Director of Public Prosecutions v Vistarini

[2015] VCC 136

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01178

DIRECTOR OF PUBLIC PROSECUTIONS

v

CINDY MAREE VISTARINI

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2015
CASE MAY BE CITED AS:	DPP v Vistarini
MEDIUM NEUTRAL CITATION:	[2015] VCC 136

REASONS FOR SENTENCE
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Padmanabhan
For the Offender	Mr N. Howard

HER HONOUR: 

1Cindy Maree Vistarini, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity.  The maximum penalty for that offence is 10 years imprisonment.  The prosecution seeks an order for the payment of reparation to the Commonwealth of Australia in the sum of $101,924.69.  The making of that order was consented to.

2The circumstances of your offending are set out in detail in the Plea Summary which was tendered as Exhibit A.  In brief, the circumstances were as follows.  You were in receipt of parenting payment single and family tax benefit between 7 January 2003 and 4 November 2011.  Those benefits were linked to the fact that you have two children.  Your first child was born on 2 January 2003 and the second child on 28 June 2005.  You falsely represented to Centrelink in respect of the parenting payment single and family tax benefit that you were single.  Throughout that period you were living with your then husband and father of your children.  You were initially living with him as I understand it, as an engaged couple and as de facto spouses and you were legally married on 22 February 2003.  The Plea Summary sets out a history of false statements on various forms and documents supplied to Centrelink. 

3You were interviewed by Centrelink investigators on 16 December 2011.  Amongst other matters, you gave false explanations and denied being married or that the person who was your husband was anything other than in a friendship relationship with you.  You denied that he lived permanently with you at all.  You also provided a letter from a person called Jeff, which falsely said that your husband had been living at his address since February 2010. 

4As a result of your deception, you were overpaid parenting payment single in the amount of $104,924.69 over the period of the charge.  A certain amount of that has been repaid by way of fortnightly withholdings of $50 up until June 2013, when those withholdings were transferred to another Centrelink debt which is not the subject-matter of these charges. 

5You and your present partner have confirmed that you wish if possible to return to work.  You are able to work apparently and it is your intention to start making repayments on the outstanding amount.  So far $3000 has been paid in respect of the parenting payment single overpayment and the outstanding amount is the amount that is sought as the reparation order. 

6In sentencing you, I have taken into account your personal circumstances.  Your circumstances were outlined by your counsel and in a psychological report from Ms Alison Mynard dated 27 November 2014, which was tendered as Exhibit 1.  You are now 34 years old.  You grew up in country Victoria.  You have had a good relationship with your mother, but a difficult relationship with your father.  Your parents still live in country Victoria.  You left school at 15 to go to work.  You moved to Melbourne when you were 17 years old.  You have worked in the hotel industry and in house-cleaning.  You married your husband, as I have said, in 2003 and have two children who remain in your care.  You had a difficult relationship with your husband with periods of separation.  You described your husband to Ms Mynard as dominant and overpowering.  It appears that he had some background involving dishonesty and the use of illegal drugs.  You separated from your husband in March 2014.

7You are now in a relationship with your new partner, who is a self-employed plumber.  It appears that that relationship is very supportive and a stabilising influence on you.  I was provided with a medical report by Dr Ram Prassad dated 11 February 2015 which was tendered as Exhibit 4.  That report describes certain physical conditions you have.  It also says that you have been diagnosed with bi-polar effective disorder and have been on various medications, including medications in respect of the bi-polar effective disorder.  You also have a history of depression, according to Dr Prassad.  Dr Prassad says you are very compliant with your medications and attend all your appointments promptly. 

8

Ms Mynard, in her report, comes to a different conclusion.  It is her view that you suffer from a borderline personality disorder rather than bi-polar disorder; generalised anxiety disorder and dysthymic disorder.  Ms Mynard says that your current medication does appear to help your fluctuating moods. 

Ms Mynard says:

"It is the writer's opinion that this personality disorder has contributed significantly to the circumstances over the 10 years that Mrs Vistarini was incorrectly claiming the single parenting payment".

9Ms Mynard says you had significant relationship difficulties with your husband and your difficulties also impacted on your everyday functioning.  It is Ms Mynard's opinion that a term of imprisonment would weigh very heavily on you, given your  psychological conditions.  She is of the opinion that it would adversely affect your mental health.  It is Ms Mynard's belief that you are remorseful in terms of being aware of the wrongfulness of your actions and your ability to manage yourself better at the time.  She says that you appear to be shameful about the whole case and are extremely anxious about the impact of your actions upon your own future and your children's future.  Ms Mynard makes recommendations as to various forms of psychological treatment and financial counselling which she suggests would be of benefit to you.  You have no prior criminal history.

10In sentencing submissions, your counsel submitted that a Community Correction Order would be the appropriate sentence.  If I were against him on that, he submitted that the Commonwealth equivalent of a suspended sentence would be the appropriate sentence.  Your counsel particularly relied in mitigation on your plea of guilty for its utilitarian value and as an expression of remorse.  He also relied on your lack of prior criminal history, the application of Verdins principles and the current stable and supporting relationship that you have.  Your counsel also referred to your past repayments of the overpayment, together with your intention to make future repayments. 

11The prosecutor in sentencing submissions addressed the relevant Commonwealth legislation and applicable sentencing principles.  The prosecutor conceded that the delay between interview and charge in December 2013 should be taken into account in mitigation.  The prosecutor agreed that this offending was not particularly sophisticated.  The prosecutor did not accept that your offending was a matter of succumbing to fraud in the context of a difficult relationship.  The prosecutor submitted that you were responsible for submitting the forms to Centrelink.  The prosecutor said that you were engaged when you first started falsely claiming the benefits and that you were married shortly after.  The prosecution submitted that the court should be guarded in respect of how much remorse you actually feel. 

