Director of Public Prosecutions v Shawe
[2018] VCC 1264
•13 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-02436
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEATHER SHAWE |
---
| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2018 and 6 August 2018 |
| DATE OF SENTENCE: | 13 August 2018 |
| CASE MAY BE CITED AS: | DPP v Shawe |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1264 |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D Sagnelli | CDPP |
| For the Accused | Mr P McClure | Balmer & Associates |
HIS HONOUR:
1 Heather Shawe, you have pleaded guilty to six charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, six charges of making a false document with the intention of dishonestly obtaining a gain by inducing a Commonwealth public official to accept the document as genuine, and six charges of using a false document with the intention of dishonestly obtaining a gain by inducing a Commonwealth public official to accept the document as genuine. Each offence carries a maximum penalty of ten years' imprisonment.
2 The plea commenced in the Koori Court on 21 May 2018 and was adjourned part heard to 6 August 2018. This was to allow your counsel to present additional material and also to allow for an assessment by a psychiatrist from Forensicare. The plea continued on 6 August 2018.
3 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A.
4 Briefly, between 3 October 2002 and 17 August 2016, you were paid a number of Commonwealth benefits, namely the Family Tax Benefit, Parenting Payment, Carer Payment and Carer Allowance. The payments were made on the basis that you were the mother and care provider to two children: your daughter, Lauren Marsh, and your son Jacob Shane Shawe (Marsh). All the claims involving Jacob Shane Shawe were fraudulent because no such child existed. You created this fictitious child to obtain financial benefits that you were not entitled to receive.
5 Your deception commenced on 4 October 2002, when you lodged a claim for Family Tax Benefit payments, maintaining that you had given birth to a son, Jacob Shane Marsh. As a result of this fraudulent claim you received the Family Tax Benefit for this fictitious child, in addition to money you received for your daughter. Between 3 October 2002 and 18 November 2004, you obtained $12,258.99 in social security payments that you were either not entitled to or only partially entitled to.
6 On 12 December 2003 you lodged a claim for Carer Allowance payments. The basis of this claim was that your fictitious child had cerebral palsy.
7
The claim was supported by a treating doctor’s report stating that Jacob had cerebral palsy. The report was purportedly completed and signed by a Dr Eric Stricklen on 11 December 2003. In fact, you filled in this report, and forged
Dr Stricklen’s signature on the document. You lodged the forged document with Centrelink on 12 December 2003. These offences breached a bond to be of good behaviour that had been made at the Ringwood Magistrates’ Court on 14 May 2003.
8 The payment of the Carer Allowance was granted, and you obtained $5,273.35 in social security payments between 10 November 2003 and 20 December 2014.
9 On 3 November 2004 you appeared at the Ringwood Magistrates’ Court for a large number of offences including theft, obtain property by deception, deal with property suspected of being the proceeds of crime, going equipped to steal and handle stolen goods. You were sentenced to an aggregate term of 15 months' imprisonment with a minimum term of four months before you would be eligible for release on parole. There was 31 days pre-sentence detention declared. All benefits were cancelled upon your incarceration.
10 You were released from custody on 30 January 2005.
11 On 8 February 2005, you applied for the Parenting Payment Single on the basis that your daughter Lauren and the fictitious child Jacob had returned to your full time care. The claim was granted on 18 February 2005 in relation to both children.
12 Lauren’s inclusion in the Parenting Payment Single claim meant that you were entitled to this benefit until Lauren’s 16th birthday on 10 July 2008. However, after that date you obtained $27,130.65 in Parenting Payment Single benefits without any entitlement because the payments related solely to the fictitious child.
13 As well as claiming the Parenting Payment Single benefit on 8 February 2005, you also applied for Family Tax Benefit payments, including both Lauren and the fictitious child Jacob in your application. The inclusion of Jacob made it a fraudulent claim. Between 8 February 2005 and 31 August 2006 you obtained $97,289.55 in Family Tax Benefit payments with respect to the fictitious child.
14 On 18 February 2005, you lodged a claim form for Carer Allowance payments for both Lauren and Jacob. You provided a treating doctor’s report for Jacob and a treating doctor’s report and a medical report for Lauren. The documents maintained that Jacob had cerebral palsy and chronic granulomatous disease and Lauren had respiratory disease and asthma. A Dr Michael Turner purportedly signed these documents on 16 February 2005. However, you completed all three documents and you forged the signatures of Dr Michael Turner before lodging the claims.
