Director of Public Prosecutions v Taylor
[2018] VCC 2271
•20 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-00978
Indictment No. F13917178.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIAN RICHARD TAYLOR |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2018 | |
DATE OF SENTENCE: | 20 November 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Taylor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2271 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – use copy of false document (4 charges) – perjury (one charge) – obtain financial advantage by deception (7 charges) – make/use/supply identification information (one charge)
Legislation Cited: Crimes Act 1958; Sentencing Act 1991 (Vic), s3, s52(2), s8K(3)(c), s11(1)
Cases Cited:R v Miller (1995) 2 VR 348; Berichon v The Queen; Houssein v The Queen [2013] VSCA 319; R v Curtis (No 3) [2016] NSWSC 866; R v Rivkin [2004] NSWCCA 7; R v De Silva [2011] NSWSC 243; R v Xiao [2016] NSWSC 240; R v Joffe; R v Stromer [2015] NSWSC 741; Khoo v R [2013] NSWCCA 323; Hartman v R [2011] NSWCCA 261; R v Zarrinkafsh [2005] VSCA 22; Mill v R (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Director of Public Prosecutions v Flanagan [2015] VCC 1084
Sentence: Convicted and sentenced to a total effective sentence of two years and eleven months’ imprisonment with a non-parole period of two years and two months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D Mandie | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr N Goodfellow | Balmer & Associates |
HIS HONOUR:
1 Julian Taylor, on 14 August 2018, you were convicted in the County Court of Victoria by a jury returning verdicts of guilty in respect of all thirteen charges on Indictment F13917178.1. These verdicts consisted of four charges of using a copy of a false document which has a maximum penalty of ten years' imprisonment; one charge of perjury which has a maximum penalty of 15 years' imprisonment; seven charges of obtaining financial advantage by deception which has a maximum penalty of ten years' imprisonment, and one charge of making, using or supplying identification information which has a maximum penalty of five years' imprisonment. A notice of related summary offences was filed in error in this matter and these summary offences are no longer before the Court.
Circumstances of offending
2 The facts and circumstances of your offending were the subject of the trial and it is agreed between the parties that they did not depart in any matter of significance from the Amended Summary of Prosecution Opening dated 1 August 2018; however, in broad summary, over a period of almost ten years, from 1 November 2005 to 21 April 2015, you repeatedly misrepresented yourself to the Victorian Institute of Teaching and to each successive school to which you applied to teach, being Ilim College, St Paul’s Anglican Grammar School, Alexandra & Hamilton College and Traralgon College. Despite knowing well the obligations to disclose your true identity and your criminal record, you chose time and time again to misrepresent your identity and to omit, or blatantly deny, your criminal past of serious dishonesty offences in numerous official forms and statutory declarations. You then used the registration obtained by deception to mislead the schools who were your trusting employers.
3 As a part of this scheme, you also chose to falsify official identity documents such as Birth Certificates and Change of Name forms, utilising the names of innocent parties as having certified the veracity of these forgeries. Throughout the course of this endeavour you have also committed perjury.
Victim Impact Statements
4 Over the course of the plea the prosecution tendered Victim Impact Statements from the Chairperson, Lesley Kaye Lamb, and the CEO, Peter William Corcoran, of the Victorian Institute of Teaching. There was substantial opposition as to the admissibility of these Victim Impact Statements by the defence.
5 It was submitted by defence Counsel that they were inadmissible and that the makers are not entitled to make these Victim Impact Statements to the Court as they are not “victims” as defined under s3 of the Sentencing Act 1991. The basis of this submission was the contention that there had been no loss or damage to the Institute as a direct result of your offending. By way of illustration, defence Counsel submitted that it would be the same as a situation where the Victorian Police could claim that where a crime is committed in the State of Victoria, they had lost standing as a crime has been committed and that this impacts upon the perception the community has of Victoria Police and that therefore they would be a victim of the crime. Your counsel submitted that there is no evidence of diminished standing or diminished reputation by the Victorian Institute of Teaching and if that were the only loss that can be identified, they do not fall to be a victim as per s3 above. It was submitted that the Victorian Institute of Teaching as a statutory body had, when they became aware of the allegation, gone through the normal procedures, that there was no failure by the Victorian Institute of Teaching in their procedures and they cannot say that they have suffered a loss of standing in the Victorian community.
6 It is the prosecution submission that s5(2) of the Sentencing Act 1991 (Vic) provides that in sentencing an offender, a Court must have regard to:
“(daa) the impact of the offence on any victim of the offence.”
and
“(db) any injury, loss or damage resulting directly from the offence.”
7 It was submitted that the content of these two Victim Impact Statements point to the very real harm and significant impact to the Victorian Institute of Teaching resulting from your offending.
