Director of Public Prosecutions v McNally
[2018] VCC 1698
•18 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00478
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN GERALD McNALLY |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 October 2018 |
| DATE OF SENTENCE: | 18 October 2018 |
| CASE MAY BE CITED AS: | DPP v McNally |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1698 |
REASONS FOR SENTENCE
---Subject: Criminal law - sentence
Catchwords :Pleaded guilty 1 charge defrauding the Commonwealth, 1 charge of obtaining financial advantage by deception - offending between 1997 and 2015 – total $243,875.26 Government allowances – alcohol abuse – gambling – suffers from numerous health conditions – chronic psychological and psychiatric instability - serious offending -
Cases Cited: CDPP v Milne [2001] VSCA 93, CDPP v Alateras [2004] VSCA 214 , Verdins v R [2007] VSCA 102
Sentence:4 years imprisonment with 2 years 6 months non-parole period---
APPEARANCES: | Counsel | Solicitors |
| For theCommonwealth Director of Public Prosecutions | Mr M. Wilson (Plea) Ms K. Hards (Sentence) | CDPP |
| For the Accused | Mr M. McGrath | Stary Norton |
HER HONOUR:
1John Gerald McNally, you have pleaded guilty to two charges of defrauding the Commonwealth arising from one continuous deception lasting for 18 years. The two charges were made necessary by a change in the legislation. The dates for Charge 1 are between 7 August 1997 and 23 May 2001 and that relates to you claiming and receiving the Newstart Allowance while at the same time receiving payments of a Disability Support Pension under the name of Gerald McNally.
2During that period you received $38,238.15 to which you were not entitled. The appropriate charge for that offence was under s.29D of the Crimes Act 1914. That section was repealed and replaced by an offence under s.134.2(1), therefore the dates for Charge 2 are 24 May 2001 until 18 November 2015.
3Again you were paid Newstart Allowance and later the Age Pension, while at the same time in receipt of a Disability Support Pension in the name of Gerald McNally. You received $205,637.11 during that period, to which you were not entitled.
4I shall refer briefly to parts of the prosecution summary which will be appended to these sentencing remarks. The offending commenced when you were aged 48 and continued until you were 66. You are now 69. In total you received the sum of $243,875.26 in newstart and Age Pension payments to which you were not entitled.
5In 1987 you applied in the name of John Gerald McNally with your date of birth as 22 January 1949 for the Invalid Pension as it was called then and you provided a certificate of discharge from the Australian army which showed that you had been discharged as medically unfit on 12 August 1971.
6You received the pension from 1987 until 1991 when you were transferred to the Disability Support Pension and that continued until 1996. In 1996 you requested a change of details in the Department of Social Security records advising that your date of birth was 22 January 1957, not 22 January 1949, and that you had never used John as your first name.
7In effect you created a new identity of Gerald McNally born on 22 January 1957 and you continued to receive the Disability Support Pension to which you were entitled. In 1997 you claimed the Newstart Allowance using the name John Gerald McNally, date of birth 22 January 1949, while still receiving the Disability Support Pension in the name of Gerald McNally with the 1957 date of birth.
8You filled in a form stating, in effect, that you were not claiming any other pension, that you were not known by any other name and you answered other questions incorrectly knowing they were incorrect. Consequently you were granted the Newstart Allowance.
9When you turned 65 in 2014 that allowance was transferred to the Age Pension. These pensions were paid into separate bank accounts and you withdrew money from them. The offending was initially detected by a data match with the Australian Taxation Office in March 2015 and in December 2015 a search warrant was executed at your home.
10The police found numerous documents showing both names, including your personal diary in which you had recorded in your handwriting the details of two separate Medicare cards, one in each name, Gerald McNally and John McNally. Police also found the sum of $51,400 in a bag in a suitcase in your house.
