DPP v Arop

[2018] VCC 1235

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL DIVISION

CR 17-00568

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMIOL AROP

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATEOF HEARING:	6 August 2018
DATEOF SENTENCE:	8 August 2018
CASE MAY BE CITEDAS:	DPP v Arop
MEDIUMNEUTRAL CITATION:	[2018] VCC 1235

REASONS FOR SENTENCE

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Catchwords:  Defrauding Commonwealth – Family Day Care payments

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APPEARANCES:	Counsel	Solicitors
For theCrown	Mr J. Gullaci	CDPP
For the Accused	Mr A. Sim	Tony Hannebery Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne – Telephone [phone] (Prepared by Legal Transcripts Pty Ltd)

204933

HIS HONOUR:

1Amiol Manuak Arop, on 15 June 2018 you pleaded guilty to the following charge:

“Between 11 May 2015 and 9 December 2015 at Melbourne in Victoria, you did provide false information with respect to claims for child care lodged with the Department of Education and Training with the intention of dishonestly causing loss to another person, namely the Commonwealth contrary to s.135.1(3) of the Criminal Code (Cth).”

2Your plea of guilty was made after a sentencing indication hearing which occurred on that same day.

3The maximum penalty for this offence is five years' imprisonment. It is an agreed fact between the prosecution and yourself that the sum of money you have dishonestly obtained from the Commonwealth is not less than $64,712.50. I also accept that it is difficult to precisely quantify the exact sum of money you fraudulently obtained from the Commonwealth. I accept your fraudulent claims exceeded the sum of $64,712.50 but the prosecution cannot arithmetically prove an amount beyond reasonable doubt.

The circumstances of your offending

4The prosecution tendered the summary of prosecution opening dated 13 June 2018. I have called that Exhibit A on your plea it is annexed to the reasons for this sentence. This document was originally a trial opening and refers to part of the larger scheme of offending including references to the Deng Group.

5The 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. The Department of Education and Training identified a group of FDC providers referred to as the Deng Group as involved in fraudulent activity.

6In relation to your specific offending, you engaged in the following activity with the intention of dishonestly  causing  loss  to  the  Commonwealth  between 11 May 2015 and 9 December 2015. You have submitted timesheets through four different FDC providers. These providers were Manhal FDC, Stars R Us FDC, Blossom FDC and Dorsy's FDC.

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

(a)  you submitted claims for providing childcare to FDC providers using timesheets;

(b)  you asserted that you were providing childcare when you submitted timesheets to the FDC providers;

(c)  you submitted timesheets through different FDC providers including the Deng Group, Manhal, Hello Children FDC, and Dorsy's FDC;

(d)   you claimed you provided care services which were not in fact provided;

(e)you were paid for services that were not provided.

8The total amount by the Department of Education and Training for claims submitted where you were recorded as the FDC educator between 11 May 2015 and 16 December 2015 was a total of $222,202.50.

1.    Claims by you for services which were not provided

9You were enrolled as a student at RMIT studying a Bachelor of International Finance at the time of the alleged offending. On 21, 22 and 26 October 2015, Australian Federal Police surveillance members observed you departing your residence without any children and attend at the RMIT University. On these days claims were submitted to the DET by Stars R Us FDC for the provision of childcare by you to five children with a total of $5,130 in rebates being paid to the provider.  These claims were false, supported by timesheets provided by

you to the provider.

2.    Claims for childcare that were provided whilst you were overseas

10On 27 November 2015 you departed Australia on a flight and returned to Australia on a flight on 2 December 2015. Blossom FDC submitted childcare sessions to the Department of Education and Training with you recorded as the FDC educator for the same period resulting in a payment of $7,730 in child rebate payments. None of this care was provided by you.

3.    Claims  for  childcare  not  provided  by  you  to  Matur  Mathiek's grandchildren

11Matur Mathiek provided a statement to police during which he stated he has four grandchildren who live with him: Amok, Ager, Alual Mangok and Mangok Mangok. In October 2014 he enrolled the children with Kids Future Garden FDC. Clement Iheng, who is a co-accused of yours, would collect the children in the morning on this day and take them to school. Iheng would collect the children from the school and bring them home. A person by the name of Amiol Arop, that is you, has never looked after his grandchildren. He does not know you by this name. In October 2015 he was contacted by Centrelink and asked about money being childcare claims for these grandchildren. He did not know anything about it. Centrelink stopped the payments and notified him by mail.

