Director of Public Prosecutions v Wyntjes

[2024] VCC 1618

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-00181

DIRECTOR OF PUBLIC PROSECUTIONS (C’TH)

v

TAHRA WYNTJES

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2024
DATE OF SENTENCE:	16 October 2024
CASE MAY BE CITED AS:	DPP v Wyntjes
MEDIUM NEUTRAL CITATION:	[2024] VCC 1618

REASONS FOR SENTENCE

Subject:Plea - sentencing

Catchwords:          Dishonestly obtain a financial advantage by deception – attempt to dishonestly obtain a financial advantage by deception

Legislation Cited:  Crimes Act 1914 (Cth)

Cases Cited:

Sentence:4 years' imprisonment, non-parole period 28 months

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr S. Widdison	Office of Public Prosecutions (C’th)
For the Accused	Mr G. Chisholm	Stephen Peterson Lawyers

HIS HONOUR:

1Tahra Jenny Wyntjes, you have pleaded guilty to an offence of dishonestly obtaining a financial advantage by deception between 17 November 2021 and 24 January 2022 and to an offence of attempting to obtain a financial advantage by deception between 26 January of 2022 and 11 March of 2022.  Each of those offences carries a maximum term of imprisonment of 10 years or a fine of
600 penalty units, which is approximately $130,200, or both.

2You have no prior convictions, although a criminal record was provided to the court which shows that on 21 February of this year, you were convicted at the Latrobe Valley Magistrates' Court of what seems to be four offences of obtaining property by deception and were sentenced to a community correction order for a period of 12 months, with some unpaid community work components as well as therapeutic components dealing with mental health issues, drug and alcohol issues and programs to reduce your risk of re-offending.

3I note that breach proceedings have been commenced in relation to that community correction order.  I have been provided with the report from Community Corrections in relation to those breaches.  Those offences of obtaining property by deception caused a loss of something in the order or six and a half thousand dollars, which is insignificant compared with the sums of money involved in this offending conduct.

4The prosecution provided me with a summary of prosecution opening for plea dated 14 March 2024, which summarises in detail your offending conduct.  I further summarise the outline as follows.  On 3 November of 2021, you registered an Australian business number as a sole trader in the business of 'cleaning, residential cleaner, except carpet, drapes and curtains’.  The registration was backdated to 3 May 2021.  At the same time, you registered for Goods and Services Tax with the Australian Tax Office (hereinafter “the ATO”).      

5In the registration form, you stated that the entity under which you had registered to operate projected a turnover of between $75,000 and $149,999.  You applied to report GST on a monthly cash basis.  That registration had also been backdated to 3 May 2021.  On 3 November 2021, you accessed the ATO online services and updated your financial institution details and refund designation to a National Australia Bank account, which you had opened in your name as sole signatory on 14 May 2021.

6Between 17 November 2021 and 11 March 2022, you lodged 27 false business activity statements, either in original or amended form, with the ATO.  You falsely claimed GST refunds by overstating in your business activity statements the total sales, GST on sales and GST on purchases, purportedly made for your cleaning business.  The information contained in each of those 27 business activity statements was false.  You did not carry on any business activity and you had no business income, or expenses, during the offending period.  As a result of lodging the 27 business activity statements, you obtained a total of $599,349 in refunds, that is, actually paid to your bank account, and you attempted to obtain dishonestly a further $259,976 in GST refunds.

7The summary of prosecution opening sets out in tabular form the various payments that you received from the ATO the subject of Charge 1 on the indictment and also the various payments that you claimed in relation to Charge 2 on the indictment. 

8The ATO commenced a review of your business activity lodgements on 28 January of 2022.  That day, an email was sent to you, alerting you to that fact.  On 1 February, you responded by email, acknowledging that the review was being undertaken.  You stated that you were 'so flat out with your business and your son', but that you would 'get the information forwarded to you asap’.

9The ATO followed that up on 3 February 2022 with a letter sent to your email address, requesting that you provide documentation relating to your business activity and GST credits claimed by 10 February of 2022.  It is noteworthy that in relation to Charge 2, despite the fact that you were alerted to the review being conducted by the ATO on 28 January, you continued with your offending conduct.  On 1 February 2022, you lodged a claim for a refund in the sum of $14,509.  On 10 February 2022, well after you had had ample opportunity to consider, reconsider and reconsider again your offending conduct and the consequences of being caught, you submitted false claims in the sum of $40,990 and $41,471 respectively.

