Director of Public Prosecutions v Snelleksz & Taylor
[2023] VCC 2228
•4 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00562 & CR-22-00563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
HEATHER SNELLEKSZ AND REBECCA TAYLOR
---
JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2023 and 16 November 2023 | |
DATE OF SENTENCE: | 4 December 2023 | |
CASE MAY BE CITED AS: | DPP v Snelleksz & Taylor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2228 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: Plea – Obtaining Financial Advantage by Deception – Deterrence – Denunciation – Punishment – Just and Appropriate Sentence.
Cases/Reports Cited: Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342.
Sentence: Rebecca Taylor – Total Effective Sentence of 8 months imprisonment and 4 year CCO.
Heather Snelleksz – 3 year CCO.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Haywood | Office of Public Prosecutions |
For the Accused Snelleksz | Ms F. Livingstone-Clark | Emma Turnbull Lawyers |
| For the Accused Taylor | Ms D. Price | Theo Magazis Lawyers |
HIS HONOUR:
1 Rebecca Taylor and Heather Snelleksz you have both pleaded guilty to two rolled up charges of obtaining a financial advantage by deception. The facts and circumstances of your joint offending was set out in a detailed Prosecution Summary. You Ms Taylor were the principal offender. Your daughter, Ms Snelleksz assisted you, but played a much lesser role.
2 The broad overview of your offending was that you Ms Taylor operated a company, TayTell Pty Ltd, that provided training to those in the workforce. By and large the training involved basic office skills. In the provision of that training you gained access to the details of a large number of individuals who had enrolled and received the basic office training from your company or related organisations.
3 You negotiated and obtained contracts from two TAFE organisations to provide training and certification of students in Certificate IV Engineering. You were not in the least qualified to provide any level of engineering training. You then used all the personal information you had obtained from those who had done the office training courses to purport to enrol those people in a Certificate IV Engineering course. You then falsely declared to the administrators of the TAFE institutions, that each of those individuals had undergone a very significant number of hours of training provided by your company. You then falsely asserted they had completed all requirements to receive the relevant qualification as Certificate IV Engineers. The steps of enrolling, then providing the educative training, and finally the certification of their success were the necessary steps for you to then be paid per student and per hour of training. At each step you were brazenly dishonesty. The payments to you from public monies were very considerable.
4 Tertiary training provided by the TAFE sector is vital to the economy and to individuals seeking work, or promotion, or advancement in employment. Education, in this area, is usually provided by TAFE staff who spend long hours teaching and passing on industry experience. It is expensive and our governments subsidise institutions, and thus the students, so as to ensure there is a better trained workforce. It seems that with tight budgets, TAFE colleges by necessity, contracted out training and education to third-party providers.
5 This way of operating is potentially a solid source of income for legitimate third-party providers who are contracted by TAFE institutions to provide the training, and do so in a competitive environment, and in accord with proper education standards.
6 But for the criminally motivated, it is lucrative if individuals like you, simply use personal information gained from other sources, and deceptively assert that training was provided when it was not. It is literally taking significant amounts of public money for doing nothing.
7 The first TAFE college that you defrauded was the South West TAFE based in Warrnambool. In early 2013 you were introduced to a Maurice Molan, the senior employee at South West TAFE, who was responsible for third party contracts and agreements. Mr Molan was integral in your company securing the contract, notwithstanding there was no evidence of either of you, or your company, having any capacity to deliver the training.
8 You, Ms Taylor had been in middle management at Metro Trains Melbourne in the area of staff training. You, Ms Snelleksz, were a hairdresser by training and salon manager. As noted, your company TayTell did provide training to various organisations and employers for fees. You Ms Taylor were a consultant with a company called Zinfra Pty Ltd. You had while at metro trains met and dealt with a Nicole Clifford, who provided a basic office type training called ‘Six Sigma Business Improvement’.