12Between 11 May 2015 and 12 September 2015 you submitted claims through Hello Children FDC for the care of Matur Mathiek's grandchild Alual Mangok. A total of $33,197.50 in rebates was paid by the DET as a result of those claims. This childcare which was claimed by you has never occurred.

4.     Claims for childcare not provided – this relates to Nianrab Deng's children and grandchildren.

13Nianrab Deng provided a statement to police which she stated: (a) she had five children that live with her.  She considers Archay Bankul her daughter as she

cared for her when Archay's parents died; (b) in 2014 her children Abuk, Angelina and Alul were cared for by Nirak Ling from a different FDC in Footscray; (c) in October 2015 her daughter Archay Bankul asked her to look after four of her children full time because her husband had left her to go overseas and she could not drive; (d) they went to Centrelink and registered the children to be in her care; (e) she used FDC educator Abiol Mahwee to help look after the children between October 2015 and 10 December 2015. Abiol worked for Blossom FDC; (f) from 10 December to February 2016 an FDC educator Ella from Blossom looked after the children; (g) these are the only FDC educators that cared for her children and her grandchildren; (h) she has never heard of you and that person did not provide any childcare to her grandchildren.

14Between 23 November 2015 and 5 December 2015 you submitted claims through Blossom FDC for the provision of childcare to Nairab Deng's children, Avouk Morn, Nairook Naol, Gok Gok and Nayalan Gok, a total of $14,460 in rebates was paid by the Department of Education and Training. These claims were false as the care was never provided by you.

15The total of these claims for work not provided by you is $60,617.50.

16The next category of your fraudulent offending arises from either the exaggeration of claims or the non-provision of services in respect of Aviuk Mawiik. Nayanat Mayam provide a statement to police and she stated that she has the following biological children who live in Australia with Rebecca Mawiik. Anton Deng Mawiik, Andrew Mawiik, Rahan Mawiik, Alul Mawiik and Aguck Mawiik. She lives in Melton South with her children Rahan and Aguck and her daughter Rebecca's four children.

17The grandchildren are living with her because her daughter studies full time in Ballarat. In 2015 she went to Centrelink with her daughter to register the care arrangements for the children.  Her daughter Rebecca Mawiik was previously

married to you. In 2015 her son Aguck was being looked after by you through a family day care centre. She signed the forms and timesheets that you had showed her. She signed them every morning and night. She received copies of them but did not read them as she cannot read English well. You only looked after him on weekdays. You would pick up Aguck at 8 am and take him to school. You would then pick him up in the afternoon and drop him home at 6 pm. She believes that the company that you were working for was Hello Children FDC. You were also working as a security guard at that time and that she never received any money from you.

18You claimed payment for childcare for Aguck Mawiik from or through Blossom FDC, Dorsy FDC and Stars R Us FDC. You have submitted claims via timesheets and attendance records falsely indicating you cared for Aguck on

11 Saturdays. You billed a total of 136.5 hours for this care purportedly provided by you on Saturdays which did not occur. Based on your claims the DET paid the relevant providers a total of $4,095. In addition the hours of care provided by you on weekdays was exaggerated including (a) billing for the whole day while Aguck was actually at school, (b) claiming the pick ups were done prior to 8 am, and (c) claiming that drop offs were done after 6 pm.

19As a result of you claims for family day care services, you have received total payments of $210,487 into your CBA Bank account between 29 May 2015 and 14 December 2015. I accept that not less than $64,712.50 of that money was fraudulently obtained by you.

20I note that at the time of your offending and in receipt of money for family day care work, you were also in receipt of Austudy allowance. DHS records show that you applied for Austudy on 5 March 2015 and Austudy was granted to you on 24 March 2015. You received payments from Austudy continuously until 27 November 2015 when you notified them that you were going to be overseas. Your payments resumed on 2 December 2015 until 7 December 2015 when they were again suspended due to you being overseas.  You did not declare

any of your income during the charged period. The last declared income on the DHS system was in 2012.

