Director of Public Prosecutions v Marinakis

[2016] VCC 1586

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

AT MELBOURNE
CRIMINAL JURISDICTION  CR-16-01139

DIRECTOR OF PUBLIC PROSECUTIONS

V

JACQUELINE MARINAKIS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2016
DATE OF SENTENCE:	24 October 2016
CASE MAY BE CITED AS:	DPP v Marinakis
MEDIUM NEUTRAL CITATION:	[2016] VCC 1586

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REASONS FOR SENTENCE

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Subject: Criminal law-sentence              

Catchwords:   plea of guilty to one charge of obtaining a financial advantage by deception – made false claims - received $71.190.36 Newstart allowance while receiving other income over 4 years – divorced woman aged 53 – now unemployed and living with elderly parents – no prior convictions – otherwise good character – severe depression and anxiety – major depressive episode – wide judicial discretion available in such cases.      

Legislation Cited: Commonwealth Crimes Act s.16A, 17A    

Cases Cited:R v Newton [2010] QCA 101 at par 39; McGuiness v R [2008] NSWCCA 80 at par 44; DPP v Milne [2001] VSCA 93, DPP v.Alateras [2004] VSCA 214 at par 26; Yarak v R [2008] NSWCCA 298; R v Thomson [2009] SASC 237;

Sentence: 2 year CCO             

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Murdoch	OPP
For the Accused	Ms Z Broughton	VLA

HER HONOUR:

1Jacqueline Marinakis, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception.  This relates to your receipt of the Newstart allowance totalling $71,190.36 between 30 July 2010 and 23 December 2014.  At those times you were employed on either a part time or casual basis or both and continued to claim benefits when not entitled to do so.

2Between the end of July 2010 and the end of December 2014 whilst in receipt of Newstart allowance, you failed to declare to Centrelink any income from your employment and on 116 occasions you provided incorrect information that you had no income, amounting to a course of conduct to obtain benefits to which you were not entitled.

3In fact you earned $180,820.36 gross income from your work over those four years, an average of $1,558.80 gross income per fortnight.  The offending was detected by way of data match with the Australian Tax Office on
13 September 2013.  That day Centrelink advised you by SMS that information had been received that your employment details had changed and you were requested to update them.

4You went to a Centrelink office and falsely stated that you had not commenced any type of employment and that you had only participated in voluntary work.  You were advised that the SMS sent to you was a reminder that if you did commence any work, income must be declared when reporting or you may incur a debt.

5You were charged on 17 March 2016 and at a committal mention on 30 June 2016 you were committed to this court for a plea. 

6You are a single woman aged 53 who has no prior convictions and who has never been in any sort of trouble before.  You come from a hardworking family and you yourself have a very sound work history, although you are presently unemployed.  You are living with your parents and they are in court to support you.

7You were born in India and you came to Australia with your family when you were still in primary school and you had an otherwise unremarkable childhood.  You finished secondary school where you had been happy and achieved quite well, and you had a circle of friends.

8You obtained a Certificate in Human Resources from Footscray TAFE and then worked in the public service for 17 years.  You married at the age of 27 an accountant, a man of different heritage from your own, who was domineering and controlling.  You had been in a relationship with him for some years and married him because you thought that that was what was expected of you.

9Your only child Daniel was born in 1994 when you were aged 32.  You left the public service to be able to spend time with him and you returned to work after 18 months.  During these years of your marriage, you made friends with other women, one of whom became a close friend who sadly later died of breast cancer.  It was this experience that inspired you to work in the field of raising money for research into that disease.

10In 2004 you became employed by the call centre Communications Direct raising money for the Cancer Institute.  This employment was on a casual flexible basis.  You remained there for nine years until August 2013 when you were transferred to its subsidiary company Let's Talk Marketing.

11There was a need to meet targets and the pressure to do so meant your continued employment there was uncertain.  During those years you also had casual work at World Vision raising money for deprived children.  After 16 years of marriage you left your husband.  The marriage had been characterised by verbal and emotional abuse which left you, in the words of Mr Bob Ives, the psychologist who assessed you recently, "with low self esteem, feeling emotionally fragile and prone to depression and anxiety."

12Your husband had frequently belittled you in public and in private speaking to you in contemptuous tones.  After leaving him, you had hoped that when things calmed down, he would allow you to move back in and look after your son but he did not.

