Director of Public Prosecutions v Winpea

[2018] VCC 898

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00564

DIRECTOR OF PUBLIC PROSECUTIONS

v

MORRIS DEIA WINPEA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2018
DATE OF SENTENCE:	15 June 2018
CASE MAY BE CITED AS:	DPP v Winpea
MEDIUM NEUTRAL CITATION:	[2018] VCC 898

REASONS FOR SENTENCE
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Subject:  
Catchwords:  Dishonestly Cause Loss to Commonwealth Entity.

Legislation Cited:  Criminal Code Act 1995, Crimes Act 1914 (Cth).

Cases Cited:  

Sentence:Convicted and sentenced to a period of nine months' imprisonment. Under paragraph 20(1)(b) of the Crimes Act 1914 (Cth), be released on a recognisance release order in the sum of $2,000, to be of good behaviour for a period of 2 years.

Reparation Order made in the sum of $48,844.78.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr J. Gullaci and Ms S. Holmes
For Accused Winpea	Mr D. Langton

HIS HONOUR: 

1Morris Deia Winpea, on 7 June 2018, you pleaded guilty to one charge of dishonestly causing a loss to the Commonwealth entity, contrary to s.135.1(3) of the Criminal Code (Cth).  The maximum penalty for this offence is five years' imprisonment.  It is an agreed fact that between 3 August 2015 and 7 December 2015 you dishonestly caused the loss of $48,844.78 to the Commonwealth. 

Circumstances of Offending

2The prosecution tendered a summary of prosecution opening dated 9 May 2018.  I have called this Exhibit A on your plea and it is annexed to the reasons for this sentence.  This document was originally a trial opening and refers in part to a much larger scheme of offending, including a reference to what is known as "the Deng Group". 

3The Department of Education and Training was responsible for the administration of Family Day Care programs and payments.  The FDC businesses, that is the providers, had an administrative support role in rebate claims to the Department of Education and Training and the oversight of the FDC educators who provided the actual day care services.  You worked as an FDC educator. 

4The Department of Education and Training identified a group of FDC providers referred to as the Deng Group as involved in fraudulent activity. 

5In relation to your specific offending, you engaged in the following activity with the intention of dishonestly causing a loss to the Commonwealth between
3 August 2015 and 7 December 2015. 

6You submitted timesheets through three different FDC providers, namely Manhale FDC which is a Deng Group FDC, Discover & Learn FDC and Dorsey FDC, which is also a Deng Group FDC. 

7You did the following dishonestly with the intention of causing loss to the Commonwealth:

·You submitted claims for providing childcare to FDC providers using timesheets;

·You asserted you were providing childcare when you submitted the timesheets to the providers;

·You submitted timesheets through different FDC providers including the Deng Group FDC providers;

·You claimed that you provided childcare services which were not in fact provided; and

·You were paid for those services that were not provided. 

8The total sum you received from the Commonwealth as an FDC educator for the period of 6 July to 5 December 2015 was $174,444.84.  Not all of these funds have been dishonestly obtained from the Commonwealth. 

9The dishonestly obtained money obtained by you from the Commonwealth occurred in four distinct periods;

1.  Between 15 July 2015 and 18 August 2015 - you attended classes on six occasions at VICSEG New Futures to obtain a Certificate III in Early Childhood Education and Care.  On those same six days, you claimed childcare services payment from the Commonwealth to the value of $9,747.50. 

2.  In 2015, you were employed as security personnel at Smarte Carte Australia Pty Ltd.  Your duties were at Tullamarine Airport.  On the 23 days between 13 July 2015 and 2 November 2015, you were at work at Tullamarine Airport and for those same days you claimed for childcare services that you did not provide to anyone.  The total of those dishonest claims totalled $28,839.83.  

3.  You travelled to Adelaide from Melbourne on Tiger Airways on 22 July 2015.  You returned from Adelaide on 26 July 2015.  For that same period, you submitted claims for each of the five days for childcare services that were not provided by you.  The total of the dishonest claims was $6,956.25. 

4. On 7 October 2015 - you travelled to Sydney for a funeral.  You returned to Melbourne on 9 October 2015.  For each of those three days you were in Sydney, you dishonestly claimed for childcare services that were not provided by you.  The total of the dishonest claims on the Commonwealth on that occasion was $3,301.20. 

10The total of your dishonestly obtain childcare payments from the Commonwealth was, as I said at the start, $48,844.78. 

11In the period of 5 July to 10 December 2015, you received a total of $109,622.62 in childcare payments from the Deng Group related family care providers.

12The telephone conversations between A. Deng and yourself on 22 November 2015 and 25 November 2015, clearly set out your dishonesty in relation to the claims made and the payments made to you.  The intercepted telephone conversations are set out in Exhibit A. 

