Director of Public Prosecutions v Stern
[2023] VCC 10
•18 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00715
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON STERN |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2022 | |
DATE OF SENTENCE: | 18 January 2023 | |
CASE MAY BE CITED AS: | DPP v Stern | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 10 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Obtaining Financial Advantage by Deception – COVID-19 – Business Support Fund – Falsification of Eligibility Criteria – Extra-Curial Punishment – Youthful Offender – Recording of Conviction.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic).
Cases Cited:Rossi v The Queen [2021] VSCA 296; Worboyes v The Queen [2021] VSCA 169; R v Mills (1998) 4 VR 235; Gosland v The Queen [2013] VSCA 269; Pitone v R [2017] VSCA 3; R v Connelly [2004] VSCA 24; DPP v O'Reilly [2010] VSC 138.
Sentence: 2 year Community Correction Order with conviction, 300 hours unpaid community work, therapeutic conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. White | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Doogue & George |
HIS HONOUR:
Introduction
1Jackson Stern, you have pleaded guilty to:
(a) two charges of obtaining a financial advantage by deception[1] (Charges 1 and 4),
(b) three charges of furnishing false information[2] (Charges 2, 3 and 5), and
(c) one charge of attempting to obtain a financial advantage by deception[3] (Charge 6).
[1] Contrary to s 82 Crimes Act 1958.
[2] Contrary to s 83(1)(b) Crimes Act 1958.
[3] Contrary to s 82 and 321M Crimes Act 1958.
Maximum Penalties
2The maximum penalties for the relevant offences are as follows:
(a) Obtain financial advantage by deception – 10 years imprisonment;
(b) Furnishing false information – 10 years imprisonment;
(c) Attempting to obtain a financial advantage by deception – 5 years imprisonment.
Summary of Offending
3The prosecution opening was tendered on the plea, and is the unchallenged factual basis upon which you are to be sentenced.[4]
[4] Prosecution Exhibit 1.
Background to Offending
4As part of the government’s COVID-19 response plan, on 21 March 2020, the Victorian Government announced it had established the ‘Business Support Fund’. This fund, administered by the Victorian Department of Jobs, Precincts and Regions (‘The Department’), entitled small businesses to one-off payments of $10,000 to help these businesses survive the economic impacts of COVID-19 (‘a grant’).
5To be entitled to a grant, the applicant business was required to show:
(a) That it employed people;
(b) That it had (or was expected to have) a turnover of more than $75,000;
(c) That it had (or was expected to have) a payroll of less than $650,000;
(d)
That it held an Australian Business Number ('ABN') and that it did so on
16 March 2020; and
(e) That it was engaged in carrying out business operations in Victoria at that time.
6Applicant businesses were required to certify in writing that they met the eligibility criteria and supply a Business Activity Statement as evidence that their business had an annual turnover of more than $75,000.
7You are the owner of an equestrian training, sales and competition business based in regional Victoria.
8You were associated with four business entities, two of which were potentially eligible to receive a grant, and you submitted ultimately unsuccessful applications on 30 March 2020 and 11 April 2020.
9Over the following weeks, you made further applications for a grant. Two such applications were successful, but involved deception and the use of false information. Those applications, and the information furnished in support of them, are the subject of the charges which occurred between 16 April 2020 and 26 May 2020.
10You subsequently registered another 18 business entities, using their details to make 25 further applications for the grant. Each such application involved deception and the use of false information; although none of them were successful.
Charges 1 and 2: The Trustee for Stern Property Investments
11On 16 April 2020, you submitted an application for a Business Support Fund grant for the business entity 'The Trustee for Stern Property Investments'.
12This was a new business entity which you had registered on 19 March 2020, three days after the cut-off date by which businesses were required to be operational to ensure eligibility for the grant.
13Stern Property Investments was a discretionary trust of which you were the trustee. In your capacity as trustee, you owned a residential property which generated rental income. The trust was not engaged in carrying out any further business activity and was ineligible for a grant.
14You lodged an application for a grant on behalf of Stern Property Investments claiming Stern Property Investments met the criteria for a grant. As part of this application, you lodged a Business Activity Statement in which you falsely indicated Stern Property Investments had paid $600 in 'total salary, wage, and other payments', despite Stern Property Investments having no employees. This conduct constitutes Charge 2 on the indictment, furnishing false information.