8 It was submitted that the legislation provides for the mandatory consideration of ‘impact’ on a victim. As a separate consideration, the Court is to consider any injury, loss or damage. It was submitted that Ms Lamb’s Victim Impact Statement alleges that there has been significant impact to the public and professional reputation of the Victorian Institute of Teaching through the flagrant almost seven-year fraud perpetrated against it. It was submitted that under s3 of the Sentencing Act, the definition of “victim” in relation to an offence means a person who, or body that has, suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender. Further, it was submitted that s8K(3)(c) makes clear that a victim impact statement may be made by person on behalf of the victim “that is not an individual”. It was submitted, on this basis, that the Victorian Institute of Teaching, being an official body, can be a victim and their loss or damage can be any “significant adverse effect”.
9 In support of this submission, the prosecution directed the Court to the case of R v Miller (1995) 2 VR 348 at 354 to the following effect:
“Having regard to the minister’s second reading speech and to the explanatory memorandum we do not think that the court should strive to put a narrow interpretation on the meaning of the words ‘victim’ and ‘injury’ notwithstanding the fact that the court is dealing with factors to be considered relevant in the sentencing of an offender. … .”
10 Further, the Court was directed to the case of Berichon v The Queen; Houssein v The Queen [2013] VSCA 319, where, in considering the admissibility of victim impact statements and whether any harm was the ‘direct result’ of the offending, Priest JA stated, at [36]:
“… I am conscious of the admonition of the Court of Criminal Appeal in Miller - that a court should not strive to put a narrow interpretation on ‘victim’. … .”
Lamb
11 In her Victim Impact Statement, Ms Lamb describes the role of the independent statutory authority responsible for the registration and regulation of schoolteachers in Victoria. When registering an applicant for teaching registration, the Institute assesses the fitness and suitability of the applicant to practise as a teacher. This goes to whether the character, reputation and conduct of the person are such that the person should be allowed to teach in school. The Institute has regard to an applicant’s physical or mental health, their qualifications and their criminal history to determine their fitness to teach. She stated that a consequence of your fraud and misrepresentation when you obtained and renewed your teaching registration using a false name and documents, was that the Institute purported to have discharged statutory functions in respect of registration, relying upon the truth of the contents of the applications and declarations.
12 However, the Institute was in truth prevented from exercising its statutory powers in properly assessing and approving your registrations in light of the fraud and misrepresentation. Consequently, she states that the Institute, standing as registration and regulatory authority, has been diminished in the eyes of the Victorian government, the wider Victorian community and the other Australian state and territory teacher regulation authorities who rely on the Institute’s assessment when registering teachers for mutual recognition. She says while the public and governments’ loss of confidence in the Institute is incalculable, it is likely to be significant.
Vis Corcoran
13 Mr Cochran’s Victim Impact Statement contains a similar preamble with respect to the Institute’s role and function. He, too, relates that the Institute purported to have discharged its statutory functions in respect of registration, relying upon the truth of the contents of your applications and declarations. Further, it is the Institute’s belief that its reputation and standing may have been diminished in the eyes of the government and teaching profession. In support of this, he sets out that the Institute delivered a number of ministerial briefings to the Victorian Minister of Education in relation to this matter. Additionally, the Institute believes that its reputation and standing may been diminished in the eyes of the other Australian state and territory teaching regulation authorities which rely on their assessment when registering teachers through mutual recognition. In particular, the Institute was required to notify the teacher registration boards of the Northern Territory and South Australia as you had received grants of mutual recognition in those jurisdictions.
14 Contributing to the loss of confidence in the Institute is the fact that your current criminal proceedings, particularly your applications for bail, have been widely reported by the print media. But now that your criminal proceedings are to be finalised, the formal hearing panel’s decision and reasons to cancel your registration will be published on the Institute’s register of disciplinary action and that this publication is likely to cause a further loss of public confidence in the Institute. Significant financial cost was also incurred as the Institute expended significant resources in investigating your matter and conducting a formal hearing in relation to it. The flow-on effect is that the Institute has suffered a loss of opportunity in respect of providing regulatory services to its stakeholders as those resources were diverted to your matter.
15 The prosecution submits that on the basis of the content of these two Victim Impact Statements, that there is no question that reputational harm to the Victorian Institute of Teaching is a direct result of your offending. Ms Lamb attested the impact or damage is to the government and public’s loss of confidence in the Victorian Institute of Teaching. This flows from the Institute's standing as the registration and regulatory authority being diminished in the eyes of the Victorian government and wider Victorian community, and similarly diminished in the eyes of other state and territory teaching regulation authorities who rely on its assessment when registering teachers through mutual recognition. Further, Mr Corcoran supports these matters by pointing to ministerial briefings, the impact on standing with the interstate equivalents and also the wide reporting of this matter, and it is submitted the Court may infer this has resulted in a loss of confidence in the Institute. The expenditure of significant resources in investigating your matter was submitted to indicate some financial loss to the Victorian Institute of Teaching also.
16 It was submitted by the prosecution that other cases of white-collar fraud where the loss or damage is not necessarily financial have also been expressed in terms of harm to the community by the courts, as stated by McCallum J in R v Curtis (No 3) [2016] NSWSC 866; (2016) 114 ACSR 184 at [24] (citations included):
“… It is well established that it is wrong to regard white-collar crime as victimless.[1] It causes loss (albeit unquantifiable) to individual traders and it causes harm to the community at large by damaging the integrity of the market as a level playing field. … .”