10Then on 18 February, after you had had even further opportunity of considering the consequences of your actions and the risks that you were taking, you lodged a further claim in the sum of $22,736, and then on 11 March, well after the ATO had started their investigation and made you aware of it, you lodged a further claim in the sum of $23,000.  None of those claims, or the claims that you lodged on 26 January 2021, were paid out by the ATO and they are the subject of the offence of attempting to obtain financial advantage by deception.

11The investigation also examined your bank account and your expenditure.  There were substantial money transfers from that bank account, a total of $244,831.65 to Apple Inc, $139,154.26 to your partner, $48,505.58 to a person by the name of Matthew David Hooper, a sum of $20,458.95 to Airbnb and $18,054.95 to your partner's mother.

12The majority of the remaining transactions on your account involve personal expenditure, everyday living expenses, accommodation, flights, Menulog, Uber Eats and expenditure on designer outlets such as Gucci and Louis Vuitton.  There were various other transfers, suggesting that all of the money was spent on yourself and your own discretionary expenditure, rather than on anything to do with any business activity purportedly conducted in the business that you had registered with the ATO.  The total loss to the Commonwealth, for which they seek reparation, is $599,349.      

13You were offered the opportunity on 3 October 2022 to participate in a recorded interview with the investigators and on 12 October 2022, follow-up phone calls were made to your mobile numbers recorded with the ATO.  You did not respond to any of those communications and, as the prosecution point out in their submissions, you offered no assistance to the ATO whatsoever in the investigation of these matters, which no doubt contributed to the delay in the proceedings brought against you.

14Turning to matters personal to you, your counsel provided me with an outline of plea submissions dated 16 September 2024, along with a detailed personal history set out in the Appendix A to those plea submissions.  That was marked Exhibit 1 on the plea hearing.  I was also provided with a letter dated
13 September 2024 from your father, which became Exhibit 2, a report from Carla Lechner, clinical psychologist, dated 4 June of 2024, which is Exhibit 3, a series of reports from the Magistrates' Court Integrated Services Program, concerning you and your dealings with them during the period when you were awaiting your court appearance in relation to the matter before the Latrobe Valley Magistrates' Court and subsequently in relation to these matters, which is Exhibit 4.

15Exhibit 5 is a community correction order assessment outcome report dated 21 February 2024, which gave rise to the order of the Latrobe Valley Magistrates' Court that you be placed on a community correction order in relation to the other offending to which I have referred.  That order commenced on 21 February 2024.

16Also considered in connection with that community correction order was a Mental Health Advice and Response Service report dated 21 February of 2024, which is Exhibit 6.  I note that in that report, in answer to the question ‘Does Ms Wyntjes have mental health concerns?', the answer was 'Yes', and in answer to the question, 'If yes, what severity mental health problem or difficulty does Ms Wyntjes present with?', the answer was 'Mild’.

17There was a contravention of a community correction order report provided to me dated 10 September 2024 which is Exhibit 7, in which it is noted that you disclosed to community corrections that you had, by about June of 2024, relapsed into illicit substance use and there was a consequential decline in your mental health and an indication that you were struggling with the pending County Court proceedings.  Your many breaches of the community correction order do not assist in establishing that you have good prospects of rehabilitation, notwithstanding that you are still a young person and that expectation of a term of imprisonment would undoubtedly have had a significant effect on your mental health.

18Exhibit 8 is a series of activity statements from the ATO, indicating that the debt that you owe the ATO as a result of your offending has increased significantly and that the overdue balance has risen to more than $775,000.  It is rising at a rate of more than seven and a half thousand dollars a month.  That all contributes to the pressure that you not only are under, but will be under for a considerable period of time.  That is all as a result of your criminal activity and the loss to the Australian community through the ATO.