15Your application also falsely indicated that Stern Property Investments:
(a) Employed staff;
(b) Had, or expected to have, a turnover of more than $75,000 in the 2019/2020 financial year;
(c) Had, or was expected to have, a payroll of less than $650,000 in the 2019/2020 financial year;
(d) Had an ABN on 16 March 2020; and
(e) Was carrying out its business operations in Victoria on 16 March 2020.
16When the application asked why Stern Property Investments required the grant, you indicated that you were intending to use the grant for:
(a) Meeting business costs, including utilities, salaries and rent;
(b) Financial, legal or other advice to support business continuity planning;
(c) Developing the business through marketing and communications activities; and
(d) Supporting activities related to the operation of the business.
17When the application asked you to specify how COVID-19 restrictions had impacted Stern Property Investments, you stated, 'we have had to hibernate our business as a result of Covid 19. We are only conducting emergency upkeep works'.
18The grant application was successful and on 12 May 2020, you received a $10,000 payment. This constitutes the conduct which makes up Charge 1 on the indictment, obtaining a financial advantage by deception.
Charges 4 and 5: The Trustee for Stern Family Trust
19On 5 May 2020, you submitted an application for a Business Support Fund grant on behalf of the business entity 'The Trustee for Stern Family Trust'. This was a trust previously operated by your father. The Stern Family Trust had been dormant since July 2017, and therefore was ineligible for a grant.
20Despite ineligibility, you lodged a Business Activity Statement in support of your application, in which you falsely indicated that the Stern Family Trust had spent $500.00 in 'total salary, wage and other payments', when the business had no employees. Your statement also falsely indicated the total sales of the Stern Family Trust were $600, when the trust’s business was dormant. This false indication on the statement constitutes Charge 5 on the indictment, furnishing false information.
21Your application falsely indicated that the Stern Family Trust met the criteria for eligibility, and when the application asked you for your reasons for applying for a grant, you indicated you intended to utilise the grant for:
(a) Meeting business costs, including utilities, salaries and rent;
(b) Financial, legal or other advice to support business continuity planning;
(c) Developing the business through marketing and communications activities; and
(d) Supporting activities related to the operation of the business.
22As part of your application, you also indicated that:
(a) The Stern Family Trust was an indoor sports coaching, personal training and gym business; and
(b) COVID-19 had impacted the Stern Family Trust business by stating 'due to the Covid 19 social distant thing and health regulations and lockdown [sic] my business has been forced to go into temporary hibernation'.
23The application was successful, and on 12 May 2020, you received a $10,000 payment. This comprises the conduct of Charge 4 on the indictment, obtaining financial advantage by deception.
Charges 3 and 6: Further Applications
24After 16 March 2020, you registered a further 18 businesses with the Australian Business Register, and between 10 and 16 May 2020, you used the details of these businesses to make 25 additional applications for Business Support Fund grants. The applications included false and deceptive information about the employees and operations of each business, and the ways in which they had been affected by the COVID-19 pandemic.
25In each application, you falsely indicated each business met the eligibility criteria, in that you knew each of the businesses did not have the employees, payroll or turnover that you indicated on your applications. For each application, you also knew that none of the businesses had engaged in carrying out business operations on that date, despite falsely indicating the opposite.
26Each application was supported by a Business Activity Statement, each of which was falsified to give the impression that each business was paying wages and generating sales, despite the fact each business was not operational.
27None of the Business Activity Statements were lodged separately with the Australian Tax Office as part of your application for a grant, with the exception of one statement relating to the business entity 'The Trustee for Consciousness Evolution' (one of the 18 new businesses registered). This statement, filed with the Australian Tax Office on 19 April 2020, falsely reported that between January and March 2020, Consciousness Evolution had paid $432 in wages and generated $400 in sales. In reality, the business was registered on 24 March 2020 and was not operational. This conduct constitutes Charge 3 on the indictment, furnishing false information.
28Each of the 25 applications was unsuccessful as they were assessed as being 'potentially fraudulent' due to irregularities, either in the way the applications were completed or the supporting documents filed with them.
29The total quantum of the advantage you sought to obtain by the deceptive filing of Business Support Fund applications was $180,000. It is these deceptive filings that make up the conduct of Charge 6, attempting to obtain a financial advantage by deception.
Police Investigation
30On 10 June 2020, an Executive Director at The Department made a statement to police regarding the nature of your various applications for grants and the basis on which they were considered to be fraudulent.
31On 11 June 2020, members of Victoria Police executed a search warrant of the property you were living in at the time with your mother. You were arrested and conveyed to the Gisborne police station. The police seized two mobile phones in your possession. From these phones, police were able to recover screenshots of the Australian Business Register webpage which contained the particulars of each business you had registered, taken at the time each business was registered.