[1]R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365 at paragraph [412]; R v De Silva [2011] NSWSC 243 at paragraphs [52]-[53],[55]; R v Xiao [2016] NSWSC 240 at paragraph [90]; R v Joffe; R v Stromer [2015] NSWSC 741; 106 ASCR 525 at paragraphs [97]; Khoo v R [2013] NSWCCA 323 at paragraphs [10],[12] and [64]; Hartman v R [2011] NSWCCA 261 at paragraph [94]
17 A further comparison was provided by the prosecution relating to Commonwealth cartel offences where the Wigney J of the Federal Court stated in considering the "injury loss or damage resulting from the offence" in sentencing the offending corporation, that such conduct was “inimical to and destructive of our markets and economic system. It leads to a loss in public confidence in our markets and economic system which can itself harm the economy”: Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha[2017] FCA 876, [252].
18 It was submitted that these two cases involve damage or impact to the integrity of a public system that is closely analogous to the significant reputational damage suffered by the Victorian Institute of Teaching in this case.
19 Whilst it is not conceded by defence Counsel that the Victorian Institute of Teaching suffered damage or loss as a result of your offending, it is clear from the disclosures that have been made by the Victorian Institute of Teaching to other state and territory teacher regulation authorities that there would have been some loss of standing and confidence in the Victorian Institute of Teaching’s assessments for the purposes of mutual recognition registration. Additionally, the fact that ministerial briefings were provided on this matter as well as the resources utilised for its investigation and determination and the existing and almost certain further publication relating to this matter demonstrates to the Court that the Victorian Institute of Teaching has suffered loss and damage as a result of your offending. In all the circumstances, it is appropriate and consistent with the legislation that these two Victim Impact Statements are admissible on the plea.
Assessment and gravity of offending
20 It was conceded by your counsel that the totality of your offending before the Court warrants a term of imprisonment.
21 It was submitted by your counsel that these are different acts but they are steps along the same path as opposed to entirely separate criminal acts. The false documents, perjury and the applications to the Victorian Institute of Teaching are all in a single course of conduct but aimed towards a single aim of getting provisional and then full registration as a teacher. Your counsel submitted there was a significant overlap amongst the steps along the path to employment and once employment was obtained you sought to move from job to job. It was not submitted that you progressed from job to job and were progressing your career. It appears there were three steps to your criminality involved in gaining employment: step one being the change of name (Charge 1); step two relating to your applications for registration (Charges 1, 2, 3, 4, 7, 8, 9, 10 and 11); and the third step being your applications for employment (Charges 5, 6, 12 and 13).
22 In terms of the charges of obtaining financial advantage by deception relating to the applications for registration, it was submitted that the only financial advantage that can result from those charges is the eventual employment that may result from being registered. It was submitted that there was a significant overlap from this category and the four charges relating to your four teaching positions. No otherwise direct financial benefit was put by the prosecution throughout the trial and that employment, is itself, what was hoped to result from registration and as such does not bring any direct financial advantage. Accordingly, in these circumstances, there should be a heightened degree of concurrency amongst those charges.
23 Defence counsel provided to the Court a number of factors that it submitted should be taken into account when considering the gravity of the offending and criminality, especially in the absence of comparable cases for this offending:
(a)No individual or organisation suffered any financial loss as a result of the offending;
(b)The only financial benefit (income) received by you was as a result of you performing your role as a teacher;
(c)You possessed the academic qualifications to teach;
(d)The schools and students benefited by having a well-qualified and competent teacher;
(e)The offending was motivated by your eagerness to gain stable and long-term employment as a teacher and not any other sinister motive;
(f)No children were at risk as a result of the offending given your prior criminal offending was not sexual or violent in nature and never involved children;
(g)Your criminal history did not automatically preclude you from employment as a teacher.
24 Throughout the course the plea, defence Counsel expanded on two of these factors in considerable length. As to (d), he submitted that you took pride in the position of being a teacher and did not sit on your laurels once you were appointed. In fact from the moment that you were appointed you went far beyond the minimum requirements, you worked through holiday periods and when you first took the role at Ilim College, you found a maths and physics department that was mostly disorganised as the previous teacher had left on short notice. You spent hours in the evenings, weekends and holidays correcting that course. You also took pride in the students that you taught, some from disadvantaged backgrounds, and getting them through the course work that you taught.
25 In relation to (e), it was submitted that you were someone who had recently married and had a child and you should be viewed in the context as a person who had emerged from custody and parole and saw this as a stable career you could hold into the future. It was conceded that you did go the wrong way in achieving this and that your previous offending did not automatically preclude you from obtaining registration and teaching.
