Director of Public Prosecutions v Maher

[2024] VCC 379

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-23-01191

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

GAYLE MAHER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2024
DATE OF SENTENCE:	26 March 2024
CASE MAY BE CITED AS:	DPP v Maher
MEDIUM NEUTRAL CITATION:	[2024] VCC 379

REASONS FOR SENTENCE
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Subject:              Criminal Law. Sentence upon plea of guilty.
Catchwords:       Attempt to obtain property by deception - Fraudulent life insurance claim –
  Contested plea – Relevant criminal history – Alcohol abuse – Low risk of
  reoffending - Guarded prospects of rehabilitation.
Legislation Cited:

Cases Cited:       Worboyes v The Queen [2021] VSCA 169.

Sentence:           Community corrections order for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Ms J. Deppeler
For the Accused	Ms C. Marthick	Mr A. McLure

HIS HONOUR:

1.Gayle Maher, you have pleaded guilty to an attempt to obtain property by deception.  The circumstances of this offending were outlined in a prosecution summary upon your plea and I shall briefly state them.

2.You are 50 years old and at the time of the offending you lived in a unit in Mordialloc.  You had a son, Dillon Maher.  He was born in September 1992 and unfortunately died in July 2021.  Dillon previously had life insurance cover via MTAA Super fund.

3.As at 30 June 2010 the death cover of that policy was three units which equated to $75,000.  That cover lapsed prior to his death and you were made aware of this fact on 23 November 2021.  MTAA Super fund, in effect, became 
Spirit Super and you later advised police that you became aware of this fact as well.  After your son's death you contacted MTAA and you were advised that Dillon's previous policy was no longer in existence. 

4.On 22 February 2022 you joined Dillon with Spirit Super as a member.  You joined him to Spirit Super by virtue of a purported superannuation contribution paid by you under the employer ID of 810174 on 22 February 2022 in the amount of $547.60.  This was purported to be for your son's employment for the period from January 2021 to 30 June 2021.  A further superannuation contribution was paid by the employer on 15 March 2022 in the amount of $5,987.70 which was in respect of the period of purported employment of Dillon between 3 March 2020 and 31 December 2020.

5.Employer B10174 was later identified by Spirit Super as Boldbrae Pty Ltd with a business name Bayside Diesel Services in Dandenong with the particulars of email and phone number.  In fact, you had paid the purported superannuation payment from you own Bankwest account.  Spirit Super confirmed that insurance premiums for the insurance cover provided in the name of Dillon were deducted from his superannuation account on 31 March 2022, 30 April 2022 and 31 May 2022.  On that last date you contacted Spirit Super and falsely advised that your son had passed away.  You advised them that you were the sole beneficiary as listed on his superannuation statements.  When in fact he had died on 7 July 2021, you advised that he had passed away on 7 April 2022 in order to finalise his superannuation death benefit.

6.On or after 8 June 2022 you provided Spirit Super with the following certified documentation.  The birth certificate of Dillon issued on 26 October 1992.  You are listed there as Dillon's mother.  The document was certified by a constable of police on 29 December 2010.  A colour copy of a Victorian driver's licence in your name.  A colour copy of a Medicare card, certified again by another police officer in June 2022.  A copy of a Victorian death certificate purporting to report the death of Dillon Maher on 7 April 2022 in Seaford in Victoria.  The Victorian death certificate listed the age of Dillon Maher at the age of death as 28.  You are named as the mother and the date of the burial was 13 April 2022 on the face of the certificate which was dated 27 May 2022.  The certificate was certified as a true copy by a Births, Deaths and Marriages registrar and purports to be certified by a police officer who had earlier certified the Medicare card at the Springvale police station on 8 June 2022. 

7.On or about 21 June 2022 MetLife received death claim documentation from Spirit Super with respect to the passing of Dillon in April 2022.  This claim was lodged by you.  MetLife is the life insurer for members of the Spirit Super industry superannuation fund.  You had provided Spirit Super with a completed death claim information request that stated the date of death again for Dillon as 7 April 2022.  By virtue of this request MetLife provided automatic death insurance cover for Dillon to the value of $194,400. 

