Director of Public Prosecutions v Zearwie
[2025] VCC 991
•11 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00343
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BABY DEE ZEARWIE |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2025 | |
DATE OF SENTENCE: | 11 July 2025 | |
CASE MAY BE CITED AS: | DPP v Zearwie | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 991 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Catchwords: Obtaining financial advantage by deception – Obtaining financial advantage by deception by joint commission – Australian Taxation Office – Commonwealth offence
Legislation Cited: Criminal Code (Cth) ss 11.2A(1), 134.2(1); Crimes Act 1914 ss 16A, 16BA, 17A, 20(1)(b), 21B(3); Sentencing Act s 6AAA.
Cases Cited:Hooimeyer v The King [2025] VSCA 37; Henne v The Queen (unreported, Court of Appeal, Priest JA, 20 December 2016); Acosta v The Queen [2015] VSCA 94; R v Ibbetson [2020] QCA 214; DPP (Cth) v Gregory [2011] VSCA 145; R v Verdins [2007] 16 VR 269; Williams v The Queen [2018] VSCA 171; DPP v Reynolds [2022] VSCA 263; Ryan v The King [2024] VSCA 74; Zreika v R [2022] NSWCCA 262.
Sentence: Sentence of aggregate 8 months imprisonment. Immediate Recognisance Release Order. Reparation order of $23,709.43 to ATO.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr G. Buchhorn | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. Ballard | Slades & Parsons Criminal Lawyers |
HER HONOUR:
Introduction
1In 2022, a fraudulent scheme was identified by the Australian Taxation Office (ATO) whereby individuals invented fake businesses and obtained Australian Business Numbers (ABNs) in order to claim Goods and Services Tax (GST) refunds to which they were not entitled.
2The scheme was promoted in 2022 on social media and the ATO estimates up to 57,000 individuals have been involved.
3The scheme comprised setting up a myGov account and electronically lodging a Business Activity Statement (BAS) which, after lodgements, are stored on the ATO's mainframe. Once lodged, the BAS information is processed by the ATO's instalment processing system recording the result of the BAS against the GST account and then adding a debit or credit to the client's account balance. The BAS is recorded as complete on the ATO's system and then any appropriate refund is paid to the taxpayer's nominated bank account.
4Baby Dee Zearwie, you have pleaded guilty to two charges under the Commonwealth Criminal Code. Charge 1 occurred between 21 September 2021 and 9 January 2022 when you lodged four false BAS on your myGov account and received $27,139.60 contrary to s134.2(1) of the Criminal Code (Cth). Charge 2 occurred between 26 January 2022 and 31 March 2022 and related to five false BAS lodged on myGov accounts, including yours and others in joint commission, with the quantum received of $60,510 contrary to s11.2A(1) and 134.2(1) of the Criminal Code (Cth).
5The maximum penalty for each offence is 10 years' imprisonment.
Summary of your offending
6The first charge involved you on 21 September 2021 lodging three false BAS which claimed net GST refunds of $17,716. The BAS lodgements were false as you did not run a business, nor incur the GST credits claimed. On 23 December 2021 you lodged a further BAS resulting in the ATO paying $9,432.60 into your bank account.
7The second charge involved you engaging others in the same fraudulent behaviour.
8Firstly, with Ms Deddeh Jerue, whom you contacted asking for her myGov login and username and then directing her to request a BAS from the ATO. On 26 January 2022 the BAS claim was lodged with the ATO and the ATO paid Ms Jerue $12,719 and on 3 February 2022 she transferred $4,210 into your bank account.
9Secondly, with Mr Jonathan Mushaba, who claimed a false BAS through his myGov account and received a refund of $17,783. It is believed the BAS was lodged by Alisha Fagan with agreement by yourself and Mr Mushaba. On 3 March 2022, Mr Mushaba paid you $5,900.
10
Thirdly, with Ms Alisha Fagan who contacted you offering to lodge a false BAS on her behalf. You agreed and asked her to revise a false BAS claim lodged by someone else through your myGov account. Ms Fagan amended the false BAS. On 25 March 2022, two BAS claims lodged in your name for 1 to 31 December 2020 and 1 to 30 September 2020 were revised to $0 which produced a tax debt of $15,639 to the ATO. On 25 March 2022, another BAS claim for 1 to 31 March 2022 was lodged and automatically processed and accepted. On 31 March 2022 the ATO paid you $7,690 and on the same day you transferred $3,800 to
Ms Fagan.