19Dealing with matters that were urged upon me by your counsel, it was submitted on your behalf that your offending should be regarded as being in the lower to mid-level of seriousness for offences of this kind.  I think that is probably right, although I think it probably nudges into the mid-level.  There have certainly been many worse cases than this.  Various passages were quoted from the report of Carla Lechner referring to your indications to her as to reasons for your offending and it seems there is no doubt that part of the motivation for your offending was to finance your then raging methamphetamine habit.

20Some of the other money was seemingly wasted, although you engaged in your own spending sprees and provided money to your partner in the sum of almost $140,000.  All of that money seems to have disappeared on personal expenditure and high living.  This was not an offence that was committed for need.  This was an offence of sheer greed and opportunism, having discovered the means by which you could cheat the Tax Office.

21Your counsel dealt in detail with your background and drew significantly on the report from Carla Lechner, in which you detail many aspects of your childhood and upbringing and in particular, your drug abuse history, which goes back to age 12.  There was also alcohol abuse dating back to a similar age.  You characterised your upbringing as chaotic.  You reported that you were exposed to family violence, to abuse, both physical and sexual, which indicates a background history suggesting that your drug abuse history arises out of that background.  That provides at least some explanation of your offending conduct.

22Your counsel urged me to apply Bugmy principles in your case.  I am hesitant about that, in that there are many, many worse cases than yours in terms of deprivation and child abuse.  However, I think that those principles do apply and, to some extent, moderate your culpability for this offending.  I take them into account in your favour.

23He also urged that your mental impairments, as outlined in the report of Ms Lechner, based as they were on one consultation on one day by video link, provide a foundation for concluding that Verdins principles apply to further reduce your moral culpability.  I am not convinced of that.  I take all of those matters into account, but it does not seem to me that they engage the Verdins principles to reduce your moral culpability, or reduce the need for general deterrence in the sentencing process.

24There is no doubt that your mental impairments, along with the hardship caused to your children and to your partner, will play heavily on your capacity to cope with your time in prison.  I take that into account in reduction of sentence.  To the extent that the diagnosis of your mental impairments may be accurate, that also has the capacity to make it more difficult for you to deal with your time in custody.

25Being deprived of your children and your ability to influence their upbringing during the period of your incarceration will be very difficult for you and I take that into account.  You are fortunate that you have a partner who is apparently willing to shoulder the burden and hopefully you will have opportunities to see your children from time to time, if not on a regular basis, whilst you are serving your time.  But it will not be easy for you and I take all those matters into account.

26You were only 19 at the time of your offending.  You are 22 now.  That too is a very important factor in reduction of the sentence that would otherwise be appropriate.  That is tempered by the need to denounce offending of this kind, to punish you adequately, and I stress the importance of general deterrence, that is, deterring others from committing this type of offending.

27These sorts of offences are easy to commit.  You found it not too difficult to obtain a very substantial sum of money by manipulating the system, having been taught how to do it, and you were able to successfully exploit the system for a period of time and obtain a very substantial sum of money.  There could perhaps be further safeguards within the taxation system to prevent that occurring.  The system relies very significantly on the trust that the ATO and the country places upon people to act honestly with respect to their tax affairs.  To put too many hurdles in the way of people who want to conduct a legitimate business is not necessarily conducive to a good outcome so far as the general community is concerned, and is calculated to interfere with efficient business activity.

28For those reasons, a lot of trust is placed on people not to abuse the system as you undoubtedly did.  For those reasons, the need for general deterrence is particularly important in cases of this kind.  There are many authorities that speak of the need for sentences to reflect that need.

29However, I do take into account your youth at the time of the offending and your youth now in determining the appropriate sentence.  I was urged to take into account your remorse.  I saw no element of remorse arising from the contact with the ATO in January and February of 2022.  However, I have no doubt that you are now remorseful, at least in the sense that you have expressed that to your father and are no doubt extremely sorry for the hardships that you will be inflicting upon your children by your absence as a mother during the period of your sentence.  Your plea of guilty is important in that it not only has a utilitarian benefit, in that it saves the court and the community the cost and the time involved in a jury trial, but also in that it is consistent with your remorse.