8.MetLife, however, then conducted an initial internal investigation into yourself which showed that Dillon's Victorian death certificate appeared to have been altered.  The following entries appeared anomalous to the other typed entries in the document.  The date of death, the burial or cremation date and the registration date on the Victorian death certificate.  They advised Spirit Super in July 2022 that it had declined the death claim on the basis that an insured event, namely death, had not occurred at a time when the insurance cover was in force and the entries on various documents provided to them were altered for the purpose of committing a fraudulent life insurance claim.  You did not receive any funds from the life insurance claim.

9.On 16 February 2023 you attended the Moorabbin police station and you were arrested by appointment.  You were interviewed by police and in your statement to police you admitted creating an account in the name of Dillon for the purpose of transferring moneys from a Go Fund Me page created shortly after Dillon's death in 2021.  You admitted paying amounts of $547.60 and $5,987.70 as purported superannuation.  You stated the Spirit Super contributions were deducted from your personal account at Bankwest and not from Bayside Diesel Services.

10.You told the police that you were advised by lady that,

'You can't send the forms into superannuation like that because it looks like they haven't reopened his original superannuation fund.  It sounds like they've started a new one which is after his death so you won't even get the girls' money back.  You won't get anything back if you submit those forms.  It'll all be gone'.

1.The girls referred to in that conversation where your son Dillon's daughters.

2.You stated that you were 'out of your mind' when you contacted Spirit Super altering the date on your son's certificate of death from his correct date of death.  You were angry and 'in the incorrect headspace' and you made alterations and you did not care at the time.  You felt it was owed to Dillon's girls at the time.

3.After altering the dates you then scanned it and sent it off to MetLife and then afterwards you attempted to retract the email you told police stating,

'I've done it now.  I have to wear the consequences'.

1.You thought MetLife would either link his super through his original documents and there would not be any problems or they would deny the claim.  You stated that you did not think that you were then breaking the law, however, that what you were doing was the wrong thing.

2.You said to police that your only intention was to get the original sum of death benefit that Dillon paid and that you felt he was entitled to, that is $75,000. 

3.You were charged and bailed on 16 February 2023.

4.The issue in relation to the contested plea is the quantum of the attempted perception.  Briefly summarised, the relative position of the parties in relation to the issue of the quantum as to the attempted perception was as follows.

5.The defence submitted the court could only be satisfied that the intended deception concerned $75,000 and that the prosecution could not demonstrate beyond reasonable ground that you intended to deceive in relation to the higher quantum of $194,000 or so, which was the death insurance cover amount.  It was said the prosecution could not prove you intended to obtain this maximum benefit by your deceptive conduct.

6.It was accepted by the defence that $194,000 was the relevant maximum amount payable under Dillon's policy.  It referred to a document, pp128 to 133 of the depositions, titled 'Death claim information request', which it is submitted was completed by you in applying for Dillon's life insurance claim.  This, it was submitted, required you to choose three options when you made the fraudulent claim.  It was said you selected the option which read, 'Yes, I want to make a claim for all or part of the benefit'.

7.The form did not, it was submitted, provide an option 'to specify how much' if only a partial benefit was being sought.  There are two such forms in the depositions.  One appears dated 15 July 2022 and is signed by Paul Maher, Dillon's father at p139.  At p128 above the initials PM is a section entitled, 'Do you want to make a claim?', and an X is placed in the box with the description, 'No, I don't want to make a claim on the death benefit.  I'm aware that I may be entitled to make a claim'.

8.The first box with the descriptor, 'I just want to make a claim for all or part of the benefit', is unmarked.

9.It was submitted that a second death claim information request form at p195 of the depositions was signed by you on 8 June 2022 before a police officer.  This spans pp195 to 207 in the depositions and at 195 the box 'Yes, I want to make a claim for all or part of the benefit', is crossed.

10.This part of the document is relied primarily upon the words 'or part of the benefit'.  This is said to be consistent in indicating your intention of attempting to obtain only part of the benefit, consistent with your answers in the police interview conducted in February 2023, in which you asserted that you believed the original death benefit was $75,000 which you felt Dillon was entitled to and that you were not aware of the amount of the benefit being $194,000.  These factors, argue the defence, amounted to a doubt as to your intention to obtain the maximum benefit.

11.The prosecution submitted you had knowledge of the higher quantum from the documentation provided to you and it was an irresistible conclusion that you attempted to obtain moneys from the claim and encompass the maximum amount.

