Director of Public Prosecutions v Simpson

[2023] VCC 1129

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02123

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DONNA SIMPSON

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 June 2023
CASE MAY BE CITED AS:	DPP v Simpson
MEDIUM NEUTRAL CITATION:	[2023] VCC 1129

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:                        Crimes Act 1914 (Cth); Criminal Code 1995 (Cth)

Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169; R v Schwabegger [1998] 4 VR 649; R v Host [2015] WASCA 23; R v Massey [2015] QCA 254; R v Latemore [2019] QCA 55; Rowan (a pseudonym) v The King [2022] VSCA 236; R v Runjanjic (1991) 56 SASR 114;

R v Merett, Piggott & Ferrari [2007] VSCA 1; Duncan v The State of Western Australia [2018] WASCA 154; Hughes v R [2011] NSWCCA 226

Sentence:2 years and 6 months imprisonment with release after 5 months on a Recognizance Release Order; Reparation Order in the amount of $$340,091 to the Commissioner of Taxation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Piechutowska	Office of Public Prosecutions
For the Accused	Mr S. Norton	Stary Norton Halphen

HIS HONOUR: 

1Donna Simpson, you have pleaded guilty to the following charges which carry the following maximum penalties:

Charge No.	Offence	Maximum Penalty
1	Dishonestly obtain financial advantage by deception; s.134.2(1) Criminal Code (C’th)	10 years or a fine of 600 penalty units ($126,000) or both
2	Attempt to dishonestly obtain financial advantage by deception; ss.111.1(1) & 134.2(1) Criminal Code (C’th)	10 years or a fine of 600 penalty units ($126,000) or both
3	Knowingly use a false document to dishonestly influence the exercise of a duty or function of a C’th public official; s.145.1(1) Criminal Code (C’th)	10 years or a fine of 600 penalty units ($126,000) or both

2Each of the charges is a single 'rolled-up' charge, containing a number of identifiable instances of offending.  I will say more about that later in these remarks.

3You have no criminal history and no subsequent or outstanding matters.

Circumstances of offending

4The Crown tendered the summary of prosecution opening as Exhibit A.  Your offending is comprehensively detailed in the Crown opening.  I shall only outline enough of your conduct to make sense of each of the charges.  A summary of your offending is as follows.

5You are a qualified and experienced chartered accountant and tax agent and you hold a Bachelor of Commerce from the University of New England.

6You were 38 years old at the time of your offending.

7At the time of your offending, you were in an abusive relationship with your ex-husband.  In March 2017 he had been diagnosed with Post Traumatic Stress Disorder (‘PTSD’) after his military service in East Timor.  The two of you lived with your son, who was then aged five years of age.  It is apparent from the material that you were the sole financial provider, as well as the carer for your child, while subject to physical and emotional abuse from your alcoholic husband.  It is apparent that the relationship was caught in a 'cycle of problems, separation and reconciliation [which] repeated itself'.  And I quote Patrick Newton, psychologist, there.  This narrative does not form part of the Crown opening, but I add it as an important background consideration against which your offending occurred.

8Although you were both originally from Queensland, in 2016 you and your then husband took over the running of a café in Albert Park.  Your husband did not particularly contribute to the business but spent his time spending money on alcohol and drinking stock from the café.

9In the period from mid-June 2017 to 31 August 2017, you opened 22 bank accounts and registered 19 entities for the purpose of providing a basis upon which to make false claims for GST refunds.  In the period, in your capacity as the tax agent for the café business, you lodged 64 false Business Activity Statements (‘BAS’) and received $340,091 in purported GST refunds from the Australian Tax Office (‘ATO’).  That is Charge 1.  Some of those BAS statements - I realise that is tautological - fraudulently sought payment of a further $146,990 which was not paid.  That is Charge 2 , the attempt.

10You used the refunds to pay off your home loan, credit card debts, rent and café business expenses, superannuation and personal expenses, bills and earlier ATO debts.

11Between about 14 July 2017 and to about 6 September 2017, the ATO notified you of an audit of all 19 trust entities.  The date provided to me in submissions by Ms Piechutowska was 20 July.  Between 4 August 2017 and 20 September 2017, you created and sent to the ATO false documents purporting to show the existence of 16 trusts and supporting documents.  The documents you created included false trust deeds, minutes of meetings and GST detail reports, including false invoices and false MYOB files.  That is Charge 3, use false documents.  Some trust deeds were signed by your former partner.  He told investigators that he signed them without reading them.  Others were purportedly signed by a friend of yours who did some bookkeeping for you.  Your friend told investigators that she did not settle, sign or create any trusts deeds.