9 You also knew another individual from Metro Trains who by 2013, worked for Zinfra and also at Jetstar Airlines.
10 This is part of the general background that facilitated you being able to execute the frauds.
11 Returning to South West TAFE, you were able to secure the contract to provide engineering training with Mr Molan’s help. He ultimately pleaded guilty to a charge of misconduct in public office for recording that you, Ms Taylor, were qualified to provide the engineering training, despite him knowing that there was insufficient information to that effect. Mr Molan was very cooperative with all aspects of the investigation into the frauds. He, following a plea of guilty, was sentenced on 12 September 2023 to a fine without conviction. This penalty was one that the prosecution submitted on Mr Molan’s plea was appropriate. I will say more of the importance and value of submissions of the prosecution as to penalty in both your cases as well.
12 Once you had the contract, you then commenced to use personal information provided by individuals who had undergone some other basic office training, as part of the organisation Zinfra, to then populate spreadsheets ultimately submitted to South West TAFE as proof of Certificate IV Engineering training. These individuals had been required to fill out enrolment forms as part of the office skills training, and they had done so. They were required to provide other personal identification supporting documents. In total there were 134 individuals whose details were used. Not one of them had agreed to be enrolled in South West TAFE in Certificate IV Engineering. Not one them knew the information they provided for the simple Sigma Six training was used to fraudulently secure significant fees from South West TAFE. In some instances, individuals were said to be employees of Zinfra when they were not.
13 In total, what was claimed by you, was 134 individuals had been provided with a total 132,740 hours of Certificate IV Engineering training.
14 Although no training was provided, you sent invoices to South West TAFE for $1,824,134.40 which was ultimately all paid.
15 The only effort, if it could be called that, was what you both saw as the tedious but lucrative task of filling in forms and spreadsheets with false information to get the payout. You Ms Snelleksz played a role in this aspect of the offending.
16 The text message communications between you both, and with a previously charged individual Nicole Clifford, whose charges were later discontinued, were telling as to your awareness that you were scamming the system. Excerpts from the text message exchanges contained in the prosecution opening were shameful. You, Rebecca Taylor, wrote of the task of filling in false documents to be submitted to South West TAFE as ‘a sausage factory’ to get the money. You checked in with Ms Snelleksz by asking: ‘How is the sausages going???’ You texted Ms Snelleksz saying: ‘I know it’s boring process work but just sit there saying ‘show me the money’ each time you finish one!!!’
17 I don’t need to expand, save to say the messages reveal your greed and your clear knowledge that what you were doing was part of a plainly dishonest scheme. That aspect was evidenced by a text from you Ms Taylor, to Ms Snelleksz, a month after the ones I have mentioned which read: ‘I am scared that something is going to go wrong with the training stuff. That it is too good to be true. That we will be audited and have to pay it all back’.
18 The rolled up charge that you both pleaded guilty to, with respect to the South West TAFE, was for the period 13 September 2013 to 29 May 2014.
19 The second TAFE you defrauded was the Kangan Institute TAFE. The methodology used was in large part the same as the previous charge. The timeframe was November 2014 – October 2015 and involved the sum of $221,471.
20 First you Ms Taylor, approached an old colleague who had moved to JetStar. You arranged to provide the simple Six Sigma office training to JetStar employees. Next you approached Kangan TAFE to negotiate a contract for your company to provide Certificate IV in Engineering to Jetstar employees. The contract was signed, and your company was to provide the training to Jetstar employees at Tullamarine. The next step mirrored your scheme at South West TAFE with the names and personal details and identification documents of those who had done some Six Sigma training being used by you to enrol individuals in Certificate IV in Engineering course. Again, the individuals did not consent to or even know they had been enrolled in the Certificate IV in Engineering. The Jetstar employees did not need this training or Certificate – some were qualified engineers already.
21 In this scheme you falsely asserted 70 individuals were provided substantial training and assessment in Certificate IV in Engineering and all were Jetstar employees. It was asserted all the training happened in Melbourne. In fact, only 52 of the 70 were JetStar employees. Of the 52, 25 did not live or work in Victoria. The remaining individuals worked for Zinfra or were relatives of yours Ms Taylor. Documents found on your arrest, made it clear you knew that many of the individuals were Zinfra employees not Jetstar employees.