21On 16 December 2015 AFP officers executed a search warrant at your home in Kurunjang. They found the following documents:

(a)  Payment advice slips and the educator payment history in the name of Amiol Arop from Manhal FDC.

(b)   Attendance records and timesheets filled out, some signed and some unsigned, in the name of Amiol Arop in relation to Hello Children FDC, Discovery and Learn FDC, Stars R Us FDC, Blossom FDC and Dorsy's FDC. There were also handwritten notes of children's names linked to home care and school hours.

(c)  University documentation for the Federation University with email address of Amiol Arop at students.federation.ed.au. And also an Australian Children's Education and Care Quality Authority declaration form in your name.

22At the time of your arrest on 10 February 2016 an RMIT University student card in your name and an Apple iPad 3 was seized. An analysis of the iPad revealed:

(a)  bookmark for the RMIT University exam;

(b)emails relating to the RMIT University and Federation University;

(c)Wireless connectivity at RMIT University on 21 October 2015;

(d)  images of you being at a function at the Ultimate Function Centre in Keilor Park on 21 November 2015. The DET's childcare data revealed childcare claims were submitted in your name for care being provided to 8 pm through Dorsy's FDC for three children on that day;

(e)and images of you being in Bali on 28 and 29 and 30 November 2015.

23You were arrested and participated in a formal record of interview where you were cautioned and provided with your rights. You admitted that you are a student at RMIT and otherwise exercised your rights to make no comment to the allegations.

Personal circumstances

24I turn to your personal circumstances. You are now 42 years old. You were born into a subsistence farming family in South Sudan. You are the eldest child of four children. You have a younger brother in India, a sister in Kenya and another brother who lives in Nevada in the United States of America. In 1987 when you were aged 11 you left South Sudan to go to Ethiopia. After three years in refugee camps there you were then moved to Kenya. You attended school in Africa but were unable to go onto further education at the university level there. Originally you went to Cleveland, Ohio in the USA to study a Diploma of Business Administration. You worked to support yourself. You did not complete that tertiary education.

25In August of 2010 you came to Australia on a tourist visa. You eventually obtained permanent residency status and now are an Australian citizen. You returned to South Sudan on one occasion between December 2015 and February 2016, some 28 years after you had left your home country. Upon your return to Australia you were arrested and interviewed about these matters before the court. You have been married and have five children of that union. You have separated from your wife in 2012. Your wife and five children live in Melton, you provide financial support to your children and see them regularly, you live alone.

26You have had a good work ethic demonstrated by your employment in hospitality, security work and an array of other employments to support your family both your children and your parents and siblings. You currently work 21 hours a week at Qantas Catering Division.

27You have completed the requirements for a Bachelor of Finance at RMIT. The degree has not been conferred because owe outstanding tuition fees for the course. I note here that you have in the past paid education costs for your siblings who live overseas from the money you obtained from your offending.

You did not do that for your own study. You are currently studying a Masters Degree in Financial Analysis at La Trobe University. This study is expected to be completed at the end of the first semester of 2019. You hope to obtain employment in the finance industry but recognise that your sentence for the offending before this court will adversely affect your prospects for that type of work.

28You have been diagnosed with Type 2 diabetes. You have been assessed by Ian Joblin, forensic psychologist. He prepared a report dated 2 June 2018 which is Exhibit 2 on the plea. Mr Joblin's opinion is you do not suffer from PTSD despite the many deprivations and experiences in Sudan, Ethiopia, and Kenya during your youth. Mr Joblin assesses you to be a very intelligent man. You have no prior convictions nor any outstanding or subsequent criminal matters. You indicated your intention to engage in the sentencing indication hearing prior to your committal hearing. That did not occur. You conducted a committal hearing on the limited basis of the amount of money which was illegally obtained by you. Ultimately you pleaded guilty on 15 June 2018 after conducting the sentencing indication hearing before me. I accept your indication to plead guilty was at an early stage.