12ATO investigators offered you through your lawyers the opportunity to participate in a record of interview in late March/April 2021.  You did not make a record of interview.

13There has been no reparation made.

Chronology

14The Commonwealth Department of Public Prosecutions (‘CDPP’) provided me with a chronology of the investigation:

25/07/2017 to May 2018

ATO conducted an audit of the 19 entities.  

Feb to Dec 2019

ATO conducted a criminal investigation into the 19 entities.

30/08/2021

Brief referred to the CDPP.

11/05/2022

Offender charged on summons with 58 charges:

14 x obtaining a financial advantage by deception (s.134.2(1) Criminal Code Cth)

22 x attempting to obtain a financial advantage by deception (ss.11.1 and 134.2(1) Criminal Code Cth)

22 x use false documents (s.145.1(1) Criminal Code Cth)

Unsuccessful service attempts throughout June and July 2022.

22/08/2022

Filing Hearing.

HUB served on defence on 9 August 2022

HUB to be filed with the court on 23 August 2022.

COMMEN: 14 November 2022

27/10/2022

Plea offer received from defence.

Accepted 4/11/2022.

06/11/2022

Committal Mention.

 Matter resolved into a plea of guilty to three rolled up charges and proceeded as a straight HUB.

2/06/2023

Plea hearing.

15So the ATO stopped the payment of nearly $147,000 in falsely claimed GST refunds in September 2017, but it took their investigators and audit team until May 2018 to refer the matter to the criminal investigation branch of the ATO. 

16From there it would seem that the ATO did not commence its investigation for another eight months, until February 2019, and then understandably it took 10 or 11 months to complete the investigation in December 2019.

17But the criminal investigation branch of the ATO did not refer the matter to the CDPP until 30 August 2021.  This amounts to a delay of 20 months after the end of the ATO’s criminal investigation, adding to the time that it took, the earlier delay of some eight months for the ATO to commence its criminal investigation.

18The CDPP filed charges eight months after the matter was referred to it and there can be no criticism of the Commonwealth for the time it took.  Nor can there be criticism of the time the ATO took to audit the matters, nor can there be criticism of the time the criminal investigation branch of the ATO took to conduct their criminal investigation.  My focus of concern is on the delay in the referral between the ATO audit and the ATO criminal investigation branch then after the criminal investigation, the delay in passing the matter from the ATO to the CDPP.  I will have a deal more to say about that when it comes to sentence.

19All in all, it is now six years since the crimes were commenced and five years and nine months since the ATO first suspected fraud and stopped the payments of GST refunds.

Objective gravity and moral culpability 

20I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability. 

21The maximum penalty for each of the charges to which you pleaded guilty is 10 years' imprisonment.  As I stated earlier, each of the charges to which you have pleaded guilty to is a rolled-up charge containing multiple instances of identifiable offending.  The maximum penalty for each charge remains the same, but the law requires me to consider all the circumstances of the offending, including the time over which the offending occurred and the totality of your offending contained in each charge.

22Your offending drew extensively on your training and experience as a tax agent.  You created documents and you were able to successfully perpetrate your fraud because of your familiarity with ATO requirements.  Moreover, you made declarations and signed the document as a registered tax agent.

23The crimes are made more serious by the fact that you used the signature of your partner, who told investigators that he signed documents without reading them, and you falsified the signature of a friend in order to complete the documents.

24The courts take seriously fraud committed on the public revenue.  The crimes are notoriously difficult to detect because of the self-regulatory nature of the tax system and for the fact that a level of trust is reposed in tax agents and accountants.

25Your offending was sophisticated and detailed:  I was told you created 239 documents in order to perpetrate Charges 1 and 2 and approximately 90 documents in order to perpetrate Charge 3.

26Moreover, you continued to offend after being made known of the audit.  Ms Piechutowska told me in submissions that you were first contacted by the ATO auditors on 20 July 2017 and yet after that date you established six entities after that date and lodged 22 BAS.  So the point is clear you kept offending after you knew that the ATO were on to you.

27The sentencing objectives require me to consider the protection of the revenue:  generally offending of this type must be met by principles of general deterrence, denunciation and just punishment.

