Director of Public Prosecutions v Schurmann
[2023] VCC 14
•19 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00343
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIFFANY SCHURMANN |
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JUDGE: | Karapanagiotidis |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2022 for sentence indication 19 January 2023 for plea |
DATE OF SENTENCE: | 19 January 2023 |
CASE MAY BE CITED AS: | DPP v Schurmann |
MEDIUM NEUTRAL CITATION: | [2023] VCC 14 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Obtaining financial advantage by deception – Obtaining property by deception – COVID-19 – Plea of guilty Reasonable prospects of rehabilitation.
Legislation Cited: ss 5, 6AAA Sentencing Act 1991 (Vic).
Cases Cited:Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169.
Sentence: 22 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
For the Accused | Ms D. Caruso | Fayman Lawyers |
HER HONOUR:
1Tiffany Schurmann, you have pleaded guilty to six charges of obtaining financial advantage by deception and one charge of obtaining property by deception.
Summary of the offending
2The summary of your offending is set out in the prosecution opening, marked as Exhibit A on the plea. The opening refers to seven incidents between 3 June and 22 July 2019.
Incident 1
3The first incident is on 3 June 2019. You used identification information stolen from SCOUT Financial to create an alternative identity of Sharon Cole (the Cole Identity). You used a range of false information including address, occupation and driver's licence number. You then used the Cole Identity to fraudulently apply to Westpac for a $22,600 credit card bundle of two credit cards.
4Westpac accepted the fraudulent application and granted a credit card to the Cole Identity. A card was mailed to the Wonderland Terrace address you had provided, which was a rental property under construction where you later attended and collected the card (Charge 1 – Obtain financial advantage by deception)
5A total of 92 separate transactions were performed on the fraudulently obtained credit card to a total value of $22,838.68 as outlined in the opening.
6Among the purchases made with the card were various amounts paid to Crown Casino between 13 July and 15 July. You and your co-accused, Mr Coombs, attended Crown Casino and made purchases with the card using the name Sharon Cole. Footage was obtained by Crown Casino and provided to police depicting you and Mr Coombs. A false heavy vehicle driver's license card purporting to belong to Sharon Cole was used in connection with the purchases containing your picture.
Incident 2
7In relation to incident 2, on 3 June 2019 you used the Sharon Cole Identity to make an online application to Westpac for a $16,500 person loan. This was accepted by the bank and granted with the limit of $16,500 (Charge 2 – Obtain financial advantage by deception).
8On 5 June 2019 you directed three separate amounts to be disbursed into your bank accounts. On 10 June 2019 Westpac received a fraud alert and reversed these transactions.
Incident 3
9On 3 June 2019 you used the same Cole Identity to make another application to Westpac for a $22,600 credit card. A fraudulent driver's license was submitted as part of that application. It was accepted and a second credit card was issued to the false identity. It was mailed to the Wonderland Terrace address from where you collected it. No financial loss was suffered through this account as the credit card was not used (Charge 3 – Obtain financial advantage by deception).
Incident 4
10On 3 June 2019 you used the Sharon Cole Identity to make another successful application to Latitude Financial Services for a $9,650 credit card. The card was again mailed to the Wonderland Terrace address, and you collected it. As a result of this fraudulent account, Latitude Financial Services sustained a loss of $8,591.90 when the card was used to purchase Apple products (Charge 4 – Obtain financial advantage by deception).
Incident 5
11On 4 June 2019 you used identification information stolen from SCOUT Financial to create an alternative identity, Belinda Hii (the Hii Identity). The identity was made with false information including an address, which was a home listed for sale and vacant at the time, and a false email and driver's license. You then used the Hii Identity to fraudulently apply to Westpac for a $30,200 credit card (the Hii Credit Card). This was granted, mailed to the address provided where you attended to collect it.
12The Hii Credit Card was used to obtain cash, purchase goods and services. As a result of the fraudulent applications, a total of $15,303 was lost (Charge 5 – Obtain financial advantage by deception).