26 The prosecution submitted to the Court that the gravity of dishonesty and deception offences can vary given the wide range of conduct encompassed. It was submitted that the maximum penalties themselves indicate the gravity of these offences and the seriousness of such offending. The maximum here is ten years’ imprisonment for the obtaining financial advantage by deception and false document offences, of which there are 11 charges in total, and 15 years’ imprisonment for perjury.
27 It was the prosecution submission that this is a grave example of this offending as it spans over ten years and was repeat offending, which was calculated and planned, perpetuated against a public institution, being the Victorian Institute of Teaching, and four schools, being your employers. It was submitted these elements increased the gravity of your offending.
28 As to the defence’s submissions that these are just steps in an overall course of offending and should in some way be considered subsumed or merged, the Prosecution relied on the decision of R v Zarrinkafsh [2005] VSCA 22 at [32]:
“… [S]ome offences were committed as preliminary steps for the commission of other crimes, but it does not follow that they must or even should be treated as therefore having merged into what counsel referred to as the substantive offences. The various bank accounts which were opened were, of course, used in the commission of other offences, but they had an independent existence and could, of course, be employed for a variety of quite separate purposes. In my view, the making of orders for cumulation was quite appropriate in the circumstances, and the orders themselves do not bespeak error.”
29 Flowing from this, the prosecution submitted that each offence of which you are convicted is a separate offence, warranting reasonable cumulation, while applying the principle of totality.
30 The prosecution submitted this persistent and prolonged offending is best categorised as a series of decisions made by you, each one an opportunity for you to act honestly and cease the repeated fraud on the Victorian Institute of Teaching or to disclose the truth to the schools which employed you. Instead of this, it was submitted that you chose to actively perpetuate the fraud and falsify documents. The prosecution submitted that even if each offence was a step, this does not lessen the gravity of the offending.
31 With respect to the charges of perjury and false document charges, it was submitted that your conduct was brazen and evidenced your disregard for the official use of such documents with each repetition; however, the prosecution did concede that Charge 9 and Charge 10 related to the same conduct.
32 With respect to your moral culpability, it was submitted by the prosecution that you were the sole architect of this fraud on the institutions that trusted you as an employee and as a registered member. Further, there was no question, given your exposure to the paperwork and the industry itself, that you must have been well aware of the level of trust placed in teachers. Additionally, it was submitted that your moral culpability must increase as you offended despite your criminal history and imprisonment for the same type of offending.
Criminal record
33 It was submitted by your counsel that your criminal history commences following the death of your father. It was conceded that your criminal record is a relevant one. Your criminal history commences with a conviction at the Melbourne Magistrates’ Court on 7 May 1991 where you were convicted of 19 separate offences of obtaining property by deception, and received a fine as the disposition. In February 1994, in the Brisbane District Court, you were convicted of fourteen offences, nine of which were dishonesty offences, including forgery. In June of that same year at the Melbourne Magistrates’ Court, you were convicted of theft and four further dishonesty offences including obtaining financial advantage by deception.
34 On 6 February 1998, you were convicted in the County Court at Melbourne of 27 counts of defrauding the Commonwealth and 19 counts of attempting to defraud the Commonwealth, with one count of operating a bank account under a false name and two counts of breach of a restraining order. This is your most serious offending to date and for it you received a total effective sentence of eight years' imprisonment with a non-parole period of six years.
35 With respect to this last conviction, it was submitted by your counsel that this offending involved falsified tax returns. You commenced filling out tax returns legitimately for people and over a period of time that turned into a fraudulent course of conduct and involved deceased individuals and others. It was over a period of time and involved a significant amount of money. Further, the sentence you received should be regarded as a significant term of imprisonment.
36 The prosecution submitted that you have a significant history. It is extensive, contains similar offending and quite a considerable history of dishonesty offending dating back to your 20s and 30s. It was submitted that you have gone on to reoffend, committing the very same type of offences. It was submitted that these past convictions are evidence of your propensity to be dishonest and commit such crimes, and the court should therefore view you as having bad character and lacking in remorse for your past offending.
Matters personal to you and mitigating factors
37 You were born on 16 January 1965 in England and emigrated to Australia with your parents and sister in 1969. You were aged between forty and forty nine years at the time of the offending and are now fifty two years old.
38 Your family settled in Adelaide, where your second sister was born. It was submitted that you had an unhappy childhood as a result of emotionally neglectful parents, leaving home at age twenty, and you have not been in contact with your family for most of your adult life. It was submitted that your childhood was not unstable but could be regarded as unsupportive and your parents were stern, difficult and not emotionally disposed, having emerged from the hardships of World War II.
39 You have had no real contact with your family except when you returned to Adelaide following the death your father, to support your mother and deliver the news to your sisters. In 1990, you married Ms Keng Ng in Melbourne and your son was born the following year. Your relationship ended when Ms Ng returned to China in 1992. You have no contact with the child from this relationship.
