Hooimeyer v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0216

MELANIE HOOIMEYER	Applicant
v
THE KING	Respondent

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JUDGES:	ORR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2025
DATE OF JUDGMENT:	14 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 37
JUDGMENT APPEALED FROM:	[2024] VCC 1726 (Judge Murphy)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Dishonesty offences – Obtaining financial advantage from Commonwealth entity by deception – Lodgement of Business Activity Statements containing false information – Hardship – Applicant was primary carer for 15-month old child and pregnant at the time of sentencing – Whether sentencing judge erred by reducing mitigatory weight to be given to hardship flowing from applicant’s separation from 15-month old child because she had not applied to have child with her in custody – Application for leave to appeal granted – Appeal allowed.

Crimes Act 1914 (Cth), ss 16A(2)(m), (p).

Totaan v The Queen (2022) 108 NSWLR 17.

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Counsel
Applicant:		Mr MD Stanton SC with Ms BL Kelly
Respondent:		Mr G Barr
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Mr M de Crespigny, Solicitor for Public Prosecutions (Cth)

ORR JA
T FORREST JA:

The applicant pleaded guilty to one charge of dishonestly obtaining a financial advantage from the Commonwealth (charge 1)[1] and one charge of attempting to obtain such an advantage (charge 2).[2]
[1]Contrary to s 134.2(1) of the Criminal Code (Cth).
[2]Contrary to ss 11.1(1), 134.2(1) of the Criminal Code (Cth).
The maximum penalty for each offence is 10 years’ imprisonment.
In October 2024, the applicant was sentenced to 18 months’ imprisonment on charge 1 and 1 month’s imprisonment on charge 2. The sentence on charge 2 was made wholly concurrent with the sentence on charge 1. Thus the total effective sentence was 18 months’ imprisonment. The sentencing judge ordered that the applicant be released after serving 8 months’ imprisonment upon giving security by recognizance of $500, on condition that she be of good behaviour for 2 years.

Summary of offending

The applicant was 23 years old at the time of the offending. She obtained an Australian Business Number (‘ABN’) as a sole trader on 28 July 2021. On 14 February 2022, the applicant registered for GST online using this ABN and elected a monthly reporting period. The applicant then nominated a bank account for her GST lodgements.
Charge 1 was a rolled up charge which covered the applicant’s dishonest activities in lodging seven Business Activity Statements (‘BAS’) with the Australian Taxation Office (‘ATO’) between 15 March 2022 and 24 August 2022. In total, $144,648 was paid by the ATO in response to the dishonest lodgement of these BAS. In fact, the applicant was not operating a business, had not incurred GST and was not entitled to a refund.
It seemed that the applicant was assisted by another person to make the first three BAS lodgements, and acted alone in making the last four lodgements.
Charge 2 concerned an attempt to achieve an eighth GST refund through the lodgement of another false BAS on 19 September 2022. The sum sought but not received was $15,454.
The applicant was interviewed in May 2023. She made full admissions and provided both the Australian Federal Police and the ATO with her bank statements, which showed receipt of the refunds. She was charged in February 2024.

This application

The applicant seeks leave to advance two grounds of appeal against sentence.
Ground 1
In relation to family hardship, the sentencing judge erred by:
(a)taking into account an extraneous or irrelevant consideration, namely that the applicant had not made an application to be together with her daughter in custody, a matter which would depend on a decision being made by the executive; and/or
(b)failing to give proper consideration to the hardship to the applicant’s daughter; and/or
(c) reducing the mitigatory weight to be given to:
(i)the probable effects of the applicant’s immediate imprisonment on her daughter; and/or
(ii)the applicant’s subjective hardship of imprisonment due to her concern about her daughter’s welfare.
Ground 2
The sentences imposed on charges 1 and 2 are manifestly excessive.