13You and your husband had bought a house together and you hoped an amicable resolution of property matters would follow the separation but it did not and you did not seek any legal advice.  You kept this knowledge from your parents and so had no support which would have been forthcoming if they had known.

14Therefore you took nothing with you from the marriage and you stayed with your parents for six months before moving into rental accommodation close to the former matrimonial home so you could have access with your son who was then aged nine.  Gradually access with him became more difficult as it appeared your husband had influenced your son to distance himself from you, and you saw little of him.  At the same time you had to find affordable rental accommodation at increasingly more distant locations, until you came to live in St Albans in a block of flats inhabited by difficult and noisy neighbours, one of whom assaulted you following a request by you to move his car.

15You had saved $20,000 and placed a deposit on an apartment.  However, the purchase was not subject to finance and you were unable to obtain a loan so you lost the deposit.  These years were bleak and difficult for you and you became very depressed.  This was exacerbated by the termination of your employment with Communications Direct when Centrelink contacted them.

16You told Mr Ives that you had felt abused, discarded and nihilistic because your earnings had always been somewhat variable and precarious but you had worked dutifully for them for many years without complaint and had raised a great deal of money over this time.

17Since then you have not been able to find employment.  You have contact with your son only about twice a year.  The former matrimonial home was sold by your husband and he and your son, who is now 23, moved away to an unknown address.  You have been prescribed antidepressant and anti-anxiety medication by your general practitioner but when referred to psychologists you have not engaged with them for long because of the expense but possibly also for other reasons related to your symptomology.

18The tests carried out Mr Ives led him to conclude that you may have initial difficulty placing trust in a treating professional and that you may currently be too disorganised or feel too overwhelmed to be able to participate meaningfully in some forms of treatment.  He considered that you are suffering from severe depression and anxiety with symptoms that likely meet the criteria for a major depressive episode.  He recommended a sustained coordinated program of treatment because your condition seriously impedes your capacity to cope with life. 

19It is not put to me that your moral culpability is reduced by reason of your mental state but that it should be taken into account as a mitigating factor which I shall do, regarding it as a matter of considerable weight. 

20Although there was no undue delay in the prosecution of this case, you have had the matter hanging over your head for a long time and I take that into account, which I must do, regardless of the fact that, by your own actions, you prolonged the period of delay in the manner which I shall now explain.

21You were on notice that Centrelink was aware of your employment as of September 2013 when the text message was sent to you.  In effect, you ignored this and kept maintaining that you were not receiving any income.  That fact makes your offending more serious, while at the same time signalling the beginning of the period during which you had the likelihood of prosecution hanging over your head.

22It was not until December 2014, following investigations, that Centrelink notified your employer and you were terminated. You voluntarily ceased to claim benefits.  Then in May 2015 a debt was raised and you were notified of the over-payment.  In July 2015, your bank records were obtained and finally you were charged on 17 March 2016 and served a few days later.

23Of course the offending is serious in that the public purse was depleted by you taking advantage of payments to which you were not entitled over four years, a long period but I note that it is shorter than in many other cases.

24General deterrence is therefore the most important factor in sentencing in cases such as this.  That has been emphasised in the authorities but not to the total exclusion of judicial discretion as to whether imprisonment is necessary in every case.  At the same time, your particular circumstances must be given appropriate weight in order to determine the penalty.

25I was referred to several cases and I shall make reference to them with the proviso that the usefulness of comparable cases cannot always be demonstrated because clear dissimilarities often exist.  In any event, it was held in R v Newton, a case involving social security payments having been fraudulently paid that:

"A sentencing judge has a very wide discretion as to the appropriate period of imprisonment if any which must be served before an offender is released on recognisance".[1]

[1] [2010] QCA 101 at par 39

26In McGuinness v The Queen it was stated that:

"While it is rare for a person dealt with for social security fraud to avoid prison, a discretion is available to the judge where the criminality is of a lesser order such as in that case where the fraud was not perpetrated by the use of false identities or other sophisticated schemes."[2]

[2] [2008] NSWCCA 80 at par 44

27The offender there was a 60 year old woman who had been of good character, who had made a positive contribution to the community and who had a number of medical problems which make incarceration more difficult than for other prisoners.  She was released forthwith on a recognisance and there are clear similarities with your case.