13You are one of nine educators who have been charged with this offending in the Deng Group.  Of those educators charged, your amount of dishonestly obtained payments is the eighth highest.  It is to be noted that your false claims were not limited to the Deng Group FDC businesses. 

Personal Circumstances

14You are 42 years old.  You were born in Liberia.  Your father was a farmer who lived near the capital of Monrovia.  Liberia was enmeshed in a civil war between 1990 until 2003.  Your father was a captain in the Liberian army.  At age two, your mother left the family.  Your father remarried and you have three stepbrothers and two stepsisters.  You are the oldest of the family constellation.

15In 2002, your family fled to the Ivory Coast.  In the process of this escape, your father was killed.  By 2002, you had a partner, a son born in 1992 and a daughter born in 1998.  You became separated from your own partner and children in 2002.  You have not seen them since. 

16Between 2002 and 2010, you lived in a refugee camp in Guinea.  Up to 2006, conditions in the Guinea refugee camp were relatively comfortable until the aid agencies that then ran it left for work in less fortunate refugee camps. 

17On 3 March 2010, you arrived in Australia on a refugee visa.  You became a citizen of Australia in 2014, the year immediately before your offending. You came to Australia with your stepmother and five stepsiblings.  The family has now scattered throughout Australia and you have little or no contact with any other members of your family.   

18Since coming to Australia, you have obtained a number of qualifications. They include:   

a) May 2010 -  Certificate II in Hospitality;

b) February 2010 - Cultural Orientation Course;

c) May 2013 -  Certificate II in Security Operations;

d) February 2015 - Certificate IV in Disability Care and Diploma in Early Childhood Education and Care;

e) May 2015 -  Food Safety Practices Qualification and Management of Asthma Risk Qualification;

f) August 2015 - Emergency First Aid in Education and Care Setting; and

g) September 2015 – First Aid Course.

19Between 2011 and 2013, you moved to Townsville and worked in a meat processing factory.  In 2013, you were then moved to Perth and worked in the security industry and became qualified there.  In 2014, you moved to Melbourne to pursue opportunities in the care industry as it is described.  You then became involved in childcare and then the offending that brings you to Court.

20You are currently unemployed and live by yourself in South Morang.  You have been unsuccessful in finding your Liberian partner or your surviving daughter.  Your son died at age 25 years old due to a medical condition.  You have no prior convictions in this country or the country of your birth.

Sentencing Considerations

21The most significant consideration when sentencing a federal offender such as yourself is s.17A of the Crimes Act, which provides as follows:

"The court shall not pass a sentence of imprisonment on any person unless the court having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case."

22A term of imprisonment is the only appropriate sentence for your offence. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing a federal offender such as yourself. There are many factors I must take into account when sentencing you and they are set out in s.16A of the Crimes Act. These factors include:

a) the nature and the circumstances of your offence;

b) if the offence forms part of a course of conduct consisting of a series of criminal acts - in this case submitting time sheets regularly;

c) any injury or loss or damage resulting from the offence, in this case loss to the Commonwealth revenue;

d) the degree to which a person has shown contrition for the offences - in your case, the remorse is confirmed by your plea of guilty;

e) that you have pleaded guilty to the offence;

f) that the deterrent effect of any sentence or order under consideration may have on a person - that is specific deterrence to yourself;

g) the deterrent effect that any sentence or order under consideration may have on other persons - that is the general deterrence factor. 

h) the need to ensure that you are adequately punished for your offending;

i) your character, antecedents, age, means, physical and mental condition of yourself;

j) the prospects of your rehabilitation; and

k) the probable effect that any sentence or order under consideration would have on you or your family. 

23At the time of your offending, you were 39 years old.  You had been in Australia for some five years.  You came to Australia as a refugee.  You had no prior convictions either here in Australia or in the country of your birth.  There are no outstanding matters to be dealt with by the courts in relation to you.  You are to be sentenced as a person of previous good character. 

24You have indicated a plea of guilty to the present charge before the court after a committal hearing had been conducted.  You confirmed your intention to plead guilty at a directions hearing on 25 May 2018. 

25Your plea does have the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and investigators' resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

26Your plea also is a clear indication and acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions, in particular this charge.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your part.  Your plea of guilty in this case is particularly significant due to the number of witnesses and the complexity of evidence that would have been necessary to be presented at a trial. 

27In this case, the prosecution submitted that you were the eighth in the hierarchy of nine educators who have offended in the same manner as yourself.  The hierarchy is based on the amounts of money defrauded from the Commonwealth.  The hierarchy was set out in the chart attached to the sentencing submissions tendered to the court by the prosecutor.

