Director of Public Prosecutions v Schneider

[2018] VCC 1247

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02274

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER SCHNEIDER

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2018
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v Schneider
MEDIUM NEUTRAL CITATION:	[2018] VCC 1247

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – Pleas of guilty –  Dishonestly obtain a financial advantage by deception (1 charge) -  Use a false document (1 charge) – Attempt to dishonestly obtain a financial advantage by deception (1 charge)
Legislation Cited:	Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth)
Cases Cited:	Scook v The Queen (2008) 185 A Crim R 164; R v Schwabegger [1998] 4 VR 649; DPP v Datillo [2016] VCC 167; DPP  v Dalgliesh [2017] ALJR 1063, 1072
Sentence:	Convicted and sentenced to 2 years’ imprisonment – Recognisance release order to be of good behaviour for a period of 1 year – Reparation order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan (Plea) Mr J. Robins (Sentence)	Office of Public Prosecutions
For the Accused	Mr J. Westmore	James Dowsley & Associates

HIS HONOUR: 

1The plea of Mr Schneider, took place on 28 June 2018.  On that date, Ms Hassan appeared on behalf of the Director and Mr Westmore on behalf of Mr Schneider.  Mr Westmore, as I have acknowledged, appears today and Mr Robins appears on behalf of the DPP. 

2Mr Schneider is aged 62.  This offending took place when he was between the age of 55 and 56 and his birthdate is 11 April 1966.  He is currently a senior manager. 

3The crimes involve three Commonwealth crimes.  The first of dishonestly obtain a financial advantage by deception, from the Commonwealth, contrary to s.143.2(1) of the Criminal Code.  It took place over the period 7 June 2011 to 22 March 2012.  It involves the receipt of goods and services tax credits.  The amount involved, the refund being obtained by deception in the first charge, was $150,085.46.  Essentially that was a goods and services refund as a result of the application lodged by Mr Schneider on behalf of DIY Home Solar Proprietary Limited.

4The maximum penalty imposed by Parliament for this offence is ten years and indeed, that is the penalty that applies for the other two offences.

5The second offence to which Mr Schneider pleaded guilty, was pursuant to s.145.1(1) of the Commonwealth Criminal Code, use a false document with the intention of dishonestly obtaining a gain by inducing a Commonwealth public official to accept the documents as genuine, contrary to that section.

6The offending in this matter took place in the period 9 December 2011 to
14 May 2011.  As an appendix to the Crown opening, which is tendered in this matter as Exhibit A, are the 15 documents which were the false documents that were forwarded to the Department, in support of the application. 

7In addition to that, insofar as the opening shows, the details of the documents involved and their falsity, was set out at paragraphs 28 through to 48.  Essentially, these invoices, be it inappropriate invoices or invoices fraudulently altered, were given to support the application set out in Charge 1 and were given, as a result of queries from the Commonwealth Department.

8Charge 3 is an attempt, in the sense that there were two further BAS lodgements seeking refunds. Those were lodged in the period 3 September 2012 to 17 September 2012. An attempt is an offence under the Criminal Code, pursuant to the combined provisions 11.1(1) and 134.2(1). As I say, that is the third charge on the indictment. The attempt again was by way of deception. In this instance, again, it was an application lodged in the name of DIY Home Solar Proprietary Limited, but in fact, they were sales of another connected company.

9The offence itself is difficult to understand, because DIY Home Solar Pty Ltd was not even in business at the time.  The only explanation seems to be that, given the investigation, it was necessary to support the earlier lodgements, given the queries being made by the tax office.  Again, in Exhibit A, is precise analysis of the invoices and their fraudulent nature, detailed by the prosecution at paragraphs 52 to 56. 

10The totality of the circumstances, insofar as Mr Schneider's criminality is concerned, shows sustained criminality, an attempt to obtain funds dishonestly and to maintain such applications by the tendering of fraudulent documents, falsified receipts and falsified accounts.  As I say, those subsequent matters were trying to overcome the issues that had emanated from the audit that was undertaken.