15 Between 16 February 2006 and 17 August 2016 you obtained $63,740.66 in Carer Allowance payments without any entitlement.
16 On 14 April 2010, you lodged a claim form for Carer Payment for Jacob. Two medical reports, stating that Jacob had cerebral palsy and severe lower limb deficiencies, supported this claim. The reports were dated 12 April 2010 and 21 April 2010, and were both purportedly completed and signed by a Dr Jon Cook. They were lodged with Centrelink on 14 April 2010 and 21 April 2010 respectively. You completed these documents, forging the signature of Dr Cook on both of them.
17 Between 12 April 2010 and 10 August 2016 you obtained $128,503.29 in Carer Payments without any entitlement.
18 On 28 January 2016 the Department of Human Services received a ‘tip-off’ regarding your dishonest activity. A review of your benefit payments commenced on 23 March 2016, and a formal investigation commenced on 16 May 2016.
19 At a formal recorded interview with police on 29 September 2016 you admitted to making claims and receiving payments in relation to a fictitious child, Jacob, you admitted fabricating information about Jacob such as his date of birth and his medical conditions, you admitted falsifying treating doctors’ reports and lodging them with Centrelink and making up information in respect of the doctors who apparently authored those reports.
20 You were formally charged on 16 August 2017 and entered a guilty plea at the committal mention on 1 December 2017.
21 This is serious offending. It occurred over a period of nearly 14 years. It involved repeated acts of dishonesty. The amount defrauded is considerable, totalling $334,196.49. The offending was sophisticated and involved deliberation and planning. Claims were made for a child who did not exist. It was claimed that the child suffered a disability. In relation to the child that did exist, untrue claims were made about the health of that child. Claims were supported by the production of forged documents. During the period of the offending, you served a period of imprisonment and the payment of benefits stopped.
22 After your release from prison on 30 January 2005, and whilst you were on parole, you renewed your fraudulent claims for benefits on 8 February 2005 and 18 February 2005. This is an aggravating feature of your offending. In April 2010 you made further dishonest claims in relation to the fictitious child. The offending did not stop until you were detected.
23 With offending this serious, general deterrence is the primary sentencing consideration. As superior courts have said in cases of this type, “a strong message must be sent to members of the community who are minded to engage in systematic cheating of the welfare system...that such conduct will not be tolerated by the courts.”
24 Just punishment is also relevant. Fraudulent claims on the welfare system have the effect of undermining public confidence in the integrity of the system and risk demonising those who are in genuine need of assistance. The crime is not victimless. Taxpayers bear the cost of paying for this form of dishonesty.
25 Given your prior criminal history, specific deterrence is also a relevant sentencing consideration. You have a large number of appearances in various Magistrates’ Courts between 1989 and 2007. The majority of the charges relate to dishonest behaviour although there are some drug and traffic offences. You have been sentenced to the full range of orders from good behaviour bonds to gaol terms. Your counsel submitted that it was a matter in your favour that you had not appeared in a court since 2007. The submission loses its force when you consider the period of the current offending.
26 I now move to those matters relating to your personal circumstances and those matters in mitigation.
27 You are 54 years old. You come from a large family, being the 11th child in a family of 14. You were born in Cowra and raised in Liverpool. You are Aboriginal, although you did not become aware of this until more recent times. You had a difficult childhood and adolescence, suffering disadvantage and deprivation.
28 Your family life was harsh. You recall your father as an angry man who was at times aggressive towards your mother and your brothers. You believe he suffered from mental health problems. As a young girl you recall two occasions when he produced a gun in the house. On one occasion he threatened your mother with the gun. You witnessed the aftermath of the suicide of a friend of your parents. The police attended your home on several occasions because of your father’s behaviour. He was a drinker and this fuelled his anger.
29 Your parents separated when you were 12 years old and your contact with your father was limited thereafter. Following the separation, your family circumstances were unsettled with your mother moving regularly between rural Queensland, and various places in New South Wales and Victoria. This affected your education and you left school a few months into Year 7.