Consideration

For the reasons that follow, we would grant leave to appeal on grounds 1(a) and 1(c) and allow the appeal against sentence. As a consequence, we will resentence the applicant.
It is necessary to say something about the factual background to ground 1, which concerns the sentencing judge’s approach to the issue of the probable hardship that would arise from the applicant’s incarceration.
At the time of sentence in October 2024, the applicant was the primary carer for her 15-month-old daughter, Elena, and was approximately 3 months’ pregnant with her second child, due on 24 April 2025. She had separated from the father of Elena and her unborn baby. He had regular but casual contact with Elena. The applicant’s relationship with the father had ended in the context of his ‘excessive alcohol use and verbally abusive behaviour’. He had never looked after Elena on his own. The applicant and her daughter were living with the applicant’s parents, Victor and Michelle Hooimeyer. The applicant bore sole financial responsibility for Elena, and received a Parenting Payment.
The applicant had a history of depression and social anxiety, which had caused her to leave school shortly before the end of year 12. A forensic psychologist, Dr Matthew Barth, diagnosed the applicant as suffering from a major depressive disorder — with anxious distress — recurrent episodes of mild severity. This was thought to be a product of ‘chronic factors from her personal background’ and reactive elements due to her legal situation. He reported that:
Ms Hooimeyer described feeling helpless and anxious about her legal predicament and ruminates about the potential consequences. In particular, the prospect of being separated from her daughter if she is to be placed in custody and potentially giving birth to her second child in prison. However, Ms Hooimeyer has also suffered with noteworthy emotional issues throughout her life. She has felt a deep sense of inadequacy and worthlessness due to her social problems and has experienced periods of depression and anxiety in her adult years due to the instability in her lifestyle.[3]
[3]Report from forensic psychologist, Dr Matthew Barth, dated 14 October 2024, [15].
Section 16A(2)(m) of the Crimes Act 1914 (Cth) provides that a sentencing court must take into account ‘the character, antecedents, age, means and physical or mental condition of the person’ being sentenced. Section 16A(2)(p) requires a court to take into account ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents’. In Totaan v The Queen (‘Totaan’), the New South Wales Court of Criminal Appeal held that s 16A(2)(p) did not require a sentencing court to be satisfied that there were exceptional circumstances before taking probable hardship into account. The Court said:
Just because ‘any hardship’ may be ‘no different to that which would normally be expected’, to quote the words of the sentencing judge in the present case, does not mean that it must not be taken into account for the purposes of s 16A(2)(p) as part of the instinctive synthesis, consistent with decisions such as Markarian. To the extent that authorities such as this court’s 2006 decision in Nguyen have held that hardship to third parties must rise to the level of “exceptional” before being given a specified weight or resulting in a substantial reduction of sentence, that approach, too, attracts a similar criticism.
For all of these reasons, coupled with the fact that the court was met with a submission by the Crown inconsistent with Sinclair and Hinton, namely that hardship ‘does not need to be exceptional in order to be taken into account’, the gloss that has been placed on the interpretation of s 16A(2)(p) should be removed. That straightforward section should be applied according to its terms and, to the extent that decisions of this court and other intermediate appellate courts have taken a different approach, they should, in my opinion, no longer be followed in New South Wales.[4]
[4](2022) 108 NSWLR 17,39–40 [92]–[93] (Bell CJ, with Gleeson JA agreeing at 50 [148], Harrison J agreeing at 50 [129], Adamson J agreeing at 50 [150], Dhanji J agreeing at 50 [151]); [2022] NSWCCA 75.
Totaan has been followed in Victoria since 5 August 2022.[5]
[5]Rodgerson v R(No 2) [2022] VSCA 154, [73] (Emerton P, Kyrou and T Forrest JJA).
Counsel for the applicant contended on the plea that the hardship of any sentence of immediate imprisonment imposed on the applicant encompassed:
(a)hardship and anxiety that would be experienced by the applicant as a result of her separation from her 15-month-old daughter;
(b)hardship and anxiety that would be experienced by the applicant as a result of the prospect of being pregnant and giving birth whilst in custody, and the uncertainty of what would happen to her baby; and
(c)hardship that would be experienced by Elena as a result of the applicant’s imprisonment.
Counsel submitted ‘[a]lthough there is capacity for Ms Hooimeyer to seek permission to have Elena with her in prison, the process is not straightforward. At this stage, Ms Hooimeyer has not made such an application’. Counsel explained that Elena’s father was very unhappy about the prospect of Elena going into a prison, particularly in circumstances where he did not have a driver’s licence and would be unable to visit the prison.
It was submitted to his Honour that although the applicant and Elena lived with the applicant’s parents, at this vulnerable stage of Elena’s life, separation from her primary caregiver would have a profound effect on Elena. Reference was made to various studies and reports describing the adverse impact of a parent’s incarceration on a child’s long-term health and wellbeing. Although Elena was residing with the applicant’s parents, the applicant’s father worked six days a week. The applicant’s mother helped with Elena where she could, but she was medicated for bipolar disorder and also had physical limitations.
