 when sentencing you, which are set out in s.16A of the Crimes Act.  These factors include:

(a).the nature and circumstances of your offence;

(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 that has been repaid by the forfeiture orders;

(d).the degree to which a person has shown contrition for the offences.  In your case the remorse is set out in Ms Lechner's report and confirmed by your plea of guilty;

(e).that you have pleaded guilty to the offence;

(f).that the deterrence effect of any sentence or order under consideration may have on the person.  That is specific deterrence to you;

(g).the deterrent effect that any sentence or order under consideration may have on other person.  That is the general deterrence factor;

(h).the need to ensure that you are adequately punished for the offending;

(i).your character, antecedence, age, means, physical and mental condition of you;

(j).the prospects of your rehabilitation; and

(k).The probable effect that any sentence or order under consideration would have on you or your family.

21At the time of your offending you were 24 years' old.  Whilst you are not a young offender you are a relatively young person and this is a matter I take into account when sentencing you.  You have no prior convictions and no outstanding matters to be dealt with by the courts.  You are to be sentenced as a person of previous good character. 

22As I said before you have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a 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 that public confidence in the legal process set up to protect the community. 

23Your plea also is a clear indication and acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your behalf.  Your 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 in a trial.  I accept you are ashamed for your offending and that your remorse is genuine.

24I accept that your prospects of rehabilitation are good.  Since your arrest you have continued to obtain employment, maintain your mortgage payments on the house you have now forfeited and cared for your youngest child directly.  You contributed to your church community at the Anglican parish at Footscray at working bees and caring for the elderly parishioners there. 

25I accept the opinion of Dr Lechner that you are currently suffering from moderate level of depression and mild level of anxiety as measured by the Beck Inventories referred to by her.  These conditions would make a term of actual imprisonment more burdensome on you than other offenders who do not suffer from these psychological problems.  I take these factors into account when fixing your sentence.  These matters also arise in the context of the separation from your children if you were incarcerated in prison.

26In this case the prosecution submitted that you were fourth in the hierarchy of nine 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 the chart attached to the sentence submissions tendered to the court by the prosecutor.  Ms Aduwa Dahl was listed as the sixth in the hierarchy.  Ms Dahl is the only other offender that has been sentenced to this date. 

27The principle of parity of sentencing is relevant in your case.  Ms Dahl was sentenced to 12 months' imprisonment to be suspended for a period of two years.  She was released on a recognisance release order in the sum of $1000 to be of good behaviour for that period of two years.  The condition of her release order was that she was to see a psychologist for her gambling addiction.

28A reparation order made pursuant to s.21B of the Crimes Act (Cth) was made in her case for the sum of $82,813.70.  It remains unpaid.  The comparison of sentencing markers between yourself and Ms Dahl are instructive when assessing the parity principle in this case. 

29At the time of the sentence Ms Dahl was 32 years old, you are now 26.  Ms Dahl has five children, you have three children.  Ms Dahl has the support of her husband, you are single. 

30Ms Dahl was defrauding the Commonwealth to the sum of $82,813 and you have admitted to the sum of $119,657.  I note for the sake of completeness that the period of offending were approximately the same, that is the period of six months. 

31Ms Dahl received a total payment of $106,898 over the period and you received a total payment of $215,442 over the period of the offending.  Those figures represent, respectively, 77 percent of the total received monies by Ms Dahl was fraudulently obtained compared to, in your case, 55 percent of the monies obtained were fraudulently obtained.  I find, there is a big difference between the reparation order, that is an unpaid and the forfeiture order made in your case. I will not repeat what I have already said about the forfeiture order in your case.

32I do not accept the submission that was made on the forfeiture order, to give more weight to this fact amounts to one law for the rich and one for the poor or put another way, a person with means can buy their way out of gaol.  This case is about protecting the revenue and your forfeiture of property and bank account funds does that in a monetary sense.

