Director of Public Prosecutions v McKenzie
[2017] VCC 1747
•24 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR 17-00064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RACHEL McKENZIE |
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JUDGE: | HIS HONOUR JUDGE C. J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2017 | |
DATE OF SENTENCE: | 24 November 2017 | |
CASE MAY BE CITED AS: | DPP v McKenzie | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1747 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Dishonestly causing a loss to a Commonwealth entity – Theft
Legislation Cited: Sentencing Act 1991 – Criminal Code (Cth) 1995 – Crimes Act 1958
Sentence: 18 months imprisonment; 6 months imprisonment to be served immediately before release on recognisance by way of $1000 and good behaviour for 12 months; 37 days pre-sentence detention; Reparation order; Section 6AAA declaration: 30 months imprisonment and released on a recognisance release order after having served 12 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Foley | Solicitor for the Director of Public Prosecutions. |
| For the Accused | Ms S. Woodward | Victoria Legal Aid. |
HIS HONOUR:
1 Rachel McKenzie, on 19 October 2017, you pleaded guilty to an indictment containing three charges, being dishonestly causing a loss to a Commonwealth entity, knowing or believing that the loss will occur or that there is a substantial risk of the loss occurring (Charges 1 and 2) and theft, contrary to the Criminal Code (Cth), Charge 3.
2 You admitted your prior convictions.
3 The maximum penalty for Charges 1 and 2 is five years’ imprisonment, whilst the maximum penalty for Charge 3 is ten years’ imprisonment.
4 Tendered as Exhibit A and read aloud in court was the summary of facts relied upon by the prosecution, in support of the indictment. In summary, on 9 August 2012, your husband and caree, David Barker, died. At the time of his death, Mr Barker was in receipt of a disability support pension, which was paid by Centrelink into his Commonwealth Bank account each fortnight. You were also in receipt of a carer payment and carer allowance paid to you as the carer for Mr Barker. Upon Mr Barker’s death, he, of course, was not entitled to any benefit, nor were you entitled to a carer payment or allowance. You did not notify Centrelink of Mr Barker’s death. As a result, Mr Barker’s disability pension payments continued to be paid into his bank account after his death. Nearly all of these payments were withdrawn by you from Mr Barker’s account and over three years, this resulted in you dishonestly obtaining a total of $18,304.45 from the account. (Charge 3)
5 Additionally, you continued to receive carer payments and carer allowance payments, predicated on caring for Mr Barker. For over three years after Mr Barker’s death, you were paid $80,693.33 in carer payment and carer allowance, to which you were not entitled. (Charges 1 and 2).
6 In total, the amount obtained by you in the period covered by Charges 1 through to 3, both inclusive, was $98,943.78.
7 You are 51 years of age and work as a night filler in Swan Hill. You were born in New South Wales and raised initially in Liverpool. Your family moved to the country town of Bargo. Your father worked as a coal miner and diesel mechanic. Your mother worked as a chef at the local hospital. The relationship between your mother and father was a troubled one and there were regular arguments between them, fuelled by their consumption of excessive amounts of alcohol.
8 Tendered as an exhibit on the plea was the report of Simon Candlish, psychologist. You described your mother and father as “two very angry people”. You have three sisters and you and your siblings avoided the fighting between your mother and father by staying in your bedrooms. Your parents separated when you were aged eight or nine and you remained in the care of your mother. You told Mr Candlish that you were never allowed to have friends come over to your home and that you were frequently in conflict with your mother. Your mother died of lung cancer in 2010 and since that time, you have not spoken to any of your sisters.
9 You told Mr Candlish that your mother removed you from school after Year 10 and found you employment in a poultry farm, so that you could contribute financially to the household. Your mother did this despite you being a good scholar and an excellent athlete. Indeed, you described to Mr Candlish that you “loved school with a passion”. You added that school meant that you were able to avoid home.
10 After working in a processing plant for six or seven years, you left that employment to travel. During your travels, you met your first partner and bore him two children. For some time thereafter, your life was spent involved in raising your two children to adulthood. Ms Woodward, solicitor from Victoria Legal Aid, who appeared on your behalf, informed me that your relationship with your then partner was characterised by violence and that when you were eight weeks pregnant with your younger child, now aged 24, you left your partner and were effectively “on the run for ten years”, living predominantly in women's refuges. During this period, you changed your name and lived in the Grafton, Armadale and Tamworth areas. Each of your children, now aged 27 and 24, provided references for you. They plainly love and respect you. (See Exhibit 1)
11 In about 2000, you met your next partner, Daryl Bourke, who lived in Ballarat. He had previously been married and had children of his own. Mr Bourke suffered from depression. You had a relationship with him for eight years until October of 2008, when he committed suicide. You were the one who found him dead and this has had a profound effect on you and added to your burdens in life, that included the murder of a niece in 2006.