In his sentencing remarks, the judge stated the following:
[43] A significant matter on the plea was a submission by your counsel that a sentence of imprisonment would have an additional burden on you on the basis of the anxiety that you will suffer around the impact of your separation from your 15-month-old daughter, and secondly by reason of being pregnant whilst in custody. Dr Barth was of the view that anxiety over the separation from your daughter will have an impact on you. Arrangements have been made for your daughter to be cared for by your mother.
[44] Presently you do not intend to apply to have your 15-month-old child with you in custody.
[45] Whatever arrangements are made for the child, your position as a young mother will make any period of custody more burdensome than a person who did not have that dependent.
[46] Similarly, being pregnant in prison and facing delivery of a child whilst in custody will also make the experience leading up to birth very much more difficult.
[47] In addition of course, the anxiety associated with the separation from your child and the impact on your child, is a matter that will make a period of custody and separation from your child more burdensome, and I will take that into account.
[48] I am not required to find exceptional circumstances before taking into account the hardship on a person's family or dependents in sentencing.
[49] You have been the sole carer of your young child and you are not in a position to be assisted by the father and your mother has her own medical issues and physical limitations. There appears to be no other person available to provide care for the young child.
[50] In submissions your counsel referred the Court to research and reports referring to the significant negative impact on children's long-term health and well-being as a result of parental separation and incarceration.
[51] I certainly take into account the hardship on you of incarceration and in particular your concern as to the welfare of your child, your separation from the child, and your forthcoming baby. Your concerns could, however, be alleviated should you choose to make an application to the authorities to have your child with you in custody. The authorities in any event have an obligation to properly consider the welfare of your child. They also have an obligation to consider your mental health, and the report of Dr Barth will be made available to them.[6]
[6]DPP v Hooimeyer [2024] VCC 1726, [43]–[51] (Judge Murphy) (emphasis added) (citations omitted).
It is clear to us that the judge accepted that the applicant would suffer hardship as a result of her separation from Elena and from being pregnant and facing the delivery of her second child while in custody. Further, it is clear from the bolded comments in paragraph 51 of the judge’s sentencing reasons that the judge considered the applicant’s hardship could be mitigated if she made an application for Elena to join her in custody. These remarks must be considered as reducing the weight to be given to this quite substantial sentencing consideration.
The judge was required to take into account the applicant’s ‘character, antecedents, age, means and physical or mental condition’[7] and the probable effect that a term of imprisonment would have on the applicant’s family or dependants[8] — in this case, Elena.
[7]Crimes Act 1914 (Cth) s 16A(2)(m).
[8]Crimes Act 1914 (Cth) s 16A(2)(p).
There is no statutory mandate nor sentencing principle to support the proposition that the probable effect of hardship on an offender, or a dependant, should be reduced or moderated based on what actions he or she has taken in an attempt to mitigate that hardship. Section 16A(2)(p) is a straightforward section that should be applied according to its terms. So should s 16A(2)(m).
In written submissions on this application, the respondent concedes that grounds 1(a) and (c) are established. That concession is properly made. The judge erred by treating the absence of an application to have Elena with the applicant in custody as reducing the mitigatory weight to be given to the hardship that she would suffer as a result of her incarceration. It follows that the applicant will be granted leave to appeal.
Despite effectively consenting to leave being granted,[9] the respondent contends that in all the circumstances, no different sentence ought to be imposed and the appeal ought to be dismissed.
[9]In written submissions the respondent stated that it ‘does not submit that there is no reasonable prospect that a less severe sentence could be imposed’.
We reject this submission. We consider that the error identified is likely to have had a material impact on the sentence imposed.
It is strictly unnecessary to determine ground 1(b), however we also have concerns about his Honour’s approach to the ‘hardship’ issue as it concerned Elena. Whilst his Honour referred to research and reports tendered on the plea as indicating that parental separation and incarceration would have a ‘significant negative impact’ on a child’s ‘long-term health and well-being’, the judge did not indicate whether he accepted these propositions or whether they would be taken into account as a mitigating factor. Assuming by his reference to these propositions that his Honour did accept them, that reference was followed immediately in his Honour’s reasons by the impugned paragraph 51 of his reasons.[10] We consider that there is a prospect the judge also moderated the impact of Elena’s hardship, on account of her mother’s failure to apply to have Elena with her in prison, although this is unclear. On balance, the applicant has failed to establish ground 1(b), although the hardship to Elena is a consideration that is highly relevant to our resentencing exercise.
[10]Set out in paragraph 19 above.
Grounds 1(a) and (c) are established and the appeal against sentence should be upheld. It is unnecessary to consider ground 2.