11You were charged on summons on 22 November 2016 and released on bail. You are now aged 69, a single man since the breakdown of your long term relationship in the mid-1990s. In broad terms, you have a history of problems with alcohol abuse and gambling, you are socially isolated and your health is poor.
12The offending is serious and warrants a prison sentence, but some leniency is called for because of a range of mitigating circumstances.
13You were born in Ireland in 1949 and raised by your mother with an older sister. You had had limited contact with your father who went to Canada in 1953. Your mother brought you to Australia in 1961 and you attended high school until you were 15. You had some learning difficulties resulting in poor reading and spelling, but despite that you found work and remained employed until you joined the army in 1967 aged 18.
14You were discharged about four years later after suffering quite serious injuries in an accident. You continued to work in a variety of jobs, changing jobs frequently and staying on average for one year in each. You worked as a volunteer as well and in several community organisations.
15However, from the early 1980s you had begun drinking heavily and suffered from epilepsy and depression. There were several involuntary admissions to psychiatric hospitals during those years and you were diagnosed with a personality disorder and later with bipolar affective disorder. This condition was accompanied by periodic grandiosity, hypomania, delusions and aggression and your wife, Margaret, found this increasingly hard to deal with. You drank alcohol frequently and used more than the prescribed dosage of sedatives.
16In 1999 you suffered an acute myocardial infarction and had a triple bypass operation. Then in 2013 you had a coronary artery bypass graft. Your general practitioner, Dr Andrew Cheasley, provided a report dated 19 July 2018 confirming your current medical conditions as including ischemic heart disease, chronic obstructive pulmonary disease, hypertension, depression, anxiety and panic attacks, epilepsy, osteoarthritis and back pain.
17Fitness to plead was considered as a possible issue at one stage in these proceedings and reports were obtained from Dr Sam Calvin, a consultant forensic psychiatrist, and Dr Linda Borg, a clinical neuropsychologist.
18Dr Calvin states that you are currently in remission from bipolar affective disorder but there is a risk of relapse and this needs to be monitored. He considers that the types of stressors associated with imprisonment could trigger such a relapse and that prison would weigh more heavily upon you due to the severe nature of your psychiatric condition.
19Dr Borg's report contained a very detailed account of your medical and psychiatric history derived from both your account to her and medical records made available to her. She concluded that, "The most pervasive aspect of Mr McNally's neuropsychological profile is his chronic psychological and psychiatric instability".
20Dr Borg went on to explain that investigations show subtle cognitive inefficiency related to brain atrophy, compounded by personality and mood with schizoaffective disorder as a possible differential diagnosis.
21When the police searched your house they found your diary for the year 2000 which contains your handwritten entries referring to excessive gambling and losses and the fact that you were in financial distress at the time. This led to you living in backpacker accommodation with the two Centrelink payments funding the necessities of life as well as gambling and alcohol.
22Over the years you were able to moderate your drinking and gambling which enabled you to accumulate and save some of the cash you were receiving from Centrelink and which the police found in your house.
23Since 2002 you have been living independently in community housing, receiving a pension from Centrelink from which $50 per fortnight is now being deducted. Apart from an occasional Tattslotto ticket you no longer gamble but you still drink alcohol on about three days per week.
24The amount of money obtained and the long duration of the time during which you perpetuated the deception contribute to the high level of the gravity of your offending. There are several mitigating factors to be taken into account having regard to matters in s.16A of the Commonwealth Crimes Act.
25You have pleaded guilty and even though it was a late plea and in the context of a strong Crown case you are entitled to a discount on your sentence as it has avoided the need for a trial and for witnesses to be cross-examined.
26I also accept the plea as an indication that you now accept responsibility for your actions, although you have not indicated any remorse, and the careful planning your undertook to obtain funds not only to fund basic needs but to provide for alcohol and gambling as well, demonstrates an attitude of entitlement and determination to implement the plan.
27You do deserve some credit for having cooperated in forfeiting the cash found in your house to facilitate repayment of the funds. You have paid back that money found in your house and small fortnightly deductions as I said are being made by way of reparation.