28In DPP v Milne[3], the offender had received benefits for 18 years.  She pleaded guilty to five counts, the sum being over $172,000 and on a Director's appeal, she was sentenced to two years' imprisonment.  In that case the court held that prison would ordinarily be imposed unless there are exceptional factors.  That decision does not sit well with those in Newton and McGuinness which acknowledged the existence of a wider discretion.

[3] [2001] VSCA 93

29A discussion of the authorities as to incarceration in these case is to be found in DPP v Alateras[4] where the court reiterated the importance of general deterrence requiring a custodial sentence unless the particular circumstances are exceptional.  In that case the relevant sum was almost $90,000 defrauded over two years and although Nettle JA considered that the term of nine months' imprisonment was manifestly inadequate, the appeal by the Director was dismissed.  The circumstances in which the offender obtained the benefits was unusual and clearly distinguishable from your circumstances, Ms Marinakis, and its utility is limited because of that.

[4] [2004] VSCA 214 at par 26

30The facts of the offending and the circumstances of the offender in the case of Yarrick v R[5] are closer to those in your case than in others but the spending of the funds on an extravagant lifestyle in that case is a distinguishing factor.  The offender there was required to serve 15 months of a two year sentence before release.

[5][2008] NSWCCA 298

31Finally, the Prosecution appeal in R v Thompson[6] resulted in a custodial sentence having to be served.  The offending spanned 11 and a half years, involved just over $100,000 and was aggravated by the continuation of offending after the offender had been charged with the earlier of the offences.

[6] [2009] SASC 237

32The facts of the offending in your case, generally speaking, sit at the lower end of the range represented by these cases.  Your personal circumstances are similar in limited ways, such as the absence of prior convictions, with the only probable aggravating feature being the length of time of your offending prolonged by your continuing lying to Centrelink.  Even the period of four years is less than in most of the cases to which I was referred.

33I have already set out the mitigating factors which come into play in determining the appropriate penalty and added to those are your plea of guilty and your remorse.  You pleaded guilty at an early stage, avoiding the need for a committal hearing or a trial and that plea entitles you to a discount on your sentence for its assistance to the system of criminal justice.

34The remorse which you have expressed is relevant to your prospects for rehabilitation, which would appear to be excellent.  You told Mr Ives that you were mortified by the charges and too embarrassed to approach anyone to provide references.  Although you have told your parents, your brother and sister are still ignorant of the offending. 

35You have repaid $990 by way of deduction from benefits and you have applied for your superannuation of about $18,000 to be released so that you may repay that amount.  Section 16A of the Commonwealth Crimes Act requires me to consider many factors in sentencing, including those to which I have already referred.  An additional important factor for consideration is that provided by s.17A which provides that a term of imprisonment should not be imposed unless the court is satisfied that no other sentence is appropriate.

36It was submitted by Ms Broughton on your behalf that your pre-existing severe depression had the effect of affecting your judgment but did not result in such impairment as to reduce your moral culpability.  However, your psychological fragility would be exacerbated by a prison term and I give considerable weight to that pursuant to the decision in the case of Verdins.

37Would you stand now please, Ms Marinakis. 

38I sentence you to a Community Correction Order for which you have been assessed as suitable.  That commences today and carries a conviction and it will last for three years.  You will be required to be under supervision and to perform 200 hours of unpaid community work over 12 months.  Your mental health treatment will be monitored under that order. You are to attend Broadmeadows Corrections Office in Dimboola Road, by 4 o'clock on Wednesday.

39If you were to breach that order either by non-compliance or re-offending, although both are unlikely, you will be charged with contravention and will have to be resentenced.

40Ms Broughton, I have just signed an order for restitution.  Is that consented to or not opposed?  What is the situation?

41MS BROUGHTON:  It is not opposed, Your Honour.

42HER HONOUR:  All right. So that is an order for the repayment of $70,200.31.

43MS BROUGHTON:  As Your Honour pleases.

44HER HONOUR:  Is there anything further?  Anything I have omitted?  Ms Broughton?

45MS BROUGHTON:  No, Your Honour.

46HER HONOUR:  Thank you.  Ms Murdoch?

47MS MURDOCH:  No, Your Honour.

48HER HONOUR:  All right, thank you.

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