11Fourthly, with Ms Heritier Penetakamba, on 29 March 2022 two BAS claims were lodged with her ATO online account for 1 October to 31 December 2021 and 1 to 31 March 2022. Ms Penetakamba did not incur the business expenses claimed. The BAS claims were automatically processed and accepted and on 30 March 2022 the ATO paid $22,318 to Ms Penetakamba. You did not receive any of these funds, although you demanded a 'cut'.
12The ATO paid out $87,649.60 to you or your associates to which you and they were not entitled. The quantum received by yourself was $44,939.60.
Uncharged acts
13On 9 December 2021, Ms Jerelyn Temple transferred $5,400 to you and you knew the funds were the result of false BAS claims.
14On 15 December, Mr Eric Lufu transferred $5,000 to you and you knew the funds were as a result of false BAS claims.
15
On 9 April and 18 April 2022, you amended a BAS previously lodged for 1 to
31 March 2022 which were false claims for GST refunds as you did not run a business or incur the business expenses claimed. These claims were not paid.
Seriousness of offending and current sentencing practice
16Your offending is objectively serious for the following reasons.
17Firstly, it involved a fraud on a government payment system that relies on the trust and honesty of users. Because of the trust and honesty required, it is an easy target.
18Secondly, as a fraud on government funds, your dishonesty broadly impacts taxpayers and the funds available for the provision of government services.
19Thirdly, the fraud required knowledge of the tax system for GST refunds, as well as careful planning by obtaining an ABN and setting up a myGov account.
20Fourthly, the fraud occurred on nine occasions over a period of six months.
21Fifthly, you engaged other people to be involved in the fraud.
22During the relevant period you falsely represented you had a business and paid GST on business acquisitions amounting to $27,848, with a total of $533 collected on business sales. These alleged payments related to business purchases totalling $306,328 with incurred GST liabilities. A total GST refund of $27,139.60 was paid by the ATO into your nominated bank account.
23You then assisted others to obtain refunds and took a cut of the refund received by them. In total you obtained $44,939.60. Of this, I understand $4,000 has been repaid through a repayment plan, with a further amount of $7,120.17 tax refund being withheld by the ATO. The reparation order sought is for $23,709.43.
24In terms of current sentencing practice, the prosecution provided a table of cases regarding current sentencing practices. These were: Hooimeyer v The King,[1] Henne v The Queen (unreported COA, Priest JA) (Henne), Acosta v The Queen,[2] and R v Ibbetson.[3]
[1] [2025] VSCA 37 (Hooimeyer).
[2] [2015] VSCA 94 (Acosta).
[3] [2020] QCA 214 (Ibbetson).
25I have had regard to these decisions. Every case is different and current sentencing practice is one factor relevant to the instinctive synthesis involved in sentencing, but from these decisions I take the following:
Hooimeyer
26Hooimeyer has similarities with your case. Ms Hooimeyer was 23 at the time of her offending. The offending occurred over a six-month period, however the amount she received through the fraudulent BAS statements was higher at $144,648. There is a reference to her being assisted by another person for the first three lodgements, but she acted alone for the last four. This is a significant difference with your case whereby you involved three other people in your fraudulent activity.
27
The Court of Appeal noted that the GST system is a 'soft target' as it involves
self-assessment. Fraud on the system involves a breach of trust, which calls for denunciation and the Court of Appeal also noted the principle of general deterrence must assume prominence in the sentencing calculus and both have an important role to play in sentencing.[4] In that case the amount received was $144,648 and there was an attempt to obtain $15,454. Ms Hooimeyer was sentenced 18 months' imprisonment to be released on a recognisance after eight months and on appeal she was released by the Court of Appeal having served four months' imprisonment.
Henne
[4] Hooimeyer, [29].
28
In Henne it was held that the objective seriousness is measured by the total amount of advantage obtained or sought to be obtained and in that case,
Ms Henne had obtained $63,132, but sought to obtain another $156,889.28, with the relevant quantum in that case being around $220,000. Ms Henne was sentenced to serve 18 months' imprisonment to be released on a recognisance after nine months, which was upheld on appeal and the Court of Appeal noted where there are relevant priors, specific deterrence should be given considerable weight.[5]
Acosta
[5] Henne [36].