28In assessing your moral culpability for your offending I take into account that the CDPP concedes that although you gained financially from your offending it was not motivated by greed as normally understood.  You did not spend on luxury items or lifestyle.  You made contributions to your mortgage, although your house was ultimately sold to pay for business debts; you purchased food and essential living items; you paid café debts and you paid a previous tax debt or debts of $160,000.

Personal circumstances

29I turn now to your personal circumstances.  You are 44 years old, being born in March 1979.

30You are currently unpartnered and reside in Ballandean, Queensland with your only child, in a house on the same property as your mum.

31You were born and raised in rural Queensland with your parents and older brother.  You grew up on a farm near Ballandean and you described your early years as having been spent in a 'typical Australian farming family' with a 'loving mum and dad'.  Your father died of cancer in 2011.

32You stated to Mr Newton, psychologist, that you developed normally within the family and you had never been subject to any form of mistreatment in your family.  There was no family history of alcohol or drug abuse, mental illness, family violence or criminality.

33You attended a local primary school and report being a very good student academically.  Nevertheless, your schooling years were challenging, as they were marked with significant bullying from other students about your weight.

34You attended a local primary school and report being a very good student academically.  Nevertheless, your schooling years were challenging, as they were marked with significant bullying from other students about your weight.

35You attended secondary schooling in Stanthorpe.  Although you enjoyed a supportive friendship circle, you continued to experience bullying and harassment.  You were too fearful of retaliation to ever raise this issue with your family or the school.

36You have battled with anxiety and depression as a result of the bullying you experienced during your schooling, which undermined your self-esteem and your self-confidence.

37Upon completion of your Year 12 studies, you obtained a Bachelor of Commerce at the University of New England, followed by certification as a chartered accountant.

38You commenced your career working primarily as an accountant at two accounting firms.  In 2011 you began your own bookkeeping company until 2018.  In and around mid-2016, you and your former husband moved to Melbourne, owning and operating a café in Albert Park until early 2018 when the business went into liquidation.

39At that time you relocated back to Queensland and you have been employed as an accountant since 2018.  You reported to Mr Newton that your current employer is fully aware of the charges you are pleading to and in fact I have a character reference from Mr Donges.

40You commenced your first and only significant relationship in 2007 when you met your former partner, Matthew De-Caire.  You were married in 2015 and had one child together, Bronson, who is now aged 11.  You were the sole breadwinner for the household from the outset.

41You have described Mr De-Caire as an alcoholic through your relationship, who was physically, verbally, psychologically and emotionally abusive towards you.

42A domestic violence protection order was made against Mr De-Caire in Queensland in 2012 and an intervention order was made in Victoria in 2017 in relation to threats made and physical violence against you.  Mr De-Caire continued to contact you despite these orders and eventually resumed residing with you until your separation in 2018.

43You reported walking out of the relationship in 2018 with your child, your dog and a washing basket of clothes.  You returned to your mother's home in Queensland and got a job with your original employer.  Mr De-Caire made some effort to stay in contact with your son, but I am left with a firm impression that his efforts were half-hearted and unreliable.  The contact was usually arranged to take place a number of hours drive from your home, and on occasions, including the last occasion, arrangements were made but Mr De-Caire did not show up.  He has not seen his son since an element of drug testing was introduced into the access arrangement.

44In anticipation of a prison sentence today, you have had a parenting plan in place for a number of years.  Your son will be cared for by family members in your absence.

45Mr Newton states that your existing anxiety and depression were further exacerbated by your abusive relationship with Mr De-Caire.  This culminated in a formal diagnosis of PTSD in 2018 by Dr Sarah Young.  It was not until your relationship ended that you began to receive effective treatment for your mental health conditions.

46I have received eight references from a number of your family, friends and community contacts and, importantly, from your employer Mr Alan Donges.  All speak to the active role you play in the Ballandean community and your endeavours to provide a stable, happy home for your son.

47Your employer Mr Donges notes your resilience in the face of this offending but concedes that the perception of you by some people in the community due to this has had a negative effect on your psychological state.  Nevertheless, he notes that this has not stopped you from giving your community 'more time than would reasonably be expected'.  That Mr Donges continues to employ you in a non-accounting role and has supported you in accessing counselling sessions to assist your work is also telling.

48Likewise, Mr Alan Cox, president of the Ballandean Parents and Citizens Association noted your willingness to discuss the charges you are currently facing, to ensure Bronson has adequate support and is able to maintain his current social life in the face of your prospective imprisonment.

