R v Balbissi
[2014] VCC 2052
•2 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01087
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY BALBISSI |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2014 | |
DATE OF SENTENCE: | 2 December 2014 | |
CASE MAY BE CITED AS: | R v Balbissi | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2052 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms M. Sewell | CDPP |
| For the Accused | Mr N. Papas QC | Schembri Lawyers |
HIS HONOUR:
1 Gary Balbissi, you have pleaded guilty to one charge of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (charge 1), and three charges of obtaining a financial advantage by deception from the Commonwealth entity contrary to s.134.2(1) of the Criminal Code (charges 2, 3 and 4).
2 The offending represents a course of conduct between September 1998 and January 2013, with only periods between 12 December 2002 and 4 March 2003, and 18 February 2009 and 7 April 2010 when no offending occurred.
3 The prosecutor, Ms Sewell, opened the circumstances of the offending by reading from a written ‘Prosecution Opening’, which was tendered. In short, you obtained payments of Jobstart/Newstart Allowance and Austudy from Centrelink to which you were not entitled. You completed documentation indicating that that you had no interest in real estate (apart from your residence) when you, in fact, had such an interest.
4 During the relevant periods you held interests in four properties, which should have been disclosed. These interests completely disentitled you from obtaining the payments you received.
5 You were overpaid a total of $107,004.79 during the periods of the four charges.
6 Concerning each property, you were recorded on title as either having a half share, or third share, as tenant in common along with other family members.
7 Mr Papas QC, appeared for you.
8 An important matter agitated on the plea concerned the circumstances in which you came to be registered as a tenant in common. Your counsel made submissions concerning this. These submissions were supported by evidence from your ex-son-in-law and yourself.
9 In short, you claim the financial arrangements of your extended family were under the control of your brother from the time of your father’s death in 1985. At this time your brother was a university student, but he later qualified as an accountant.
10 You claim that although you were aware that you were a registered owner of the relevant properties, you were unaware of the full significance of this. You simply relied upon your brother to arrange all financial matters concerning the properties. Furthermore, you claim you acted on advice from your brother that it was not necessary for you to declare your interests when completing the relevant documentation for benefits. As I follow, you claim you acted on the assumption that you had no substantial interest in the properties, receiving no benefit from them, such as rent, and not exercising any control over the properties.
11 To illustrate the extent to which it is likely that your brother controlled the properties and used you to further his own financial interests, Mr Papas highlighted the fact that one property was mortgaged to provide security for the purchase of your brother’s family home. Because you had no interest in the latter, this encumbrance on the former was not an allowable deduction for Centrelink purposes.
12 You claim you only discovered that your registration as tenant in common might entitle you to claim a financial interest in the properties after seeking legal advice subsequent to the discovery of the fraud leading to the current charges.
13 At first blush, it might be thought that acceptance of your account might have provided you with a defence to the current charges. However, after careful analysis and taking instructions from you, Mr Papas determined that this was not so, particularly given the applicable Commonwealth law. You accept this.
14 Insofar as it does not undermine your plea, a point Mr Papas was careful to emphasise, I am prepared to accept the thrust of the evidence you gave concerning the extent to which your financial affairs were controlled by your brother, and also accept that you acted upon advice he gave you concerning your disclosure obligations. By giving such evidence personally you commit yourself to the truth of these matters, and expose yourself to the risk of prosecution for perjury should your account be false. Nevertheless, you must at least have been reckless concerning your failure to disclose your property interests, a matter of common ground between you and the prosecution.
15 It is not possible for me to unravel precisely the financial relationship you had with your brother, and, it seems, your mother, concerning the property interests that were not disclosed.
16 Three of the four properties are now the subject of proceedings at VCAT to determine if they should be sold, and what interest you are entitled to.
17 MR PAPAS: Sorry, Your Honour. I hope I’ve made it clear in the plea that it’s all five.
18 HIS HONOUR: Well, I looked at the document, and I could only see a reference to three. That’s why I included that in the ‑ ‑ ‑
19 MR PAPAS: The family home that he is living in is jointly owned, so that’s included, even though that’s not part of these proceedings.
20 HIS HONOUR: Yes. I don’t think it matters whether it’s three or five.
21 MR PAPAS: It doesn’t, Your Honour.
22 HIS HONOUR: I got the impression from what you said to me on submissions that it was all of the properties.
23 MR PAPAS: Yes, it is.
24 HIS HONOUR: But when I looked at the documentation that you handed up I could only identify three, and so that’s why I included that remark.
25 MR PAPAS: We don’t seek to cavil. It’s just I thought I would raise that for Your Honour. But, yes, it is a total of five properties that are subject to dispute.
26 HIS HONOUR: Very well.
27 MR PAPAS: Perhaps only three of them being the relevant ones.
28 HIS HONOUR: Thank you for that correction.
29 MR PAPAS: Sorry, Your Honour.
30 HIS HONOUR: I am satisfied that you did not have a full appreciation of your interest in the properties, and were acting under the influence of your brother, to the extent that your culpability is significantly mitigated. In particular, I am satisfied that the primary motivation for your offending was not greed. This flows from accepting that you were unaware of the possible extent of your financial stake in the properties.
31 Although the need/greed distinction is relevant to penalty, the absence of greed is just one factor to be considered in the intuitive sentencing synthesis of relevant matters. It is far from a determinative factor concerning the issue of immediate imprisonment, as emphasised in Purdon, a decision of the New South Wales Court of Criminal Appeal, to which I was referred.