29In Acosta the applicant received tax refunds of $33,181.40 to which he was not entitled and attempted to obtain a further $56,601.15. The offending was premeditated and involved significant amounts over a lengthy period. He was sentenced to two years' imprisonment and released on a recognisance after serving six months.
30The Court of Appeal noted in tax charges the target of the fraud is the public revenue.
Ibbetson
31The Queensland case of Ibbetson which involved nine counts of financial advantage by deception of $200,553, Ms Ibbetson was sentenced to two and a half years' imprisonment to be released on a recognisance after ten months.
32After the plea hearing, the prosecution counsel referred me to the cases of Zreika v R,[6] and Ryan v The King.[7]
[6] [2022] NSWCCA 262.
[7] [2024] VSCA 74.
33Mr Zreika had lodged five successful claims for disaster relief and 31 unsuccessful claims. He obtained $35,000 and attempted to obtain $37,000. He had prior convictions for dishonesty and on appeal his sentenced was reduced to three years and six months' imprisonment with a non-parole period of two years and three months' imprisonment.
34Ms Ryan, a practice manager in a medical practice, lodged 115 false claims with Medicare. A further 13 claims were unsuccessful. She obtained $81,228 and attempted to obtain a further $2,370.80. She had priors for dishonesty. Leave to appeal was refused and she was sentenced to a total effective sentence of two years and seven months' imprisonment and was released after serving 12 months' imprisonment.
35Prosecuting counsel raised the sentencing consideration of parity and referred to other parties involved in your offending conduct. They are charged and being dealt with in the summary stream. Ms Fagan was sentenced in the Magistrates' Court to a 15-month community correction order to complete 200 hours of unpaid community work. He distinguished her case from yours on the basis it involved two charges, but one false BAS claim and the amount involved was around $40,000 and that it was not repetitive or protracted offending, and he also distinguished aspects of Ms Fagan's personal circumstances, although like you, she was young and had no prior history.
36Your counsel submitted it was open for me to impose a community correction order, although I was not taken to any current sentencing practice where that has occurred. After the plea hearing, your counsel provided a table of six County Court cases where offenders had been sentenced to a term of imprisonment and had been immediately released on a recognisance release order. She distinguished those cases from yours, submitting a community correction order remains open and distinguished your offending to the sophisticated white-collar criminals referred to in DPP (Cth) v Gregory [2011] VSCA 145. I note the cases in the table provided involved higher amounts of fraudulently obtained funds and offending over longer periods and you were younger than the offenders in those cases.
37To summarise, the appellant authorities provided by the parties confirm general deterrence is a very significant consideration in offences against the revenue. Sentences will ordinarily involve a term of imprisonment and the amount involved is a relevant factor in assessing the seriousness of the offending.
Submissions
38Your counsel submitted you are a young offender. At the time of the offending you were 21 and you are now 25.
39Further, the delay between the offending and today's hearing represents a significant period you have had this hanging over your head and bodes well for your rehabilitation prospects. You have one subsequent matter, a charge of driving whilst your licence was suspended because of demerit points, for which your counsel submitted you received a $300 fine with no conviction from the Broadmeadows Magistrates' Court.
40Your counsel submitted weight be given to your plea of guilty at the earliest opportunity and absence of a prior criminal history.
41Counsel submitted the psychological report by Ms Sandra Cokorilo dated 28 June 2025,[8] which indicated at the time of your offending you had an untreated mental health condition which in Ms Cokorilo's opinion comprised symptoms consistent with persistent depressive disorder and generalised anxiety disorder. Counsel submitted this opinion enlivened the principles in the case of Verdins[9] namely: [1] the weight to be given to your moral culpability should be reduced, [2] the diagnosis is relevant to the sentence imposed and any conditions and [3] the diagnosis reduces the weight to be given in sentencing to general deterrence.
[8] Exhibit B - Psychology report of Ms Sandra Cokorilo dated 28 June 2025 (Exhibit B).
[9] 16 VR 269 (Verdins).
42Your counsel submitted your prospects for rehabilitation were good and given your youth, the sentencing purposes of general deterrence and denunciation should yield to the sentencing purposes of rehabilitation.