Incident 6
13On 3 June 2019 your co-accused and partner Mr Coombes used the Chad Cole Identity to make an application to Westpac for a $22,400 credit card. The application was for two credit cards. American Express accepted the fraudulent application, granted a credit card to the Cole Identity. This was mailed to the Wonderland address and Mr Coombs collected it. The card was used on 38 separate occasions. Among the purchases made with the Chad Cole Credit Card were purchases on 5 and 8 July 2019 where you were depicted on CCTV footage from Target, Coles, Kmart and Woolworths, totalling an amount of $645.30.
14In relation to Charge 6 (Obtain property by deception), I note that you do not face a charge that relates to the total loss sustained in respect of this card, nor is it suggested or put against you that you acted in complicity with Mr Coombs in the making of the application. Your charge relates to the use and the amount that I have already referred to of $645.30.
Incident 7
15On 14 July 2019 you used personal information stolen from SCOUT Financial to create an alternative identity of Jennifer Carroll (the Carroll Identity). The Carroll Identity was made with false information including an address which was a vacant rental property. You successfully applied to Westpac for a $22,600 credit card which was mailed to the provided address and collected by you. No loss was suffered as a result of this account as the credit card was not used (Charge 7 – Obtain financial advantage by deception).
16The prosecution opening further details the documents, the nature of the investigation and the way it unfolded the course of the overall enquiry and the metadata analysis relied upon to tie you to the offending.
Gravity of the offending
17As properly conceded on your behalf, Ms Schurmann, your offending is serious.This is also reflected in the maximum prescribed sentences set by Parliament. I accept that there are more serious examples than your case and that the total loss of quantum, while not insignificant, approximately $47,000, is well below some of the high-end offending seen in this Court. Your offending was also not characterised by a breach of trust and as conceded by the prosecution, there is no evidence here to suggest that there was any loss at the consumer level. All losses appear to have been borne by financial institutions. However, Ms Schurmann your offending was clearly planned, protracted, reasonably sophisticated and methodical, as outlined in paragraph 3 of the prosecution opening.
18Given the nature of the offending and also how difficult it can be to detect, I accept that general and specific deterrence are important considerations. You told Ms Gina Cidoni, psychologist, that at the time of the offending your circumstances had deteriorated, your accommodation was unstable, and you were using ice every day, along with GHB. You were able to fund your drug use largely by your offending. Of course, that is no excuse for what you did.
Plea of guilty
19Your case resolved after a sentence indication hearing held on 13 December 2022. While this is not a plea at the earliest opportunity, I accept that in the circumstances your plea of guilty warrants a substantial discount. As agreed between counsel, over time there have been ongoing resolution discussions and good faith negotiations. Your plea of guilty indicates your willingness to facilitate the course of justice.
20I also accept the submission of both counsel that in your case there is strong utility in a plea of guilty. On some charges the prosecution case might be regarded as reasonably strong, while on others it involves circumstantial reasoning which appears to be of a weak nature. The trial was likely to take at least three weeks and involve complicated evidence, expert evidence and legal issues. I note there is still expert evidence that is outstanding and yet to be served.
21Further, I accept that your plea of guilty ought to be given greater weight in accordance with the Worboyes[1] principles.
[1]Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
22Your personal circumstances were canvased in the report of Gina Cidoni dated 8 December 2022 and also by your counsel, Ms Caruso.
23You are 33 years of age. You were raised by your parents. You have two older brothers and you come from a close family. Your parents went bankrupt from a failed business venture when you were very young, which resulted in ongoing financial difficulties, instability and disruptions. For a period your family lived in an apartment at the Eltham Hotel and your parents also, it is noted, occasionally used drugs.
24When you were 15 your parents took over the care of their two foster children who both suffer from cerebral palsy. You regard both young men as your brothers. Your family ended up moving to a larger property in Mornington. When you were aged 16 your mother was diagnosed with emphysema and told she had 12 months to live. She went on to live for several years but for much of this period she was unwell and hospitalised.
