Director of Public Prosecutions v Westlow
[2024] VCC 1599
•15 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01918
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEIGH WESTLOW |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 21 August 2024, 14 October 2024. | |
DATE OF SENTENCE: | 15 October 2024 | |
CASE MAY BE CITED AS: | DPP v Westlow | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1599 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Plea of guilty - dishonestly obtaining a financial advantage by deception – GST – BAS – taxation fraud - surrounding circumstances - gambling debts – methamphetamine addiction - abusive relationship - gambling debts - sustained course of conduct of dishonesty - significant moral culpability - prior convictions - specific deterrence - compelling evidence of rehabilitation -- mother of a six-month-old child.
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth).
Cases Cited:DPP (Cth) vGregory [2011] VSCA 145; Linden Phillips v Director of Public Prosecutions (Cth) [2024] VSCA 132; DPP (Cth) v Rowson [2007] VSCA 176 [24].
Sentence: 28 months imprisonment with immediate release on recognisance with a condition of good behaviour for three years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Keefe | Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | Macro Man & Associates |
HIS HONOUR:
1Ashleigh Westlow, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception contrary to s134.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is 10 years' imprisonment.
2The circumstances of your offending are set out in detail in the Prosecution Opening which I will summarise. Much of the Opening refers to the mechanics of the BAS and GST system which I will not repeat.
3
You were born in July 1992. At the time of the offending, you were 29 years old. Around September 2021 you applied for an ABN which became effective on
10 September. You registered a business in Laundry and Dry-Cleaning Services as a sole trader. You provided your mother's address in Truganina as the business location. You also supplied an email address and a mobile phone number.
4You registered for GST on 1 October 2021. You chose the cash method of GST accounting and report using the simpler Business Activity Statement (BAS), method. You nominated a monthly BAS lodgement cycle. You also created a MyGov account in your name which enabled you to access the ATO. Using this MyGov account you lodged 12 BAS, including amended BAS, for the periods between September 2021 and April 2022.
5The basis of the deception in this case is that you were not running a laundry business at all, or any business. You claimed refunds for GST on purchases you never made. The refunds were sent to your nominated bank accounts. The total received by you was $197,917.
6In February 2022, Victoria Police commenced an investigation into your fraud.
7A Record of Interview was conducted with you on 31 May 2022. You told police you had been working as a cleaner at a company called Geelong Spotless Cleaning. You claim to have been earning between $900 and $1,120 in weekly income. You claimed to have purchased approximately 12 vacuum cleaners. By the end of the interview, you said that when you lodged your first BAS in September 2021 you had realised this was a way to obtain money and that the GST refund money was your 'get out of gaol free card' and you could use it to pay people back.
8That is a brief summary of the offending in this case, but I take into account the entirety of what is set out in the Prosecution Opening, which was tendered as an exhibit on this plea.
9In sentencing for a Commonwealth offence I must take into account the sentencing factors listed at s16A(2) of the Crimes Act (Cth). Pursuant to s17A I must not impose a sentence of imprisonment unless no other sentence is appropriate.
Section 16A(2)(g) – plea of guilty; Section 16A(2)(f) – degree of remorse shown
10You pleaded guilty to the offending at the third committal mention in this matter on 13 November 2023. I accept this was a guilty plea at effectively the earliest opportunity. Your plea of guilty indicates a willingness to facilitate the course of justice. You have spared the prosecution and the Court the use of the resources required for a contested trial in this matter. Therefore, the utilitarian value of your plea is significant, and you must receive a significant sentencing discount for it.
11The prosecution submitted that your remorse is undercut by some false denials in your Record of Interview. I accept that at the time you were interviewed you did not have full remorse. However, on the plea hearing you gave evidence before me indicating remorse and you pleaded guilty to the charges in this case. Based on your evidence, the psychological report and other material before me I am satisfied you do have remorse for your offending.
Section 16A(2)(a) - Nature and circumstances of the offence; Section 16A(2)(c) – Series of criminal acts representing a course of conduct; general deterrence
12This was serious offending; this was a fraud on the revenue. The GST and BAS system is a self-reporting system which depends on taxpayers providing honest and accurate information to the ATO. The integrity of the system is compromised by dishonesty such as yours. In your case the figures supplied across the 12 documents were starkly inconsistent; indeed, they were obviously impossible. Therefore, the fraud was detected relatively quickly. The offending was not particularly sophisticated though, and I accept the surrounding circumstances about which you gave evidence: which were that you were in an abusive relationship you were seeking to escape, and you were using methamphetamine, and you had gambling debts. However, the offending involved multiple acts and some planning. You had to register for GST, create a MyGov account and then submit the BAS forms over an extended period.