Sentencing considerations

29I turn to sentencing considerations. The most significant consideration when sentencing a Federal offender such as yourself is s.17(a) of the Crimes Act which states 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”

30A term of imprisonment is the only appropriate sentence for your offence.

31Section 16A(2) of the Crimes Act sets out a non-exhaustive list of factors the

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(2) of the Crimes Act. These factors include:

(a)  The nature and 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 timesheets regularly.

(c)  Any injury or loss or damage resulting from the offence, in this case it is 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)   Deterrent effect of any sentence or order under consideration which may have on other persons, that is the general deterrent effect to people who might be like minded as yourself to defraud the Commonwealth.

(h)The need to ensure that you are adequately punished for your offending.

(i)Your character, antecedents, age, means, physical and mental condition.

(j)Your prospects of rehabilitation and

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

32At the time of your offending you were 39 years old. You had been in Australia for some eight years.  You came to Australia as a tourist and stayed.  You had

no prior convictions either in Australia or in the country of your birth. There are no outstanding matters to be dealt with by this court in relation to you. You are to be sentenced as a person of previous good character. You initially indicated the willingness to plead guilty prior to the committal hearing in November 2016 if a sentencing indication hearing was conducted. As I have said none of that occurred. Ultimately you pleaded guilty to this charge after the sentencing indication hearing on 15 June 2018 conducted before me. Nevertheless I accept that you were willing to plead guilty to your offending at an early stage.

33Your 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 also allows for the preservation of court and investigative resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community. Your plea is also a clear indication and acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion and in particular in relation to the matters about this charge.

34Your plea also recognises that 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 the evidence that would have been necessary to be presented at trial. In this case the prosecution submitted that you were the seventh in a 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 which had been previously handed to me in court.

35On the principle of parity in sentencing, six of the other educators have been sentenced. The sentence for each of them have been reconnaissance release orders with varying terms of imprisonment all of which have been  wholly

suspended for the period of the reconnaissance release order. The circumstances of each of these offenders are different from one another and they are different from yourself.

36The circumstances of your respective offending are also different, including the time of the plea and the cooperation with the authorities The amount of money defrauded is but one factor to take into account when assessing parity of sentence with co-offenders.

37There are five sets of categories where you have not provided services for which you claimed money from the DET. You were on Austudy at the time of your offending. You never declared your income from the childcare payments. From your point of view it was all take, take, take. There has been no evidence led by you as to where the money has been spent. Your counsel submitted the money had been used to pay for your siblings' education overseas, money to support your parents in Sudan and the funds to support your children here in Australia. There has been no repayment of any of the ill-gotten gains made by you to the Commonwealth.   A reparation order will be made in the sum of

$64,712.50. You consent to such an order.

38The salient factors in your offending are:

(1)  The amount of money that you have defrauded, which is a sum not less than

$64,712.50.

(2)The offending occurred over an extended period of time.

(3)   The offending has five separate systems of achieving the money which I have already set out.

(4)   You were in receipt of other Commonwealth payments at the time you offended.

(5)There are telephone intercepts between yourself and the Deng family.  I

have not detailed them but they are relevant to your closeness to the operation.

(6)There is no explanation as to the motive or any repayment.

(7)   This type of offending against the Revenue is difficult to detect and to regulate.

39I have had regard to the folder of related cases handed to me. As was conceded, none of these cases were on all fours with your case. The common themes of 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 yours is just one of them. I find that the parity of sentence has a significant part to play in the fixing of a just sentence in your case.

40Finally, 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 in it for some considerable time. It involved constantly filing false timesheets, communications with the Deng group, and overcharging for services. You exploited a poorly administered and flawed system designed to improve the provision of childcare in the community in Australia. I assess your prospects of rehabilitation as good given your intelligence, your past work ethic and your prior good character.

41The prosecution made the following submission on sentence:

“Notwithstanding the mitigating factors, having regard to the serious and sustained nature of the offending and the need to provide general deterrence, the prosecution submits that a sentence of imprisonment is the only appropriate sentencing option.   However, in this case it is

submitted  that  a  reconnaissance  release  order  with  the  offender released forthwith is appropriate”.