40 You remarried in 2004 to Ms Khaleda Barr and had a daughter together in 2005. This relationship ended when you were arrested and remanded for this offending in 2015. You have not had contact with your daughter since your arrest. The most difficult aspect of your period on remand was not having contact with this daughter and you have been entirely prevented access in any form with this child. There are Family Court proceedings on foot and there is a recent report that recommends that the Court should consider granting some form of access. Having being placed back on remand following the jury’s verdict, this has meant that any access is now uncertain again. It is likely that your Family Court matters have been adjourned to allow for the finalisation of these matters and that you will likely have to undergo further assessment.
41 You have found it extremely difficult not having access to your daughter and whilst on bail you did everything you could to have access in whatever form. It was submitted that you hope one day to have contact with your daughter and rebuild that relationship and have regular longer term contact with her.
42 You completed your secondary school education at Pulteney Grammar in Adelaide and have completed the following University courses:
(a)Bachelor of (Civil) Engineering (Hons), Adelaide University: 1982-1985
(b)Bachelor of Commerce, Deakin University: 1999-2002 (finished whilst imprisoned)
(c)Bachelor of Arts, Deakin University: 1999-2003 (finished whilst on parole)
(d)Bachelor of Accounting, University of South Australia: 2002-2004 (finished whilst on parole)
(e)Diploma of Education (Secondary), Monash University: 2005
43 In 2006, you enrolled in a Masters of Education at Monash University but did not complete this course.
44 As to your employment, you have been an engineer in Albury/Wodonga, South Melbourne and the Gold Coast between 1986 and 1991. It was submitted that you take pride in some of the projects you worked on as an engineer. You were employed as a teacher between 2005 and 2015.
45 Your recent employment since you left teaching has been working at AirCTI in Moe where the individuals who supplied character references met you. Your employer was supportive of your application for bail, acting as a surety and supporting you in general. Upon your successful bail application in September 2017, you resumed working at AirCTI. You have performed that role in your employer’s eyes as a valuable employee. You have not sought to hide in anyway your involvement in the acts to which you are being sentenced today and your employment there is ongoing for now. You would seek to continue the role at the company if you were given the opportunity to do so.
46 You are in generally good health bar the issues that you are suffering with your hip and which are detailed in the medical report of Dr George Owen, exhibit C. You are currently awaiting the finalisation of these matters on your release from custody so you can secure surgery for a hip replacement.
47 Two character references were tendered at the plea: a reference from Mr Andrew Kee, being exhibit A, and a reference from your employer, Chet Cline, as exhibit B.
48 In his reference, Mr Kee states that he has known you since July 2015 when you joined AirCTI. He finds you to be punctual, polite, organised, very efficient, of sober habits and not involved with drugs. He believes you are a caring man with other workers’ best interests always in mind. Your life was focused on your daughter, Leoma, and that not being allowed to visit her has been heartbreaking for you. He firmly believes that any indiscretions of yours are in the past and that being a hardworking, decent, trustworthy person you will be of benefit to society, your friends and your daughter.
49 In his statement, Mr Cline writes that he started AirCTI twenty years ago, with your role being to support him in engineering, design, and marketing of the product since you were employed by the business in July 2015 as the engineering manager. He states that you have worked hard and smart, helping his small business thrive. He was impressed with your knowledge, skills and understanding of human potential. You are a diligent worker and provide the company with great engineering knowledge and data calculations that have benefited the business. You have been, and remain to be, a great asset to his business.
50 Following conversations with you about your daughter, he finds your concern “simply impressive”, backed up with your desire to ensure she has a firm start in her adult life in the years to come. He sees you as a man who puts his daughter first. He states he chose to offer $50,000 bail surety and a home for you to live in as he believes you have progressed as a human far beyond your past endeavours. He believes you deserve another chance. Over the last few months he found you to have been exemplary, often working late into the night and early mornings to ensure the business was successful, or meeting all your bail requirements.
Mitigating factors
51 The Court is mindful of the factors (a) to (g) to which your counsel addressed the Court, referred to above. As to delay, it was submitted that these proceedings have been on foot for a significant period of time and you have been on remand for a considerable period of this time. It was not submitted that this delay was not caused by any organisation or oversight in the management of this matter; however, it was submitted that it has burdened you and that the only thing that you have been able to focus on in your life is this proceeding and that this has been a heavy burden for you to carry throughout this time. Your counsel submitted that this was perhaps a minor point.
52 With respect to your prospects of rehabilitation, it was submitted that once your bail application had been granted you have settled down immediately, gained accommodation, employment, commenced a relationship and have no drug or alcohol issues. You have a supportive social circle and are living a fairly ordinary life.
53 After you and your wife separated you commenced a relationship in 2015 before you were placed on remand and have had contact throughout your time on remand, recommenced the relationship upon your release and it continued following your bail being revoked at the conclusion of your trial. It was submitted that you have demonstrated a capacity to re-enter the community and contribute constructively to it. In addition to those factors and at the core of your rehabilitation is your desire to re-establish contact with your daughter and build regular contact with her. Your counsel submitted that the Court should view you as having reasonably good prospects of rehabilitation, but that it must take into account your criminal record. It was also conceded by your counsel that there is no evidence of remorse before the Court, you having pleaded not guilty and put the prosecution to its proof in running a trial.