25You lost your mother in November of 2019, that is after the charges in this matter were laid.
26Your father, brother and his children remain living in the family home in Mornington. Your father was diagnosed with prostate cancer around March of 2019 but is apparently managing well. Understandably you are still experiencing grief from the loss of your mother.
27You have had several relationships. From the ages of 14 to 16 you were in a relationship. The young man died in a motor vehicle accident. You later
re-partnered with a man and that particular relationship was described as a difficult one. At around the age of 27 you formed a relationship with Mr Coombs, your co-accused. At the time he owned his own electrical company, you lived together in various accommodation including with your father, and then your own apartment. You share a son who is now four years of age.28In 2019 you apparently discovered some infidelities of Mr Coombs which caused you to downward spiral. You have since mended your relationship and you remain together.
29In terms of schooling, you did quite well academically but you were expelled in Year 9 because of your behaviours, such as smoking on school grounds.
30You had your first job at a pizza shop at the age of 15. Next you completed your Certificates II and IV in Information Technology and Certificate III in Health Services Assistance. After obtaining your qualifications you worked at various hospitals from the ages of 18 to 20. You were a personal service assistant and completed a Certificate IV in Disability Support, intending to care for your brothers. For the next several years you worked with Accommodation and Care Solutions and enjoyed being a disability worker. You left the job after being asked to complete a police check and the concerns that that triggered for you. You have also worked for Mr Coombs’ electrical company as an apprentice.
31In terms of drug use, you started using ecstasy and ice recreationally in your early 20s. Your drug use increased and you began using an ounce of ice daily. Later you also commenced GHB use. You ceased using drugs when your son was born in 2018 however, you relapsed and continued using up until your arrest. You have since stopped drug use and have remained clean.
32Ms Cidoni refers to your history of significant substance abuse, as I have just outlined. She diagnoses you with Stimulant Use Disorder and opines that your history of drug use developed 'as an early maladaptive mechanism'. She states that historically your 'substance use increased at times of emotional distress, suggesting a self-medicating function and poor coping mechanisms'. This was certainly occurring during the offending of 2019 and during past offences.
33In the past you have attended drug counselling, most recently in 2020, which you found very helpful. Ms Cidoni also considers that you meet the diagnostic criteria for Bipolar II Disorder, characterised by depressive and hypomanic episodes. You are motivated to explore your mental health and it is anticipated that you will be referred to a psychiatrist to confirm diagnosis and commence treatment.
34In sentencing you, Ms Schurmann, I take into account all of your personal circumstances.
Criminal history
35You have a relevant prior criminal history. You have appeared before the courts for a range of matters including for driving, drug and dishonesty offences. You have received several Community Corrections Orders and breached them in the past. I note that you have not previously been sentenced to an immediate term of imprisonment. Your prior history is relevant to my assessment of your prospects of rehabilitation and also in particular to the weight to be given to specific deterrence and community protection.
36I was informed by your counsel, Ms Caruso, that you have a subsequent conviction for offending that occurred in a similar time period as this offending.
37On 30 October 2019 you were sentenced to a 12 month Community Corrections Order with a number of conditions, including treatment and judicial monitoring. The order was varied in October 2020 so that you could complete a program that had been delayed due to Covid. You completed the order on 4 February 2021. I have had regard to this subsequent matter. It suggests that you are capable of engaging with and completing an order and that in more recent years, Ms Schurmann, you present as motivated and committed to your rehabilitation.
Delay
38I take into account the significant delay in this matter, some three and a half years. You were arrested and interviewed on 22 July 2019. The filing hearing was on 19 November of that year. You are not responsible for the delay that has occurred, a significant portion of it was due to the brief of evidence having to be re-served due to its initial deficiencies, and for disclosure to be complied with. For this period of time you have remained on bail with this matter hanging over your head. You have not reoffended and there are no outstanding matters.