22 The whole fraudulent scheme came undone when Kangan TAFE wrote directly to the individuals you had said had completed the Certificate IV Engineering course. Those individuals were, to say the least, taken aback by what was in those letters. Some made inquiries directly with Kangan TAFE. You Ms Taylor came to learn that Kangan TAFE had written to the individuals whose names and information you had used realising your fraud was then being exposed. Your panic can be seen in the text messages sent to your daughter Ms Snelleksz:
Kangan has sent out emails to the students with statement if attainment for the cert 4 at Jetstar….!!!
23 Ms Snelleksz replied:
Why are they doing that? Everyone ticked they didn't want to be contacted Kangan are going to get a few back coz the emails do not exist
I hope none call them asking wtf?
24 You tried to cover up your crimes by contacting the individuals in writing and by phone. You wrote:
You may have received an email or letter from Kangan Institute of Tafe regarding an update on units of attainment towards a certificate 4 engineering qualification.
You will recall in your first session of White Belt training (Lean Six Sigma) you completed an enrolment form. This email is an update from the TAFE as to the progress towards the qualification to date.
25 Again, what can be seen through your own words is your high moral culpability. You knew you we not entitled to the money from Kangan TAFE because you had not earnt it. You had done nothing.
26 In assessing the gravity of your crimes what stands out is:
a) The large amounts of money involved over 2 million dollars.
b) The considerable planning and brazen execution of the scheme. This was not a matter of exaggerating the level of service genuinely being provided. This was scamming millions while providing nothing.
c) The scheme must have drained much needed and scare public funds from the important area of tertiary training.
d) The scheme exploited private information of individuals provided by them in good faith for other minor training courses. The individuals were entitled to believe that their private identification information would remain private and not be used without their consent or knowledge.
e) In the fraudulent scheme there was persistence – it ran at South West TAFE for 8 months and at the Kangan Institute for 11 months.
27 As for your moral culpability it is especially high for you Ms Taylor. You were the architect and the main beneficiary of the scheme. You involved others, in particular your own daughter, to assist. Her role was far less than yours. She assisted with many administrative or manual form filling tasks with the knowledge that the overall conduct was deceptive.
28 The text messages make it clear you knew what you were doing was dishonest, but you continued on hoping your schemes were not uncovered.
29 Ordinarily for offending of this scale, lengthy terms of imprisonment would follow, most likely for all involved at whatever level. However as both prosecution and your counsel submitted there were substantial factors that mean the need for deterrence and punishment can be adequately met by penalties other than lengthy jail. That said, for you Ms Taylor, a sentence of imprisonment was required as anything less would not adequately meet the gravity of what you did and the need for punishment and deterrence.
30 The principal factor that takes this case outside the ordinary is the enormous length of time that has passed since these offences were committed and detected. This offending commenced over a decade ago.
31 In this time both of you have sold up family homes and moved to Queensland – due in part to the high level of adverse publicity arising from the IBAC investigation. In your case Ms Taylor, the money obtained from the sale of the family home has been forfeited to the state. There have been other assets such as superannuation that have also been forfeited. I will say more of the human dimension of the loss of the family home and the move interstate.
32 You Ms Snelleksz have had 3 children and retrained yourself as a teacher. To say the least your life is much different than it was when this offending commenced 10 years ago.
33 Delay is always relevant and most often mitigatory especially if the delay is not brought about by an accused absconding or deliberate tactics. If during that delayed period of time, an accused has used the time to reform, then it becomes a matter of significant mitigation. That is the case here in relation to both accused.
34 Counsel for each of you emphasised the long delay. It has been a heavy weight dominating and to a degree restricting the lives of each of you. The prosecution also recognised that the very long delay of now up to 10 years was of a dimension that the case, and the penalty that followed must be one significantly different from the ordinary levels of penalty imposed for such serious frauds.
35 I will say more of the importance of the Court having regard to the submissions of the prosecution. Often what the prosecution submits or concedes is not reported, and consequently the public are left ill-informed about what was involved in the Court considering all aspects of a case in coming to a just and appropriate sentence. I trust in this case, which has attracted some publicity, that those entrusted to report fairly and accurately, make clear what were the well-considered submissions of the prosecution as to ultimate penalty.