28I note that you have no prior convictions but I do not place a significant amount of weight on that fact given the long period of time over which you continued to offend without desisting voluntarily.
29You had a good work record until you began receiving the Invalid Pension, and the medical evidence supports the proposition that your gambling and abuse of alcohol built up in the context of a dependant personality with other personality problems, poor adjustment to the aftermath of the accident that brought about your discharge from the army, and reluctance, or perhaps inability, to accept the epilepsy, the cause and indeed the existence of which is not clear.
30Some ambiguity about this can be gleaned from the reports of Dr Cheasley and Dr Borg. Certainly other medical difficulties have developed over time. Your poor physical and mental health are matters to be taken into account in determining the length of your prison sentence because they will likely make the experience of prison more difficult for you.
31It may well be that your age will exacerbate some of the conditions from which you suffer and that as an older person in prison you will be less resilient than a younger person in better health would be.
32The prosecution takes issue with your mental health giving rise to the enlivenment of limbs five and six of a decision of Verdins. Their submission was that the risk of a resurgence of bipolar affective disorder in remission for many years is too remote.
33My conclusion is that the risk should not be completely discounted and some slight moderation of the need for general deterrence should follow. Even if I am wrong about the enlivenment of the principles in Verdins in this regard your health difficulties should be taken into account in a general sense.
34The maximum penalties for each of these offences is ten years' imprisonment. In your case a term of imprisonment is appropriate. Indeed there is no other appropriate disposition. I was urged by the prosecution to take into account the need for consistency with other comparable cases and I was referred to a table of cases with degrees of similarity.
35I was also referred to two cases the subject of appeals on the grounds of manifest inadequacy. In one case, CDPP v Milne[1], the appeal was allowed and a longer sentence was imposed. In the other case, DPP v Alateras[2], the appeal by the Crown was dismissed because in the view of the majority manifest inadequacy of the sentence had not been established.
[1] [2001] VSCA 93
[2] [2004] VSCA 214
36The third appeal judge in that case was of the view that the sentence was manifestly inadequate but agreed that the appeal should be dismissed because of the principle of double jeopardy operating and because of delay.
37I have had regard to all of those decisions. The authorities emphasise that general deterrence is an important part of the sentence in a case like this because the loss is to public monies and such actions must be sternly denounced by the courts in order to deter others.
38Specific deterrence remains a relevant aspect of the sentence in this case, particularly given your lack of contrition and the entrenched long term offending. In that regard I take into account that once you are released you will have lost your accommodation and you will have nowhere to live which for an elderly man with health problems does constitute a form of punishment and deterrence in itself.
39There is little I can say about your prospects for rehabilitation because of the lack of contrition and insight and the attitude of entitlement which seems to have influenced your intentions. The only conclusion open is that there is some risk of re-offending, albeit a diminished one because of your age and the fact of a prison sentence being imposed which is a stern punishment in itself.
40Mr McNally, I sentence you to four years' imprisonment for each charge to be served concurrently. I order that you serve a minimum period of two years and six months before being eligible for parole. If you had pleaded not guilty to these charges I would have sentenced you to five years' imprisonment with a non-parole period of three years and six months.
41The prosecution seeks an order for reparation to the Commonwealth in the sum of $190,356.06 and I make that order. Mr McGrath, I did not make a record of any consent or opposition to that order being made.
42MR McGRATH: The reparation order?
43HER HONOUR: Yes.
44MR McGRATH: I do not expect there would be, Your Honour. I do not see a basis for it given his plea of guilty. If I could just seek some instructions, Your Honour? I do not think it will be opposed.
45HER HONOUR: Yes, certainly.
46MR McGRATH: There is no issue with that, Your Honour.
47HER HONOUR: Thank you.
48Is there anything else, Ms Hards?
