Director of Public Prosecutions v Wilkins
[2014] VCC 1334
•4 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00808
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFFREY WILKINS |
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JUDGE: | Her Honour Judge Quin | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 August 2014 | |
CASE MAY BE CITED AS: | DPP v. Wilkins | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1334 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
1 Geoffrey Allan Wilkins, you have pleaded guilty to seven counts of obtaining a financial advantage by deception and one count of attempting to obtain a financial advantage by deception. These offences are contrary to ss.134.2(1) and s.11.1(1) of the Criminal Code (Commonwealth).
2 The maximum penalty for these offences is 10 years. The circumstances of this offending are set out in the summary of facts prepared by the prosecution, Exhibit A.
3 These charges relate to fraudulent goods and services tax (GST) refund claims made by you in eight separate business activity statements (BAS) lodged with the Australian Taxation Office (ATO) between April 2010 and December 2010.
4 The fraudulent GST refund claims were made in the name of a company, “Grundies 4 Undies”, a business you registered in April 2010. They gave rise to payments totalling $37,653 which form the subject of Charges 1 to 7. Charge 8 represents the amount you attempted to obtain, namely $9347.
5 Your offending is characterised by the following aggravating circumstances: your offences occurred in the course of the conduct of a business which was never legitimate and was completely fabricated by you. The offending involved repeated fraud and in some instances, you actively sought the funds communicating with the ATO regarding receipt of payments. However, although your conduct was persistent, it was not sophisticated. The amount you obtained was, though not a huge total, significant.
6 You deliberately stole from the public purse and applied the proceeds for your own debts and personal purposes. You gave false responses to a series of compliance inquiries made by officers of the ATO. You provided false information in response to an audit conducted in January to February 2011 and continued to do so until at least February 2012. Your conduct only ceased when you were informed that your claims were under investigation.
7 I was provided with a report from Dr Robyn Young, clinical psychologist, dated 16 July 2014, which fully sets out your background and personal circumstances as revealed to her by you. You are currently aged 49 years. During your teenage years, you knew you were homosexual but you were concerned about your conservative family's reaction to this fact and you kept your feelings secret. You continued to do so in your adult life, entering into a marriage which lasted about 10 years. After the marriage was over, you had a number of homosexual relationships, though you have not disclosed these to your parents.
8 You have lived in Ballarat and were in a relationship with Mal Domay for about 10 years. He remains supportive of you and has provided a reference regarding your good character.
9 Some years ago, your biological sister contacted you. The family dynamics of your biological family helped you gain some understanding into your own sexuality. However, this contact with her also left you distressed, being informed that your natural mother had kept two of her five children, resulting in you questioning why you had been abandoned.
10 You more recently were involved in a volatile relationship with another man. You suspect this person is responsible for infecting you with HIV as you were diagnosed with this condition in July 2013.
11 You currently reside in Adelaide and provide care for your elderly father. It is not submitted that your role in caring for your father was such that exceptional circumstances or undue hardship had been established regarding the effect of a sentence to be imposed on you, though I do take this factor into account.
12 You have spent most of your life gainfully employed. You were employed at the ATO up until these offences were discovered. It is not suggested that your position at the ATO was such that you were able to take advantage of your employment status or facilitated this offending. Whilst working at the ATO, you received an Australia Day Award for service to the community.
13 You are currently employed as a bus driver in Adelaide. You are settled and happy in this environment and your friends are aware of your sexuality.
14 I have referred to some of the aggravating features of this offending at the commencement of these reasons. The persistent nature of your fraudulent activities is highlighted by those matters. Your method was not sophisticated. The details on the BAS form were easily traceable to you. You identified yourself in communications with the ATO. Once suspicions arose regarding your conduct, it is not suggested that it was difficult to trace it back to you. However, investigators were somewhat hampered by your insistence of the involvement of Mr Lu in this offending.
15 The fact your offending was directed to the Commonwealth of Australia was what is sometimes incorrectly described as a victimless crime and does not excuse the commission of this offence. In reality or in practical terms, you have perpetrated a fraud on the community who relies on government funding for services and infrastructure.
16 At the commencement of this offending, you were in debt, having been declared bankrupt some years before. Some of the money you obtained was used to repay Fox Symes Debt Relief Services Ltd with whom you had entered a debt agreement in April 2005 under the Bankruptcy Act. You continued your fraudulent activity after you had cleared this debt. You incurred personal expenses of approximately $9500 as evidenced by bank or credit card records. The remaining funds were presumably used by you for other personal and lifestyle expenses.
17 There was some dispute between the parties as to whether you offered to repay as much as you could to the ATO investigator or whether the ATO by their own volition garnished your wages and kept legitimate tax refunds to which you were entitled. In any event, it was agreed that approximately $5000 had been repaid.