43Counsel also noted s17A of the Crimes Act 1914 (Cth) which provides imprisonment is a sentence of last resort and I must be satisfied that no other sentence is appropriate. She referred to the principle of parsimony which applies to the imposition of a sentence that it be the least restrictive to achieve sentencing purposes and she submitted the imposition of a community correction order met the sentencing principles in s16A of the Crimes Act 1914 (Cth) and was not inconsistent with being of 'severity appropriate in all the circumstances' of the offence as a community correction order is punitive and restrictive.
44Counsel for the prosecution submitted the only appropriate sentence was a period of imprisonment to be served immediately.
45Counsel submitted the primary sentencing purposes in fraud against the revenue cases are general deterrence and denunciation.
46Prosecution counsel submitted yours was mid-range offending. The quantum was substantial, being $87,649.60, the offending spanned six months and you were responsible for bringing three others into the scheme. That you were the organiser and involved others increases the gravity of your offending. The offending was distinct and deliberate, which counsel described as planned and sophisticated. You were motivated by greed and obtained funds directly or by a 'cut' from the others. Counsel referred to the difficulties of detecting this offending and referred to the DPP (Cth) v Gregory,[10] and the following passage as applicable to yourself that:
White collar criminals are likely to be rational, profit-seeking individuals who can weigh the benefits of committing a crime against the cost of being caught and punished. Further, white collar criminals are more likely to be first time offenders who fear the prospect of incarceration.[11]
[10] (2011) 34 VR 1 (Gregory).
[11] Gregory, [53].
47Counsel submitted your moral culpability is high because of your deliberate and protracted conduct, you were aware it was illegal activity and you were a contractor to the ATO at the time and elevated your moral culpability by bringing others into the scheme.
48The uncharged acts admitted under s16BA of the Crimes Act 1914 (Cth) can be taken into account in that you are not sentenced for those acts, but they increase the gravity of the offences for which you are to be sentenced.
49In response to defence counsel submissions, prosecution counsel submitted rehabilitation cannot overwhelm other sentencing factors such as denunciation and deterrence.
50He also rejected your counsel's submission that the case of Verdins was engaged. He submitted there was no cogent evidence of your impaired mental functioning and rejected the psychologist's opinion that you had symptoms consistent with generalised anxiety disorder and persistent depressive disorder as this was diagnosed through your self-reporting and had no independent corroboration. Counsel submitted I cannot be satisfied on the balance of probabilities you had impaired function at the time of your offending and that Verdins is engaged.
51Further he submitted a community correction order is not within range due to the gravity of offending and the weight that needed to be given to general deterrence and denunciation. He quoted from the decision of DPP v Reynolds,[12] where Forrest and Kidd JA stated:
This Court has had occasion since Boulton to re-confirm the potential availability of the CCO or combination option for appropriate cases, even those which involve very serious offending.[13] It is also true that this Court continues to emphasise, including recently in Lombardo and Buckley v The Queen, that a CCO is a punitive sanction.
That all said, the authorities equally recognise there are limits to the field of operation of CCOs and combination sentences.
The punitive effects of a CCO (even of some duration and with onerous conditions) cannot be compared with a gaol sentence. Imprisonment is 'uniquely punitive' principally because it involves 'the complete loss of liberty'. As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing.[14]
[12] [2022] VSCA 263 (Reynolds).
[13] Williams v The Queen [2018] VSCA 171 [47] (Priest and Hargrave JJA) (‘Williams’).
[14] Reynolds [106] – [108] (footnotes omitted).
Personal circumstances
52Your background was outlined in submissions from your counsel and from the psychological report by Ms Cokorilo.
53Briefly, you were born in 2000 in a refugee camp in the Ivory Coast as your parents had fled the civil war in Liberia. You and your father came to Australia in 2005 where he re-partnered, and you grew up believing his wife was your mother. You have four younger paternal half-sisters, five younger maternal half-siblings and three stepbrothers. You had a disconnected childhood, you described growing up in fear, and you are not close to your father or stepmother. You were exposed to your father's violence towards your stepmother, and you yourself were regularly physically hit by them until the age of 18. In 2022 you learnt about your biological mother, who had remained in West Africa, when she contacted you through social media. You described your response to finding this out to Ms Cokorilo as feeling 'your whole life was a lie'.
54You finished school and tried studying both a diploma of nursing and a course in criminology, which were not completed. You have been in continuous employment since then and when this offending occurred, you were working on the IT helpdesk contracted to the ATO. Although the prosecution submits this position increases your moral culpability as you should have had an appreciation for the importance of the integrity of Australia's tax system, it is not alleged your position was used in the commission of your offending and your counsel submitted your offending was unrelated to your role on the IT helpdesk. You are currently working as a personal carer through an NDIS provider. You live with your uncle who attended the court hearing with you.