49MS HARDS: No, Your Honour, I have sent through a copy of that reparation order to your associate yesterday afternoon.
50HER HONOUR: That has been signed and it is ready for you.
51As I say, I will alert the authorities to management issues, Mr McGrath, which I will describe perhaps if there is anything that you want to add to this.
52MR McGRATH: Mr McNally is currently feeling unwell with shortness of breath and difficulty swallowing and that he is sweaty.
53HER HONOUR: I will include all of those matters in the comments that I will make.
54MR McGRATH: Yes, Your Honour.
55HER HONOUR: Perhaps that he also suffers from anxiety and panic attacks from time to time. Is there anything else you would like me to add?
56MR McGRATH: No, Your Honour. Just to clarify the total effective sentence is four years with a minimum of two years and six months?
57HER HONOUR: That is right.
58MR McGRATH: Was it four years on both charges to be served concurrently?
59HER HONOUR: Yes.
60MR McGRATH: Yes, Your Honour.
61HER HONOUR: Officers, you may take Mr McNally now.
62MR McGRATH: I will go down and see Mr McNally once he is downstairs,
Your Honour.63HER HONOUR: I will just wait here to make sure it goes smoothly.
‑ ‑ ‑
IN THE COUNTY COURT OF VICTORIA Indictment No: CR-17- 00478 AT MELBOURNE
IN ITS CRIMINAL JURISDICTION
THE QUEEN
- v -
JOHN GERALD MCNALLY
(aka GERALD MCNALLY)
SUMMARY OF PROSECUTION OPENING
Introduction
John Gerald McNally has pleaded guilty to the following offences:
No.
Charge
Statutory provision
Amount involved
Maximum Penalty
1
Defraud the Commonwealth
(between 7 August 1997 and 23 May 2001)
Section 29D, Crimes Act 1914 (Cth)
$38,238.15
10 years’ imprisonment and/or 1000 penalty units[3]
2
Dishonestly obtain a financial advantage by deception from the Commonwealth
(between 24 May 2001 and 18 November 2015)
Section 134.2, Criminal Code 1995 (Cth)
$205,637.11
10 years’ imprisonment and/or 600 penalty units[4]
[3] A Commonwealth penalty unit was $110 at the relevant time, so the maximum fine is $110,000.
[4] A Commonwealth penalty unit was $110 at the relevant time, so the maximum fine is $66,000. The only penalty specified in s 134.2(1) is imprisonment for 10 years. However, s 4B(2) of the Crimes Act 1914 (Cth) permits a court, if the court thinks it appropriate in all the circumstances of the case, to impose on a natural person convicted of an offence, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty. In accordance with that sub-section, the maximum pecuniary penalty is the number of penalty units which is 5 times the maximum term of imprisonment expressed in months. In the present case, the maximum fine is 5 x 120 months = 600 penalty units. The value of a penalty unit is calculated in accordance with s 4AA of the Crimes Act 1914. At the time of the commencement of charge 2, the value of a Commonwealth penalty unit was $110. The penalty unit value has since increased (to $170 on 28 December 2012, $180 on 31 July 2015, and $210 on 1 July 2017) however, as the commencement of the offence predates these increases, the lower value ($110) applies by virtue of the combined effect of ss 4AA(8) and s 4F(1) of the Crimes Act 1914 (Cth).
Total = $243,875.26
Mr McNally was born on 22 January 1949, and is currently 69 years old. He has no criminal history.
The present offending commenced when he was 48 years old and continued until he was 66 years old.
Charge 1 relates to claiming and receiving Newstart Allowance (‘Newstart’) payments in the name of John Gerald McNally whilst in receipt of Disability Support Pension (‘DSP’) payments in the name of Gerald McNally.
Charge 2 relates to claiming and receiving Newstart and Age Pension payments in the name of John Gerald McNally whilst in receipt of DSP payments in the name of Gerald McNally.