13I accept you spent the money you received largely on drugs, drug debts and gambling. The likelihood of restitution any time soon is remote. Although unsophisticated and doomed to fail, this was a sustained course of conduct of dishonesty involving a significant amount of money and your moral culpability for the offending is significant.
14I accept though the submission of your counsel, Mr Moodie, that you can be differentiated from the type of offenders the Court of Appeal described in DPP (Cth) Gregory [2011] VSCA 145 as:
… rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.[1]
[1] DPP (Cth) vGregory [2011] VSCA 145 [53].
15Nonetheless in the case of Linden Phillips v Director of Public Prosecutions (Cth) [2024] VSCA 132 which was referred to at the plea hearing in this matter the Court of Appeal said:
In particular, it is well‑established that general deterrence is a significant sentencing consideration in cases of fraudulent misuse of the self‑assessment processes under Australian taxation law.[2]
[2] Linden Phillips v Director of Public Prosecutions (Cth) [2024] VSCA 132.
16The court referred to DPP (Cth) v Rowson, where Kaye AJA said:
It is well recognised that those who systematically defraud the public revenue of large sums of money over a substantial period should be sentenced to substantial terms of imprisonment. The regime established for the collection of goods and services tax is basically dependent on the honesty of those participating in it. In cases such as this, considerations of general deterrence are given particular emphasis, and indeed prominence, in the sentencing process.[3]
[3] DPP (Cth) v Rowson [2007] VSCA 176 [24].
17These principles obviously have relevance in this case, but some moderation of general deterrence and the assessment of your moral culpability is called for due to your circumstances and the overall lack of sophistication in this offending, compared to the sort of offenders referred to in the case of Gregory.
18However, for offending such as this, specific deterrence must also be given weight in deciding the appropriate sentence.
Section 16A(2)(d) and (e) - Circumstances of any victim and loss resulting from the offending
19I accept the prosecution submission that taxation fraud affects the whole community and that whilst the ATO is the ostensible victim, there is a flow on effect to the honest taxpayer.
Section 16A(2)(m) - character, antecedents, age, means and physical or mental condition of the offender
20You have some relevant prior convictions which I accept occurred in the context of your long-term addiction to methylamphetamine. You have a subsequent conviction for dealing with property suspected to be the proceeds of crime for which you were dealt with by the Werribee Magistrates' Court on 25 May 2023. You also have a prior conviction for dealing with proceeds of crime dating back to January 2017. On that same day you were dealt with for aggravated burglary and theft. You have never been sent to prison. In fact, you have never been convicted. In May 2023, for the proceeds of crime offence and other drug offences you were placed on a community correction order for a period of 12 months. Those offences occurred in June of 2022. A memorandum from Corrections was tendered, which is dated 10 May 2024. That memo confirms your successful completion of the correction order which was imposed in May 2023
21Obviously, your prior convictions are relevant to the assessment of your moral culpability for this offending, the need for specific deterrence and are relevant to your prospects of rehabilitation.
22You were 29 years old at the time of the offending in this case. You are now 31 years old. Your father, Roland, who provided a letter, is 66 years old and your mother, Cheryl is 61 years old.
23You grew up in Hoppers Crossing. You went to Derrimut Heath Primary School from prep to Grade 6. You then went to Thomas Carr Secondary College. You completed Year 12. You did well enough to qualify for Law at Deakin University in Geelong, but you dropped out of that degree during your second year.
24You describe your family life as 'so good', and that you did not go without anything, and that you were very close with your family until you started using drugs. Your mother worked as an accountant and your father was a sales manager. Your parents separated when you were aged between 19 and 20 years. You told Ms Carla Lechner, the forensic psychologist who provided a psychological report in this case, that your parents consider your drug use was a factor in their separation.
25You gave evidence at the plea hearing in this matter. Your evidence was not challenged. In your evidence you said that when you were around the age of 19 you tried methylamphetamine and immediately became addicted. In Ms Lechner's report you were quoted as saying that after leaving university you did nothing except use drugs. You have had some casual employment at McDonald's and call centres.