Resentence

We resentence the applicant on the basis that we must impose a sentence that is of a severity appropriate in all the circumstances of the offending.[11] We will impose a term of imprisonment because we are satisfied, having taken account the various matters listed in s 16A(2) of the Crimes Act 1914 (Cth), that no other sentence is appropriate in all the circumstances of the case.[12]
[11]Crimes Act 1914 (Cth) s 16A(1).
[12]Crimes Act 1914 (Cth) s 17(1).
The GST system, which involves self-assessment, is a ‘soft target’ for the dishonestly inclined. Fraud on that system involves a breach of trust which, as the sentencing judge observed, calls for denunciation. The principle of general deterrence also must assume prominence in the sentencing calculus, although the circumstances of the applicant at the time of the offending — a depressed, anxious and immature 23-year-old woman, soon to be a single mother — can be distinguished from those of typical white collar criminals, who are ‘rational, profit-seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished’.[13] Nevertheless, denunciation and general deterrence have an important role to play in this resentencing exercise.
[13]See DPP (Cth) v Gregory (2011) 34 VR 1, 16 [53] (Warren CJ, Redlich JA and Ross AJA); [2011] VSCA 145.
The applicant’s offending was objectively serious. It involved a degree of planning and occurred over a sustained period. The offending conduct did not cease voluntarily, but upon detection by the ATO. Over the period of the offending, the applicant falsely represented that she had a business that had made purchases of approximately $1,761,122 and had incurred GST liabilities of $160,102. As a result of the offending, the applicant obtained $144,648, of which only a negligible amount has been repaid. The offending was not motivated by personal need — the applicant paid $1000 to the third party who assisted her to lodge the first three BAS and otherwise used the money to buy and fix up second-hand cars.
However, there is much to be said on the applicant’s behalf. She cooperated with the police investigation and pleaded guilty at the earliest opportunity. There was a delay of more than ten months from when she admitted the offending to the date on which she was charged. She had no prior convictions nor prior offences recorded and no criminal history subsequent to the period of offending.[14] She has demonstrated remorse for the offending and has good prospects of rehabilitation. In these circumstances, the prominence of the principles of specific deterrence and community protection in the sentencing exercise is significantly reduced.
[14]We accept that the applicant’s prior good character is of less importance in this type of offending than others.
The offending occurred in circumstances where the applicant had fallen in with certain people she met through car clubs who were involved in criminal activity. It was through this cohort that she was introduced to and participated in the offending. In her police interview:
(a)the applicant stated that she had initially registered for an ABN because she was working as a delivery driver;
(b)when asked why she had offended, she said (inter alia) ‘and so I just did it and it was just stupid. And just made a dumb mistake and then I just kept doing it, cause it was easy to do, and I realise it was stupid’; and
(c)when asked what the money was for, she said, ‘[j]ust help for now that — like, money to help so I could pay it back later. I always knew it would catch up to me … I knew it was something I couldn’t get away with’.

As we have said, the applicant was young and immature at the time of the offending. She suffers from longstanding depression and anxiety, which engages the fifth and sixth limbs in R v Verdins.[15]
[15](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102. The fifth of the six ways that this Court said that impaired mental functioning is relevant to the sentencing exercise is that the existence of a mental condition at the date of sentencing (or its foreseeable recurrence) may mean that a sentence will weigh more heavily on the offender than it would on a person in normal health. The sixth way is where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health.
As the affidavit material we received for the purpose of any resentencing exercise demonstrates, the applicant’s mental health has deteriorated while in custody. Her incarceration has caused real hardship for the applicant and her family members. Given that the applicants’ parents reside three hours from the prison in which she is incarcerated, the applicant has only been able to see Elena once a fortnight. She has found the separation from her daughter difficult and has commenced taking antidepressant medication as a result. She is anxious about Elena not being able to bond with her baby after the baby is born. The burden on her parents in caring for Elena has been significant, with her mother having to reduce her medication for bipolar disorder because she was otherwise too tired to care for Elena during the day. Elena’s father provides very little support in relation to the care of Elena, and still provides no financial assistance.
The affidavit material also demonstrates that despite these difficulties, the applicant has taken positive steps towards her rehabilitation while in custody. She has completed multiple courses, including courses designed to support women who have experienced family violence. She has also enrolled in a Certificate III in Entrepreneurship and New Business.
Following the receipt of this affidavit material, the respondent filed a short supplementary submission. The respondent conceded that on any resentencing exercise, a term of imprisonment combined with a release upon a recognizance release order from the date of the hearing of the appeal was within the range of available sentences.
We propose to resentence the applicant as follows. On charge 1, we will sentence the applicant to 12 months’ imprisonment. On charge 2, we will sentence the applicant to 1 month’s imprisonment, to be served concurrently with the sentence on charge 1. We will direct that the applicant be released after she has served 4 months’ imprisonment, upon giving security by recognizance of $500, on condition that she be of good behaviour for 18 months.
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[2025] VSCA 37

14 March 2025