32You were charged with each of these offences on 30 November 2021.
Personal Circumstances
33You were 24 at the time of your offending and are 27 at sentence. You were born in Victoria and have a younger sister. You were supported in court at your plea hearing by your mother, sister and grandparents. A bundle of character references was tendered on your behalf,[5] and you are fortunate to have such a network of support.
[5] Defence Exhibit 4.
34You went to primary school in Caufield, before your family moved and you transferred to Braemar College when you were 14. You started horse riding at a young age and developed a passion for equestrian competition riding at Braemar College, prompted by your mother’s love of horses. You were captain of Braemar College’s equestrian team and a coach of the younger members of your team in dressage and show jumping.
35You graduated from VCE at Braemar College in 2013, passing all subjects and completing a Certificate of Equine Studies. After graduation, you continued equestrian training in South Australia for six weeks and worked at a commercial stable for 18 months as a groom.
36You enrolled in degrees at Latrobe University and Open University which you did not pursue.
37You continued to compete, and train horses and riders. You would purchase horses, train them and then re-sell them for profit. Your riding was of such a standard as to allow you to enrol in international competitions at age 19, however, you were constrained by the cost of these opportunities.
38Your father was made redundant whilst you were very young, which placed significant financial stress on the family. Your father used money previously set aside for you to attempt a series of business ventures. The failure of each venture increased the financial pressures on your family and had a damaging effect on your father’s mental health. I am told that, during your teenage years, your father would experience bursts of rage and depression which occasionally resulted in violent outbursts aimed at you and other family members.
39You were made aware of your parents’ financial and mental difficulties in this period. You would step in to protect your mother from your father’s anger whilst also assisting with the financial obligations of the household.
40During this time, your mother was diagnosed with cancer and commenced treatment.
41Eventually, the family property was sold and your parents began divorce proceedings. However, your family was unable to obtain financing for a new property, and you experienced a period of housing instability before you were able to find a property to purchase.
42In 2018, your mother moved to Queensland to be with her new partner. This caused considerable conflict between your mother and her children, resulting in a distancing of the relationship between parent and child. In addition, as your mother was unable to continue to make mortgage payments on the Victorian property, you assumed the burden of making mortgage payments at age 22 and other expenses incurred by your family.
43You organised and paid for the construction of the stables, paddocks and professional grade dressage ring at the property. Over the next few years, you built a clientele and a stable of horses. You would teach out of this own property and at local riding clubs.
44In 2018, you completed an 18 month course to become a professional dressage judge, and in 2019, you became certified to judge for Equestrian Australia, the national body that runs higher level events, judging events approximately once per month.
45In 2019, you began a sponsorship arrangement that enabled you to purchase two mares with the capacity to perform at the Olympic level. You have been training these horses for three years with the goal of riding them in the Olympics.
46You competed in events across Australia in the dressage show circuit. Recently you have been unable to compete interstate, in compliance with your bail conditions.
47Your business also involves training other riders and horses, selling horses, assisting others to purchase a suitable horse for themselves, and agisting horses on your property. You maintain a stable of some 17 horses, sourcing feed and hay, coordinating the vet and farrier, and maintaining the property.
48You also have a history of volunteer work with organisations such as ‘Very Special Kids’ and ‘Edgars Mission’,[6] this is to your credit.
[6] Defence Exhibit 5.
Mental Health
49A report from your treating psychologist Mr Ari Patrikis was tendered on your plea.[7] He has seen you 17 times between January and November 2022, and expects to continue to treat you. He says you present with long-standing pervasive mood and anxiety disorders from a young age. He also says that your current psychological presentation, represents a cluster of distressing symptoms including severe stress response with severe anxious and depressed features. He says your symptoms meet the criteria for Post-Traumatic Stress Disorder with Panic Attacks.
[7] Defence Exhibit 3.
50You were seen by Dr Matthew Barth on 9 November 2022, and a report was prepared and tendered to the court.[8] He noted when he evaluated you that you had significant depressive and anxiety-related symptoms. He says you continue to suffer from noteworthy emotional and interpersonal issues. He says you require access to supportive psychological treatment to enhance your coping and mood management skills. He also says that you are likely to remain vulnerable to further bouts of anxiety and depression at times of significant stress in the future. He says your symptoms are sufficiently severe to warrant the diagnosis of an Adjustment Disorder-with Mixed Anxiety and Depressed Mood. He says that you remain at risk of further deterioration in your mood, without ongoing psychological treatment.