36 Another factor that both your counsel and the prosecution emphasised as of considerable mitigatory value, was that your pleas of guilty have meant that a very complex and lengthy trial was avoided. The trial would have taken 6 or more weeks, involved considerable documentary evidence that the jury would have had to grapple with, but more importantly would have required ordinary civilians from all over Australia to give evidence of events now a decade old. In short, the prosecution agreed that the pleas of guilty were of “very substantial utilitarian benefit”.
37 What is also a factor in this regard is that the Court of Appeal in Woyboyes[1] said to sentencing judges that in the broad circumstances of the pandemic causing the trial courts lists to become beleagued, the usual utilitarian benefit for a plea of guilty must be augmented. While it is now the case that the impact of the pandemic on the criminal justice system is diminishing, that is due to matters such as yours not taking up weeks to resolve but days due to the plea you have entered.
[1]Worboyes v The Queen [2021] VSCA 169.
38 Another factor is that unlike many crimes where the circumstances and the penalty are of little public notoriety, your frauds have seen very significant adverse public scrutiny and comment. There was a much publicised IBAC investigation with public hearings. Your counsel, especially in your case Ms Taylor submitted that this amounted to extra curial punishment, with hate mail and public scorn, as well as rendering your chances of finding work, at least in Victoria, impossible. There is appellate authority that this form of extra curial punishment by way of public scrutiny and criticism can be mitigatory. There are other examples of sentencing judges allowing mitigation in high profile cases. Your case and the level of extra curial punishment is less than some of those very high-profile cases, but nonetheless, it provides another aspect of mitigation. Again, the prosecution fairly conceded that point.
39 Both you women come before the court without any prior criminal history. This is a factor that permits you to seek a merciful sentence. That said, the authorities make it clear that prior good character ought not be over valued in these crimes of deception and fraud. Often the prior good character enables the offender to be in a position to exploit for financial advantage. Also, these types of offences are very often committed by persons of previous good character and deterrence to that cohort must be maintained.
40 As to your individual personal circumstances, obviously there are many connected matters, but I will begin with you Ms Taylor. You are now 55 years old. You grew up in the Daylesford area, one of nine children. You describe your family upbringing as loving and stable.
41 At the age of 16 you became pregnant with your first daughter, Heather (your co-accused). You moved out of home and married at that young age. The relationship with Ms Snelleksz’s father did not last.
42 You later remarried and had two more children. Unfortunately, this was an abusive relationship which ended around 5 years later. In 1998, you married your current partner. It is a stable and loving relationship. He is 20 years older than you. He had 2 children of his own and the families merged. I will say more of your husband’s health problems in due course.
43 Although you left school when you were 16 due to falling pregnant, you went back to study while a young mother completing secondary school and then proceeding on to tertiary studies. You have obtained a Bachelor of Business; a Graduate Certificate in Business; a Graduate Diploma of Management; and a Master of Business. Your Counsel described you as a tenacious woman who from difficult beginnings strove to better yourself.
44 You have long and impressive work history, having held various roles elevating in seniority in the fields of banking, transport and tertiary education. Your areas of speciality are in improving efficiency, quality and management. All this is to your credit.
45 The character references written by former colleagues, friends, and family, tendered on the plea, speak of their experience of your reliability, caring nature and professionalism – the sentiment being expressed by them is that this offending is to their eyes out of character.
46 As mentioned, the publicity of the IBAC investigation had a significant impact on your capacity to find employment or run your business. I take into account that this conviction will impact upon your employment in the future.
47 Your husband, now 76, is in poor health and has been reliant on you for some time. His doctor speaks of your husband’s declining cognitive capacity and consequential deterioration in mood. He has cardiac illness under active investigation. He has recently had a significant crush injury to his hand, which required surgery and will require long term physiotherapy. He has been left with incapacities in his fine motor skills, such as dressing. He has never been separated from you for any length of time, and at this point is quite dependent on you as he ages. His ill-health means he will not be able to visit you in Victoria when you are in prison. Indeed, your time in prison will be much harder, not only as you worry and are guilt ridden about your husband, but you will be essentially on your own, separate from your family who are in Queensland.