26In more recent times you obtained a Forklift Licence, and you were working at a storage company as a forklift operator until your pregnancy made it impossible for you to continue that work. You then obtained work at Toyota Auto Care.
27You gave evidence that at the time of the offending you were still heavily drug addicted. You were living with your partner and another woman. Your partner at that time was abusive. You were trying to get away from him. You said in evidence that in those circumstances, and aware of others who had committed a similar fraud, you embarked upon the offending in this case. You left your partner and obtained rental accommodation.
28You met your current partner Jake in April 2022, which was at the end of the period of these offences. Jake was a drug user as well. He was involved in the offending with you in June 2022 for which you ultimately received a Community Correction Order. He was not so lucky; he received a sentence of around 12 months' imprisonment for the offences which included in his case possession of a firearm.
29When he was in prison you went to live with his mother, Lisa Fry, who attended at Court to support you and has provided a letter of support. I accept that from the time you went to live with Ms Fry you stopped using drugs, cut ties with your friends in the drug using world and obtained employment. You gave evidence about this and the steps you have taken to rehabilitate are detailed in the report from Ms Lechner.
30In Ms Fry's letter she says this:
'In June 2022 Ashleigh was facing being homeless. At this time Ashleigh expressed that she had no family or friends for support to help her out. After great consideration and lengthy conversations with my best friend and family regarding Ashleigh and her situation, and what I was considering doing for her, only to be told I would be absolutely stupid to even think I could help this girl and why would I even want to take this on, I put a proposal to Ashleigh regarding her moving in, it was on the provision that she had to get sober, stay sober, earn my trust and respect, look into counselling and then eventually seek employment and contribute back to the community.”
31Ms Fry then says in her letter that since she gave you a chance you have done nothing but go above and beyond to change your life for the better in every aspect possible. She says you have been sober since 10 July 2022. She says that you were a shell of a person at the time she agreed to allow you to live in her home but you have since been able to obtain and hold employment. You continued to work as a forklift driver after you became pregnant. Once you could no longer perform that role you obtained the further employment at Toyota. She says you worked until 10 days before your son Tyson was born.
32Your partner Jake was released from prison in May 2023. He now works hard as a concreter in Geelong. It seems he too has been able to rehabilitate. Soon after Jake was released and came to live with you and his mother you became pregnant. Your son Tyson was born in April 2024.
33Ms Fry describes that you have a strong loving relationship with Jake and that you have moved from addiction to sobriety, and you are now a responsible mother of an infant son.
34I was also provided with a reference from your father. You now have a positive relationship with him. You are still estranged from your mother. Your father says you now recognise the hurt and the appalling behaviour you visited on your family and friends. Your conduct caused your family much pain. You have apologised to them, and you are working to make things right. He speaks to you almost daily and he visits you every few weeks. He lives an hour away from where you live. He says the future for you and Jake looks very bright. He says your story shows that a person can turn their life around if they own up to the problems they have caused. He is proud of you and your prospects for the future.
35Mr Moody submitted that there has been significant delay in this case. It was over a year after the interview in May 2022 before the charges were filed, which was on 20 June 2023. It is true that a lot has happened in your life since then.
36I accept the submission that I must take into account this delay. You have had this matter hanging over you for two years now. I accept that you have had to deal with the anxiety of a possible sentence of imprisonment. The anxiety has been elevated because in that time you have given birth to Tyson, and you have had to wrestle with the prospect of being separated from him or even bringing him into a prison environment. Furthermore, in the time it has taken this case to get to court you have been able to demonstrate rehabilitation.
37Ms Lechner in her report describes you as completely turning your life around and that you have been abstinent from drug use and gambling for two years. She says you do not present with any underlying psychological or psychiatric disorders that require treatment. Ms Lechner saw you before Tyson was born but said she would 'anticipate a decline in your mental health if imprisoned especially if separated from your baby'.
38I accept without reservation that since the offending you have taken very significant steps towards rehabilitation. You have stopped using drugs. You have stopped gambling. You obtained employment. You have been a caring and responsible mother. If you can sustain a drug free life, in my opinion you are unlikely to offend. The signs are positive. I am satisfied that you want to provide an ongoing stable and nurturing family environment for your son. I ordered a community correction order assessment in this matter and in that report, you are described as a low risk of reoffending. Based on the material before me I assess you as having very good prospects of rehabilitation.
s16A(2)(p) the probable effect that any sentence would have on any of the persons family or dependents
39Under s16A(2)(p) of the Crimes Act (Cth) I am required to have regard to the probable effect that any sentence would have on a person's family or dependents. You gave evidence that you considered making an application to have Tyson with you in the event of a prison sentence but at that time you had decided this would not be in Tyson's best interests. You said you were unsure of what the environment in the prison would be and what impact that would have on you and your capacity to care for him. Since that time, you have commenced an application to have Tyson with you in the prison in the event that Ms Fry is unable to fully care for Tyson, because she has her own responsibilities in respect of her mother and stepfather, and your partner Jake is working full time.