Psychological evidence

49Mr Patrick Newton gave evidence before me in addition to tendering his report dated 26 May 2023.  Mr Newton outlined his diagnosis of you suffering from PTSD caused by family violence in your relationship with Mr De-Caire and exacerbating your long-standing anxiety and depression.

50Mr Newton considers your anxiety and depression stems back to your childhood experience of bullying and harassment at school due to your weight.  These in turn led to and fed your low self-esteem and self-confidence, none of which were treated during your school and university years.

51Mr Newton considers that your relationship with Mr De-Caire was marked by constant cycles of problems arising in the relationship, separation and then reconciliation, which is typical of your personality and typical of family violence victims generally.  The verbal and physical abuse which you suffered diminished your confidence and self-esteem, leading to fear and distress, which then lead to PTSD.

52Mr Newton considers that your PTSD now manifests in recollections of the trauma causing distress to you and further causing you to avoid emotional experiences and interaction.  Your PTSD requires ongoing trauma-focused treatment.  You have been receiving some counselling sessions, I note.

53Mr Newton stated that there is some treatment available in custody, but it is heavily subscribed; it is therefore subject to a long waiting list of six to 12 months and even then the treatment that is available is rationed.  Given the likelihood that you would receive no or little treatment, Mr Newton considers that your PTSD symptoms would be exacerbated in prison, leading to more frequent panic attacks, traumatic recollections and general anxiety.

54Although with treatment your condition has somewhat reduced, your anxiety remains an issue of concern.  You are anxious at the prospect of being separated from your son and you are anxious for your own safety in custody.

55Although Mr Newton considers that you meet the criteria for major depressive disorder, he does not consider that it is severe at present, but it still requires treatment and serious intervention. 

56Mr Newton considers that the time in custody would remove the family support you have available, as your family will remain in Queensland.  You would be removed from caring for your son and you would be substantially isolated by your time in custody in Melbourne. 

57These factors are likely to lead to an increase in your anxiety and depression and to your PTSD.  These factors together will increase the burden of imprisonment on you.

58Mr Newton was asked whether your PTSD had an effect on your offending.  He said that he considers that your anxiety increased in the midst of family violence and therefore defeated your ability to reflect and arrive at viable alternative solutions.  Your anxiety and depression in the prolonged relationship characterised by domestic violence made it difficult for you to see choices.

59It is by this evidence that Mr Norton, who appeared on your behalf, submits that there should be 'some' moderation of general deterrence and that limbs 5 and 6 of Verdins[1] are enlivened and made good.

[1] R v Verdins [2007] VSCA 62.

Submissions

60Mr Norton who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

(a)Your plea of guilty was made at the earliest opportunity;

(b)Through your actions and some statements to those who provided references, you expressed remorse;

(c)There is the operation of the Worboyes[2] principle for offering a plea of guilty during the time of the COVID pandemic;

[2] Worboyes v The Queen [2021] VSCA 169.

(d)There has been considerable delay in the prosecution of these matters;

(e)You are person of otherwise good character and you have no prior convictions or matters outstanding;

(f)You have lost your career path as an accountant and tax agent;

(g)You committed the offending during the period of and in the context of family violence;

(h)You have tremendous family support;

(i)I must take into account your mental health issues and that prison will exacerbate the difficulties you experience such that Verdins limb 5 and 6 have effect;

(j)You suffer from rheumatoid arthritis and an autoimmune condition such that imprisonment and separation from your child is likely to result in 'flare-up' of symptoms;

(k)There is the issue of family hardship.  You will suffer not only from this separation from Bronson and the entire family network but they will be in Queensland with no real ability to visit you;

(l)Of course Bronson will have to be placed into the care of family, which will make your imprisonment more burdensome at least from your perspective; and

(m)Your prospects of rehabilitation should be assessed as excellent:  you have a lack of prior convictions, given your age, positive good character, and you were assessed at low risk of reoffending by Mr Newton.

61Ultimately, Mr Norton submitted that I could impose a sentence which does not involve an immediate term of imprisonment.  Alternatively, if a period of imprisonment is imposed, the mitigating factors in this case should have a hard, what he called, 'pull-down' effect on the objective seriousness of your offending, meaning that the term of imprisonment imposed should be considerably shortened.