[8] Defence Exhibit 2.
Nature and Gravity of Offending
51The respective maximum penalties of each offence gives some indication of the objective seriousness of each charge here, but there are a number of factors which elevate the gravity of your offending and some which lessen it. It was submitted that you did not intend to harm any particular person and that this is a mitigatory feature of your offending.[9] However, you did attempt to substantially deplete a finite pool of resources set up to help struggling businesses during the COVID-19 pandemic. Your actions ran the risk of leaving many Victorian businesspeople – who may have found themselves in a very similar situation to the one you found yourself in at that time – deprived of desperately needed funds.
[9] Rossi v The Queen [2021] VSCA 296 [18].
52It was submitted that your offending was a panicked response to protect your horses and livelihood. Mr Marsh told the court that unlike many businesses, yours could not shut its doors and hibernate once it became effected by the pandemic: you had the care of livestock that needed to be fed if they were not to die. Whilst this might be true, it does not explain the attempts to obtain $180,000 after you had received $20,000 from the fund. It does, however, provide the context for your initial offending.
53I accept that your offending involved a moderate degree of sophistication. The attempt offence was committed by registering a further 18 businesses over approximately five weeks, creating false Business Activity Statements and false business names, as well as providing false responses to the questions in the Business Support Fund applications. Such conduct necessarily involved some degree of forethought and planning, involving as it did, 25 unsuccessful applications.
54Whilst I accept that your conduct was motivated by your panic and anxiety regarding potential financial instability due to the COVID-19 lockdowns, your offending took considerable time and effort to engage in. You made a number of applications to the Business Support Fund, each of which involved you in separate decision-making. It was not a spontaneous episode of offending. You deliberately rorted a benevolent scheme established by the State Government during a time of crisis and that makes your offending objectively serious.
Matters in Mitigation
Plea of Guilty
55You pleaded guilty at an early stage, which I accept has considerable utilitarian value given that it saves the expense of running a trial and assists the court in reducing the backlog of matters this court faces. Your plea of guilty carries greater weight, given it has been entered during a time in which the court is still experiencing the effects of the COVID-19 pandemic.[10]
[10] Worboyes v The Queen [2021] VSCA 169 [39].
56I also note that there has been a significant delay between the offending in April and May 2020, charges being laid in November 2021 and the resolution of your case at committal in May 2022. Almost three years have now passed since the time of this offending and your rehabilitation has advanced to near-completion in that time. The delay is not your fault and you deserve a reduction in your sentence to acknowledge the strides you have made in the years between being charged and appearing before me.
Extra Curial Punishment
57Mr Marsh submitted that equestrian sports is a conservative field which relies on the good standing of its members.[11] As a result of your arrest and ongoing proceedings, you have lost a considerable amount of business from longstanding clients. Not only has this had a significant impact on your ability to earn an income in your chosen profession, but a number of the people who have turned their backs on you, are people that you considered long-time friends and this too has had an emotional impact on you. Whilst I do not doubt that the broadcasting of your conduct has had this effect, it is an inevitable and predictable consequence of your offending. The fact that it has had an emotional impact on you moderates, to some extent, the need for specific deterrence in your case.
[11] Defence Exhibit 6.
58Mr Marsh also contended that imprisonment would lead to loss of a multi-year project due to a clause in a purchase contract requiring you to forfeit ownership of two horses. That again constitutes a corollary of your conduct which is unexceptional.
59Significant media coverage of your arrest and subsequent investigation brought shame and embarrassment to the family, and also resulted in a number of messages and videos being sent to the family. I accept that this constitutes an additional burden to you and I take it into account.
Prospects of Rehabilitation
60I accept that you have excellent prospects of rehabilitation. You have no criminal history. Mr Marsh, on your behalf, submitted that your offending occurred during a period of your life where you had both minimal adult oversight and undiagnosed mental health problems stemming from historical financial insecurities and an unsettled family life. Since your offending, you have actively participated in mental health treatment, attending 18 sessions with accredited psychologists and committing to further treatment.
61In assessing your prospects of rehabilitation, I rely especially on the fact that you have taken a number of rehabilitative steps of your own volition. In addition, I note that you have reimbursed the State of Victoria the total amount you impermissibly obtained.[12]
[12] Defence Exhibit 7.