33I have had regard to the folder of comparable cases handed to me by the prosecutor.  As was conceded none of these cases were 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 child care relies on trust by the Commonwealth of the operators to perform that service honestly and appropriately.  All of those issues are addressed and applicable in your case.  Each case of this type of offending has its own particular facts and your case is one of them. I find that the parity of sentence has a significant part to play in the fixing of a just sentence in your case. 

34Finally the consideration of general deterrence is high in cases where the protection of the revenue is at risk.  This case is a serious example of that type of offending.  You knew this was fraudulent behaviour and persisted with it for some six months.  It involved constantly filling in false timesheets, communications with the Deng Group and overcharging for services. 
You exploited a flawed system designed to improve the provision of childcare in the community.

35I find that 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.  However for the reasons expressed it is appropriate to suspend the whole of that sentence.  Would you stand please?

36On Charge 1, you are convicted and sentenced to a period of 12 month's imprisonment.  I order that the sentence of imprisonment is to be wholly suspended for a period of two years and that you are to be released on a recognisance release order in the sum of $2000 to be of good behaviour for a period of two years. 

37Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to an immediate term of imprisonment of 18 months. 

38MR LEWIS:  If Your Honour pleases.

39MS HOLMES:  Your Honour pleases.

40HIS HONOUR:  I think there has to be an order prepared.

41MS HOLMES:  Yes, my instructor has an order prepared now. 

42HIS HONOUR:  Thank ‑ ‑ ‑ 

43MS HOLMES:  I'll just complete the relevant parts and then I'll hand it up to
Your Honour.

44HIS HONOUR:  Yes thank you, Ms Holmes.  You can take a seat, Ms Kuol.  
Mr Lewis, I'm not sure she understands what's happened.

45MR LEWIS:  Could I approach the dock, Your Honour?

46HIS HONOUR:  Yes.

47MS HOLMES: Your Honour, while my friend's doing that can I just ask with the s.6AAA declaration ‑ ‑ ‑

48HIS HONOUR:  Yes.

49MS HOLMES:  ‑ ‑ ‑ it was a period of 18 months' imprisonment.

50HIS HONOUR:  Yes, immediate.

51MS HOLMES:  Immediate imprisonment. 

52HIS HONOUR:  Yes.

53MS HOLMES:  Under the Crimes Act (Cth) ‑ ‑ ‑

54HIS HONOUR:  Yes, I can't do that?

55MS HOLMES:  A period of imprisonment requires a non-parole period to be set.  So I'll ask if Your Honour could ‑ ‑ ‑ 

56HIS HONOUR:  Thank you, clarify that.

57MS HOLMES:  ‑ ‑ ‑ clarify that.

58HIS HONOUR:  Thank you very much, Madam Prosecutor.  It will be a minimum period - the gap has to be six months, doesn't it, under Commonwealth, minimum parole?

59MS HOLMES:  Yes there needs ‑ ‑ ‑ 

60HIS HONOUR:  18 months with 12 months covers it, 12 month minimum.

61MS HOLMES:  Yes thank you. 

62HIS HONOUR:  Thank you for correcting me.

63MR LEWIS: Is that under s.6AAA, Your Honour?

64HIS HONOUR: Yes sorry, the s.6AAA is 18 months' sentence with a minimum term of - as in a non-parole period of 12 months, yes.

65MS HOLMES:  That release, Your Honour, would be by way of a recognisance release order?

66HIS HONOUR:  Yes.

67MS HOLMES:  Yes.  That's what you've prepared?

68MS HOLMES: Yes, no, just in relation to the s.6AAA declaration.

69HIS HONOUR: No the s.6AAA is something separate.

70MS HOLMES:  Yes.

71HIS HONOUR: It's saying - the s.6AAA is for the court to announce ‑ ‑ ‑

72MS HOLMES:  Yes.

73HIS HONOUR:  ‑ ‑ ‑ the difference between what I've sentenced ‑ ‑ ‑ 

74MS HOLMES:  Yes, yes.  Just to clarify that so it's 18 months' release on a non-parole period - the 12 months is a non-parole period.