12.The prosecution relied on correspondence and some documents.  Firstly, it relied on the MetLife Spirit Super Group life insurance policy document, p45 of the depositions, which at p83 contains tables as to a schedule of default cover relative to the age of the insured.  There the figure $194,400 appears in the relevant age.  That document is dated April 2021.

13.The prosecution then relies on correspondence with you from the company dated March 2022 in the form of acknowledgment that Spirit Super have received your request to opt in early for 'default cover', with confirmation of the default cover amount to be sent to you when the cover started.  Page 98 of the depositions.

14.The very next day on 31 March 2022 another letter was sent to you by 
Spirit Super informing you that they had applied default cover and total and permanent disablement cover to your account.  Cover which started that day.  This letter included details of the default cover and costs as attached to an insurance statement, p99 to 100 of the depositions, as well as a sheet of key facts providing an overview of the default cover applicable to you.

15.It told you details of your account could be accessed online.  The insurance statement clearly indicates that the default death payment is $194,400.  The key facts document attached to the letter of 31 March 2022 gave detailed information as to what the automatic default cover included and under the eligibility section outlined the requirement to have an account balance of at least $6,000.

16.Further documentation at p109 and following of the depositions indicate that you were the only nominated beneficiary and that as of 28 April 2022 the insurance cover from Spirit Super for default death sum was clearly stated at $194,400.

17.While you asserted your interest was in the units which amounted to $75,000 in your interview, the prosecution countered that if that had been communicated to the superannuation company that would likely have disclosed the earlier cancelled policy and therefore you did not do so fully aware at the time of your claim that the cover was, in fact, for the larger amount.

18.When the police raised with you the question of what you would have done if the company had paid out $194,400 as the full benefit you told them you did not know and then added that it would have been put in a family trust for your son's daughters.

19.In my view the material provided by the prosecution, which are documents pertaining to communications had with you in respect of your claim and the default cover applicable, are capable of satisfying me beyond reasonable doubt that your intention in the deception related to this sum. 

20.In my view the matters raised by the defence do not raise a reasonable doubt but more cogently the prosecution, in my view, has proven its contention to the required standard.

21.This matter of the quantum is somewhat anomalous because in this case, despite that finding by me, the submissions in relation to sentence from the defence were supported by the prosecution.  So that this finding, ultimately, does not impact on the view I have taken of the appropriate sentence to be applied in your case.  This was a fair concession by the prosecution and appropriate in my view.

22.I have taken your plea into account.  It will attract a reduction of your sentence.  Your plea has a utilitarian value of having avoided a criminal trial and I accept is accompanied by remorse.  The factors which pertain to the decision in Worboyes in my view are still current and will also ameliorate your sentence given that your plea was made in a plausible expectation of imprisonment.

23.I take into consideration your personal circumstances.  You are 50 years of age and were you to be imprisoned this would be your first experience of reclusion. 

24.Your early childhood was impacted by an abusive alcoholic father.  You were raised by your mother after he left.  You were aged 13 or 14 years old by then.  By this time, as a result of his drinking and anger, you were hypervigilant and avoiding him.  Your mother had a full time job at the local neighbourhood centre.  She had struggled to provide for your family, for you and your siblings and continued to do so after your father left.  Thereafter you had little to do with him and he passed away 24 years ago and your relationship with your mother is not a one of nurture and confidence.

25.Money was a recurring issue in your family home and by Year 10 you left school for a job at aged 16.  You became an office assistant.  Your former husband worked at the same place, a large car engine workshop and your early relationship with him was marked by heavy drinking.  You had met him as a teenager.

26.You became pregnant and your son, Dillon, was born in 1991.  In 1996 you had a daughter but your drinking and social lives continued somewhat.  Your former husband's drinking was heavy and frequent and when the children were 10 and 13 you separated.  You are close to your daughter, Jordan.  Tragically your son died in 2021, reportedly from a drug overdose, although you have had some misgivings about his death and its cause given his association with motorcycle bikie subculture.  His drug use and unstable personal life caused you to care for his children through the intervention of child protection authorities and Dillon was seeking mental health support when he passed away. 

27.Alison Mynard, a clinical psychologist, wrote a report in relation to you dated 16 January 2024.  You told her that after your son's death you were looking after many others.  To care with the loss including your ex-husband, his new wife as well as your daughter and Dillon's children.  Money was an issue to maintain the children in particular.