54 However, it was submitted that as included in the charges there was the allegation of fraud in the amount of around $250,000, that this allegation was in your mind and that this sum was used to quantify the gravity of the crime. You believed that you had sought to get registration and employment but that you have never committed a fraud in the amount of $250,000 and took issue with this as you had worked and earned that money and did not defraud others of it, despite the means you employed to gain registration and employment. The Court is prepared to accept that you have provided valuable consideration for the wages that you received in your teaching posts.
55 Your counsel submitted that you have used the time productively whilst on bail and have demonstrated a desire and capacity to reform and live a normal life. Contact with your daughter has also been an ongoing motivation to not reoffend.
56 The prosecution did not contest the factors (a) through (e) as submitted by defence counsel; however, issue was taken factors (f) and (g). The prosecution submitted that it was not for you to say whether there was a risk to children by being taught by an individual with a serious criminal history involving dishonesty. While it is common ground that your criminal history does not involve sexual or violent offending, it was submitted that the relevant teacher registration legislation makes clear that this is not the criteria for the assessment of fitness to teach. It was submitted that where an applicant has a criminal record such as yours, the Victorian Institute of Teaching and schools have a duty to protect students from contact with someone exhibiting that level of dishonesty and criminality. It was not submitted that you would have been automatically precluded from teaching, but that it was for the Victorian Institute of Teaching and employers to properly assess such matters, and that your deception had deprived them of that opportunity.
57 In response to your counsel’s submission as to delay, the prosecution outlined that is not in itself necessarily a mitigating factor, having regard to the chronology that any undue delay would have been much diminished if not for the decisions you made which resulted in the adjournment of the matter and the need for new trial dates. Further, that no rehabilitation or remorse has occurred in the time from when you were charged to the conclusion of the trial. Accordingly, little weight should be given in this current case as to the delay. The prosecution again noted that you show no remorse and that no such submission was made on your behalf on the plea and in fact the absence of remorse was conceded by your counsel. In furtherance of this submission, and as it relates to your prospects of rehabilitation, it was submitted that this lack of insight into your offending and lack of remorse must result in the Court viewing your prospects of rehabilitation as being limited by these factors.
Sentencing principles and considerations
58 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of the kind that you have committed and I must balance your personal circumstances.
59 It was submitted by the prosecution that the sentencing purposes of general deterrence, denunciation and just punishment were salient considerations and enlivened by this type of conduct being systematic, involving calculated deception and of being long-standing and persistent offending. It was submitted that your preplanning of this offending calls for emphasis for community protection and specific deterrence. Further, it was submitted that specific deterrence was also highly relevant given your prior criminal history and your continued offending for similar offences.
60 It was submitted by your counsel that the principle of totality should be applied having regard to the nature of the offending as per the case of Mill v R (1988) 166 CLR 59. That a significant degree of concurrency is just and appropriate, looking at your criminality as a whole as per Postiglione v The Queen (1997) 189 CLR 295 at [341], Kirby J's statements. Your counsel submitted the financial advantage of registration (Charges 4, 8 and 11), was placing yourself in a position to gain employment as a teacher and therefore overlapping with the charges that relate to specific teaching positions (Charges 5, 6, 12 and 13).
61 As to the sentencing consideration of community protection, your counsel submitted that it is of limited relevance, given the nature of your offending. It was submitted that there should be a significant degree of concurrency imposed in the structuring of a sentence and the Court should also be mindful of the principle of totality.
62 It was submitted by both counsel that they have been unable to find any meaningful comparable cases to this matter. While both submitted that they had found cases which largely involved bank applications, credit card transactions and the like, it was submitted that they had not been able to find a comparable case dealing with offending of this kind and the Victorian Institute of Teaching. Both counsel undertook to assist the Court, and further endeavours were to be made to find and supply the Court with comparable cases.
63 It is clear from recent authorities that current sentencing practices are only one sentencing factor to consider, and are not the controlling factor, and stand in the same position as the other matters contained in s5(2) of the Sentencing Act 1991 (Vic) as per the case Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; however, current sentencing practices do help achieve consistency in sentencing.
64 In the course of the plea the prosecution provided the case of Director of Public Prosecutions v Flanagan [2015] VCC 1084 as a case of some limited utility. This case involved a man in his 40s suffering from bipolar disorder who pleaded guilty at a late stage to three charges of obtaining financial advantage by deception and one charge of attempting to obtain a financial advantage by deception. His deceptions involved gaining employment through the use of fraudulent resumes and having dishonest friends lie when contacted by prospective employers. The three deceptions were of short duration and quantum obtained, respectively being $10,000 over two months; $20,000 for just over three months; and $106,000 for two months, before being terminated, as he was unable to perform to the requisite standard in the roles he obtained. On the attempt charge his deceptions were discovered before he commenced that role. All in all, that offender received around $100,000 and $140,000 that he should not have been paid, being the loss to these companies. Additionally, the costs to the businesses of recruiting staff was considered.