11Insofar as the actual receipt of $150,000, a reparation order has been sought.  Mr Schneider has no assets, albeit that he signed the reparation order. 

12The priors of Mr Schneider are particularly relevant in this matter and insofar as those priors are concerned, it is necessary for me to read from Exhibit D, which are the sentencing remarks of Judge Ross of the 10th day of June 1994. 

13In that particular case, again, the offences involved dishonesty, described by His Honour as a "sustained campaign of dishonesty", relatively crude, but effective, as His Honour indicated.  They again involve fraudulent accounts, falsified accounts.  In that situation, the background was the adoption by you, Mr Schneider, of a quite extravagant and flamboyant lifestyle, which does not seem to be evident in this case, indeed, circumstances described by the psychologist used in that case, as a form of kleptomania.

14You were also described, at that time, as having an unconscious drive to achieve and provide.  As His Honour described it, you had been guilty in that case of "sustained and serious dishonesty".  You were, at that stage, a man without priors.  His Honour considered, given the evidence brought before the Court and particularly by a number of Rabbis, that you were a person who was genuine, insofar as your intent to change your life and to not commit further criminality. 

15His Honour was prepared to sentence you on that basis.  To use his phrase, "that you were on the way to a good rehabilitation."  And His Honour, in the case, mitigated the sentence by way of concurrency, after taking those matters into account.  As I said, you were sentenced to imprisonment of four years, with a minimum of two years. As I said during the plea you of course are not to be sentenced again for your priors, but such limits the options this Court may otherwise have.  

16Exhibit C was tendered by the prosecution, which has a series of comparative cases and a schedule to those cases. In addition to that, Exhibit B was tendered, which were the prosecution's submissions on sentence. Those submissions detailed particular factors that I was asked to take into account, in particular the factors set out in s.16A of the Crimes Act, and are set out at paragraphs 3 to 18. 

17The ultimate submission put by the prosecution, was that your criminality was such that, even taking account of the discount factors, in particular your plea of guilty and delay, that a period of immediate imprisonment was required, perhaps with a recognizance release order.

18Insofar as the plea conducted by Mr Westmore, Exhibit 1 was his written submissions, together with a chronology. From the start there was an acceptance by him that the three charges being offending against the revenue were serious and represented a sustained dishonest conduct over the 15 month period. A concession was made to the Court that general deterrence must loom large. 

19The background apparently, to this criminality, turns out of course to be that you were seeking to double-dip, in the sense that the business was struggling.  It is said that you had been particularly swayed by the Director, McTaggert, however, there was no resiling from the fact that you were very much part and parcel of these crimes. 

20The issue of delay was put to the Court. In particular as the search warrant was executed upon your home and the work premises in approximately December of 2014.  The investigation thereafter was apparently completed by the July of 2015.  You were not charged for two years thereafter until May of 2017 and of course now a further year has gone on until I am required to sentence you.  Insofar as the earliest offending set out in Count 1, that makes a period of approximately seven years.

21The principles insofar as delay, are set out in the case of Scook (2008) 185 A Crim R 164 and in Schwabegger [1998] 4 VR 649. The factors set out and the determinations in those cases show that delay of the type that you have endured is an appropriate factor to warrant a discount. The other cases put to me had a number of different factors. The most lengthy matter was the matter of Melrose, where the period involved, from offending to sentence, was ten years.

22In addition, your counsel gave to me a decision of Judge Wilmoth of this Court, DPP v Dattilo [2016] VCC 167, in which, given the particular circumstances of that case, Her Honour determined that there would be no immediate period of imprisonment imposed. Clearly, there is no reason, as a matter of law, why a sentence of that degree could not be passed in this case. The question, of course, for this Court, is whether such is appropriate in all the circumstances.

23Insofar as sentencing generally, I rely on what the Court of Appeal has most recently said, insofar as the obligation upon a Judge, set out in DPP v Dalgliesh [2017] ALJR 1063, 1072, [49]:

"The administration of the criminal law involves individualised justice.  The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion, concerned to do justice in that case."

24The High Court also said [50]:

"The criminal justice system should operate fairly, and that involves, among other things, reasonable consistency."