12The prosecutor stressed the importance of general deterrence and specific deterrence as sentencing principles in this case and submitted that Verdins principles would not be applicable.  The prosecutor submitted that a sentence of imprisonment would be the only appropriate sentence, but the degree to which that sentence could be suspended would be a matter for the court. 

13Ms Vistarini, your offending is serious.  You perpetrated a fraud on the community of Australia.  There are very many people in receipt of benefits in very difficult circumstances.  Most people in those circumstances are able to remain honest.  The system could not work without people being honest in their forms to Centrelink.  It is impossible for every fact that is stated on those forms to be checked.  It would impose an even greater burden on the taxpayers of Australia if further checks had to be made. 

14Your offending occurred over a long period of time.  You made a consistent effort with your deception, including in the record of interview.  It is my view that your offending demonstrates significant dishonesty.  I accept that you were in a difficult relationship, but your offending commenced as soon as you had a child and whilst you were in that relationship.  You stayed in that relationship for many years even though it was of an off-and-on nature.  I accept that your husband was not a stable or supportive person as far as you were concerned, but he did contribute financially and in other ways to the household. 

15General deterrence has to be given significant weight in sentencing you.  Social security fraud is easy to commit and difficult to detect.  As I have said, the burden on taxpayers of people making false claims is a heavy one.  Others must be deterred from similar offending. 

16I accept that the amount that you received by way of overpayment was a relatively modest amount each year.  There is no evidence of any type of lavish lifestyle.  I accept that your reliance on these overpayment amounts was for basic support of yourself and your children, rather than pursuit of a lavish lifestyle or indulgence in illegal activities.

17A number of factors do operate in mitigation.  Your plea of guilty has considerable utilitarian benefit in saving the inconvenience and expense of a trial.  By your plea of guilty, you have accepted your legal responsibility for your actions and I accept that you deeply regret them.  I think there are limitations to the degree to which you feel remorse in terms of understanding or accepting the moral culpability of your actions, but it appears from what your partner says in his reference and from what your counsel says, that your ability to understand the wrongfulness of your actions is increasing.   You said a number of things to Ms Mynard, which indicate that you were attempting to shift the blame onto your husband, but Ms Mynard remained of the view that you were remorseful in terms of accepting your moral culpability.  I accept that you are remorseful but, as I have said, I think that is to a limited degree, but increasing. 

18I consider that you have good prospects of rehabilitation.  You have no other offending before or since.  You are in a stable and supportive relationship.  You have commenced repayments and intend to make future repayments.  It appears that you have the capacity to return to work and to be a contributing member of society and to contribute to the support of your children.  Specific deterrence need have reduced weight in sentencing you.

19I have given consideration to the application of Verdins principles.  I accept that jail would be more difficult for you because of your psychological conditions.  I accept that your psychological state would be adversely affected by imprisonment.  I also accept that your psychological state would have adversely affected your ability to cease your deception once it started, compared to a person in a similar situation without your psychological difficulties.  That conclusion is consistent with some moderate reduction in sentence in application of Verdins principles to reflect some reduction in moral culpability.

20I have taken into account the delay between interviewing you and charging you in respect of this matter and the matter coming to court.  The matter has been hanging over your head for some time.  During that period of time, you have been able to commence your rehabilitation.  I also accept that imprisonment would weigh heavily on your because of your concern in respect of your children, although it appears that they would be looked after by your current partner. 

21The importance of general deterrence, the length of your offending, the amount of money involved and the level of deception involved leads me to the conclusion that a sentence of imprisonment is the only appropriate penalty.  In the circumstances I consider that you should not be required to serve that sentence immediately, but should be released immediately on a recognisance release order, which is the Commonwealth equivalent of a suspended sentence.  I have come to that conclusion because of your good prospects of rehabilitation, which is in the interests of the community as well as yourself and your children. 

22I have taken into account the rehabilitation that you have commenced and the difficulties that you would have in custody.  I consider that you have suffered some punishment already in the delay in the matter coming to court, in court appearances and in your fear of incarceration and impact on your children.  Could you please stand up, Ms Vistarini. 

23Ms Vistarini, on Charge 1, you are convicted and sentenced to two years imprisonment.  I order that you be released forthwith on entering into a recognisance release order.  I set the recognisance amount as $1000.  That is the amount that you will forfeit if you breach the recognisance.  The other requirement of this order is that you be of good behaviour for a period of two years.  That means, if you breach the order by re-offending, then you can be brought back to court.  The court has then a number of options, including fining you, but another very relevant option is to revoke the recognisance release order and order you to serve a term of imprisonment. 

24I warn you strongly that if you come back before me, having re-offended in any way that involves dishonesty, then the most likely outcome is that you would go to gaol in addition to any sentence you would receive for that subsequent dishonesty.  You must be extremely careful to be honest in all your dealings, particularly with any form of government entity. 

25I make an order for reparation to the Commonwealth of Australia in the amount sought of $101,924.69.

26Can you please take your seat, Ms Vistarini.  The form will now be completed and then you will be asked to sign that.  Thank you,  So just take your seat for the moment. 

27I would like to ask counsel please to check that order and then Mr Howard, if you would accompany my associate to get Ms Vistarini's signature on that document.  She will need to read the section which applies to her before she signs it, but if you could both check that.  It should not be too hard, it is relatively straightforward.  The reparation order is not a condition of the recognisance.

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