30 You gave evidence that you were the victim of significant abuse perpetrated at various times throughout your early childhood and teenage years by four of your elder brothers. Although there is no independent evidence to support your account, I have no reason to disbelieve it. Given the time that has elapsed, it would be unreasonable to expect that independent evidence would be available to support what you have described. Your evidence was consistent with what you told Carla Lechner, a clinical and forensic psychologist, on 2 May 2018 and Dr Mark Joynt, Registrar in Forensic Psychiatry at the Victorian Institute of Forensic Medicine, on 3 July 2018.
31 You also gave evidence that when you were 15 years old you were sexually assaulted by a number of men after work one evening and that the alleged perpetrators were charged but not convicted. Your counsel worked diligently to try and find records to support that allegation. Inquiries with the appropriate authorities have failed to produce any record of this crime. Again, the fact that 40 years has elapsed may provide an explanation for this.
32 Ms Shawe, I am satisfied that you suffered hardship and deprivation in your formative years and this is a matter that allows for some mitigation of sentence.
33 Given your background it is not surprising to hear that you started abusing drugs at a young age. You started using cannabis at the age of 12 or 13. You are still a regular user of that drug. Throughout the 1990s you were a regular intravenous user of amphetamine. You have been diagnosed with Hepatitis C. From the late 1990s to 2013 you were a regular user of heroin. There can be no doubt that the payments you received from the Commonwealth were used to fund your drug use. In 2013 or thereabouts, you went on to a methadone program and that assisted you to overcome your heroin habit. You no longer use that drug. You have not used alcohol heavily or regularly over the last four years.
34 You have had a number of relationships. Three of those relationships have been particularly significant. The first, with Martin Marley, started when you were 19 years old and lasted for some ten years. You had three children, Melissa (now aged 34), Jessica (now aged 32) and David (now aged 30). Two of the children, Melissa and Jessica, were removed from your care when they were young. They were returned to your care when they were aged 12 and 11 respectively.
35 After the breakup of the relationship with Mr Marley you were involved with Donald Withers for a short time. He is your daughter Lauren’s father.
36 You then entered into a relationship with a man called Shane. You described this as a toxic relationship. You were both drug users and, although he was violent towards you, you found yourself unable to leave him. It was not until 2007 or thereabouts that you were able to end the relationship.
37 Ms Lechner conducted tests that revealed you have an IQ of 79, placing you in the borderline/average range of intelligence. This assessment is not easily reconciled with the manner of your offending or the way you participated in the sentencing conversation.
38 Ms Lechner also expressed the opinion that you suffer from a major depressive disorder and complex post-traumatic stress disorder, with the latter arising from a history characterised by exposure to abuse and neglect. However, in a subsequent assessment, Dr Joynt notes that while you frequently vividly remembered the sexual abuse when you were younger, the symptoms abated for some time until you were forced as a result of these proceedings to talk about them. According to Dr Joynt, this has led to you recently experiencing the re-emergence of symptoms that are suggestive of post-traumatic stress disorder.
39
You did not present to Dr Joynt as overly depressed and your condition was not such as to suggest the presence of a major depressive episode. Given
Dr Joynt’s qualifications, his opinion is to be preferred over the opinion of
Ms Lechner. I also accept Dr Joynt's opinion that there is no clear evidence of a credible link between the relevant offending behaviour and your mental health symptoms.
40 You gave an account of your offending to Dr Joynt. You said that prior to the time when the offending commenced you were in a relationship that resulted in you becoming pregnant. I assume that this was with the man named Shane. Because of violence in the relationship, you spent time in a women’s refuge. You then miscarried and when you later saw your partner you were afraid to tell him what had occurred. Instead, you fabricated a story that you had given birth and submitted Centrelink forms for the baby. This is not really a credible explanation for your dishonest behaviour.
41 The prosecutor is undoubtedly correct when he states that your offending was not driven by need. You embarked on a course of elaborate deceptions to obtain money from the Commonwealth with the purpose of supporting your lifestyle. As I have already said, it is an aggravating aspect of the offending that you renewed your dishonesty after your release from prison in late January 2005. It is of no benefit to claim that the offending was related in some way to Shane’s violence or your heroin use. After all, the offending continued for many years after the breakup of the relationship with Shane and it also continued after you had stopped using heroin. It continued until the dishonesty was detected.