Although the Crown alleges one ongoing course of dishonest conduct spanning 18 years from 1997 to 2015, Mr McNally is charged with two separate offences because of a change in the relevant legislation in 2001.
Both offences involve dishonesty.
Charge 1 involves dishonesty at common law, which means dishonest by the standards of ordinary decent people.
Charge 2 involves dishonesty as defined by s 130.3 of the Criminal Code, which means:
a.dishonest according to the standards of ordinary people; and
b.known by the Accused to be dishonest according to the standards of ordinary people.
10.In the period covered by the two charges - from 7 August 1997 to 18 November 2015 – Mr McNally received a total of $243,875.26 in Newstart and Age Pension payments.
11.Because he was already receiving DSP, he was not entitled to receive any of these Newstart and Age Pension payments.
Background to offending
Invalid Pension and Disability Support Pension
12.In 1987, Mr McNally applied for, and was granted Invalid Pension in the name of John Gerald McNally born on 22 January 1949. In support of that application, he had provided a Certificate of Discharge from the Australian Army dated 10/9/71, which showed that he enlisted on 6/11/67 and was discharged on 12/8/71 as medically unfit. He also provided supporting medical documentation from his treating doctor dated 14/10/87.
13.Mr McNally received Invalid Pension payments from 1987 to 1991, when Invalid Pension was replaced by Disability Support Pension (“DSP”) and he was transferred to DSP accordingly. From 1991 to 1996, he received DSP in the name of John Gerald McNally.
14.On 6 February 1996, Mr McNally attended at the Department of Social Security office at Dandenong where he requested a change to details in the Department's records regarding his address, name, and date of birth. He advised that:
a.his date of birth was 22/1/57 and not 22/1/49; and
b.he never used John as his first name.
15.Changes were made to the Department records on 6 February 1996. In effect, John Gerald McNally born 22 January 1949 was changed to Gerald McNally born 22 January 1957.
- From 6 February 1996, Mr McNally continued to receive DSP to which he was entitled, but in the name of Gerald McNally born 22 January 1957.
- His customer reference number (‘CRN’) in relation to the DSP payments was 304 370 325B.
Newstart Allowance
18.On 7 August 1997, whilst already receiving DSP under the name of Gerald McNally born 22 January 1957, Mr McNally lodged a claim for Newstart Allowance in the name of John Gerald McNally born 22 January 1949.
19.In the Newstart application form, dated 4 August 1997, Mr McNally:
a.stated his date of birth was 22/1/49;
b.stated his name was John Gerald McNally (at Question 2);
c.left blank Question 3 which sought information about “Other names you have been known by”;
d.ticked the "No" box next to Question 24 which asked "Are you also claiming a Disability Support Pension?"
e.ticked the "No" box next to Question 41 which asked "Have you ever claimed a Social Security payment before?"
f.did not answer Question 42 which asked "Did you receive payment?" (in relation to the Social Security payments referred to in Question 41).
g.on the Information Checklist, ticked the “No” box next to Question 5 which asked “Are you entitled to receive money from other sources such as AUSTUDY, Veterans’ Affairs payments etc.?”
h.ticked the “No” box next to Question 35 (in Part B) which asked “Will you (or your partner) get any income in the next fortnight?”
i.ticked the “No” box next to Question 44 (in Part B) which asked “Do you receive, or are you entitled to receive, money from any of the following … including “other Government departments (such as Veterans’ Affairs or State Government)” and “any other source”?
j.did not otherwise mention that he was receiving DSP payments.
20.Mr McNally was granted Newstart, with effect from 7 August 1997. He received Newstart payments from 7 August 1997 until 21 January 2014.
Age Pension
21.On 22 January 2014, Mr McNally turned 65 years of age and was transferred from Newstart to the Age Pension.
22.He had earlier signed an application form dated 28 November 2013 to transfer from Newstart to the Age Pension, in light of his impending 65th birthday.