65 It was found by Judge Mullaly that the engagement of dishonest friends and the use of genuine CVs taken from a LinkedIn page lifted the level of sophistication of the frauds, and thus the gravity of the crimes, to a more serious level. Flanagan had no previous criminal convictions and received a three-year Community Correction Order, with 400 hours’ unpaid work, supervision and therapeutic conditions.
66 The prosecution also provided to the Court the Sentencing Snapshot for obtaining financial advantage by deception offences from 2011 to 2012 and from 2015 to 2016, and provided a summary to its contents. No further cases have been provided by the parties since the plea.
67 The prosecution submitted that an appropriate sentencing disposition was for the Court to impose an immediate custodial sentence and that a non-parole period should be fixed. It was conceded that your matter is factually distinct from others, and case comparisons and the utilisation of sentencing statistics should not be given too much weight.
Summation as to sentence
68 It is clear that what you have engaged in is blatant misconduct, with considerable planning and of a significant duration. I must denounce your conduct in its frustration of the statutory body’s role and responsibilities. Your offending, no matter how justified you felt in so doing, cannot stand. It is conduct that at its heart undermines the purposes and role that the Victorian Institute of Teaching holds in the education of children of this state. It is for this body and the professionals it employs, alone, to determine the fitness of individuals to be entrusted with the duty of educating our children and ensuring that they are not exposed to undesirable influences and protected from any harm or disadvantage.
69 You took it upon yourself to judge that you were such a fit and suitable individual and embarked upon a course of conduct to obstruct and conceal the discovery of your previous criminal convictions. I acknowledge that you do hold the qualifications to teach and have been acknowledged as a good teacher; however, the conduct you engaged in, and these convictions, now mean that whatever chance you ever had of teaching has been severely compromised by your own deeds over a decade ago.
70 The Court must also impose a sentence that will seek to deter others from engaging in the conduct that you have. The Court must impose a punishment that is just in all the circumstances. The Court does acknowledge, and has taken into consideration when determining the sentence that should be imposed, that you did in fact perform the role and discharge the duties of a teacher, in consideration for the wages that you received. This has been taken into your favour in the Court’s instinctive synthesis.
71 For a man with your education and criminal record to date it is perplexing as to why you continued to engage in criminal conduct and continued to commit similar offences. It is your continued similar offending, and your complete absence of remorse for it, that the need for specific deterrence is a significant sentencing factor in your case. The Court must endeavour to deter you from further offending and while your wish to be involved in your daughter’s life may be a sufficient additional motivation, only time will tell if this is enough.
72 Community protection was also submitted to be a relevant sentencing factor and the Court can only view it as such due to the aggravating features of your offending, being its length, brazenness, sophistication and, again, your lack of remorse. While your counsel has submitted that you have good prospects of rehabilitation, the Court, in considering all the matters above, views your prospects of rehabilitation as guarded.
73 While the Court has taken the case provided and sentencing statistics into account in determining the appropriate sentence and has been informed by them, I am not bound by them in exercising my sentencing discretion and view current sentencing practices as only one of the factors I must consider as provided in the case of Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.
74 Finally, the principle of totality has been submitted by both counsel as being relevant in the Court’s determination of the most appropriate sentence in all the circumstances. Therefore, and in determining the required degree of concurrency and cumulation between charges I have determined, in line with, and in deference, to the principle of totality, to make the orders I do and impose lesser terms then I would have otherwise.
Sentence
75 Mr Taylor could you please stand?
76 I intend to sentence you to a total effective sentence of two (2) years and eleven (11) months’ imprisonment with a non-parole period of twenty-six (26) months’ imprisonment. I will now explain the structuring of this sentence. You may be seated.
77 On Charge 4 of obtain financial advantage by deception, I sentence you to eighteen (18) months’ imprisonment, Charge 4 being the base sentence.
78 On Charge 1 of using a copy of a false document, I sentence you to one (1) month of imprisonment cumulatively on Charge 4.
79 On Charge 2 of perjury, I sentence you to three (3) months’ imprisonment with one (1) month to be served cumulatively on Charge 4.
80 On Charge 3 of using a copy of a false document, I sentence you to one (1) month’s imprisonment concurrent on Charge 4.
81 On Charge 5 of obtain financial advantage by deception, I sentence you to six (6) months’ imprisonment, with (1) one month to be served cumulatively on Charge 4.
82 On Charge 6 of obtaining a financial advantage by deception, I sentence you to six (6) months’ imprisonment, with one (1) month to be served cumulatively on Charge 4.
83 On Charge 7 of using a copy of a false document, I sentence you to one (1) month’s imprisonment concurrent with the sentence imposed on Charge 4.
84 On Charge 8 of obtaining a financial advantage by deception, I sentence you to eighteen (18) months’ imprisonment, with six (6) months to be served cumulatively on Charge 4.
85 On Charge 9 of making, using or supplying identification information, I sentence you to one (1) month’s imprisonment concurrent with the sentence imposed on Charge 4.