30There has been a delay.  You could perhaps have reduced that delay if you had cooperated with the ATO, but nevertheless, there has been a delay of about two a half years between the time when the interest of the ATO in your criminal conduct was raised and today.  That increases the stress and strain on you, knowing from that first contact with the ATO that you were vulnerable to substantial punishment for your offending and a likely term of imprisonment.  That, no doubt, will have caused you considerable stress in the intervening period.  I take that into account also.  You are the mother of two boys, one aged four and the other 14 months.  Your absence from them will impact heavily on them and your partner, but also upon you.  I stress again the importance of taking those factors into account.

31The prosecution has provided me with an outline of submissions on sentence dated 16 September 2024 and has reminded me of the principles that arise from sub-section 16A(1) Crimes Act 1914 (Cth) requiring me to impose a sentence that is commensurate with your offending conduct, and under sub-section 16A(2) the various matters that need to be taken into account, insofar as they are relevant in the sentencing process, one being the nature and circumstances of the offence. I have already dealt with those in some detail. This is a course of conduct over a period during which you had ample opportunity to consider and reconsider and reconsider again your criminal conduct.

32I am bound to take into account your financial gain and your motivation, which the prosecution submits is captured by one word, that being greed; the injury, loss and damage resulting from your offending in the sum obtained under Charge 1; and the need for general and individual deterrence.  I have already dealt with general deterrence.  I think there is a need for individual deterrence in your case.  I am far from convinced that you have good prospects of rehabilitation.  The prosecution has indicated they would characterise your prospects of rehabilitation as fair.  I think they may be a little generous in that regard.  I think, at this stage, given your response to the community correction order, the many breaches of that order and your relapse into drug abuse, that your prospects of rehabilitation are guarded at best.

33I need to take into account the need for adequate punishment.  I need to take into account your contrition and remorse, although your pleas of guilty are tempered by the fact that you were facing an overwhelming prosecution case.  However your pleas of guilty and the indication of remorse which that carries need to be given proper value in the sentencing process.

34You did not cooperate with investigators, so you get no credit for that.  It does not increase the sentence, but it does not amount to a mitigating factor which might otherwise have a bearing on the reduction of sentence.

35I take into account your character, antecedents and physical and mental condition, as I must under the provisions of the Crimes Act 1914 (Cth). I have dealt with the report of the psychologist and indeed the report from the Court Integrated Services Program of the Magistrates' Court. I take into account your mental health and have considered the extent to which Verdins principles impact on your ability to deal with your sentence, although I note that the conclusion seems to be that your mental impairments seem to be in the mild category.      

36Insofar as the application of Bugmy principles are concerned, I think they arise in what is generally referred to as the general way, in that it reduces your moral culpability somewhat.  It does not seem to me that they have any nexus with your offending conduct, in that they contributed to offending conduct of this kind.  But as I have indicated, they do operate to reduce your moral culpability somewhat.  I dealt also with the effect on your family and there is no doubt that that needs to be given proper weight in reduction of the sentence.

37I was provided by the prosecution with a schedule of comparative cases and whilst I acknowledge that those decisions of other courts are helpful, they are by no means determinative of an appropriate sentence.  They help identify current sentencing practice throughout the Commonwealth, which is to be acknowledged as an important objective to maintain consistency of sentencing throughout the Commonwealth in relation to Federal criminal offending.

38Doing the best I can to draw from those cases a current sentencing practice and giving proper weight, as I do, to the various factors that have been urged upon me by your counsel, I proceed to sentence you as follows.

39On Charge 1, you are convicted and sentenced to imprisonment for three years and six months.

40On Charge 2, you are convicted and sentenced to imprisonment for two years and nine months.

41The sentence on Charge 2 is to commence today and the sentence on Charge 1 commences on 16 April of 2025.  In other words, in six months' time.

42That gives a total effective sentence of imprisonment for four years.

43I direct that you serve a period of two years and four months before being eligible for parole.      

44I make the reparation order that is sought in the sum of $599,349 in favour of the Commissioner of Taxation. 

45But for your pleas of guilty, I would have sentenced you to imprisonment for a period of five years and nine months with a non-parole period of three years and 10 months. 

46Are there any other matters, counsel?

47MR CHISHOLM:  No, Your Honour.

48MR WIDDISON:  No, Your Honour.

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