23.From 22 January 2014, Mr McNally received Age Pension payments, until they were cancelled on 18 November 2015 as a result of an investigation by Centrelink.
24.His customer reference number (‘CRN’) in relation to Newstart and Age Pension was 320 038 567H.
Bank Accounts
25.Mr McNally received his social security payments in two separate bank accounts.
DSP account
26.From at least April 1996, his DSP was paid into an account with the Commonwealth Bank (BSB: 063 125 A/C: 10308518) held in the name of John Gerald McNally. The address for the account holder was 322 Howe Parade, Port Melbourne VIC 3207, however Mr McNally had requested Australia Post to redirect mail from that address to 1/40 Fisher Parade, Ascot Vale VIC 3032, which is his current address. Bank statements on this account were originally addressed to “Mr J G McNally”, but changed to “Mr G McNally” from 15 May 2013.
27.The bank statements (from June 2008 to August 2015) relating to this account show regular fortnightly payments labelled "CTRLINK PENSION" or "Direct credit pension" with a reference number which includes 304370325B. That is the CRN relating to Mr McNally’s DSP payments.
28.Mr McNally conducted frequent transactions on this account. In March 2015, he withdrew $2000 cash from ATMs on 4 separate occasions (on 4, 6, 10 and 12 March).[5] In August 2015, he also withdrew $2000 cash from ATMs on 3 separate occasions.
[5] Commonwealth Bank statement #116 at p 876 of Brief.
Newstart and Age Pension account
29.From at least July 1998, Mr McNally’s Newstart was paid into an account with the Commonwealth Bank (BSB: 063 100 A/C: 10147202) held in the name of John Gerald McNally. The address for the account holder was 1/40 Fisher Parade, Ascot Vale VIC 3032. Bank statements on this account were addressed to “Mr J McNally”.
30.The bank statements (from 1 July 2009 to August 2015) relating to this account show regular fortnightly payments labelled "CTRLINK NEWSTART" (and "Direct credit pension" from 14/2/14 onwards, following his transferral to Age Pension) with a reference number which includes 320 038 567H. That is the CRN relating to the Newstart /Age Pension payments. Mr McNally also conducted frequent transactions on this account. On 14 November 2014, he withdrew $4200 from the Moonee Ponds branch.[6] He also withdrew $2000 cash from ATMs on 3 separate occasions, being 27 August, 26 September and 3 October 2015.[7]
[6] Commonwealth Bank statement #59 at p 752 of Brief.
[7] Commonwealth Bank statement #67 at pp776-778 of Brief.
Investigation
31.The offending was initially detected by a data match with the Australian Taxation Office on 5 March 2015. Following further investigations, on 2 December 2015 the Australian Federal Police executed a search warrant at Mr McNally’s unit at 1/40 Fisher Parade, Ascot Vale. During the search, police found numerous documents in the names of John (or J) McNally, and numerous documents in the names of Gerald (or Gerry or G) McNally, as set out in the following table:
In the name of John or J McNally
In the name of Gerald, Gerry or G McNally
Medicare Card No. 6152 14768 6
(valid to 09/2018)
(John McNally)
Medicare Card No. 3196 09772 8
(valid to 11/2019)
(Gerald G McNally)
Northern Ireland Birth Certificate
(John Gerald McNally - Born 22 January 1949)
Republic of Ireland Passport No. PT6699912
(Gerald McNally – Born 22 January 1949)
Irish Embassy letter dated 9 October 2012
VicRoads Change of Address notice dated 30/12/02 for new address of 1/40 Fisher Parade, Ascot Vale Victoria 3032
VicRoads driver’s licence 018771127 (born 22/1/1949) 1/40 Fisher Parade Ascot Vale, VIC 3032
Vic Roads Registration renewal notice for Volkswagen sedan registration XTA210
1/40 Fisher Parade, Ascot Vale Victoria 3032 (payment due 8/6/15)
VicRoads registration transfer dated 27 July 2014
Certificate of Discharge from the Australian Defence Force (John Gerald McNally) dated 10/9/71
Care Plan re Gerry McNally (undated but refers to review dates on 25/12/08)
Letters (x2) from Moonee Health Centre to St Vincent’s Hospital re John McNally (dated 29/9/05 and 11/6/14)
Letter from St Vincent’s Hospital to John McNally re appointment scheduled for 2/9/14
Commonwealth Bank ATM card number 521729516410948
Commonwealth Bank ATM card number 5217295203981703
Legal Profession Tribunal tax invoice dated 10 April 2001
Commonwealth Bank statement for account number 06 3100 10147202 in name of John Gerald McNally for the period of 2/7/15 to 1/10/15
(addressed to Mr J McNally, 1/40 Fisher Parade, Ascot Vale VIC 3032)
Commonwealth Bank statements (x2) for account number 06 3125 10308518 in name of John Gerald McNally (addressed to Mr G McNally, 322 Howe Parade, Port Melbourne VIC 3207) for the periods:
- 23/4/14 to 22/5/14; and
- 8/5/15 to 12/6/15.
