Director of Public Prosecutions v Ockwell
[2024] VCC 270
•12 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01705
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
DYLAN RICHARD OCKWELL
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2024 | |
DATE OF SENTENCE: | 12 March 2024 | |
CASE MAY BE CITED AS: | DPP v Ockwell | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 270 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: dishonesty offending – financial advantage by deception – commonwealth – reparation – specific deterrence
Legislation Cited: ss 16A(2) Crimes Act 1914
Cases Cited:Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450
Sentence: TES 17 months, release after serving 117 days upon recognisance of $1000, to be of good behaviour for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms Prasad | Office of Public Prosecutions |
| For the Accused | Mr T. Chrisant | Emma Turnball Lawyers |
HER HONOUR:
1 Mr Ockwell, last week you pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception and one charge of attempting to dishonestly obtain a financial advantage by deception contrary to the Criminal Code 1995 (Cth).
Circumstances of the offending
2 The full circumstances of your offending are outlined in the prosecution opening, which was marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
3 On 2 November 2018, you lodged an ABN registration form with the Australian Business Register and you were issued with an ABN. You listed your main business activity as ‘Concreting Services’ and you were listed as the sole trader of the business with an effective start date of 2 November 2018.
4 On 13 July 2021, you created a MyGov account.
5 On 20 December 2021, you:
· Completed a GST registration application online, stating that your main business activity was “concreting services”, and the start date was
17 December 2021; and· Called the ATO and asked for a linking code for your MyGov account.
6 The prosecution opening details the purpose and operation of the Goods & Services Tax Scheme at paragraphs [5] to [11] which I have considered but will not repeat here.
7 Between 15 January 2022 and 21 April 2022, you lodged five business activity statements containing false information. In the BAS statements, you created GST refunds of $94,689, said to have arisen from business-related purchases of capital and non-capital acquisitions. However, you were not running a business at the time and did not make any of the purchases reported in the BAS statements.
8 Lodging the false BAS statements caused the ATO to pay you $73,161 in GST refunds to which you were not entitled and that is the basis of Charge 1. The individual BAS details are set out in Schedule A.
9 Between January and March 2022, you used the money to buy five vehicles, made payments to your partner, sister and other known associates, made purchases at Telstra, JB-Hi-Fi, hotels, and clubs, and buy illegal drugs.
10 You were then audited, with the result that the ATO did not pay the balance of GST refunds claimed in a further BAS statement completed and lodged on 21 April 2022, namely, $21,528 which is the basis of the attempt, Charge 2
11 On 3 May 2022, the ATO sent you an audit finalisation letter advising you of the audit conducted on your BAS statements and the cancellations of your ABN and GST registrations. You did not respond to the ATO’s audit correspondence.
12 On 21 July 2022, the ATO garnished $8,133.59 from your Commonwealth Bank account. No other repayments have been made and the remaining $65,027.41 in GST refunds that were disbursed by the ATO have not yet been recovered.
13 The matter was then investigated by the police.
14 On 17 March 2023, you attended by appointment at the Dandenong police station and were interviewed. Your answers in that interview are summarised at paragraph [26] of the prosecution opening. As discussed with the parties at the plea hearing, I have also now read the interview in full. I will refer to it in some detail here as it is important to the resolution of one of the factual disputes between the parties.
15 In the interview you admitted to having previously obtained an ABN, a ‘few years ago’ in the context of running a scrap metal business. You admitted to having the MyGov app on your mobile. You denied having heard of or being aware of Business Activity Statements. You stated at [213]-[214] ‘I was having a real tough time. Someone else did the ATO for me and I received the money into my account.' You referred to being ‘intoxicated’ and ‘not quite on this earth’ at the time and explained that this means being on GHB and ice. You admitted to not working between January and April 2022. You told the police at [246] ‘I didn’t apply for it but … I allowed it.’ You accepted that the payments the subject of the relevant transactions went into your bank account. You admitted that the rightful owner of the money was the ATO and that you were not entitled to the money.
16 Police asked you at [248]: ‘Did you physically get your phone and put in the details or did you direct or request somebody else to do it for you?’ And your answer, there was some portion which was inaudible, but you answered 'a request’.