55You were introduced to your fraudulent conduct through Snapchat and you reported to Ms Cokorilo you profited $17,000 from your first BAS return. You understood the scheme was illegal, but did not consider the consequence as you 'craved freedom and a better life'.[15] When you received the money you suggested the scheme to a friend. Ms Cokorilo reports you were told by the man on Snapchat who had introduced you to the scheme you would be paid if you referred others, which you did.
[15] Exhibit B, [35].
Psychological report by Ms Sandra Cokorilo
56Psychological testing is indicative you have mild depression.[16]
[16] Exhibit B, [44] - [45].
57Your risk assessment testing indicated your risk of general reoffending is low.[17]
[17] Exhibit B, [52].
58In Ms Cokorilo's opinion your symptoms of chronic anxiety, low mood, withdrawal, worry, irritability, rumination, avoidance, restlessness and suicidal ideation between 2018 and 2023 are consistent with persistent depressive disorder and generalised anxiety disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
59The psychologist opined your offending occurred during this period of untreated psychopathology, untreated depression and anxiety, when you responded to social media advertising promising rapid financial gain. She described your offending occurring 'against a background of otherwise prosocial functioning and is primarily attributed to poor decision-making during a period of untreated psychopathology exacerbated by biopsychosocial immaturity.'[18]
[18] Exhibit B ,[54].
60Ms Cokorilo opined:
The emergence of her depression and anxiety is understood in the context of longstanding developmental vulnerabilities arising from her early environment, characterised by chronic family violence, child maltreatment, and absence of parental emotional warmth, which are well-established risk factors in development of internalising disorders. Such an adverse and invalidating environment results in chronic activation of the hypothalamic-pituitary-adrenal axis which increases cortisol sensitivity, creates a persistent state of internal threat, and undermines physiological and psychological systems responsible for emotional regulation.[19]
[19] Exhibit B, [56].
61Ms Cokorilo further opined:
In Ms Zearwie's case these deficits are inferred to have compromised her ability to adequately evaluate the legality, morality, and long-term implications of her behaviour. She perceived the fraudulent scheme as offering immediate financial gain, low effort, and no interpersonal risk. Under conditions of intact executive functioning and emotional regulation, she would likely have not pursued such an opportunity due to awareness of legal consequences and moral considerations.[20]
…
[20] Exhibit B, [61].
The convergence of chronic depressive and anxiety symptoms created a psychologically vulnerable state in which Ms Zearwie's capacity for rational decision-making, emotional regulation, and risk evaluation was compromised. At the time of the offending, she was socially isolated, reaching out to Beyond Blue, and using cannabis on a weekly basis to cope with emotional distress. She was not receiving psychological treatment, and lacked meaningful support.[21]
[21] Exhibit B, [63].
62So in Ms Cokorilo's opinion these deficits have comprised your ability to adequately evaluate the legality, morality and long-term implications of your behaviour.
63As noted, the prosecution counsel submitted the psychologist's opinion should be rejected as it was based on only your reportage to her and not corroborated. Your counsel submitted Ms Cokorilo is an experienced and qualified professional whose diagnosis and opinion can be accepted by the court.
64In Ms Cokorilo's opinion you suffered symptoms consistent with persistent depressive disorder and generalised anxiety disorder at the time of your offending. I accept her opinion. Her professional expertise has not been impugned. Her opinion was arrived at through appropriate diagnostic testing, referred to in her report including the Generalised Anxiety Disorder Assessment, a Patient Health Questionnaire, the Milon Clinical Multiaxial Inventory and her own observations. The report was eLodged with the court and the parties on 2 July 2025 and tendered, without objection, at the hearing.
65I do not lessen the weight I accord to Ms Cokorilo's opinion on the basis you were not receiving treatment at the time of this offending, or on the premise that your reportage has not been independently verified as submitted by the prosecution counsel. I accept Ms Cokorilo's professional expertise to inform the opinion in retrospect, based on your description of your symptoms.
66I note the Verdins principles do not depend on diagnostic labels: 'What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.'[22]
[22] Verdins, [8].
67On that basis I accept that Verdins principles (1), (2) and (3) are engaged, however I ameliorate the weight attributed as explained.