40I asked Mr Moody whether he could provide me with some evidentiary foundation as to the effect on Tyson of a separation from you and a report has been provided from adjunct associate Professor Karleen Gribble from the school of nursing and midwifery at the Western Sydney University.
41This report provides information about your parenting and the likely impact on Tyson of a separation from you, and some information about the likely impact upon you as well. As to your parenting, Ms Gribble spoke to Ms Denise Harris from the maternal and childcare centre you attend. Ms Harris described Tyson as a 'super lucky' baby to have such caring and capable parents and described you as described you as a loving and caring mother showing good attachment to Tyson and being 'in tune' with Tyson and prioritizing his needs.
42Associate Professor Gribble in her report dealt with at some length the literature concerning the effect on infants of separation from their mother and then went in her opinion section directly to the impact on Tyson. I take into account the general matters, but I will quote from the opinion. Associate Professor Gribble said this:
It is my opinion that should Ms Westlow be incarcerated, and Tyson be separated from her, that this will be detrimental to Tyson's mental health and development. Separation from his mother for a period of between four to six months will be experienced as severe trauma for Tyson. Tyson will not be able to hold a concept of his mother in his mind over this period, nor understand that separation is temporary. It will cause him emotional harm. Repair of the relationship between Tyson and Ms Westlow may be difficult, and Tyson's development and mental health may be adversely impacted in the long term. The negative impact of this separation may remain with him for all of his life.
43Associate Professor Gribble also talks from a general perspective about the impact on mothers generally of a separation from their infant. There is some direct evidence about that from Ms Lechner, and I accept that separation from Tyson would increase the burden of your period of imprisonment. That seems to me to be common sense. I do accept that impact on Tyson of a period of imprisonment is a matter I should give some weight in sentencing in this matter.
44Ms Keefe made the point in her submissions that it is of course open to you to be part of the program that would allow Tyson to live with you in prison, and that is relevant to the weight that I give to this factor. I accept that submission, but I also understand your reasons for not wanting to bring Tyson into a prison environment, that was a matter about which you gave evidence. Nonetheless, it is a not insignificant matter in deciding the appropriate sentence in this case.
Submissions
45Mr Moody submitted that I should impose a community correction order in this matter. His submission was that the need for general deterrence is reduced by the unsophisticated nature of your offending and that your situation sits uneasily with the jurisprudence referred to on the sentencing hearing in this matter. He submitted that your offending was largely unsophisticated, and having regard to the matters in mitigation, a community corrections order was appropriate. I think in the alternative he submitted that a prison sentence with immediate recognisance release order was also appropriate. He submitted your prospects of rehabilitation are very positive and after considering all the relevant factors I should not impose a period of immediate imprisonment.
46The prosecutor, Ms Keefe, submitted that having regard to the serious features of this offending and your criminal history, the need for general and specific deterrence and punishment is such that the only appropriate order is a prison sentence with a period to be immediately served.
47This is a very difficult sentencing decision. On the one hand this was a serious fraud on the revenue over several months that would ordinally attract a significant sentence of imprisonment. That much is clear from the relevant sentencing principles and the comparative cases referred to by the prosecution which were discussed at some length on the plea hearing. On the other hand, in the two years since the offending, your life has undergone a transformation. You were a dishonest drug addicted offender then; you are a now in a stable relationship and you are the mother of a six-month-old child. You have dedicated yourself to your son and it is clear from the evidence before me you are a responsible and caring mother. You have support. You do not use drugs anymore. You have shown you can obtain and hold employment. Ms Fry gave you a chance and you have taken that opportunity.
48I have decided against imposing a correction order in this case. Supervision, drug treatment and mental health treatment were not recommended, and I am not satisfied that a work only community correction order is realistic or achieves anything in your case. You have recently completed such an order successfully.
