Director of Public Prosecutions v Stoodley

[2015] VCC 12

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01552

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

DAVID STOODLEY

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 4 December 2014
DATE OF SENTENCE:	22 January 2015
CASE MAY BE CITED AS:	DPP v STOODLEY
MEDIUM NEUTRAL CITATION:	[2015] VCC 12

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Young	CDPP
For the Offender	Mr C. McLennan	Chris McLennan & Co

HIS HONOUR:

1

You, David Ronald Stoodley, have pleaded guilty to one count of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to the relevant subsection of the Commonwealth Criminal Code.  The circumstances of your offending have been outlined in significant detail by

Mr Young who appears on behalf of the prosecution.  That document is an exhibit before me. 

2By way of background, at the time of these offences, the Department of Education, Employment and Workplace Relations (known by the acronym DEEWR) was a Department of State under the Australian Constitution.  The matters in respect of which DEEWR had responsibility are detailed in the Crown opening.  One of the programs that DEEWR administered was a program called General Employee Entitlements Redundancy Scheme (the acronym known as GEERS).  That program is a safety net program that provides assistance to employees who lose their job as a result of their employer entering liquidation or bankruptcy.  Under that program, claimants may be eligible to receive assistance for up to three months' unpaid wages, unpaid long service leave, unpaid annual leave and up to five weeks' pay in lieu of notice and capped amounts of redundancy pay. 

3With respect to Charge 1 concerning you, Mr Stoodley, this charge relates to a claim for GEERS assistance submitted to DEEWR in the name of Adam David Stoodley in respect of unpaid entitlements said to have been accrued in the course of his employment with a company known as McSarge Pty Ltd.  That company was involved in construction and the installation of verandas and pergolas. 

4The relevant background to the claim is set out in the opening and I will not repeat it here.  In the claim form there was a claim made for 22 weeks' wages in the sum of approximately $32,000; four weeks' annual leave in the sum of approximately $6,000; four weeks' annual leave loading in the sum of approximately $1,000 and two weeks' pay in lieu of notice in the sum of approximately $3,000, totalling $41,394.21.  A signed declaration on p.12 of the form purportedly in the name of Adam Stoodley indicated that the information in the form was true and correct.  Various supporting pieces of documentation accompanied that GEERS claim. 

5In due course, a decision was made that the claimant was ineligible for assistance on the ground that his employment had been terminated more than six months before the appointment of the insolvency practitioners.  Subsequently, further documentation was provided, and that is particularised in the opening, with a request that the claim be continued.

6In due course, a fax from the firm of Andrew Dunner & Associates which set out a verification statement was forwarded to the department in which various matters were confirmed.  They are highlighted in paragraph 17. 

7On 16 June 2011, the review of the GEERS claim in the name of Adam Stoodley was concluded and the determination was made based upon the verification from the insolvency practitioner as to the termination date of the claimant's employment and the claimant's outstanding entitlements, that he was eligible for GEERS assistance.  By letter dated 20 June 2011, payment for Adam Stoodley in the sum of $27,403.88 was paid by DEEWR.  An additional payment was made to Andrew Dunner & Associates for the provision of services in relation to the claim of approximately $670. 

8It was the Crown case that the claim for GEERS assistance in the name of Adam Stoodley was prepared by you, David Stoodley, and signed by you as Adam Stoodley.  The information provided in the claim form as to Adam Stoodley's employment with McSarge Pty Ltd and as to outstanding entitlements was completely false.  Adam Stoodley had in fact never been employed by McSarge Pty Ltd.  The letter of appointment forwarded to DEEWR in support of the Adam Stoodley claim was a complete fabrication, signed by Mr McDonald in the name of his wife, Gay McDonald. 

9Further, communications by mail, telephone and email purporting to be from Adam Stoodley following the initial lodgement of the claim in his name were in fact made by you, David Stoodley, representing yourself as your son.  In fact, you were the recipient of the sum of $18,773 from the GEERS payment made on your son's claim.  You had no entitlement to these moneys. 

10You declined to participate in a formal record of interview regarding these matters.  You were originally charged on summons on 23 May 2014.  You pleaded guilty to the same charge with which you are presently charged at committal mention on 1 September 2014.  There are no victim impact statements provided in this matter. 

11As was pointed out by your counsel, there are a number of mitigating factors.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I will do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon a trial.  I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.  Further, I take into account in your favour that you intimated earlier intention to plead guilty to these charges in the circumstances which I have just outlined.  I accept that your plea indicates true remorse for your actions. 

12I have been told something of your personal history and your circumstances.  You are aged 64.  With respect to your personal history, it is appropriate, in my view, to refer to the matters raised by Mr Healy in Exhibit 2 on your behalf.  You were born in the UK, one of eight children, and came to Australia with your family in 1960.  Your father was a member of the police force and your mother was engaged in home duties. 