62Ms Piechutowska submitted that your offending must be met by an immediate term of imprisonment but that an order which permits release on a recognizance release order, that is a head sentence of under three years, is appropriate to meet the objective principles of sentencing in this case.  The CDPP submits that the deterrent and punitive effect of sentencing must be reflected in both the head sentence and the release period; however, mitigatory considerations may cause an adjustment of both the head and serving periods.

63The Crown through Ms Piechutowska conceded the following factors as mitigating:

(a)That your financial gain was not motivated by greed as it is usually understood;

(b)That there will be family hardship, that is you will be isolated from your family by serving a period of imprisonment in Victoria and the fact that you will not be able to care for your son is a relevant factor but should not be given undue weight and cannot dominate the objective principles of sentencing, which I referred to in my analysis of the objective gravity of your offending;

(c)That delay is a relevant factor but cannot be given much weight;

(d)The Verdins limbs 5 and 6 are enlivened, but the evidence falls short of allowing a moderation of general deterrence.  The offending was sophisticated, organised, deliberate and sustained.  You undertook your offending as a tax agent, drawing on your knowledge and your experience; and

(e)Finally, without summarising all of the Crown submissions, Ms Piechutowska provided me a number of comparable cases.

Analysis

64I turn now to my analysis. Section 16A Crimes Act (Cth) requires me to impose a sentence of appropriate severity in the circumstances of your offending. I am obliged to take into account the nature and circumstances of your offending, your personal circumstances; any expression of remorse whether by reparation or otherwise; your plea of guilty including the timing and benefit to the community; considerations of deterrence and adequate punishment; your character, antecedents, age, means and physical and mental condition; your prospects for rehabilitation; and the effect of the sentence on your family.

65In this case I accept that your plea of guilty has utilitarian benefit, is attended by remorse and it facilitates the course of justice.  Although you are unable to make reparation, I accept the statements you have made to friends and family in which you express your remorse.

66On the question of failure to make reparation, I accept that the money you received was used either to stay afloat, if I can use that term, or to at least stop from sinking further.  I am satisfied that after the offending was concluded and the relationship was over you walked away with no assets, no money and that your return to the family and Ballandean was necessary for not only family emotional and psychological support but also for financial support.

67I take into account the offer of the plea during the pandemic such that the Worboyes principles have effect.

68I accept that the delay in this case does not require particular attribution of blame on either party, although I do intend to say a deal more about it in a few minutes.  I accept that the offending occurred in a very particular context and that you have since reordered your life.  To this extent the delay has contributed to proving that your prospects for your rehabilitation are excellent.

69I am satisfied that limbs 5 and 6 of Verdins are enlivened.  The more difficult question is whether general deterrence should be moderated even to a slight extent.  I accept the aspect of the Crown's submission that your offending was sustained, detailed and continued even in the face of notice of an ATO audit.  It undoubtedly drew on your training, knowledge and position as a tax agent.  Against this, as I have stated, Mr Newton concludes that you were suffering from PTSD at the time of your offending, your relationship with Mr De‑Caire was still extant and still contributing to the problems which led to your offending and you were subject to regular domestic violence.  As such, your problem solving and choice making was impaired.

70It is necessary to set out further details of your relationship with Mr De-Caire which set the background to an foundation for your offending.

71First, your offending was committed entirely within the period of your abusive relationship and when you remained subject to Mr De-Caire.  He contributed to the initial predicament in that the decision to move to Melbourne was jointly made by him; the café venture was a venture between the two of you; he did not work towards its success by any meaningful contribution of work or effort once you had taken on the business.

72I was told that he prevented you from selling your home in Brisbane, meaning that you continued to have to make mortgage repayments for this property.  You then had to rent the café in Albert Park.  You then had to rent your home in Port Melbourne and then you were forced to lease a further property in Port Melbourne to ensure that Mr De-Caire did not breach the family violence intervention order, although he apparently did so on a daily basis by his continued presence in the family home.

73Mr De-Caire drank alcoholic stock from the café and was often alcohol-affected.  You described that you worked long hours in the business and then came home to an abusive partner.

74Further, I was told that when the ATO notified you of its audit on 20 July 2017 it was Mr De-Caire who told you to 'keep going'.

75In these ways, he forcefully encouraged the offending as well as perpetrating family violence and therefore perpetuated your PTSD.