42 During the course of the plea your counsel submitted that hardship to family members was a ground for mitigation of sentence. Although the submission related predominantly to Lauren and her children, reference was also made to the circumstances of Melissa and her children. The law says that for hardship to others to mitigate sentence there must be exceptional circumstances. I will discuss this matter now.
43 Until I remanded you on 6 August, you were living in public housing. Your daughter Melissa and her four children were living with you. The housing authority advised you that because of the size of the house, they were not permitted to live with you. However, you allowed the arrangement to continue because you wanted to support the family and you were unsure where else they would live.
44 On this point, it is significant that your daughter and her family are currently being supported through “The Orange Door” program. This is a recently funded government initiative to provide coordinated assistance to women and children who are experiencing family violence, or to those families who need assistance with the care and wellbeing of their children. The Victorian Aboriginal Child Care Agency are also involved in supporting the family. I can be reasonably confident that those organisations will ensure accommodation is found for the family.
45 Whilst I accept that you have been a good support for Melissa and her family and that they have benefitted from your assistance in recent times, any hardship caused to them by your imprisonment does not meet the requirement of exceptional circumstances.
46 Your daughter Lauren has four young children aged between three years and eight years. Between November 2016 and 6 July 2018 two of those children, Alex and Tobie resided with you on a voluntary placement, returning to their mother every alternate weekend and during the school holidays. The Department of Health and Human Services supported the arrangement because of their protective concerns for the welfare of the children in your daughter’s care. Both children have significant health and behavioural problems that stem from early childhood trauma caused by their father who was violent and abusive. It is appropriate that he has not been involved in their lives for some years.
47 In addition, your daughter Lauren has complex mental health issues and it has been difficult for her to be the full time carer of the two boys. Understandably, she has relied heavily on you for support. The situation is made more challenging because her current partner (and father of the youngest child) also has mental health difficulties.
48 On 6 July 2018 you returned the children to their mother’s care. You did this because you anticipated receiving a sentence of imprisonment and you wanted some time to support your daughter with the children in her care. You are understandably concerned about the prospect of Lauren not coping and the two boys being removed from her care. Lauren is also concerned that she may not be able to cope if you are in prison.
49 The prosecutor quite properly conceded that there will be hardship for your daughter Lauren and her children should they be separated from you. There is no doubt the two boys have benefitted from living with you. They have made significant improvements in their social and emotional development whilst in your care. However, the children are now back in their mother’s care and have been since 6 July 2018. The Department of Health and Human Services are aware of these arrangements and the Victorian Aboriginal Child Care Agency is involved. That agency is supervising the family and will obviously offer appropriate supports and services to preserve the children within the family.
50 Given these facts, and in the absence of any other evidence, the circumstances of hardship to your daughter and grandchildren cannot be said to meet the standard required by the test of exceptional circumstances.
51 This does not mean that the matters I have just discussed are not relevant to your sentence in other ways. They clearly are. First, the hardship your children and grandchildren may experience while you are in prison weighs very heavily upon you. This is particularly so in relation to the two boys, Alex and Tobie. You have devoted the last 21 months to effectively and capably caring for them. You clearly forged strong bonds with them and they with you.
52 A number of written references have highlighted the dedicated and attentive care that you provided and the positive way the boys responded. You are understandably fearful of what may happen to them if the placement with their mother breaks down. You feel distressed at the loss of the relationship and how you have let your family down. There must be appropriate moderation of sentence to accommodate these facts.
53 Secondly, your role as a competent and effective carer for your two grandsons shows real and positive progress towards rehabilitation. It is very much to your credit that since your detection for this offending you have been totally focused on supporting your children and grandchildren. In this regard it is also important that you have not relapsed into heroin use or the excessive use of alcohol; you have not committed any further offences; you have engaged in programs to reconnect with your Aboriginal heritage and you have actively participated in other programs to rebuild your life. Given these developments, I am satisfied that you have good prospects for rehabilitation.