17 You told police that the person did this for you three times over a period of months; that you knew their name but did not wish to say who it was. Each time they were with you, twice in your home and the second time in the car, you signed in on your phone, got onto your MyGov, they did it from there and they told you how much you’d get, the first time was 19,000, then 20, then 18, 19. You told police ‘I'm not very smart with that kind of stuff'. These people did not show you what they were doing because they did not want you to do it for other people. You told the police that when you received the money you would pay this person by bank transfer but then stated at [302] ‘it was either transaction or cash'. You admit to using the money and buying cars, a dirt bike, food, clothes, bills, you spent money on your kids and on a lot of drugs to fuel your daily drug habit. At the end of the interview, you indicated that you regretted your actions and that you had no reason for your actions other than you were ‘struggling at the time with money, not working, not being able to find a job, just being hard-up for cash and obviously to be able to supply [your] drug habit …’ The police also confirm that you attended with your Commonwealth Bank documents and you consented to them keeping the documents and that you were in the process of sending an email to them with your Up Banking account.
18 On 7 July 2023, you were charged on summons.
Gravity of offending
19 Mr Ockwell your offending is serious, as indicated by the maximum penalties. General deterrence looms large in such offending, ‘as the present process of
self-assessment reposes on the taxpayer a heavy duty of honesty[1]'. Such offending is often difficult to detect, ‘investigations are often expensive and there is the potential for significant loss to be sustained by the revenue. Serious tax fraud adversely affects the whole community[2]’.[1] (2011) 34 VR 1.
[2] [2018] WASCA 148.
20 The prosecution submits that you engaged in a course of serious criminal conduct, involving a deliberate and sustained fraud and attempted fraud on the ATO over a protracted period of time. This resulted in a significant loss of revenue, which was only deterred due to being identified as fraudulent by the ATO. Charge 1 reflects four individual offences, each capable of sustaining a separate charge.
21 Your Counsel submits that your offending is at the ‘lower-end’ of severity for this type of offending. He submits that there was no sophistication to the offending and that it was ‘doomed to fail', there was no attempt to conceal your identity or ‘throw off’ investigators, the offending was limited to five transactions and it lacks other commonly seen aggravating features.
22 In my assessment of the gravity of the offending, I take into account the nature of your offending, the separate actions which constitute the charges, the period involved and the relevant quantums. In all the circumstances, I do not accept that your offending falls at the lower-end or that it entirely lacked sophistication. I do accept that there are more serious examples of this type of offence, such as those cases involving more extensive periods of offending or false documents and/or identities. There was no attempt on your part to conceal your identity or to engage in any additional subterfuge. Also, I accept that there does not appear to have been extensive or sophisticated planning to your offending. It is not suggested that setting up your MyGov account or GST registration was originally for the purposes of committing these offences. While I do not accept that your offending was ‘doomed to fail’, once detected through the auditing system, you were easily traced.
23 At the time of your offending you were struggling and also abusing drugs. While this provides context to what you did, it does not excuse it, or mitigate your moral culpability, for offending which was ultimately financially motivated.
24 As for the account you gave in your record of interview, the prosecution submit that it should be rejected as a false one for the following reasons: you betray some familiarity with the system, including myGov, ABN and BAS statements and the payments allegedly made to the third persons are not recorded in any of your bank statements.
25 I have carefully read your interview. In brief, you made a number of admissions against interest and I consider the account you gave to be believable and plausible. I do not accept that it is contradicted or rendered false for the reasons advanced by the prosecution, noting that in the interview you referred to making payments by either transfer or cash. As discussed at the plea hearing, whether you directly committed the crime or facilitated it, I consider to be of little consequence to an assessment of its gravity or your culpability. You dishonestly received money that you clearly knew that you were not entitled to.
Sentencing factors
26 There are many sentencing factors that I must take into account when sentencing you, as outlined in the non-exhaustive list contained in s16A(2) of the Crimes Act 1914 (Cth). I have also considered other sentencing principles that are relevant to fixing a sentence ‘of a severity appropriate in all the circumstances of the offence' as required by s16A(1).
Plea of guilty
27 You entered a plea of guilty at the first reasonable opportunity, on 27 September 2023. Your plea of guilty entitles you to a significant sentencing discount.