49In my opinion a significant sentence of imprisonment is required but having regard to the relevant sentencing factors and your personal circumstances, a sentence of less than three years is appropriate. This means a recognisance release order under s20(1)(b) of the Crimes Act (Cth) is necessary. I could order you to serve some period of immediate imprisonment or I could release you immediately.
50Having regard to the delay in this matter and the compelling evidence of rehabilitation, combined with the impact on Tyson of sending you to prison and the increased burden on you of a prison sentence in your current circumstances, I have decided ultimately to release you immediately. If you can comply with the recognisance release condition of good behaviour, then you will not have to go to prison but if you reoffend you will have breached that condition. You will be brought back before me, and you should expect to serve the period of imprisonment I have imposed today. In my opinion in the end this order best balances the competing sentencing principles in this case. Ultimately the community is best served by your rehabilitation and in my judgement a period of imprisonment would interrupt and potentially sabotage the steps you are taking to lead a productive life away from the environment in which this offending took place. I am satisfied that such an order will operate as a genuine deterrent to you against further offending and that in all the circumstances of this case it sufficiently satisfies general deterrence and punishment.
Sentence
51What I propose to do is sentence you to a period of imprisonment of 28 months. I order immediate release on recognisance. The recognisance will be in the sum of $3,000. There will be a condition that you are to be of good behaviour for a period of three years.
52This is really a suspended sentence, do you understand? I mean it is not exactly the sort of order that used to be made under the State system, but that is what it is effectively. If you reoffend, then you can expect to go to prison. So if you revert to the type of lifestyle you were leading in 2022, taking drugs, gambling, I am sure you will offend, but I have got every confidence that given what I have heard about you in the last two years, that you have changed course and that you are dedicated to providing the best care you can for your son and your partner, and leading a stable life. So that is what I have decided to do in this case.
53Now, Ms Keefe, can the Commonwealth provide the recognisance release document?
54MS KEEFE: Yes, Your Honour (indistinct words)
55HIS HONOUR: She has got to sign that, doesn't it?
56MS KEEFE: She does, yes.
57HIS HONOUR: Yes. I will prepare that document. Look I will say this, you are extremely lucky. This was a lot of money, and it was a serious offence and it is only because of what you have done since and the fact that you are looking after a very young child, that I have decided to do what I have done. So do you understand, this is the last chance you will get. All right.
58All right, nothing to raise about all that. We will just prepare the document, and I will have her sign.
59MS KEEFE: Your Honour, there is also the matter of the reparation order sought.
60HIS HONOUR: Yes, yes, I will make that. Sorry, I beg your pardon.
61MS KEEFE: Thank you.
62HIS HONOUR: Yes, I will make – is that in the 197, is it?
63MS KEEFE: Yes, Your Honour, $197,917.
64HIS HONOUR: Yes. I will make a reparation order, that's to the Commonwealth is it?
65MS KEEFE: That's correct.
66HIS HONOUR: In the sum of $197,917. You owe the Commonwealth nearly $200,000 for what you did, all right.
67I might just stand down while the recognisance is prepared and as soon as it is done, I will come back.
68(Short adjournment.)
69HIS HONOUR: I have signed that. Can you just check it, that it's correct and then it can be taken down to Ms Westlow.
70MR MOODY: Yes.
71HIS HONOUR: She can sign that. Do you want to take it to her, Mr Moody, thanks.
72MR MOODY: Yes, Your Honour, I'll do that.
73HIS HONOUR: So I have sentenced you to that period of imprisonment. I have released you immediately on the condition that you are of good behaviour. Do you understand that? So if you were to reoffend in any way, you would have breached the condition of good behaviour and the matter would then come back before me, and I would then have to deal with you, Ms Westlow. You would be at real risk then of serving a very significant period of imprisonment. Do you understand that?
74OFFENDER: Yes.
75HIS HONOUR: And it lasts for three years, all right. So you have gone a few years now without offending, that needs to continue, and it needs to continue for three years. And if you were to get through that, no doubt by that stage you would have left all this behind. But if you were to go back to using drugs, well no doubt you would offend again and you would find yourself in prison. Do you follow all that?
76OFFENDER: Yes.
77HIS HONOUR: Yes, all right. Nothing else I need to say to her, that complies with what I am required to do under the Act?
78MS KEEFE: That's correct, Your Honour, yes.
79HIS HONOUR: Yes, all right. Thank you, Mr Moody. Thank you, Ms Keefe, for your assistance in this matter.
- - -
0
3
0