54 You cooperated with the authorities during the investigation and made admissions. You have entered an early plea of guilty. Your plea is an acceptance of responsibility for the offending. It has saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
55 You consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before Elders from the Koori community. The process is described as a “sentencing conversation.” It was apparent to me from the way you participated in the process that you appreciate the seriousness of what you have done. I give you credit for your participation in the Koori Court process. The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.”[1] Participation in the process is not easy. Indeed it is challenging and your positive participation in the process is a factor that is relevant to sentencing.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
56 Finally, I accept Dr Joynt’s opinion that you currently present with ongoing distress in the context of your past experience of significant abuse. Your debilitating anxiety and post–traumatic stress reactions make it likely that prison will be more onerous for you than it would be for someone without those conditions. This also is a matter that mitigates sentence.
57 Your counsel submitted that an imprisonment order with immediate release would be appropriate in this case. He relied particularly on your plea of guilty, your personal circumstances, your important role in supporting your children and grandchildren, your good behaviour over recent times and your good prospects for rehabilitation.
58 The prosecutor submitted that notwithstanding the matters in mitigation, the seriousness of this offending and your prior criminal history meant that the only appropriate sentence is an immediate term of imprisonment.
59 Ms Shawe, as important as the matters in mitigation are, your offending is so serious that it must be marked by the imposition of an immediate and appropriate term of imprisonment. No other sentence would be appropriate in this case. At the risk of repeating what I have already said, your offending was elaborate and planned. It occurred over many years and involved repeated acts of dishonesty. A very large amount of money was obtained. General deterrence and just punishment are central sentencing considerations. Given your prior criminal history, specific deterrence is also highly relevant. I recognise, of course, that the matters in mitigation are not insignificant. I have taken them into account when fixing the period of imprisonment and the non-parole period.
60 Will you please stand. On Charges 1 to 4, convicted and sentenced to an aggregate term of 12 months' imprisonment. This sentence is to commence immediately.
61 On Charge 5, 18 months' imprisonment.
62 On Charges 6, 7 and 14, 24 months' imprisonment on each charge.
63 On Charges 8, 9, 10, 11, 12, 13, 15, 16, 17 and 18, 15 months' imprisonment on each charge.
64 I order the sentence on Charge 5 commence three months after the commencement of the sentence on Charges 1 to 4.
65 I order the sentence on Charge 6 commence three months after the commencement of the sentence on Charge 5.
66 I order the sentence on Charge 7 commence three months after the commencement of the sentence on Charge 6.
67 I order the sentence on Charge 14 commence six months after the commencement of the sentence on Charge 7.
68 The sentences on Charges 8 to 13 and 15 to 18 commence immediately.
69 This makes a total effective sentence of 39 months. I fix a minimum term of 15 months before you will be eligible for release on parole. I declare seven days pre-sentence detention.
70 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty you would have been sentenced to a term of imprisonment of five years with a non-parole period of three years.
71 Do you understand what has happened, Ms Shawe?
72 OFFENDER: Yes, I do, Your Honour.
73 HIS HONOUR: Yes, thank you. Take a seat there for the moment, Ms Shawe.
74 MR SIGNELLI: Your Honour, the Crown made an application for a reparation order under s.21B of the Crimes Act. I have provided a form to Your Honour's associate but of course I have got the hard copy here.
75 HIS HONOUR: This is an appropriate case to make the reparation order.
76 MR SIGNELLI: Your Honour, the reparation order essentially creates a civil debt between the accused and the department. It does not have any impact on how the sentence is going to be served.
77 HIS HONOUR: Yes, I understand that.
78 MR SIGNELLI: I have instructions to make that application, Your Honour.
79 HIS HONOUR: Yes. Mr McClure, do you want to be heard on it? You can't resist it, really.
80 MR McCLURE: No, Your Honour.
81 HIS HONOUR: I will make the reparation order in the amount that is sought. Do you have a copy of the order?
82 MR SIGNELLI: Yes, Your Honour. Given the reparation that has been made, and there has been reparation between the first plea and today, the amount is now $326,939.99.
83 HIS HONOUR: Ms Shawe, if you will stand again, please. You will be ordered to make reparation to the Commonwealth in the amount of $326,939.99.
84 OFFENDER: Yes, Your Honour.
85 HIS HONOUR: Thank you. Just take a seat there while I sign this order.
86 Ms Shawe can be removed, thank you.
---
0