28 I accept that by your plea of guilty, you have indicated a willingness to facilitate the course of justice and have accepted responsibility for your offending and demonstrated remorse. I accept that you were cooperative and offered some assistance in your interview with police and that you provided them with a detailed account of your offending. Your plea also has important utilitarian value.
Character, antecedents, age and prospects of rehabilitation
29 You are now 27 years of age and you were 25 I believe at the time of the offending, born in September 1996.
30 Growing up your father worked as a truck driver and your mother worked as a manager at Garden City Plastics. You have one younger sister. You were subjected to family violence at the hands of your father. You report that he would ‘smoke bongs’ and assault you if he had a bad day. You were also subjected to daily verbal abuse. You feel that not having a father supporting you is something that has set you back in life.
31 You attended Lilydale Heights Secondary College and left school half-way through Year 10 to seek employment in a trade.
32 You had a good work ethic prior to commencing illicit substance use. In Year 9 you commenced part time work after school as a motor mechanic’s assistant. Although you were not formally qualified, you worked in this position for almost three years, until the boss sold his business. Also, you have had work as a concreter and tree-lopper.
33 At the age of 19 you started using illicit substances. At first you did this recreationally with work friends. Soon this escalated to smoking one gram of methylamphetamine daily and ultimately developing a significant daily dependence of GHB.
34 You have three children, aged between three years and seven years with two separate ex-partners. Due to a Family Violence intervention order issued in 2021, you have not had any contact with your two sons. This was something that you were apparently also struggling with at the time of your offending. You still have contact with your daughter, even while in custody.
35 You have a relevant prior criminal history. Your criminal history is mostly comprised of driving matters, though there are some dishonesty and drug offences.
Prospects of rehabilitation
36 The prosecution submit that, in all the circumstances, your prospects of rehabilitation are somewhat guarded.
37 Your counsel submits that your prospects are not poor. This is your longest period of persistent abstinence from drugs since you were 19 years of age and you have availed yourself of every opportunity you can in custody to make a fresh start.
38 You have completed a significant number of courses and programs whilst in custody. You have also maintained employment in horticulture and have not been subjected to any special conditions or incidences in custody.
39 In my assessment of your prospects, I take into account your prior criminal history and also your current circumstances. On 16 November 2023, the Court revoked your bail on the current matter as you were in custody on other matters, which are listed to be heard tomorrow for a likely resolution.
40 Overall, I agree that your prospects are somewhat guarded, though if you manage to remain drug-free they will vastly improve. There does not appear to be any impediment, in the nature of mental illness or cognitive impairment, to you making positive progress. Also, you have a work history; you are also keen to obtain work on release as a traffic controller or concreter, for which you have relevant certificates. You have the continuing support of your sister who I note has attended court remotely in support of you and with whom you will live in Clyde on release. You have young children who motivate you to improve your circumstances. It seems you may be able to participate in mediation to re-engage with your sons and you have availed yourself of a range of rehabilitative courses in custody. In custody you have remained drug-free and are on buprenorphine, though it seems there have been some medical complications relating to this which need to be explored.
Sentencing purposes
41 I accept that general deterrence, specific deterrence and punishment are all important considerations in sentencing in cases of deliberate fraud against the revenue. I also consider that specific deterrence is a relevant consideration. While your prior criminal history for dishonesty is limited, I still do regard it as informative and relevant.
42 Charge 1 and 2 arise within a similar context and therefore I take into account the principle of totality. I accept however the prosecution submission that some degree of cumulation is required between charges given the seriousness of the offending conduct. In respect of totality, I also note that you have been on remand for a total of some 160 days now but only 117 days are referable to this matter. Further, I take into account that there has been some delay in the finalisation of this case and note that since the commission of these offences you have subsequently served a term of imprisonment, imposed on the 16 December 2022.
43 I have also had regard to the comparable cases provided by the prosecution[3]. Noting that each case is unique, these cases are of particular assistance in the application of general principles.
[3] See prosecution revised table of comparative cases.
44 The prosecution submit that a term of immediate imprisonment is the only appropriate sentence for each offence and accepts that such a term by way of a recognisance release order is within range. Your counsel accepts that a term of imprisonment is warranted but submits that you have effectively served sufficient time and should be released on a recognisance order.