75HIS HONOUR:  Yes.

76MS HOLMES:  Yes.

77HIS HONOUR:  So it's a sentence to be served.

78MS HOLMES:  Yes.

79HIS HONOUR:  That's what it would have been.

80MS HOLMES:  Yes.

81HIS HONOUR:  Eighteen months with a 12 month minimum.

82MS HOLMES:  Your Honour, I have the recognisance release order prepared.  So it indicates that the offender will be released forthwith upon - by way of recognisance of $2000 ‑ ‑ ‑ 

83HIS HONOUR:  Correct.

84MS HOLMES:  To be of good behaviour for two years.

85HIS HONOUR:  Yes.

86MS HOLMES:  That order needs to be signed and dated for Your Honour and then there is a section on the back that is explained to the offender and then signed by her before Your Honour's Associate.

87HIS HONOUR:  Yes I'll explain that to her.  Thanks.  Ms Kuol, if you could stand up I just want to read this order out to you and I will explain it to you.

88The court orders the release of you, the offender, that is you, under s.20(1)(b) of the Crimes Act 1914 (Cth) forthwith, that is straightaway, upon the offender by way of entering a recognisance of $2000 to comply with the following conditions: (a) that you be of good behaviour for two years. This order has been issued because you, the offender Martha Anne Kuol, was charged with the following federal offence, dishonestly cause a loss to the Commonwealth contrary to s.135.1 (3) of the Criminal Code; and (b) the court has sentenced you to a term of 12 months' imprisonment; and (c) the court has decided that the offender, that is you, be released forthwith if you comply with the conditions of this order and I have signed it.

89What that means, Ms Kuol, is that for the next - I have sentenced you to a
12 month term of imprisonment for this offending.  But I have ordered that you be released immediately upon you entering this recognisance.  That means that if you breach it you forfeit the $2000 and you will be dealt with upon the return, do you understand what I have just said?

90OFFENDER:  I understand, yeah.

91HIS HONOUR:  That means you have got to be of good behaviour for two years from today.  Otherwise you come back.

92OFFENDER:  That's I understand.  Thanks, Your Honour.

93HIS HONOUR:  All right, this document will be taken down to you and you just sign the recognisance.  Read the front, I have read it out to you but read the front and check the recognisance on the back.

94I LEWIS:  Your Honour, could I approach the dock and assist my client with that?

95HIS HONOUR:  Yes certainly, yes.  Sorry.  There are no other ancillary orders required?

96I HOLMES:  No, Your Honour.

97HIS HONOUR:  Whether in this case?

98I HOLMES:  No.

99HIS HONOUR:  Yes thank you.

100I LEWIS:  (Indistinct) signed the order.

101HIS HONOUR:  Thanks.  I think you hold - as in your instructor, holds the original recognisance I think that's how it works, isn't it?  No?

102I HOLMES:  I don't believe so, Your Honour.

103HIS HONOUR:  The court does.

104I HOLMES:  I think the court does.

105HIS HONOUR:  Yes all right.

106I HOLMES:  And everybody's provided a copy, thank you.

107HIS HONOUR:  In a paperless world I don't know how that's done but in any event we'll do that somehow.  I have the two folders that were handed to me, that is the big two folders.  I'll hand them back to your instructor.

108I HOLMES:  Yes thank you, Your Honour.

109HIS HONOUR:  That is probably some documents that can be used in other matters.

110I HOLMES:  Yes.

111HIS HONOUR:  Ms Kuol, you can step out of there.  Ms Kuol, just before you go we do not have three strikes and you are out in Victoria in sentencing processes but I just want to say this to you.  Your first stroke of good luck was getting out of Kenya and coming to Australia.  Your second stroke of good luck is that you have gone very close to going somewhere else today and you have not.  You come back, that is your third stroke, you are in serious trouble.  So go back to your family, go back to your community, make a positive contribution to this whole community.  That is your role now.  Thanks.  We will just adjourn.

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