86 On Charge 10 of using a copy of a false document, I sentence you to one (1) month’s imprisonment concurrent with the sentence imposed on Charge 4.
87 On charge 11 of obtaining a financial advantage by deception, I sentence you to eighteen (18) months’ imprisonment, with six (6) months to be served cumulatively on Charge 4.
88 On Charge 12 of obtaining a financial advantage by deception, I sentence you to six (6) months’ imprisonment, with one (1) month to be served cumulatively with the sentence on Charge 4.
89 On Charge 13 of obtaining financial advantage by deception, I sentence you to six (6) months’ imprisonment, with one (1) month to be served concurrently with the sentence on Charge 4.
90 This makes for a total effective sentence of two (2) years and eleven (11) months’ imprisonment.
91 Pursuant to s11(1) of the Sentencing Act 1991, the Court must fix a non-parole period as the term of imprisonment I have ordered is in excess of two years. I fix a non-parole period of twenty-six (26) months. Accordingly, you will be required to serve a minimum period of imprisonment of not less than two (2) years and two (2) months, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
92 Is it agreed how many days have been served?
93 MS MANDIE: Your Honour, just before we move to that, just on my calculation of what Your Honour's just said per charge, both myself and my instructor are getting 36 months, so three years, rather than two years and 11 months.
94 HIS HONOUR: All right, we did this before.
95 MS MANDIE: It may be, but since both of us are getting it, I think - I'll see what my friend says.
96 HIS HONOUR: Yes. Have you taken the total, Mr Goodfellow? Just let me have a look.
97 Yes, on Charge 13 of obtain financial by deception, it should be six months' imprisonment to be served concurrently with the sentence on Charge 4.
98 MS MANDIE: Then that’s correct then, Your Honour.
99 HIS HONOUR: That is correct then.
100 MS MANDIE: Thirty-five months.
101 HIS HONOUR: All right, thank you. So that was a misprint. I do not know how that left one month. All right, so have we agreed on the number of days?
102 MS MANDIE: Yes, Your Honour. I believe it’s 752.
103 HIS HONOUR: Seven fifty-two days.
104 MS MANDIE: Not including today.
105 HIS HONOUR: All right, so there were 654 in custody during the first period; is that right?
106 MR GOODFELLOW: Yes, Your Honour.
107 HIS HONOUR: And 99 days since the verdict; 98 days not including today; is that correct?
108 MR GOODFELLOW: Yes, Your Honour, that’s correct.
109 HIS HONOUR: All right, yes, thank you.
110 I declare that 752 days have been served by way of pre-sentence detention. This is taking to account of the total 654 in custody during your first period on remand and the 98 days that you have served following the jury’s verdict, not including today.
111 MR GOODFELLOW: If Your Honour pleases.
112 The prosecution have also made an application for a Forensic Sample Order, being the collection of an intimate sample of saliva from your mouth, and I understand that this is not opposed.
113 ACCUSED: Apologies, Your Honour. That’s opposed. I’m sorry to interrupt, it is opposed.
114 HIS HONOUR: All right, just have a seat.
115 MR GOODFELLOW: I can’t recall what was said last time, Your Honour. Perhaps I can just seek some instructions on that?
116 HIS HONOUR: Yes.
117 MR GOODFELLOW: Thank you, Your Honour. It’s opposed, Your Honour.
118 HIS HONOUR: It is opposed? I think, Ms Mandie, that means that there has got to be an application made, does there not?
119 MS MANDIE: Yes. I wasn’t aware that it wasn’t by consent. I understood it was - - -
120 HIS HONOUR: Yes, well I have made a note that I thought it was by consent.
121 MS MANDIE: Yes, I thought it was.
122 HIS HONOUR: So is it appropriate that I reserve the right of the prosecution to make an application?
123 MS MANDIE: I haven't prepared such an application.
124 HIS HONOUR: That is why I am asking, should that be reserved?
125 MS MANDIE: Yes. Yes, please, Your Honour.
126 HIS HONOUR: What do you say, Mr Goodfellow?
127 MR GOODFELLOW: I think that’s right, Your Honour.
128 HIS HONOUR: All right. I will reserve the prosecution’s right to make an application for a sample order, and upon that application the relevant warnings will be given.
129 MR GOODFELLOW: As Your Honour pleases.
130 MS MANDIE: Thank you.
131 HIS HONOUR: Is there anything further, counsel?
132 MR GOODFELLOW: No, Your Honour.
133 MS MANDIE: No, Your Honour.
134 HIS HONOUR: Thank you. You may remove the prisoner, thank you.
135 How long will you need to prepare an application?
136 MS MANDIE: I may not be the person making it. I’m in trial at the moment.
137 HIS HONOUR: Could you ask your solicitor then, please?
138 MS MANDIE: Someone could make the application today, not myself.
139 HIS HONOUR: All right. What about 2.15?
140 MR GOODFELLOW: If Your Honour pleases.
141 HIS HONOUR: Yes, you can make your application at 2.15. Can we adjourn until 2.15, please?
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