28Of those on the hierarchy list, Aduit Deng who was the second highest, Martha Kuol who is the fourth highest and Adior Dhal was the sixth highest have been sentenced for similar offending as yours.  Obviously, Ater Ater is to be sentenced with you today.

29The principles of parity of sentencing is relevant in your case.  Ms Dhal was sentenced to 12 months' imprisonment to be suspended for a period of two years.  She was released on a recognizance release order in the sum of $1000 to be of good behaviour for that period of two years.  The condition of her release order was that she was to see a psychologist for her gambling addiction. 

30Ms Kuol was sentenced to 12 months' imprisonment, to be suspended for a period of two years.  She was released on a recognizance release order in the sum of $2000 to be of good behaviour for that period of two years.

31Mr Aduit Deng was sentenced to 18 months' imprisonment to be suspended for 18 months.  The recognizance release order was in the sum of $500 to be of good behaviour for a period of 18 months.

32The circumstances of each of these offenders are different from one another and are different from yourself.  The circumstances of your respective offending are also different, including the time of the plea and the cooperation with the authorities. 

33In your case, there has been no submission made or evidence called to explain where the money went or on what the motivation for this offending.  In a short period of approximately six months, a total of $174,000 was received by you for childcare services. $48,844.78 of those funds were illegally obtained by you.  None of the ill-gotten gains have been repaid to the Commonwealth and there has been no explanation proffered on your behalf.

34A reparation order will be made for the sum of $48,844.78. 

35The salient factors in your offending are:

(1), the amount of money defrauded - $48,844.78;

(2), the offending occurs over an extended period of four months;

(3), the offending has four separate systems of achieving the money, by that I mean the times - study, work, holiday and a funeral;

(4), the telephone intercepts with the Deng family;

(5), no explanation of the motive or repayment; and

(6), this type of offending against the revenue is difficult to detect and to regulate.

36I have had regard to the folder of related cases handed to me by the prosecutor.  As was conceded, none of these cases were on all fours with your case.  The common themes of those cases was that these types of offences are difficult to detect.  Further, the protection of the revenue is paramount and the system of childcare relies on the trust by the Commonwealth of the operators to perform that service honestly and appropriately.  All of those issues are addressed and applicable in your case.  Each case of this type of offending has its own particular facts and your case is but one of them.  I find that the parity of sentences has a significant part to play in the fixing of a just sentence in your case.

37Finally, the consideration of general deterrence is high in cases where the protection of the revenue is at risk.  This case is a serious example of that type of offending.  You knew this was fraudulent behaviour and persisted with it for some four months.  It involved constantly filing false timesheets, communications with the Deng Group and overcharging for services.  You exploited a flawed system designed to improve the provision of childcare in the community.

38At the urging of your counsel, I had you assessed for a community corrections order.  You have been assessed as suitable for such an order.  I regard your prospects of rehabilitation as good.  Nevertheless, this offending can only be considered as serious and the circumstances of your offending do not admit of a CCO as a just punishment. 

39I find that in your case, a term of imprisonment reflects the seriousness of the offending and needs to satisfy the requirements of general deterrence and just punishment.  However, for the reasons expressed, it is appropriate to suspend the whole of that sentence.  Would you stand please?

40On Charge 1, you are convicted and sentenced to a period of nine months' imprisonment.  I order that the sentence of imprisonment is to be wholly suspended for a period of two years and that you are to be released on a recognizance release order in the sum of $2000 to be of good behaviour for a period of two years. 

41Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to an immediate term of imprisonment of 12 months. 
Mr Prosecutor, on that, do I have to also fix a minimum term in relation to that s.6AAA?

42MR GULLACI:  No, Your Honour.  

43HIS HONOUR:  I do not think I do.

44MR GULLACI:  No.  No.

45HIS HONOUR:  Yes, thank you.  Thank you.  I have signed the reparation order for $48,844.78.

46I will just explain what that means for you, Mr Winpea.  It means that you are released on a recognizance.  That is a bond for $2000 on the condition that you be of good behaviour for a period of two years. And I have suspended a sentence of nine months' imprisonment. 

47MR GULLACI:  Your Honour, can I just indicate that my instructor has prepared in relation to Mr Winpea the recognizance release order?

48HIS HONOUR:  Thank you.

49MR GULLACI:  If Your Honour just wants to check that it accords?

50HIS HONOUR:  Yes, thank you very much.  Yes, that is in order.

51MR GULLACI:  Thank you, Your Honour. 

52HIS HONOUR:  Thanks.  Mr Langton, I have signed the recognizance release order.  You might attend on your client at the back and he can acknowledge it.

53MR LANGTON:  Yes, thank you.

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