45 Given the gravity of the offending, Mr Ockwell, and the relevant sentencing principles and circumstances I have already canvassed[4], I consider that the only just and appropriate sentence in your case is one of imprisonment. I have taken into account all submissions made by both counsel, the relevant sentencing principles and the factors in mitigation advanced on your behalf.
[4] See s.16A, including deterrence, punishment, and rehabilitation.
Sentence
46 So, Mr Ockwell, arriving at the sentence now, synthesising all relevant matters, you are convicted and sentenced as follows –
47 Charge 1 – 16 months' imprisonment
48 Charge 2 – Five months' imprisonment.
49 Charge 1 is the base sentence and one month of Charge 2 is to be served cumulatively on Charge 1.
50 What that means is that the sentence imposed on Charge 1 is to commence today and the sentence imposed on Charge 2 is to commence four months before the expiry of Charge 1 and effectively this will add the one-month cumulation. That totals an effective period of 17 months, so one year and five months.
51 Pursuant to s20(1)(b), I order that you be released after serving 117 days, upon you entering a recognisance in the sum of $1,000 and to comply with the condition that you be of good behaviour for a period of two years.
52 Pursuant to s18, I declare that you have served 117 days in pre-sentence detention.
53 I consider that the term of imprisonment imposed gives appropriate weight to all relevant sentencing principles and that the 117 days you have been ordered to serve is the minimum period which I consider to be just and appropriate in all the circumstances.
54 Now pursuant to s6AAA, which I am being asked for these Federal offences to indicate, had you not pleaded guilty but had been found guilty following a jury verdict, I would have sentenced you to a term of imprisonment of some two years and four months' imprisonment and ordered you to serve eight months before being released.
55 Now, I'm required Mr Ockwell to explain briefly the consequences of the order and then I will allow the link to remain and your counsel, your lawyer, can also take you through that. Effectively, what I have done is I have sentenced you because I consider it just, appropriate and necessary to a term imprisonment on these matters. And that total period of imprisonment, when you combine both sentences, is 17 months, one year and five months.
56 I have released you on a recognisance release order. After serving 117 days, which you have already served, and I have declared that time as already served, okay. So upon entering a recognisance in the amount of $1,000, you are released. You do not pay the $1,000 now. It might be something that you are liable for if you were to breach the order and come back before this court. Okay? It is a surety of types but not one that is payable presently.
57 You need to promise to be of good behaviour for two years. The outstanding amount, so the 117 days subtracted from 17 months, that outstanding amount of time, okay, is hanging over your head. Do you understand that?
58 OFFENDER: Yes, Your Honour.
59 HER HONOUR: So that is approximately 13 months or thereabouts. Okay? It is 117 days subtracted from 17 months. Okay? That amount, which is a significant amount, is hanging over your head. You need to promise to be of good behaviour for two years, and if you are not of good behaviour and you breach the promise, it is likely that you will be brought back before me and very much at risk of having to serve all or most of that time of imprisonment. A recognisance release order is also capable of being subject to an application for discharge or variation. So,
Mr Ockwell, do you understand the effect of this order?60 OFFENDER: Yes, I do, Your Honour.
61 HER HONOUR: You have served the time, it is reckoned as served, the remaining part is hanging over your head. You must be of good behaviour for two years. The sentence has commenced and the date, the commencement of the sentence – I beg your pardon. I have said that the commencement date is today. That is correct and I have just reckoned PSD. So that is right. Okay. All right so that two years of good behaviour commences today. Correct counsel?
62 MS PRASAD: Yes, Your Honour.
63 HER HONOUR: All right. Understood?
64 OFFENDER: Yes, Your Honour.
65 HER HONOUR: Okay, I am going to continue now. I just wanted to make sure that you understood the sentence and Ms Prasad I think as is typical in these matters, a recognisance order in the terms that I have stipulated is usually provided by your instructors to the court.