25In that regard, comparable cases serve generally as yardsticks, however they in no way restrict a Court, but are taken into account by way of general synthesis. 

26In the report of Patrick Newton psychologist, Exhibit 2, of the 18^th June 2018, paragraph 31, he, having described your background and prior history, asked you for your response to the offending:  you said that you're extremely upset by your actions, by allowing yourself to be intimidated and manipulated by someone "during my emotional state, who I thought was a friend.  I would never stoop so low and conduct same to a fellow human being.  I cannot change the past, but I can impact my future to be the person I am and to be a law-abiding citizen and giving myself to those in need."

27Well, they are excellent sentiments indeed, Mr Schneider, but your background does not give one a lot of faith that they will be fulfilled.  One normally finds, if a person has served gaol for a prior offence of dishonesty, it is somewhat unusual, if they have the right intentions, for them to be back in this Court.  So, I am somewhat guarded about your rehabilitation.

28I note that you have had, during this period, because of family issues, considerable depression and personal distress to put up with.  At [37], it was said by Mr Newton:-

"It is well accepted that symptoms of depressive orders have a detrimental effect upon the sufferer's capacity for clear reasoning and decision making.  Principally such symptoms result in a slowing of cognitive processing which renders the process of problem solving and decision making more difficult for the sufferer.  Depressed people often avoid tasks that require cognitive effort with the result that they often do not deal with problems expeditiously…"

29While I accept that generally, clearly you have dealt with many tasks in this fraudulent scheme, not only lodging documents, but in particular, lodging fraudulent and altered documents to support them. 

30Importantly, of course, as he said in the next paragraph:

"While these effects could be expected to be noteworthy, they were clearly not sufficient to have obscured (your) capacity to form the intent to commit the offending, that you were fully aware of the wrongfulness of your actions and the likely consequences."

31Although briefly alluded to at one stage by Mr Westmore, Verdins principles were not put to this Court, insofar as reduction of culpability is concerned. 

32In note in particular in the concluding remarks, while not in any way seeking to interfere with the role of the Court in disposition, Mr Newton noted that your pre-existing psychological difficulties are such that you would be at greater than the usual risk in prison of developing intense mood disturbance and other problems and it seems to me, as put by your counsel, that that aspect of Verdins is appropriate for this Court to take into account. 

33I take into account also your plea of guilty.  You are entitled, as a result of that, to a discount, not only for the fact that it saved this Court the trial that will be involved in others accused in this matter, but it was utilitarian in its benefit and assisted justice. 

34Mr Westmore, there was one matter that did concern me and there is a - as
I understand it, it did not happen, but there is a suggestion of an offer to assist.

35MR WESTMORE:  Yes.

36HIS HONOUR:  And I do not know whether that was necessarily put to me last time, was it?

37MR WESTMORE:  Well, it was put, in the sense that - I think it was put in rebuttal to one of the submissions by the prosecution in their submissions, which was to the effect that because he has said that he was acting at the direction of McTaggert, that that somehow undercut his remorse.  The position is, is that it has been communicated to the Crown that he would be willing to assist, if they wanted him to.  They haven't followed that up, and so what weight could be given to the offer is perhaps limited, but it's important, in my submission, in Your Honour making an assessment of his remorse.

38HIS HONOUR:  Yes.  Thank you.  I just wanted to clarify that matter. 

39I accept that the plea of guilty does indicate remorse.  I note there was an offer to assist made, and that has not been taken up, but I take that into account, insofar as accepting that there is genuine remorse.

40The issue in this case, was whether immediate gaol should be imposed. It was the submission of Mr Westmore that, given the totality of the circumstances, in particular the two major discounting factors of the plea of guilty and the significant delay, that immediate gaol should not be imposed. 

41Unfortunately for you, Mr Schneider, having given consideration to all of the submissions, I have formed the view that while those factors must be taken into account, and appropriate discounts given, the serious nature of this criminality, is such that there is still a need for a period of immediate imprisonment.

42Yes, if you would stand please.

43On the first charge, you will be sentenced to a period of imprisonment of two years.