48 As to your own health, you have been episodes of cancer of the ovaries and cervix, which required surgery and chemotherapy over two periods 10 years apart.
49 As to your mental health, you were receiving counselling and assistance from your doctor in Queensland, and the report of the forensic psychologist Dr Cunningham, noted your reactive anxiety due to your legal predicament arising from the time of the IBAC investigation now 7 years ago.
50 Another related matter that impacts on you is you and your husband built the family home deliberately next door to your parents so as you could provide care for them as they aged. As mentioned, the house was forfeited, and you were essentially left homeless without any capacity to secure work. You felt you had no choice but to move to Queensland to live with a daughter. Your parents’ health declined, and they died within a relatively short period after you left. You have been much affected by the fact you were not able to be there and care for them in their last days.
51 You now live in regional Queensland with your aging husband, your daughter, Heather, her husband and their three children and your eldest son lives there as well.
52 You wrote a letter to the Court which was tendered without opposition from the prosecution. You wrote about accepting your actions were selfish and have had significant adverse impacts. You indicate you wish to and will strive to act with what was your previous integrity before this episode.
53 In the end I accept that your prospects of rehabilitation are good and that you are unlikely to offend again. As the prosecution submitted and I agree, there is little if any role for specific deterrence or protection of the community in the sentencing synthesis.
54 Turning now to your personal circumstances Ms Snelleksz. You are now 39 years old. As I said earlier, your mother, Ms Rebecca Taylor, was 16 years old when you were born. You were the eldest of three children and moved around a lot during your childhood, attending school in Melton, Ringwood and Ballarat.
55 After finishing school you commenced a dual Bachelor degree, however dropped out in third year and started a hairdressing apprenticeship, which you completed around 2012.
56 As I have mentioned, you are now a mother of 3. You have been with your partner since you were 15. You suffered serious gynecologically ill health which made conceiving extremely difficult. You were about to commence IVF treatment when you suffered from a drug induced psychosis. This was in the end well treated and you have no residue mental health issues connected to your brief use of illicit drugs.
57 You have been under the care of a general practitioner in Queensland. You have anxiety due to you these matters and more recently have been diagnosed with a bowel syndrome, which heightens your risk of colorectal cancer.
58 As mentioned, you qualified and ran a hairdressing salon. You then worked for your mother in TayTell, in administrative duties, before moving into basic training tasks. The offending occurred in that context.
59 After the birth of your first 2 children, some 7 years ago, you enrolled at Swinburne University in an online Bachelor of Education with a focus on early childhood and primary education. You graduated in March 2023. You have done professional placements in a local kindergarten in Queensland. You impressed the head of the kindergarten with your professionalism, such that, when a full-time position came up, you were appointed. The letter from the head of the kindergarten makes it clear that, if you are able to, she wants to continue your employment into the future. There may be ongoing issues with your registration as a teacher in Queensland following these matters being concluded, but you will face them hopeful you can be registered to continue your career as a teacher. Both this letter from the head of the kindergarten and that of a long-term friend indicate that the qualities you have shown to them over the years are at odds with what you did as part of this fraudulent scheme. It was out of character.
60 Your involvement was, as I have concluded, at a much lower level than that of your mother. You did receive payments and there is a pecuniary penalty that is sought, but it is very much less than what is sought from your mother.
61 Again, the prosecution make clear that there is no dispute that your role is so significantly less than that of your mother’s, such that a sentence not involving immediate incarceration is not just within range, it is an appropriate sentence.
62 I should restate that changes to the Sentencing Act 1991 (Vic), as discussed in detail by the Court of Appeal in the guideline judgement of Boulton v The Queen (‘Boulton’),[2] makes it clear that crimes that may have in the past attracted mid-level terms of imprisonment, could now be met with a community corrections order (‘CCO’) or a combination of jail and a CCO. What was to be understood, was that our Parliament changed the sentencing landscape by making available lengthy and targeted community corrections orders that had the unique capacity to punish and rehabilitate simultaneously. A further factor emphasised by Parliament in the speeches made introducing the new sentencing regime and referred to in Boulton, was that a CCO meant that punishment could occur, while still keeping families together and employment intact. All this further facilitated rehabilitation. These are highly relevant matters for you in particular Ms Snelleksz.