Application to redirect mail from 322 Howe Parade, Port Melbourne VIC 3207 to 1/40 Fisher Parade, Ascot Vale VIC 3203, dated 21/10/14
Australia Post invitation dated 24 March 2015 to extend the above mail redirection
RACV Roadside Assistance renewal notice to Mr Gerry McNally issued 14/7/15
Residential Tenancy Agreement from Supported Housing Development Foundation Ltd dated 12 April 2002
Letter from Housing Choices Australia dated 4 May 2015
Origin energy bill dated 10 September 2015
Letter from AGL dated 30 June 2014
2000 Centrelink Group Certificate stating $6537.51 Newstart Allowance paid in 1999-2000 financial year
2010 Centrelink PAYG Centrelink Summary stating $12,858 Newstart Allowance paid in 2009-2010 financial year
Centrelink letter dated 8/12/10, confirming immediate payment of Newstart Allowance of $385.87 due on 9/12/10 (from 25/11/10 to 8/12/10) and regular payment amount.
Centrelink Age Pension statement dated 13 January 2014, containing handwritten notes
Maribyrnong Library membership 23011001485143
(John McNally)
ATO letter dated 27 September 1996 advising of tax file number
Woolworths card no. 3135022000602
(Gerald McNally)
32.During the search, investigators also found Mr McNally’s diary for the year 2000. The “Personal Information” page contained hand-written notes stating:
“Medicare
Gerald McNally 22/1/57
3196097725
Valid to 09/00CRN 304 370 325B 15 October 1987 - 91
John McNally 22/1/49
Medicare
No. 6152147682”
33.Investigators also found $51,400 in cash located in an Australia Post bag in a suitcase in the lounge room.
Dishonesty
Charge 1
34.In relation to Charge 1, the Crown alleges that Mr McNally defrauded the Commonwealth by making a claim for Newstart that contained false statements, intended to conceal the fact that he was already receiving DSP under another identity.
35.At the time he applied for Newstart in August 1997, Mr McNally knew he was receiving DSP in the name of Gerald McNally born 22 January 1957. That is clear from the following documents:[8]
[8] Exhibit 5 to Statement of Brooke Slattery dated 22/2/17.
a.On 17 July 1997, he signed (in the name of Gerald McNally born 22/1/57) an Application for Advance Payment, addressed to the Department of Social Security. In the box next to the typed question "What type of Social Security Payment are you getting?" he wrote "Disability Support Pension".
b.On 18 July 1997, he signed (in the name of Gerald McNally) a statement which included statements that "I am getting DSP" and “I believe I am entitled to apply and qualify for an advance of $500 on my DSP payment."
36.Less than one month later, Mr McNally falsely stated in his Newstart application form that:
a.he was not claiming DSP;
b.he had never claimed a social security payment before; and
c.he was not receiving, or entitled to receive, money from any other source.