76I am satisfied that the offending took place against the constant background of family violence constituting physical and emotional abuse and threats.  Mr Newton made it clear that these contributed to your depression and anxiety at the time when you were raising a young boy, virtually on your own, 1800 kilometres from your wider family support.  In this way, and given Mr Newton's unchallenged evidence, you were living with PTSD at the time of your offending.

77I consider that the PTSD as outlined by Mr Newton is capable of constituting an illness to which Verdins applies.  In your circumstances, I am satisfied that the PTSD is causally linked to your offending and that practically speaking, drawing on Mr Newton's opinion and I interpolate I think there is few if any better forensic psychologists in Melbourne, it degraded your decision-making processes and the choices you made.

78I consider that your illness should be recognised to moderate general deterrence; however, I make the point as clearly as I can that the moderation can only be relatively slight.

79I further consider that they question of family hardship here is real.  You have had the virtual sole care of your son since he was born.  Your protective bond was always strong but became even stronger when you realised you had to leave the relationship.  Just as you have cared for him, he has become the primary focus of your love and attention.  I consider the wrench from him by serving a period of imprisonment will be real for you both and will cause you considerable anxiety, notwithstanding the knowledge that the parenting plan you have put in place will keep him safe.  I agree with the CDPP that this is a matter of weight, but nevertheless it must be given recognition.

80Let us go back to the question of delay and its effect on sentence.  Going back to the time of Schwabegger,[3] quoting from the case of Duncan,[4] and turning to the Victorian authority of Merrett, Piggott and Ferrari,[5] it has been recognised in Victoria for many years now that delay which is not the fault of the offender can lead to a substantial mitigation of penalty.

[3] R v Schwabegger [1998] 4 VR 649.

[4] Duncan v The State of Western Australia [2018] WASCA 154.

[5] R v Merett, Piggott & Ferrari [2007] VSCA 1.

81I quote back to Vincent J in Schwabegger back in 1998, and I quote back to Vincent because both Merrett, Piggott and Ferrari refers to Schwabegger, Vincent J said at p659:

'Delay which is not attributable to the offender, of course, constitutes "a powerful mitigatory factor" [and he quoted R v Liang and Li].  It can have relevance at a number of levels.  In Duncan, the Court of Criminal Appeal of Western Australia stated [that]:  "Where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

'"The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years [and in this case I interpolate it is six] is rightly prayed in aid on his behalf".

'[His Honour then continued.]  Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other.  For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained'. 

82And His Honour then went on to speak of the 'legitimate sense of unfairness' than can ensue from delay.

83I focus not on the length of time taken in either the audit conducted by the ATO, the criminal investigation conducted by the ATO or the time for review needed by the CDPP.  What I focus on primarily is the 20 months it took the ATO to refer the matter to the criminal investigation branch of the ATO. 

84I was told in submissions that this came about due to understaffing caused by the COVID pandemic and the chaos that the COVID pandemic brought on.  There were two bouts of delay though.  It can be taken up to 28 months, but there is at least 20 months there.  COVID pandemic or not, Federal authorities have an obligation where they call for periods of imprisonment to be imposed on people to act with some alacrity. 

85Now, if the delay had been caused in the audit or the investigation it could be understood; the delay, however, was in the referral.  I consider that to be inexplicable and unacceptable, particularly in circumstances where a period of imprisonment is sought to be served.

86Ms Piechutowska provided me with a number of comparable cases which in her very balanced and considered submissions she made clear were not perfect fit cases.  There was the case of Hughes[6] from New South Wales where a period of parole and non-parole was imposed by the court on the offender.  That offender had prior convictions and of course committed offences whilst on parole, so, for the fact that Hughes was sentenced in a different paradigm to that which the parties submit is appropriate here and for the fact that Hughes had priors and committed the offence on parole, no real comparison can be made there.

[6] Hughes v R [2011] NSWCCA 226.

87In the case of Host[7] from Western Australia, and I thank Ms Piechutowska for her subsequent emails pointing out difficulties and  differences with the case, the Court of Appeal in that case increased the sentence that was imposed and although a recognisance release order was imposed in that case the total sentence was one of three and a half years, which led to some consternation on my part because I could not understand how a term of over three years was imposed.

[7] R v Host [2015] WASCA 23.

88But it became clear that the Court of Appeal again sentenced in a different paradigm, that is with a different maximum available to it than I have to me, and so I consider that Host does not provide a suitable comparison because it was a sentence imposed outside that which the Commonwealth now submits is the appropriate range of sentence available to me. 