[2] [2014] VSCA 342.
63 What is also made clear in Boulton, is that a community corrections order does operate as a deterrent to an accused, and generally. Also, the punishment aspect of a community corrections order, via unpaid work, mandated programs and supervision, can meet the requirement of denunciation as well as deterrence to others. By operation of section 5(3) of the Sentencing Act 1991 (Vic), I cannot impose incarceration if all the sentencing purposes are satisfied by a sentence less than or not involving incarceration.
64 As I have made clear with respect to both of you accused, the sentencing purposes of punishment for your crimes and deterrence to others are the primary sentencing considerations, though in your case Ms Snelleksz, there are weighty matters going to your limited role and your prospects for the future.
65 I gave your matter, Ms Snelleksz, anxious consideration as part of an application for a sentence indication. As I have mentioned more than once, the submissions of the prosecution as to penalty are important for any court to weigh up. They are not determinative, but what has to be understood is that the prosecution carefully considers all aspects of the cases that resolve as pleas of guilty. The prosecution has statutory duties with respect to the impact of crimes via the Victims Charter of Act 2006 (Vic). The prosecutors and the Director are in a unique position to know relative gravity of offending. If a sentencing judge falls into error or imposes a manifestly inadequate sentence, the Director has statutory powers to seek for the sentence to be increased by appeal. Likewise, the Director can concede a sentencing judge has fallen into error or otherwise if the sentence is manifestly excessive. Thus, from all angles, it is important that a sentencing judge and the community understand that a concession that an offender can be punished without any imprisonment, is a considered and weighty submission.
66 In your case Heather Snelleksz, whether you were imprisoned was a lineball decision. On all the material, I was of the view that punishment not involving actual incarceration was the appropriate sentence. The submission of the prosecution, in effect agreeing with that outcome, is a factor that ought to be well understood.
67 On 28 September 2023 I gave you an indication that if you pleaded guilty, I would impose a CCO. You did plead guilty. I have had you assessed for a CCO to be transferred to Queensland. You were found suitable. I will impose a CCO with supervision and unpaid work in a formal order shortly.
68 As to you Rebecca Taylor, ultimately the submission made by your counsel was that a jail term could be of a length that would permit also a CCO to be undertaken in Queensland. This submission was met by the prosecution contending that while a jail term with a non-parole period being fixed was a just sentence, that the Court would not err if a jail term combined with a CCO was imposed. Having considered all the material that I have outlined thus far, and considering the submissions made, I am of the view that a jail term and a CCO is the just and appropriate order. The CCO will be a lengthy and onerous one requiring you to pay back the community with unpaid work because your crimes were to the detriment of the community.
69 There needs to be an element of cumulation for the two crimes, but not substantial. I have treated your criminal conduct as a single system inflicted on two separate institutions.
70 Rebecca Taylor, for charge one you are sentenced to 6 months imprisonment together with a 4-year CCO with 400 hours of unpaid work and supervision. For Charge 2 you are sentenced to 4 months imprisonment 2 months of which is to be cumulative on the imprisonment on charge 1 and the 4-year CCO also attaches to charge 2. There has been reckoned 18 days of presentence detention already served and accordingly I declare that the 18 days is part of the sentence I have just imposed. I will ensure that this declaration is entered into the records of the court so that the prison authorities know that you have already served 18 days of the sentence I have just imposed. The CCO will commence 3 months after your release from prison in Victoria and be transferred to be served and managed by the Queensland Corrections Service. You will be required to perform 400 hours of unpaid work and be under supervision.
71 Had you pleaded not guilty to these offences and been ultimately found guilty of them, I would have imposed 3 years with a minimum of 20 months imprisonment.
72 Heather Snelleksz for charges 1 and 2, I impose a single 3-year CCO with the requirement that you do 250 hours of unpaid work and be under supervision. The order will start 3 months from today’s date and be transferred to and managed by the Queensland Corrections Service.
73 Had you pleaded not guilty to these offences and been ultimately found guilty of them I would have imposed 2 years with a minimum of 12 months imprisonment.
---