12
During the relationship with Mr Bourke, for part of this time, you worked for ALCOA as the payroll and OH&S manager. The fact that you held such
a responsible position amongst a predominantly male workforce, caused tensions between you and Mr Bourke. During the currency of this relationship, you lived in Portland in 2002 and in Heywood in 2004.
13 In 2006, you trained as a nurse and achieved a Division 2 qualification and you instructed Mr Candlish that you received a HESTA Australian Nursing and Midwifery Award. You further instructed that you obtained a degree in psychology and became a specialist nurse. You told Mr Candlish that you received high distinctions during your studies. You worked on a part-time basis as a nurse in Heywood, Portland and Warrnambool while living in western Victoria.
14 Despite a relationship of eight years with Mr Bourke, you received nothing from his estate, as a result of the actions of his adult children.
15
You met Mr Barker online in late-2009 while you were living in Colac. You pursued a long-distance relationship with him, as he lived in Woomelang,
a town of approximately 110 people, 150 kilometres north and east of Horsham.
16 You moved to Woomelang in late-2010 and in or about 2012, Mr Barker was diagnosed with liver cancer. You married about a week before his death. You had been his carer for some time. Prior to his death, you had worked as an agency nurse on a part-time basis in Sea Lake, Birchip and Wycheproof.
17 It was put on your behalf that after Mr Barker’s death, you were bereft with grief and unable to face the normal processes that follow the death of any loved one. It was further put that there were debts from the estate that you had to deal with and that this, in part, motivated your dishonesty. It is to be noted that you were the sole beneficiary of his estate. The house in Woomelang is said to be valued at $70,000 and there is a mortgage over the property of approximately $34,000.
18 There is no excuse for you not reporting Mr Barker’s death, as you have been in receipt of social security payments of one kind or another for most of your adult life and well understood your reporting obligation.
19 I was told that after some time, that you tried to obtain work as a nurse, but were unable to do so and this placed financial pressure on you. Your daughter has returned to live with you and assists you with the payment of bills. The monthly mortgage payment on your home is approximately $400.
20 You were charged in August 2016. You made an initial plea offer to the Crown in November 2016 that was rejected. At the committal mention in January 2017, you entered pleas of guilty and you were committed to the February 2017 circuit at Horsham, but your matter was not reached.
21 You offended over a protracted period of time. The amount obtained by you was not insignificant. Social security fraud, generally speaking, has been regarded by the courts as easy to commit and difficult to detect. General deterrence must play a significant role in arriving at an appropriate sentence in your case.
22 You pleaded guilty at a relatively early stage and are entitled to the benefit of your plea, in that it is some evidence of your remorse and that it has utilitarian benefit.
23 Please be seated, Madam. This is not a social occasion, sir. Please be seated.
24 Ms Woodward, on your behalf, submitted that a community corrections order or a recognizance release order, requiring no prison time to be served, were appropriate sentencing dispositions in all the circumstances. However, I am satisfied that such dispositions would not adequately reflect your criminality, nor reflect the need for general deterrence in your case.
25 Would you please stand.
26 By this sentence, I must punish you, publicly denounce your conduct and deter others from committing these kinds of offences. Taking into account the circumstances of the offending and its effects with your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to an aggregate sentence of 18 months’ imprisonment and I order that you be released on a recognizance release order in the sum of $1,000, after having served six months’ imprisonment.
27 I order that your sentence commence today and that you have served 37 days by way pre‑sentence detention, not including today.
28 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 30 months’ imprisonment and released you on a recognizance release order, after serving 12 months of that sentence.
29 Please be seated.
30 Go and speak to your client, Ms Woodward.
31 MS WOODWARD: If I might be permitted to speak briefly with - thank you, Your Honour.
32 HIS HONOUR: Ms Woodward, would you - sorry, Ms McKenzie, would you please stand up.
33 The effect of my order is this, that you have been sentenced to 18 months' imprisonment. You will be obliged to serve six months of that term. You have already served a period of some 37 days, in respect of that sentence. At the end of the period of six months, you will be released and the remaining period of 12 months of your sentence, is effectively suspended. If you are of good behaviour during that period of 12 months, at the end of that 12 months, the sentence lapses and that is the end of it. However, if you breach in that period, the suspended period becomes operational. Thank you very much.
34
Would you provide copies of that order please to both counsel and to
Ms McKenzie.
35 Yes, Mr Foley.
36 MR FOLEY: Your Honour, the Commonwealth is also seeking a reparation order to be made under s.21B of the Crimes Act.
37 HIS HONOUR: Yes.
38 MR FOLEY: It is for the sum - the outstanding sum of money. As of today's date, Ms McKenzie has repaid $3,947.69 and that leaves $94,996.09 outstanding.
39 HIS HONOUR: Yes.
40 MR FOLEY: I have a draft order I can hand up, Your Honour.
41 HIS HONOUR: Thank you. Yes, I have made that order and I will hand down the order.
42 Any other matters?
43 MR FOLEY: Nothing, Your Honour.
44 HIS HONOUR: Remove the prisoner please.
45 I will stand down until 11 o'clock.
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