89The case of Massey[8] was one where the offender had priors and had no insight, even though the amount of the quantum was lower. 

[8] R v Massey [2015] QCA 254.

90Then there was the case of Latemore.[9]  Latemore is an interesting case because, although the amount obtained by the offender was lower, about half that obtained by you, Ms Simpson, the amount attempted to be obtained was significantly higher, over $1m.  In that case the court imposed a sentence of two years, six months with four months to serve.

[9] R v Latemore [2019] QCA 55.

91In that case the Crown noted that there were similarities between your offending and Latemore's in that both proceeded by pleas of guilty, neither of you had prior convictions, both of you were of good character, both provided false documents to the ATO to substantiate claims, both have good prospects of rehabilitation, although I assess yours as excellent.  Both were assessed has having a low risk of reoffending.  There was the presence of significant mental health issues, including PTSD, depression.  In Latemore there are suicide attempts that had impacted on his functioning to an extent that his moral culpability was greatly reduced.  The differences were the quantum actually obtained, there were fewer claims and the like.

92In this case though I consider that - well, let me start again.  The Court of Appeal in Victoria has made it clear that comparable cases go only so far.  A sentencing judge must not be unduly influenced by the sentence imposed in any other case but must take into account the objective circumstances of your offending and the matters so far as I can that are personal to you and arrive at a sentence appropriate to your circumstances for your offending.

93In this case I take into account the delay that I have already spoken of.  I take into account the fact that you were and are suffering from a significant mental health issue and I take into account, as I have in other cases, the fact that there was uncontradicted expert evidence, the opinion of an expert who I greatly respect, that the chances of you getting suitable treatment in prison are low if not none.

94I take into account your prospects for your rehabilitation.  I consider that it is unlikely to any extent that you will ever offend ever again in any way.  I take into account in that, notwithstanding your prospects for rehabilitation, that you have lost your career entirely. 

95And I take this into account.  In a ruling I delivered in 2019 or 2020 I was asked to rule on duress as a defence where there was, let us call it a low rumble of family violence, and I was criticised by the Court of Appeal and they overturned the decision.  That was a case of Anna Rowan,[10] which has since gone to the High Court.

[10] Rowan (a pseudonym) v The King [2022] VSCA 236.

96It is not a perfect fit here because this is not a case of duress, but this case and the earlier case referred to in Rowan, Runjanjic,[11] reminds us of the insidious effect of family violence on women.  And so it caused me to reflect on the effect of the family violence in this case and I say it cannot be understated. 

[11] R v Runjanjic (1991) 56 SASR 114.

97So I take into account the fact that the family violence meant that you were working long hours and then you had to go home all the while checking on the safety and welfare of your son, all the while going home not knowing, fearing, how your husband would react, whether he would be there, would he be in Port Melbourne, would he be drunk, would he be asleep?  Would he hit you, would he abuse you?  Would he cause you to fear?  Had he spent money on alcohol or other things?  And it is clear that your offending was contained in that bubble of family violence and when you walked away from that relationship in 2018 there was no question but that the offending had stopped. 

98I take into account as real that when the auditors notified you on 20 July 2017 that you were subject to audit that your husband said, 'You've got nothing to lose, go on', knowing that the only one that had nothing to lose was him.  Because he did not care about you or your son and it was not him facing the period of imprisonment, it was you.  All of those matters must be taken into account. 

99Ms Simpson, that cannot save you from a gaol term today, but it will have an effect on the period of time that I order that you must actually serve.  The order of the court will be - I can't see, can you just print the order.

100ASSOCIATE:  Yes, Your Honour.

101HIS HONOUR:  I'm sorry for the delay, but I'll just - I'm sorry.  Before I get to the order, there is another principle I must speak to, Ms Piechutowska.

102MS PIECHUTOWSKA:  Yes, Your Honour.

103HIS HONOUR:  That is there must be regard had to the principle of totality.  That is I must arrive at a sentence appropriate for each of the instances of offending, that is the three charges, taking into account the fact that they are rolled-up charges.  But I must also look at the overall sentence and not impose a sentence that is crushing in the circumstances. 

104So the order of the court takes into account totality and, as a consequence of the nature of Commonwealth sentencing, I must pronounce commencement days for each of the sentences.  As a consequence of that, rather than engaging in calendrical gymnastics, I have decided to impose an element of artificiality in the sentencing process so that I am weighting Charge 1, ordering Charges 2 and 3 to commence today also, but producing an overall total effective sentence which I consider realistic in the circumstances.