13The situation of your various siblings is described in some detail and clearly it is problematic to say the least.  You remain the sole carer for your youngest brother despite the fact that Centrelink withdrew carer payments because your income exceeds the threshold. 

14

You attended a primary school in the UK and then in Australia, Altona North Technical School, for years 7 to 12 before you attended a horticultural course at Burnley College for three years where you secured a diploma.  You commenced your own landscaping business which you operated for over

30 years until the year 2000 when your son Adam took over the business and you became involved in sales and marketing with CTS Travel. 

15You married in in 1968, aged 18, and you and your wife parted after ten years.  You have three children, a son aged 40, a son aged 28 and a daughter aged 30.  You married for the second time in March 2004 and you and your wife have three children, two sons aged sixteen and ten respectively and a daughter aged 13.  You are involved with coaching sport and sport generally in the local area. 

16Various tests were administered and results are set out in the report.  The testing revealed sound average intellectual capacity.  Personality testing was indicative of mild depression and anxiety, no doubt consistent with your current predicament. 

17

You have admitted before me to prior convictions, the earliest of which being an unlawful assault conviction in Moonee Ponds Magistrates' Court on

23 November 1981 when you were convicted and fined some $160, I do not regard as important.  However, in the context of the matters to which you have pleaded guilty, the next two prior convictions are matters of significance, in my view.  On 27 July 1995 in the Southport Magistrates' Court in Queensland you were convicted on two charges of management of companies whist an undischarged bankrupt and one charge of managing a corporation whilst insolvent.  On the charges of management of companies whilst an undischarged bankrupt, you were convicted and fined the sum of $600 and on the charge of managing a corporation whilst insolvent, you were convicted and fined the sum of $1,000.

18On 13 October 1997, you appeared in the Alice Springs Court of Summary Jurisdiction in the Northern Territory on seven charges relating to valueless cheques.  Charges were found proven and you were released on your own recognisance in the sum of $2,000 to be of good behaviour for a period of two years.  I sought further explanation of these matters and that material was provided and is before me in the form of exhibits.  The matters were fully explored in court by reference to those documents and submissions were made.  Mr McLennan also made submissions with respect to those matters on your behalf. 

19In addition, I was provided with a chronology which assisted with respect to the submissions made concerning the issues of delay to which I will refer in a moment.  Further, on 4 December 2012 I received a community corrections order assessment outcome report which I marked as Exhibit D.  On that day, Mr McLennan sought a further adjournment of your plea on the basis that in order to demonstrate your remorse, some action may well be taken with respect to the amount sought in the reparations order and that was consented to on your behalf.  That reparations order was in the agreed sum of $18,773 and I have been informed by an email and today that you have paid that amount to the Commonwealth Director of Public Prosecutions and, as a consequence, no reparation order is sought.  I regard that as a powerful indication of remorse, as I indicated.

20Further materials were tendered on your behalf and that included an outline of plea submissions by your counsel which I have marked as Exhibit 1.  I note that there is there set out that you have been involved in local charitable enterprises and commended by the Royal Children's Hospital for fundraising.  There is a certificate relied on as evidence as that.  You have also been actively involved in local sporting clubs and junior sporting clubs. 

21Finally, there were a number of testimonials presented on your behalf.  I have read each of them and they are the matters which are set out in Exhibit 3.  There is a letter from your treating doctor noting that you suffer from a range of medical problems which are there listed and the medication in respect of each is also set out.  There are two certificates with respect to your football coaching and your involvement with the Royal Children's Hospital and a number of testimonials from people who have known you for a very long time, particularly in the sporting area, who speak highly of you in your role as a family member and with respect to the local sporting community.

22You have been in no further trouble since this matter and I am, on balance, satisfied the chances of your rehabilitation are reasonably good given your age and your current circumstances.  I think it is unlikely that someone of your age would commit a further offence of this type, given the impact that these charges have had upon you and your family over the recent time. 

23I sentence you on the basis that your role is described in the opening, to which no exception was taken by your counsel, as well as those matters personal to you to which I have referred, including the question of rehabilitation.  I must also take into account such matters as deterrence, and clearly general deterrence is of significance in matters such as these, involving, as they do, a sophisticated fraud on a Commonwealth revenue over a period of time involving the payment of a not inconsiderable amount of money.  Further, you did not voluntary desist and it was only when the matters came to light because an employee made disclosure to the authorities that these matters were uncovered.  Clearly general deterrence, as was submitted by the prosecution, is of importance where matters of fraud upon the tax are concerned. 

24With respect to specific deterrence, in your case, of course, your prior convictions are matters of relevance and they are issues of some concern. 