39While family hardship was not relied upon on your behalf, given the availability of family support, it was submitted and I accept that you would find a prison sentence more burdensome or stressful if you were separated from your young child.
Prospects of rehabilitation
40In all the circumstances I consider that you have reasonable prospects of rehabilitation. Clearly you have previously had extended to you several opportunities to avoid gaol in the past and you have struggled to complete those orders. This raises obvious concerns, however, for over several years now you have remained abstinent from drugs, as I have already noted, not reoffended, complied with bail and completed a subsequent Community Corrections Order.
41I accept that you are a capable and intelligent woman. Ms Cidoni considered that you presented with an overall high average intellectual capacity. You have qualifications and work experience in the areas of disability support and health services. You are currently the fulltime carer of your son, and you recently undertook a nail technician TAFE course. This year, you hope to recommence the Certificate IV in mental health that you previously commenced.
42Ms Cidoni in her report identifies relevant risk factors for reoffending and recommends interventions including psychological treatment and that will lower such risk. I consider that structured treatment support and monitoring will work to enhance your prospects of rehabilitation.
43I also take into account in my assessment of your prospects that you have pleaded guilty to these charges and accepted responsibility. Insightfully you also acknowledged during your Corrections assessment, that it would likely have taken those persons whose identities you fraudulently assumed, some time to clear their names.
Sentencing principles
44The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. As previously noted, I accept that specific and general deterrence are of particular importance in this case.
45I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. Further, I have taken into account the principles of parsimony, proportionality and totality.
46Counsel were largely in agreement as to the relevant sentencing principles and considerations in your case. Your counsel, Ms Caruso, submitted that punishment and deterrence can be achieved without resorting to imprisonment and by the imposition of a Community Corrections Order.
47The prosecutor, Mr Cookson, accepted this was a difficult sentencing exercise and as he put it 'you sat on the knife's edge'. He submitted that a combination sentence was the most appropriate in all the circumstances, but accepted particularly in light of the delay and the utilitarian value of your plea, that a stringent Community Corrections Order was within range.
48In formulating your sentence I have considered all the submissions of counsel including at the plea hearing and the more extensive helpful submissions made by both at the earlier indication hearing. I have also taken into account all of the written material. I have been assisted by the Court's guidance in the case of Boulton[2]. A Community Corrections Order is capable of having a significant punitive and deterrence impact, and in your case, Ms Schurmann, I consider it will assist to foster and enhance your rehabilitative prospects. You were assessed as suitable for an order with appropriate conditions.
[2]Boulton v The Queen [2014] VSCA 342.
Sentence
49So now if I could ask you to stand please. Weighing up all relevant matters, Ms Schurmann, and that includes obviously the matters I have referred to along with the delay in this matter, on all charges you are convicted and sentenced to a Community Corrections Order. I will make that for a period of 22 months, so it is just shy of two years, with the following conditions:
a)160 hours of community work, and I will offset 100 hours against treatment.
b)Supervision, treatment and rehabilitation for drug use and treatment and rehabilitation for mental health.
50Given the sentence I have imposed it is not mandatory for me to indicate to you pursuant to s6AAA what sentence I would have imposed but for your plea of guilty. For your benefit Ms Schurmann I can indicate that but for your plea of guilty, I would have imposed and required you to have served an immediate term of imprisonment, followed by a lengthy Community Corrections Order. So you can be assured that there is value, significant value attached to your plea and that you would have faced an immediate term of imprisonment had you not dealt with the matter in the way that you have, all right. Now you can take a seat.
51HER HONOUR: Thank you. Ms Gorbachinska, if you can please approach Ms Schurmann with that document? Ms Caruso, if you would like to join them, you can. All right, and the office there, that you would have seen Ms Schurmann, is Dandenong Community Corrections Office. You need to attend first of all within two working days, all right. Copies will be provided both to Ms Schurmann before she leaves court, and to counsel. Thank you, Mr Cookson, Ms Caruso. We will adjourn court.
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