Moral Culpability
62As to your moral culpability, Mr Marsh says that your vulnerability to financial insecurity due to the peculiar circumstances of your upbringing, made you susceptible to this offending and he relied on the fact that your business, which involved ministering to livestock, required funds in order to keep your animals alive. He also submitted that the offending was relatively unsophisticated and involved little more than sitting in front of a monitor executing a series of key strokes. He says that your moral culpability is low.
63Mr White, unsurprisingly, submitted that your offending was sophisticated, extended well beyond ministering to your animals’ needs, involved pre-meditation, planning, persistence and its ambition is to be assessed by your attempts to obtain $180,000 in addition to the $20,000 paid to you. He also noted that each application you submitted contained warnings to the effect that those found to use misleading information may be referred to law enforcement and that, despite these warnings, you persisted, knowing that you did not have an entitlement to the funds you were seeking. He further noted that your offending only ceased after you had made 25 unsuccessful applications. For these reasons, it was submitted by the prosecution that your moral culpability is high.
64I note that you stopped this offending of your own accord. However, I agree with the prosecution that your moral culpability is high, albeit ameliorated somewhat by the unusual and unprecedented stressors created by the COVID-19 pandemic. Your offending involved a series of dishonest steps, false claims, fictitious entities and false representations. I accept that, despite having been paid $20,000, you continued to apply for additional funds and those applications were made in the expectation that some - if not all of them - would be successful. That persistence elevates your moral culpability.
Submissions on Sentence
65Mr Marsh, on your behalf, submitted a non-custodial sentence would be appropriate, without recording a conviction.[13] He relied primarily on your youth, your lack of any prior convictions, your vulnerability to this offending due to the psychological stressors identified in the tendered psychological reports,[14] your early plea and the remorse exhibited in the testimonials tendered on your behalf,[15] together with the full restitution you have made as reducing the objective gravity of your offending to a point where a disposition without the recording of a conviction could be imposed.
[13] Defence Exhibit 1.
[14] Defence Exhibits 2 and 3.
[15] Defence Exhibit 4.
66Mr White, on behalf of the Director, submitted that it was open to the court to impose a community correction order with conviction.[16] He contends that the gravity of your offending is too serious, its nature too planned, deliberate and persistent for your offending to be dealt with by a disposition that does not include the recording of a conviction. He also points to the need for denunciation of your conduct and the role of general deterrence as both militating against the disposition proposed by Mr Marsh.
[16] Prosecution Exhibit 2.
Recording of Conviction
67Pursuant to s 8 of the Sentencing Act 1991, the court in exercising its discretion whether to record a conviction must have regard to all the circumstances of the case including:
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects.
68Mr Marsh submitted that a sentence which did not record conviction, would accord with the principles of parsimony and proportionality, giving prominence to rehabilitation in sentencing. Mr Marsh argued that a sentence without conviction would have lesser impact on your future economic and social wellbeing and your ongoing employment prospects. Mr Marsh further submitted that the recording of a conviction would impact your ability to work as an equestrian judge.
69The show cause notice in relation to your judging accreditation from Equestrian Australia[17] notes that criminal offences, if found to be proven, may constitute a breach of their Code of Conduct. A finding of guilt for these charges occurred when you were arraigned on 5 December 2022 and entered a plea of guilty, [18] you will likely be required to declare to Equestrian Australia your finding of guilt on this matter, regardless of whether a conviction is recorded.
[17] Defence Exhibit 6.
[18] s 253B Criminal Procedure Act (2009).
70Mr White on behalf of the prosecution submitted that the seriousness of the offending and the need for deterrence and denunciation was too great to be dealt with by way of a non-conviction.
71I have already noted the nature and gravity of your offending as objectively serious. You are a person of good character with no criminal history. No evidence was placed before this court demonstrating that the recording of a conviction would deleteriously affect your employment prospects or your economic or social well-being. It is impossible to assess what impact this part of your sentence will have on you in the future, on the materials that have been provided to the court.
72I have weighed the factors required by s 8 Sentencing Act 1991. The gravity of the offence is serious. Despite the substantial matters in mitigation, I consider that the recording of convictions is appropriate.
Sentencing Principles
73The sentence I impose must punish you, deter you, deter others, attend to your rehabilitation, be just in all the circumstances, manifest denunciation and protect the community.
Deterrence
74The need for specific deterrence here needs to be moderated to reflect the steps you have taken prior to sentence to rehabilitate yourself and to demonstrate the genuineness of your remorse. I accept Mr Marsh’s submission that this offending occurred during a period where a number of factors came together in a ‘perfect storm’, the conditions for which are unlikely to be repeated. The newfound stabilising factors in your life enhance your prospects of rehabilitation and convince me that you are unlikely to reoffend without the court specifically deterring you in the sentence I pass.