Sentencing considerations
68I take into account the relevant factors listed in s16A(2) of the Crimes Act (Cth).
69I take into account the nature and circumstances of the offending.
70Your moral culpability is high, and the offending is serious for the following reasons. Firstly, the significant amount of money involved, and I sentence you on the amount of $87,000 approximately, not the actual amount received by you which was $44,000. Secondly, you engaged other people in your offending over a six-month period. Thirdly, it was a planned and organised enterprise.
71There are two uncharged acts which add to the gravity of your offending.
72Charge 2 reflects a course of conduct by the involvement of three others. I note the others involved were not entirely innocent actors, given they were also motivated by the financial benefit that accrued from their involvement. Nonetheless, you have involved them in the conduct, and you were the instigator.
73Your plea of guilty reflects your contrition or remorse.
74You expressed contrition, or remorse, to Ms Cokorilo, as detailed in her report. You acknowledged the impact of your offending on the broader community and the moral implications of that. You have been portrayed as 'greedy' and stated that 'people who hack the system make it unfair on others who are working hard'. You expressed remorse also for involving your friends in your offending.[23]
[23] Exhibit B, [37].
75Your contrition is also expressed by the fact that you have made some repayments and I have detailed those previously.
76You have pleaded guilty at the earliest reasonable opportunity, after the first committal mention. Your plea of guilty has the utilitarian value of avoiding a committal and trial and requirement for witnesses to give evidence.
77There has been a delay of some 19 months between your interview and being charged for this offending. This delay has been explained by the prosecution as due to your partial admissions when interviewed and that further investigation was required given that other people were involved in the scheme.
78I turn to the relevant factors in s16A(2)(m) of the Crimes Act (Cth).
79You are a young offender, as at the time of the offending you were 21.
80You have no prior convictions and nothing subsequent, save for the unrelated driving charge.
81I have detailed your personal background and circumstances. You came to Australia as a child refugee at the age of five. You have had the benefit of an Australian childhood and education. You have however experienced family violence at home, and you have only recently discovered the truth of your separation from your birth mother.
82As a young offender I give greater weight to your prospects for rehabilitation, which has to an extent been realised through the effluxion of time.
83With respect to your age, Ms Cokorilo stated:
While her age is a risk factor in the context of her offending, it is also a protective factor in the consideration of her rehabilitation prospects. Literature informs that young adults without prior criminal history, antisocial traits, or entrenched dysfunction tend to desist without further intervention.[24]
[24] Exhibit B, [65].
84The principle of general deterrence is of paramount consideration in cases involving deception on the public purse.
85Ms Cokorilo's opinion is that you had symptoms consistent with general depression and anxiety at the time of your offending.
86I have somewhat lessened the weight I give to the sentencing purpose of general deterrence, noting your mental impairment at the time of your offending is said to have compromised your rational decision making, emotional regulation and risk elevation, therefore making a connection between your impairment and your offending.
87The engagement of Verdins through your mental impairment at the time reduces your moral culpability, however I moderate the extent of that reduction given the planning involved with the offending.
88Your prospects for rehabilitation are strong, as demonstrated by your conduct since the offending. You are currently working as a carer, you have new friendships, suitable housing and are engaging with a community centred around faith at a Pentecostal church. You have a good work history, no current issues with alcohol or drugs and promise to be a productive and contributing member of the community. Ms Cokorilo assesses your risk of reoffending as low and I give less weight to the sentencing purpose of specific deterrence.
89Prosecution counsel has submitted immediate imprisonment is the only appropriate sentence and detailed the nature and circumstances of your offending to support this submission.
90Section 16A(1) of the Crimes Act (Cth) requires the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act (Cth) details a range of matters the court must take into account which are relevant and known to the court. Section 17A of the Crimes Act (Cth), which is a restriction on imposing sentences, requires that the court to consider when imposing imprisonment that no other sentence other than imprisonment is appropriate in all the circumstances of the case.
91I have had you assessed for a community corrections order, and you have been found suitable. I have decided against imposing a correction order. Although mental health treatment was recommended, I am of the view you can pursue that treatment yourself.
92Taking into account the objective seriousness of your offending as the instigator of a scheme involving others, and the emphasis the case law requires be given to general deterrence, having considered all other available sentences, I am satisfied to impose a period of imprisonment and no other sentence is appropriate in all the circumstances of the case. I will sentence you to an aggregate period of imprisonment to be released immediately upon you entering a recognisance. This is a sentence of a severity appropriate to the offending.