66 MS PRASAD: That is correct.
67 HER HONOUR: I appreciate it may not be available at this moment in time, but is it likely to be?
68 MS PRASAD: Yes, we will have it shortly, Your Honour. Yes, it is going out right now, yes.
69 HER HONOUR: Shortly? Okay. All right. I understand that is the usual – we will do the orders, but I understand that the actual recognisance order is something that is usually provided to the court.
70 MS PRASAD: Yes, that is correct, yes.
71 HER HONOUR: Okay and that will be done shortly. I note that Mr Ockwell in any event has court tomorrow which is why we brought the matter back today so effectively he will remain in custody but that will need to be – he has indicated an understanding to the order, but it will need to be signed by him.
72 MS PRASAD: Yes, Your Honour.
73 HER HONOUR: And that needs to be facilitated at some stage today. Okay.
Mr Ockwell, the effect of my order is that you are to be released, but you are not going to be released today because you are on remand for other matters, okay and as I understand it you are going to court tomorrow. All right, so do not expect to be released today, you have to wait to see what is going to happen to the other matters of which I have no control. Okay?74 OFFENDER: Yes, Your Honour.
75 HER HONOUR: Now, there was an outstanding matter and that relates to an application pursuant to s21B of the Crimes Act 1914 (Cth), a reparation order in the amount of $65,027.41 and it is not consented to by you. On your behalf, your Counsel submits that it is not appropriate to make such an order when a person does not have means and in your case you have no money or assets or an ability to pay. In turn, it was submitted that this may impact your prospects of rehabilitation. The reparation order was pressed by the prosecution who submitted that there is no evidence that you will never be in a position to repay and in fact the contrary is true, given your work history and motivations to obtain work. There is an expectation that fraudulently obtained amounts will be recovered if they can be.
76 Reparation is not part of the punishment and I have not made it as part of the punishment or to attach to the recognisance order, but a means of making an order for compensation. A court has a discretion whether to make a reparation order and as to the amount of the order.
77 While the relevant considerations for the making of such an order are not fixed and it is not entirely clear that the court may have regard to the personal circumstances of an offender in exercising the discretion, the question appears to have been left open by the High Court and I refer to the case Hookham v The Queen[5] and I note the following observations of Justices Deane, Dawson and Gaudron:
‘It is however appropriate to point out that, in a context where the Parliament has not expressly identified the considerations to be taken into account in making an order for reparation under s21B, a trial judge would be excluded from taking account of an offender’s personal circumstances and means only if and to the extent that the subject matter and the scope and purpose of the relevant statutory provisions enables it to be said that those particular considerations were definitely extraneous to any objects the legislature could have had in view’.
[5] [1994] HCA 52; (1994) 181 CLR 450.
78 I proceed on the basis that such considerations are not excluded and I have taken them into account, along with your counsel’s submissions, in deciding how to exercise my discretion. Taking into account all these matters, including the amount sought and the direct loss caused by your conduct, your relatively young age, work history and ambitions, I consider that I should exercise my discretion in favour of making the reparation order and I do so for the amount sought. Okay? So, Mr Ockwell, I have made the reparation order. That is a matter that you are going to have to consider, get some further advice about and it will be explained to you I have no doubt that that entire amount is not something that will be sought immediately in one lump-sum, it is something that you will need to make arrangements in respect of. Okay?
79 OFFENDER: Yes, Your Honour.
80 HER HONOUR: All right. Counsel, does that deal with all matters?
81 MS PRASAD: Yes, Your Honour.
82 MR CHRISANT: Yes, Your Honour.
83 HER HONOUR: Okay. Mr Chrisant, I am going to leave the link on for a few minutes. You will have 10 minutes or so if you need so that you can talk to
Mr Ockwell to ensure that he understands it. What we will await then is I will do the orders but the actual recognisance release order will be generated shortly. He will have to sign it and some arrangement will be made for that to be facilitated in custody. He has indicated an understanding of the clear terms that I have stipulated in any event, but the orders will be sent through later today. Okay.
Mr Ockwell, I expect that you will be contacted again just about the order because it needs to be formalised and a form generated, okay, so you might expect some contact in respect of that today. Remain on the link. We will give the prosecution a few moments to leave court. I would ask as well if those observing today would be able to just exit so that counsel can discuss the result with his client. Okay. All right. Thank you. We are adjourned.- - -
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