75In addition, a number of references[19] provided to the court make note of the deep sense of shame and embarrassment that you have felt as a consequence of your offending, and I am convinced that it is unlikely you will come before this court again.
[19] Defence Exhibit 4.
76However, your offending calls for denunciation and general deterrence. I agree with Mr White’s submission, that the seriousness and protracted nature of your offending warrants this court sending a strong message to the community that this kind of offending will not be tolerated.
Youth
77Mr Marsh relied on the principles in R v Mills[20] to argue that rehabilitation is usually far more important than general deterrence in sentencing a youthful offender. That is one factor that needs to be weighed, but here I regard the need for general deterrence, given the nature of the offending and its target, as at least equally import as your rehabilitation.
[20] (1998)4 VR 235 at 241.
78In Gosland v The Queen[21] the Court of Appeal said,
'The premium that is placed on the rehabilitation of a youthful offender must be balanced against other sentencing considerations'.
[21] [2013] VSCA 269.
79At the time of this offending, you were 24, a business owner and the owner of an investment property. Your offending was sophisticated and protracted. If it is characterised by immaturity, that immaturity is to be found in your inability to assess the long-term consequences of your actions.
80In Pitone[22] the court said,
'A youthful offender may be immature, therefore more prone to ill-considered or rash decisions and may lack the insight, judgment and self-control of an adult. Chronological age, of course, is not determinative, since age does not conclusively establish immaturity'.
[22] Pitone v R [2017] VSCA 3.
81In R v Connelly,[23] the court said,
'No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which the court has to deal, such factors as the seriousness of the offence or offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender‘s prospects of rehabilitation and the need to protect the community, may need to be reflected in the sentence impose'.
[23] R v Connelly [2004] VSCA 24.
Denunciation
82Denunciation of your conduct is an important sentencing consideration also. This fund was established to alleviate hardship and its administration depended on the integrity of each applicant. The dishonest depletion of its finite reserves hurts everyone who hoped to make an honest claim from a limited pool, in a time of great stress. Mr Marsh submitted that your public shaming in the media constituted a more than adequate de facto denunciation of your conduct and that the court could accordingly moderate this aspect of your sentence.
83In DPP v O'Reilly[24] the court said,
'Informal public shaming in the media, in my consideration, can never be a substitute for the formal expression by society through its courts that a member of that society has committed a wrong'.
[24] DPP v O'Reilly [2010] VSC 138 [36]
84That observation is relevant here.
Sentence
85What I am proposing to do at this stage, on Charges 1, 2 ,3, 4, 5, and 6, is record a conviction and place you on a community correction order for a period of two years from today's date.
86Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means, so just listen now.
87The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
(c) You must report to the Community Corrections Centre at Bendigo within two clear days from today.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
88There are a number of other conditions attached to this order, and they apply to you:
(a)You have to perform 300 hours of unpaid community work over a period of two years as directed by the Regional Manager (s48C). Three hundred hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition ( s48CA).
(b)You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s 48D(3)(e)).
89I can only impose a community correction order if you agree to such an order being imposed. So I need to tell you just a little bit more about that.
90I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
91You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).
92I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
93Now you are aware of all of that?
94OFFENDER: Yes, Your Honour.
95HIS HONOUR: Do you consent to the community correction order on the terms I have just outlined?
96OFFENDER: Yes, Your Honour.
97HIS HONOUR: Very well. Does Mr Stern have to sign the order now? You will be provided with a copy of the order presently. You will be required to sign it and a copy will remain on the court file.
98MS SKABURSKIS: May I approach the dock, Your Honour?
99HIS HONOUR: You can, of course.
100MS SKABURSKIS: Thank you, Your Honour.
101HIS HONOUR: Very well. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have imposed an aggregate sentence of 18 months imprisonment, with a non-parole period of 9 months.
102Are there any ancillary orders?
103MR WHITE: No order sought, thank you Your Honour.
104HIS HONOUR: Very well. I indicated at the outset, Mr Marsh, that I am inclined to accede to the request for the indictment and the prosecution opening.
105I will make the community correction order in the terms already indicated Mr Stern.
106Other than that, I just want to thank both parties for the excellence of your submissions, both in writing and orally and the assistance provided to the court, thank you.
107MR WHITE: Thank you, Your Honour.
108MR MARSH: Please the court.
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