25As I have noted, delay has been a matter which weighs heavily in the balance.  No doubt it was hoped by you and your co-offender that you had both got away with your crime until such time as these matters were drawn to the attention of the authorities.  However, from that time, as is disclosed in the chronology helpfully prepared by counsel which is Exhibit 4, I have no doubt that the passing of that time has resulted in significant anxiety being occasioned to you, given the possibility of a term of imprisonment. 

26Further, I think with respect to you, you have sought to rehabilitate yourself in the circumstances described in the submission made on your behalf which are contained in the exhibits and which I accept.  You derive the benefit of the delay as directed by the relevant sentencing authorities. 

27

Yes.  If you would stand, please, Mr Stoodley.  Having regard to all of the relevant mitigating and aggravating factors as I am required to do under the relevant legislation, on Charge 1 you will be convicted and sentenced to

12 months' imprisonment, commencing today, 22 January 2015.  The total effective sentence is therefore 12 months' imprisonment, commencing today, 22 January 2015. 

28The court orders your immediate release under s.20(1)(B) of the Crimes Act 1914 upon you having given security by recognisance in the sum of $1,000 to comply with the following condition, namely that you be of good behaviour for a period of two years, commencing today, 22 January 2015.

29For the purpose of s.6AAA, but for your plea of guilty I would have ordered a term of imprisonment of 18 months. 

30I think if you could - Officer, if Mr Stoodley can step forward, thank you.  That form will need to be prepared.  Anything else we need to specify, Mr Young?

31MR YOUNG:  No, Your Honour.  I will just complete the form and hand that up for Your Honour's signature. 

32HIS HONOUR:  Yes.  If you would just have a seat, Mr Stoodley.

33

MR YOUNG:  Yes, Your Honour.  I have just shown that to my learned friend.  He is satisfied that reflects the orders made.  Your Honour, you are no doubt familiar, it requires Your Honour to sign the order, date it, and then for

Mr Stoodley to sign and date, and for his signature to be acknowledged under the recognisance section on the second page, and his signature to be acknowledged by Your Honour's associate. 

34HIS HONOUR:  Yes.  Do I need to explain about ‑ ‑ ‑

35MR YOUNG:  The purpose of ‑ ‑ ‑

36HIS HONOUR:  ‑ ‑ ‑ the breach?

37MR YOUNG:  That is correct, Your Honour, yes.  The purpose and effect of the order and the consequences that may follow if there is a failure without reasonable excuse to comply.

38HIS HONOUR:  Yes, thank you. 

39Mr Stoodley, I am required to explain the purpose and effect of the order and the consequences that may follow if you fail, without reasonable excuse, to comply with the conditions of the order.  To that end, of course I have got no doubt Mr McLennan will also explain it, but it means within the period which I have nominated, which in your case was I think two years, that you need to be of good behaviour, otherwise you will be at risk, obviously, of breaching the order and of then coming back and of course being sentenced by me.  There is always the risk that you may be sentenced to gaol. 

40You need to understand there is also the risk that you may forfeit the sum of the $1,000.  You do not need to pay that, but obviously there is a promise that if you breach that then you may be liable to pay that sum as well.  So as I say, you need to be of good behaviour for two years, that order commencing today, in order to ensure that that does not happen. 

41Is that sufficient in the circumstances, Mr Young?

42MR YOUNG:  Yes, Your Honour. 

43HIS HONOUR:  All right.  Now this order goes back and Mr Stoodley needs to sign it.  I think I can now go whilst Mr Lasker does those. 

44MR YOUNG:  Your Honour, the only other matter just in terms of clarification of Your Honour's sentencing remarks, the reference to the Southport matters, I believe - though I may have noted that incorrectly - that Your Honour may have been referring to the initial version of the criminal record which was filed which indicated that all of those matters were dealt with in the one court.  Your Honour may recall there was an amended criminal record filed that indicated that those matters - some of those matters proceeded in Southport District Court and others in the Southport Magistrates' Court, albeit on the same day.

45HIS HONOUR:  All right, yes.  What did I say about that?  Yes, I did not - yes, the documents before me specify that and indeed I have, in error there, referred only to the appearance in the Magistrates' Court.  But thank you for clarifying that, Mr Young.  What you have had to say will be recorded on the transcript.

46MR YOUNG:  If Your Honour pleases.  Might a copy of the recognisance release order be made available to the parties? 

47HIS HONOUR:  Yes, of course.

48MR YOUNG:  Thank you.

49

HIS HONOUR:  All right, thank you.  Mr Stoodley, you will sign that in the appropriate way and that will be handed to you.  Thank you, Mr McLennan,

Mr Young, for your assistance in the matter.  We can now adjourn.

50MR McLENNAN:  Thank you, Your Honour.

51MR YOUNG:  As Your Honour pleases.

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