28.As at the date of the report you had a partner of some nine and a half years although he had not finalised his own divorce and you described this as a bit of a rollercoaster although generally positively.

29.As to your mental state, I shall return to this in a moment.

30.The two children Dillon fathered now live with your ex-husband although you provide emotional and financial support to them.

31.After Dillon's death your drinking became somewhat problematic.  Although you had drunk heavily for many years you did not receive any treatment for this issue.  An important issue is your prior criminal history which is not extensive although a very relevant one and a matter which makes this sentence exercise particularly complex.

32.In August 2014 I sentenced you to two years' imprisonment which was suspended for two years for offences committed during the period July to September 2007.  Three charges.  Two charges of theft and one of obtain property by deception.

33.At the time you were an administration controller and property manager with a real estate agency managing clients' moneys including receipts and banking the money from rentals and bonds.  Audits in July 2007 and September 2007 found significant discrepancies in the accounting process.

34.Charge 1 related to over $119,000 by way of thefts on 16 occasions and Charge 2 related to over five and a half thousand dollars by way of five thefts.  The third charge related to deceptions at a different real agent by way of 36 occasions in which you dishonestly appropriated moneys, over $44,000.

35.Although you remained in substantial personal debt you had taken an overseas holiday and spent most of the moneys on your family.  You had manipulated transactional records through double-entry requirements, altered leave and holiday entitlements to give yourself an alibi and in July 2010 you signed an agreement to repay the $44,000 sum.  Your previous employer's partial loss was made good by insurance.

36.A sentence indication was given at that time and following that I sentenced you accordingly as was my obligation.  At the time I noted particularly the delay in the resolution of those matters, a delay of some seven years.

37.Your children then were aged 22 and 16 and both lived with you and you told the court you were not in a relationship having separated in 2004.  I then noted your lack of priors, your long history of employment.  You were employed as a senior national facilities manager at the time of sentence and I noted that your chances of re-offending were low and that your prospects were good.  I was wrong.

38.You had taken steps to redress your offending.  You had repaid the $44,000 sum and had accepted the outstanding compensation to your first victim by entering into a loan arrangement which you had honoured, together with a charge over your assets well over $100,000.

39.You did not reoffend during the suspension period.  In 2018 I note you contravened an intervention order, the details of which I do not know and you were placed on a community corrections order for 18 months to perform 150 hours of unpaid community work.  I was not told of any breach of that order and I assumed it was not breached.

40.I recited some of the details of the 2000 offending in the context of the submissions about the gravity of this offending and in the context of your prospects of rehabilitation.  Although it was submitted that yours was serious offending and that your offending was aggravated by the separate acts of dishonesty and the time frame involved, it was said that the degree of sophistication was diminished by the flaws in execution in the fraudulent documents and the inconsistencies inherent in the information in them, making them easily discoverable.

41.In my view, this was brazen dishonesty flawed as it may have been though may not have made the detection difficult but an investigation was nevertheless required.  The fact of the lack of an actual loss whilst relevant is inherent in the charge of attempt and fails to deal with the inherent criminality of the conduct. 

42.It was said the deception did not involve a breach of trust but as I indicated in my sentence in 2014 deceptive conduct fundamentally undermines the economic relationship of trust and honesty which are foundational for commercial and financial arrangements in our society, striking at financial transactions and threatening the economic security of the financial arrangements on which members of our community rely with consequent costs and structural difficulties for others who rely on these arrangements and their benefits.

43.It is not to the point that these companies are not small businesses and so no ancillary victims are involved.  Fiduciary duties in insurance and superannuation impact a very large portion of our beneficial arrangements, most often for the most deserving and needy. 

44.You were not someone unfamiliar with the documentation and administration tasks.  I assess this attempt as serious, if utterly misguided.

45.As to this last descriptor I accept that your primary motive in this case was the securing for your grandchildren some financial security and not greed. 

46.Ms Mynard wrote of your mental health currently and at the time of the offending and I accept her opinion.  She wrote that after the unexpected death of your son in 2021 your grief has overwhelmed you impacting on most aspects of your life and mental state.  She describes this at p29 and 30 of her report in particular, by reference to aspects ranging to lacking interest and energy, self‑blame, lack of focus, sense of worthlessness and lack of self-esteem.  Flashbacks, loss of direction and meaninglessness.  Irritability and anger.