93This sentence satisfies the relevant sentencing principles in s16A of the Crimes Act (Cth) and I have balanced the object seriousness of your offending and the need for general deterrence and adequate punishment, against your personal circumstances, youth, lack of priors and prospects for rehabilitation.
Sentence
94Could you stand up, please. Baby Dee Zearwie, in respect of Charges 1 and 2, in accordance with s20(1)(b) of the Crimes Act, you are convicted and sentenced to an aggregate period of eight months' imprisonment, and I direct you be released immediately on a recognisance release order with a recognisance fixed at $1,000, with a condition you be of good behaviour for two years. The $1,000 is not a sum to be paid immediately, but which could be forfeited if you do not comply with the undertaking.
95Further, if you breach the condition of the order to be of good behaviour, you can be brought back before the court for that breach which could include being ordered to serve the period of imprisonment. If you are of good behaviour for the two years and do not commit any further offences punishable by imprisonment, that will be the end of the matter.
96You are required to sign the undertaking. I will ask that you be taken out of the dock and sat behind Ms Ballard while the form is prepared, if that is possible.
97Pursuant to s6AAA of the Sentencing Act, the sentence I would have imposed but for your plea of guilty is a twelve-month period of imprisonment with a non-parole period of six months.
Reparation Order
98In accordance with s21B(3) of the Crimes Act (Cth) and noting the order is not opposed, I make a reparation order that you pay $23,709.43 to the Commonwealth of Australia in favour of the Australian Tax Office.
99MR BUCHHORN: Sorry, Your Honour, just two very brief things. The first is in relation to the 16BA, uncharged matters, there is a document that has been filed with the court which requires both Ms Zearwie to sign it as well as Your Honour. I have a copy here which I can provide to Ms Zearwie now for her signature if Your Honour is happy for me to do so.
100HER HONOUR: Thank you.
101MR BUCHHORN: And the second thing is really just as a matter of completeness. At the plea hearing I did submit that Ms Zearwie brought in four others. In communication with the court yesterday, I sought to correct that to say that there were three others that were brought it. We concede that Ms Fagan was not brought in technically by Ms Zearwie, but we submit that overall it doesn't affect the sentencing synthesis. Sorry.
102HER HONOUR: Right. That was not brought to my attention. Did you say that that was communicated to the court yesterday?
103MR BUCHHORN: In an email, yes, Your Honour.
104HER HONOUR: I did not receive that.
105MR BUCHHORN: Sorry, but I do - - -
106HER HONOUR: Was that sent to all parties?
107MR BUCHHORN: Yes, but I do wish to make that correction that the three other co-accused or associates who were brought in by Ms Zearwie, but we concede that Ms Fagan was not, but she was nevertheless involved in the offending with, or engaged with Ms Zearwie, but I seek just to make that correction to avoid any issues or errors.
108HER HONOUR: Well I can correct the record in respect of what I have indicated in my reasons.
109MR BUCHHORN: Yes.
110HER HONOUR: I received the table from you in respect of those two cases and from Ms Ballard, but was there a separate email that you have sent through indicating that?
111MR BUCHHORN: It was the same email. It was the second paragraph in that email.
112HER HONOUR: All right. I just do not recall seeing that. Did you have anything to say about that, Ms Ballard?
113MS BALLARD: No, Your Honour. Having heard Your Honour's sentencing remarks, I agree with my learned friend that it doesn't alter where we are now.
114HER HONOUR: All right. Well I will just correct the record to reflect that correction.
115MS BALLARD: I think it was just two mentions of four rather than three, but no issue, Your Honour.
116HER HONOUR: All right. Thank you. All right, is there anything further?
117MS BALLARD: No. I'll just have Ms Zearwie sign this, or is Your Honour content for that to occur once Your Honour has left the Bench?
118HER HONOUR: I think she should probably sign it now. Thanks. Right, does she understand that undertaking?
119MS BALLARD: Yes, understood, Your Honour. I've just included the date.
120HER HONOUR: Right.
121MS BALLARD: Thank you. Thank you, Your Honour.
122HER HONOUR: All right. If there is nothing further, then we will adjourn the court. Thank you. We will adjourn the court, please.
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