18 You reported to Ms Young that you cooperated fully with the investigation and that you were very ashamed of your behaviour and accept full responsibility. However, your level of cooperation was more limited. Initially you attempted to blame a Mr Lu for the offending and you maintained that position until February 2012.
19 You were charged and served with these offences on 21 January 2014. You indicated you would plead to these matters at a further committal mention at the Melbourne Magistrates' Court on 26 May 2014. Your plea and acceptance by you of the circumstances set out in Exhibit A is indicative of your remorse. Your pleas of guilty have facilitated the course of justice, in the sense they have resulted in an expedited and certain outcome to the proceedings against you. In so doing, the Crown has avoided the need for a complex and potentially lengthy prosecution.
20 You have no prior convictions. The prosecution concedes that principles of specific deterrence do not apply in your situation.
21 The sentencing principles of just punishment and general deterrence clearly have application to this kind of offending. As indicated by Kaye AJA in Director of Public Prosecutions v Rowsen:
"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. The courts have a significant responsibility to protect the integrity of the revenue system, by imposing punishments, for deliberate and sustained fraud, which are likely to deter others who may be otherwise tempted to indulge in the type of conduct committed by the respondent."
22 It was submitted on your behalf that on the basis of Ms Young's opinion, your moral culpability for this offending was reduced. Reliance was placed on the following passage in her report:
"Whilst it is hard to determine the severity of the disorder prior to his criminal behaviour, from the life experiences described to me by Mr Wilkins, it is clear he has suffered from depression for most of his adult life. He has had suicidal thoughts and self-loathing, as well as living his life pretending to be someone he wasn't for fear of shaming his family."
23 The prosecution did not accept this opinion, questioning its validity, given your recent and limited contact with Ms Young. The prosecution however conceded that they had not requested her for attendance for cross‑examination and were content for me to proceed on the material in its current form.
24 Counsel on your behalf submitted that her opinion that you had suffered lifelong depression had the capacity to reduce your moral culpability for the offending. I accept that you have had to deal with difficult issues in your life, although I am uncertain as to whether your current depressive symptoms were operating at the time of this offence. It was conceded by your counsel that the material before me did not reduce your moral culpability to the extent that considerations of general deterrence were not applicable. As noted above, it was not suggested that specific deterrence was particularly relevant to your circumstances.
25 More emphasis was placed on the last limb of Verdins and the extent to which your depressive symptoms mean that a sentence of imprisonment would weigh more heavily upon you than it would upon a person not suffering from those symptoms or condition. This is particularly so when considered in combination with your current health situation. You will require treatment and monitoring, given your HIV and diabetes status. The Crown conceded this limb of Verdins was applicable to you and I take it into account.
26 Although you initially were not fully cooperative, it was submitted once you were diagnosed with HIV and diabetes in July 2013, your attitude and outlook on life has changed. You are currently gainfully employed as a bus driver and looking after your elderly father. Given your steady employment, lack of prior convictions, your plea of guilty and your changed health circumstances since the commission of this offence, your prospects for rehabilitation are good.
27 Pursuant to s.16A of the Crimes Act, I must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. Section 16A(2) obliges me in sentencing you to take into account the matters referred to within that section as are known to the court, and I have done so. As previously noted, whilst general deterrence is not specifically listed, it is a matter to be accorded weight, given the nature of your offending.
28 I was provided with copies of authorities and a comparative table of sentences imposed for similar kinds of offending. I have had regard to these materials, though the assistance that they can provide is limited, given the different circumstances in each individual case. Your counsel argued that you should receive a disposition that allowed you to remain in the community. The prosecution did not submit that such a course would result in sentencing error.
29 If you could please stand, Mr Wilkins. Geoffrey Allan Wilkins, I sentence you to a period of 12 months' imprisonment. I order that you are to be released forthwith on a recognisance in the sum of $1000 to be of good behaviour for a period of two years.
30 I am required to explain the purpose and consequences of making the recognisance release order that I have just made. The order reflects the gravity of your offence but also the mitigating factors to which I have referred in the course of these reasons. If you are of good behaviour over the following two-year period, that will be the end of the sentencing process as far as this court is concerned. If you are not of good behaviour, in all likelihood, you will be brought back before this court and, depending on the nature and seriousness of the transgression, the court may either take no action, impose a fine, extend the period of your good behaviour or impose a different penalty or revoke the recognisance release order or send you to prison for the balance of your sentence.
31 But for your plea, I would have sentenced you to a total of 18 months' imprisonment and fixed a recognisance release order for a period of 12 months.
32 I think my associate now will have the relevant order, Mr Wilkins, that you are going to be required to sign. No other matters?
33 COUNSEL: No, Your Honour.
34 HER HONOUR: Thank you. You are both excused.
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