Mr Sim, on your behalf, made a similar submission in respect of the appropriate sentence in your case.

42I find 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.

43Would you stand please.

44On Charge 1 you are convicted and sentenced to a period of 12 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 reconnaissance release order in the sum of $2,000 to be of good behaviour for that period of two years.

45Pursuant 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.

46     I will make the reparation order in the sum of $64,712.50. Does that cover everything?

MR SIM: It does Your Honour, yes it does.

HIS HONOUR: Thanks.  You can take a seat sir.

MR SIM: Your Honour I think, this is my going back to the time when I was at the Commonwealth, I think under 19AC of the Commonwealth Crimes Act, I think it's that provision off the top of my head.

HIS HONOUR:  Yes.

MR SIM:  A straight sentence, this is a Part 4 sentence under 6AAA. HIS HONOUR: Yes.

MR SIM: Can't be imposed if it's more than six months unless the court has regard to the seriousness of the offending or a defendant's criminal history. Meaning that if the sentence is more than six months there needs to be a notional release period set. I'm sure the prosecutor will correct me if I'm wrong about that. It's only for the 6AAA so it doesn't make in any way the sentencing remarks deficient obviously but I think as a matter of precision.

MR GULLACI: Your Honour I think – sorry what I think doesn't matter. In my submission Your Honour, I don't think it is necessary in my submission for Your Honour to set a non-parole period in any event even if one is required for the s.6AAA because Your Honour is really reflecting the notional sentence that you would impose but for the plea.

HIS HONOUR: Yes.

MR GULLACI: My understanding is that under the Commonwealth – certainly under the State regime there would be the ability to set a non-parole period with a head sentence of 12 months – reconnaissance release, but I don't believe you need to set one in this circumstance.

HIS HONOUR:  Yes. Thanks. I won't do it and if he breaches the order - - - MR SIM:  He comes back to Your Honour anyway.

HIS HONOUR:  - - - I will deal with it then.

MR GULLACI: Your Honour, we're just preparing the - - -

HISHONOUR: Yes thank you. Mr Arop, in a moment your counsel will come down and see you and show you this reconnaissance release order and briefly explain to you what it means.  After you have signed it I will explain to you

exactly what it means. All right thanks.  I've signed the reparation order and I'll just hand it down.

MR SIM: Thank you Your Honour.

HIS HONOUR: Thanks Mr Gullaci. Thanks I'll just have that handed to you Mr Sim.

MR SIM: Thank you Your Honour. Thank you Your Honour, Mr Arop has signed that reconnaissance release order form.

HIS HONOUR: Thank you.  Mr Arop, you understand English clearly? OFFENDER:  Yes I do Your Honour.

HISHONOUR: Yes. As you have heard me say during the course of my sentencing remarks, you are an intelligent man so you will understand what I am about to say to you very clearly. You've just signed a reconnaissance release order here and it is for a period of two years. It means that you have to be of good behaviour between now and the end of that two year period. If not, you come back here to be dealt with and bear in mind you have hanging over your head a 12 month sentence of imprisonment. Are we clear?

OFFENDER: Yeah that's clear Your Honour.

HIS HONOUR: All right. Thank you. Take a seat and you can step out of there. MR SIM:  As Your pleases.

HISHONOUR: Thanks. Mr Sim, thanks very much for your assistance. Mr Gullaci and your instructor, thank you.

MR GULLACI: Thank you Your Honour. HIS HONOUR: It is 2.15 for you tomorrow.

MR GULLACI: It is Your Honour and it will be relatively brief. Could I just raise one matter Your Honour, which - - -

HIS HONOUR: To do with this one?

MR GULLACI: To do with the 2.15 matter tomorrow.

(At this stage the court proceeded with another matter.)

HISHONOUR:  As I say thank you, I will see one half of the Bar table in about two minutes and the other half - - -

MR SIM: We're ready to go in the other matter, if I can just have a minute or two with Mr Arop.

HISHONOUR:  Yes absolutely. What I'll do is I'll stand it down until 11 o'clock so you've got plenty of time to deal with this and then I'll start the other matter then.

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