47.In Ms Mynard's view you have suffered from complicated bereavement disorder which is intense and prolonged and an inability to adjust leading to significant impairment in various aspects of life and general functioning.  This can impact sound and rational decisions and emotional states.  This is despite the fact you are currently employed and appear in that realm to function reasonably well.  I accept that these are not mutually exclusive matters.

48.At the time of the offending you were drinking heavily and had no support by your partner.  You were fed up with life and sick of everyone around you.  You did not register the serious consequences that could and did ensue.  You are not drinking currently.

49.Ms Mynard wrote that being numb is generally the way an individual copes with complicated grief in order to give the emotion a break from the nature of feelings about the loss.  This psychological condition impacted your ability to make clear, rational and sound decisions.  While able to think and logically plan and execute the moral conscience is overwritten by your concern for your grandchildren, justifying your behaviour.

50.It appears that one result of the legal process has been a coming to terms with your son's death.  Ms Mynard recommends grief counselling as your grief may nonetheless affect you in the future.  Alcohol and drug counselling will also assist to learn about triggers and find alternative ways to deal with future challenges.

51.Your prior history and life experience renders your prospects of rehabilitation less than excellent but not forlorn.  Perhaps they are best described as guarded.

52.I accept your complex grief may affect your ability to cope with imprisonment, with current symptoms somewhat reduced but remaining nonetheless.  Ms Mynard opined you now have a very low risk of reoffending but because of your prior your risk would be better addressed by engaging in positive rehabilitative efforts such as counselling.

53.You expressed remorse and I accept your plea as a demonstration of such remorse.

54.It was submitted that your situation and mental state enlivened limb 1 of Verdins as well as limbs 3 and 4, 5 and 6.

55.I am not persuaded that I should find these principles enlivened by the material before me.  Nevertheless I accept in general terms that general deterrence should be moderated in your case, although specific deterrence remains very relevant.

56.Your moral culpability is somewhat reduced by the state you were in and the motivation for your offending.  I accept your condition of complex grief could affect your ability to cope with incarceration and likelihood of deterioration and I take Ms Mynard's report into account in relation to all of these matters.

57.I take into account the two letters you tendered on your behalf.  One from your employer, Mr Boyle and one from your friend, Mr Williams.  Mr Boyle from Bayside Diesel Services has known you for about 15 years and employs you to look after the company's invoicing, payroll, superannuation and other general office duties and writes that you are invaluable to the business and with assured employment into the future.

58.Mr Williams writes that after your son's death you felt defeated by life and sad and that after the offending period he noted you quit smoking, stopped drinking and he noted an improvement in your general demeanour.

59.You are described as kind, trustworthy and remorseful.  It is to be hoped that their judgement and support of you will not be displaced or betrayed by you by future conduct.

60.I had you assessed for a community corrections order.  This disposition was sought by your counsel and the prosecution, very favourably, agreed it was appropriate.

61.You should understand that despite your state of mind and motivation this is serious offending.  The maximum penalty for this offence is five years' imprisonment.

62.You were fortunate to escape gaol in 2014.  The circumstances of this offending lead to the court to have to seriously consider imprisonment.  Community Corrections and the Department of Justice found you suitable for a community corrections order.

63.You are once again in the teeth of the criminal justice system.  Offend again in serious criminal conduct or dishonesty and you will go to prison.

64.This community corrections order will be in place for two years.  You will be under supervision.  You must attend appointments and be able to be contacted.  Do not disengage from those running this order.

65.You will do 150 hours of community unpaid work.  You will undertake assessment and treatment for alcohol and mental health.  I understand you consent to such an order.  You will attend within two working days to the Moorabbin Justice Centre at the Nepean Highway in Highett.

66.You need to understand this.  If you breach this order by committing further offences or not attend to supervision, either in person or by phone or fail to attend treatment appointments and find yourself in contravention of the order, you will be brought back before me and you will be subject to a penalty for the breach of the order and you may be re-sentenced on this charge and in those circumstances you could face imprisonment.  Do you understand?

67.But for your plea I would have sentenced you to 18 months' imprisonment with a 12-month non-parole period.

68.You may step down from the dock and come and sit behind your counsel and you will have some documentation to sign.

69.I will stand down.

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