37.The true position, as he well knew, was that he was receiving DSP at this time. He provided a name and date of birth on the Newstart application that was true, but different from the (false) date of birth that he had provided in 1996 in relation to his DSP. He also left blank the question on the Newstart form about whether he was known by any other names, despite having previously requested a change of name with the Department.
38.The combined effect of this conduct was that Mr McNally deceived the Commonwealth aby concealing the fact that he was already receiving DSP under another identity, thereby enabling him to access an additional social security payment to which he was not entitled. This conduct was dishonest by the standards of ordinary decent people.
Charge 2
- In relation to Charge 2, the Crown alleges that in the period from 24 May 2001 to 18 November 2015, Mr McNally continued his ongoing deception of Centrelink by claiming and receiving Newstart, and later Age Pension, whilst already receiving DSP under another identity. This was dishonest according to the standards of ordinary people, and known by Mr McNally to be dishonest according to those standards.
- As a result of this ongoing deception, Mr McNally dishonestly obtained a financial advantage from the Commonwealth, namely the Newstart and Age Pension payments, to which he was not entitled.
Record of Interview
41.Centrelink wrote to Mr McNally on 2 December 2015 inviting him to participate in a formal interview, however no such interview took place.
Pre-sentence detention
42.There is no pre-sentence detention. Mr McNally was originally charged on summons on 22 November 2016. Since being committed on 14 March 2017, he has been on bail in his own undertaking, with a fixed residential condition.
Timing of plea of guilty
- On 14 March 2017, at the third committal mention at Melbourne Magistrates' Court, Mr McNally pleaded guilty to both charges. He was committed to the County Court, and a plea hearing date of 20 July 2017 was fixed.
- On 18 July 2017, VLA advised the prosecution that Mr McNally did not wish to plead guilty. The plea hearing was vacated and the matter adjourned for an initial directions hearing, as Mr McNally was seeking new legal representation and wished to contest the charges.
- There were a total of 8 directions hearings between 8 August 2017 and 18 June 2018. Mr McNally’s new lawyers had indicated that a psychiatrist’s report may be obtained as mental impairment and unfitness arguments might be pursued. Mr McNally failed to attend some psychiatrist appointments, which resulted in further delays. Mr McNally also failed to attend a directions hearing on 15 December 2017, at which bail was ultimately extended in his absence. He again failed to attend a directions hearing on the morning of 28 February 2018, but did attend court that afternoon. At a final directions hearing on 18 June 2018, Mr McNally was arraigned and pleaded guilty to both charges. The trial date of 20 August 2018 was vacated and a plea hearing fixed for 5 October 2018.
- The Crown accepts that the initial plea was early (the third committal mention), although not at the earliest reasonable opportunity. That plea saved the time and expense of a contested committal hearing. However, Mr McNally’s later indication that he would not plead guilty resulted in a significant additional burden to the Court and the Crown, through the need to list and attend multiple directions hearings. Ultimately, Mr McNally entered a late plea of guilty. That plea still carries utilitarian benefit and facilitated the course of justice – as it effectively saved the time and expense of an estimated 5 day trial. It should therefore attract some discount in sentence, but significantly less discount than would have been appropriate if he had maintained his initial plea of guilty throughout.
- If s 6AAA of the Sentencing Act 1991 (Vic) applies,[9] the Court should record the sentence which would have been imposed but for the plea of guilty.
Ancillary orders
48.The Crown also seeks a reparation order pursuant to s 21B of the Crimes Act 1914 (Cth). Mr McNally has repaid $2,019.20 and has consented to forfeiture of the $51,400. Deducting these amounts from the total of $243,875.26 produces a figure of $190,456.06. Reparation is sought in that amount.
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sentencing of a federal offender, the Court of Appeal has assumed that it does: see for example DPP (Cth) v Besim [2017] VSCA 158, [122].
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