44On the second charge, a period of imprisonment of one year.

45And on the third charge, a period of imprisonment of one year. 

46I will make no orders as to cumulation.  Each of the periods of imprisonment will commence today, making an aggregate period of imprisonment of two years. 

47Having given consideration to all of the factors which must be given to
Mr Schneider by way of discount, both in regard to the head sentence that
I have just announced and in regard to the issue as to what period he actually serves in gaol, I have determined that ­a recognizance release order should be made that after serving 12 months, upon entering into his own recognizance to be of good behaviour, he can be released for the balance of the period imposed, which would be 12 months. 

48Pursuant to the provisions of s.6AAA, on the assumption such applies to a Commonwealth sentence, while it is difficult, especially in a case such as this, where there are such other major factors over and above that of pleading guilty, all I can say is that insofar as the sentence that would have been passed, had you not pleaded guilty, you would not have been getting a recognizance release order and the aggregate that I would have imposed in the matter would have been three and a half years, not two years.

49The purpose of me giving you that, Mr Schneider, is, the Parliament requires you to fully understand the benefit of you pleading guilty.

50Either counsel, do I have to clarify any matters? 

51MR ROBINS:  The only issue, Your Honour, is with regards to the recognizance, you've ordered that the accused be released after 12 months.

52HIS HONOUR:  Yes.

53MR ROBINS:  For a period of 12 months to be on good behaviour. 

54HIS HONOUR:  Yes.

55MR ROBINS:  Just a question of whether Your Honour wanted to impose a recognizance of a sum, in order to comply with this ‑ ‑ ‑

56HIS HONOUR:  The recognizance is on his own - no, I do not want to put a sum in there. 

57MR ROBINS:  All right.  Yes, Your Honour.

58HIS HONOUR:  I would have thought it is hardly necessary, given - I am sure that Mr Schneider, given that he has now got to go to gaol and that understands fully what that means, will not be worrying us again.  Yes.

59Yes, Mr Schneider, if you would take the prisoner away please. 

60MR ROBINS:  Your Honour, once the ‑ ‑ ‑

61HIS HONOUR:  I am sorry, Mr Schneider, you have got to sign the recognizance release order.  I do apologise.  Just take a seat.

62MR ROBINS:  Your Honour, does Your Honour require me to complete that for you ‑ ‑ ‑

63HIS HONOUR:  Yes, you may as well do it now. 

64MR ROBINS:  We just ‑ ‑ ‑

65HIS HONOUR:  I think we have already signed the reparation order, have we not?

66MR ROBINS:  I think last time one was handed up to Your Honour.

67HIS HONOUR:  Yes, I have signed it, I am sure. 

68MR ROBINS:  Yes, you've signed it? 

69HIS HONOUR:  Mr Westmore, in referring to Dattilo, while I noted your submission, I probably should have noted that your submission was that in all of the circumstances here, given the delay and the plea, that it would be unfair to impose a period of immediate imprisonment. You detailed the matters which occurred in such period, being his new job and position as operations manager, the fact that he's re-partnered with Sveta, albeit digitally, as I understand it, and the circumstances, as I detailed, of him going through the unfortunate disease and death of his earlier partner, Alezabetha, and the depression therefrom.  So those matters I took into account as part of your submission as the changes effected in his life during the delay.

70MR WESTMORE:  As Your Honour pleases. 

71HIS HONOUR:  Yes.  Yes, Mr Schneider, good luck. 

72I cannot - I suppose probably it would not - I do not think there was anything suicidal in his issues, was there?  Just that he has had psychological issue?

73MR WESTMORE:  That is right.  I think that ‑ ‑ ‑

74HIS HONOUR:  Just, maybe we will put the report of Newton in.

75MR WESTMORE:  Yes, I think that a good idea.  I mean, he's a person who is pretty down at heart, if I could put it that way.

76HIS HONOUR:  Yes, well, no doubt.  Facing a second sentence is not good.  We will put that in, Mr Westmore, just so that we take the precaution. 

77MR WESTMORE:  As Your Honour pleases.

78HIS HONOUR:  Yes. 

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