Orders

105So the order will be that on Charge 1 you are convicted and sentenced to 30 months' imprisonment.  That is two and a half years.

106On Charge 2 you are convicted and sentenced to 27 months' imprisonment.

107On Charge 3 you are convicted and sentenced to 27 months' imprisonment.

108I order that all sentences are to commence today.  The total effective sentence is a period of two years and six months' imprisonment.

109I order that you be released after serving five months of that sentence, so you will be out by December. 

110Now, Ms Piechutowska, you will need time to review that and to prepare the RRO.

111MS PIECHUTOWSKA:  Yes, a few minutes.

112HIS HONOUR:  Yes.  I'll stand down.

(Short adjournment.)

113Ms Piechutowska.

114MS PIECHUTOWSKA:  Yes, Your Honour.  The sentence appears fine.  I would just like to ask Your Honour to consider the good behaviour bond that's part of the order.

115HIS HONOUR:  Yes.

116MS PIECHUTOWSKA: Yes, Your Honour, and I make an application under s21B of the Crimes Act for a reparation order.  The amount obtained, $340,091, that is to be made payable to the Commissioner of Taxation. 

117HIS HONOUR:  Yes.  Mr Halphen, anything to say about the reparation order?

118MR HALPHEN:  No.

119HIS HONOUR:  Then in relation to the bond did you seek any conditions - the RRO, did you seek any conditions?

120MS PIECHUTOWSKA:  No, Your Honour.

121HIS HONOUR:  All right, thank you.  And you were going to mention a factual error I had made.

122MS PIECHUTOWSKA:  Yes, Your Honour.  Your Honour mentioned AFP.

123HIS HONOUR:  AFP.

124MS PIECHUTOWSKA:  Yes.  There was no involvement of the AFP.  The involvement was of ATO audit teams, which are administrative investigation in nature, who then are fed to the ATO criminal investigation branch and that was the only referral.  And the delay was between the ATO criminal investigations referring it to the CDPP I believe. 

125HIS HONOUR:  Which in my view makes it even worse. 

126MS PIECHUTOWSKA:  Yes, Your Honour.

127HIS HONOUR:  Thank you.  Now, Ms Simpson, I have to ensure that you understand the nature of the order that has been made.  You have been found guilty - you have pleaded guilty and I have made orders in relation to three charges.  The total sentence imposed under the three charges is two years, six months.  You must serve a term of imprisonment.  The term of imprisonment I have imposed is five months.  That sentence commences today.  After that period you will be released from prison and you will serve the balance of the sentence in the community.  Do you understand the terms of the order I have made?

128OFFENDER:  Yes, Your Honour.

129HIS HONOUR:  Thank you.  Is there anything else I need to explain?

130MR HALPHEN:  No.

131HIS HONOUR:  Ms Hausen, what else have I got to do?  Sign?  You want me to sign?

132MS PIECHUTOWSKA:  Excuse me, Your Honour.

133HIS HONOUR:  Yes, Ms Piechutowska?

134MS PIECHUTOWSKA:  Is there a period of ‑ ‑ ‑

135HIS HONOUR:  Good behaviour?

136MS PIECHUTOWSKA:  And any amount attached to that?

137HIS HONOUR:  There will be - the period of good behaviour is for three years.  There is no amount attached to it.  So that means on the order I am crossing out (b) to (e).

138MS PIECHUTOWSKA:  Yes, Your Honour.  All right, have a look at that, make sure that's all right.  I'll make the reparation order as sought.

139MS PIECHUTOWSKA:  And if Your Honour would please state the 'but for' sentence as per Victorian sentencing defines.

140HIS HONOUR:  Yes.  But for the plea of guilty and in the absence of the delay in this case, which is important because it affects the sentence, I would have imposed a sentence of six years with four years to serve. 

141MS PIECHUTOWSKA:  As Your Honour pleases.

142HIS HONOUR:  Yes.  Now I'll give you a moment to explain the document to Ms Simpson and then if she can sign it.

143MR HALPHEN:  I'm grateful, Your Honour, thank you.  Thank you, Your Honour.

144HIS HONOUR:  All right.  Anything else?

145COUNSEL:  No, Your Honour.

146HIS HONOUR:  All right.  Ms Simpson, I am going to ask if you'd be good enough to go with the prison officers now.  Thank you, adjourn.

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