32 There is no suggestion you live luxuriously. Indeed, you told Mr Healey your home has a mortgage of $200,000, being bolstered by two loans this year.
33 Your counsel relied upon other matters in mitigation.
34 The principal additional matters were your pleas of guilty at the first available opportunity, your previous good character, an absence of criminal record, your age, your limited intellect as described by Mr Healey in a tendered psychological report, and finally your commitment to making reparation.
35 Concerning the latter, you have only made reparation of $4,836.31 to date. However, a statutory declaration and undertaking was tendered. In it you undertake to make reparation to Centrelink from any money you receive as the result of the current VCAT proceedings. I was asked to make a formal reparation order, and you consent to me making it. It should be made payable to the Commonwealth, shouldn’t it?
36 MS SEWELL: Yes, Your Honour.
37 HIS HONOUR: Very well. I formally order that you make reparation to the Commonwealth in the sum of $103,411.55. Your solicitor is very confident that you will receive money from VCAT proceedings well in excess of your outstanding debt to the Commonwealth.
38 Your pleas of guilty facilitate the course of justice, saving time, expense and the need for witnesses to give evidence. It was also conceded that they reflect your contrition or remorse.
39 Mr Papas outlined your personal history, and it is set out in Mr Healey’s report. You were born in Lebanon in 1954. You came to Australia aged 15, and married in 1981. You have seven children. All live at home, except the eldest. Your wife and three of your daughters attended court to support you, as did your son-in-law, and I can see family members have understandably returned today.
40 Although educated to tertiary level, you have mainly worked as a shopkeeper. You are a deeply religious man, and your Imam has provided guidance and counselling concerning your fractured relationship with your mother. whom you consider has sided with your brother in the current dispute.
41 Mr Healey thought your intellect low and that this may be “linked to premature decline in cerebral impairment”. He was, therefore, guarded concerning the accuracy of information you gave him. However, he thought you genuine in your attempts to provide information. This is a matter I have kept in mind when assessing your evidence.
42 The maximum penalty for each offence is 10 years imprisonment. The parties agreed that it was open to me to impose an aggregate sentence, and Mr Papas encouraged me to do so.
43 Ms Sewell drew my attention to the sentencing provisions of the Crimes Act 1914. She was correct to highlight the need for general deterrence, directing me to the strong appellate guidance in Purdon, Milne, a decision of the Victorian Court of Criminal Appeal, and Newton, a decision of the Queensland Court of Appeal. Although acknowledging that imprisonment is a sentence of last resort, she submitted that the circumstances required imprisonment with “a period to be served”.
44 The amount you obtained is considerable. The offending was sustained over almost 13 years, a particularly long period.
45 Mr Papas conceded that imprisonment must be imposed, but submitted that the circumstances here were sufficiently exceptional or special to justify immediate release on recognisance.
46 I was provided with tables concerning like cases. Two tables focussed exclusively on Victorian County Court Centrelink cases, and one contained “Concealment of Assets” matters. The third table consisted of Victorian and interstate cases. Of course, every case depends on its own facts.
47 Although the total amount obtained is not the only matter relevant to assessing culpability, it is an important consideration. Whilst immediate imprisonment is commonly imposed for social security fraud for such a sum, it is not always so.
48 I think your rehabilitation prospects are very good, and it is highly unlikely that you will re-offend.
49 The central question, as I see it, is whether the factors in mitigation are sufficiently significant to outweigh the primary purpose for imposing sentence, namely general deterrence.
50 Although finely balanced, in the end I think they are. I consider the circumstances surrounding your interests in the relevant properties, the extent to which you were under the influence of your brother, the fact that your culpability is confined to recklessness, the absence of greed as a motivation, your previous unblemished character, your determination to accept your wrongdoing and make amends for it, including full reparation, your age and limited intellect, combine to allow you to avoid immediate imprisonment – that is, imprisonment which has to be served at this time.
51 Of course, I am providing an opportunity, and if you are not of good behaviour immediate imprisonment would seem inevitable.
52 You will be convicted of all four charges and sentenced to an aggregate term of 21 months imprisonment. The sentence is to begin immediately, and you are to be released forthwith on entering into a recognisance in the sum of $2000 to be of good behaviour for three years.
53 Had you not pleaded guilty I expect I would have sentenced you to at least 30 months imprisonment, and expect I would have required you to serve at least half that sentence before being released. Have I got the structure of the order correct, Ms Sewell?
54 MS SEWELL: Yes, Your Honour.
55 HIS HONOUR: Thank you.
56 MS SEWELL: If I can have an opportunity to just prepare the actual document.
57 HIS HONOUR: Sure. Thank you.
58 MR PAPAS: If my instructing solicitor can approach the dock, just to let the accused know what has happened.
59 HIS HONOUR: Yes, of course, Mr Papas. Did we have an interpreter the other day, Mr Papas?
60 MR PAPAS: No, we didn’t, Your Honour.
61 HIS HONOUR: Have you got no instructor today, Ms Sewell?
62 MS SEWELL: No, I’m sorry, Your Honour.
63 HIS HONOUR: No, no, no. Don’t you apologise. I’m sorry for you.
64 MR PAPAS: I think the Commonwealth don’t stretch to those things any more, Your Honour.
65 HIS HONOUR: I briefly explained, Mr Papas, what the most likely consequence of a breach is, but would you or your instructor undertake to make that clear to Mr Balbissi?
66 MR PAPAS: We will do that, indeed, Your Honour.
67 HIS HONOUR: My associate will take the document. Mr Balbissi can come out of the dock and sit behind you, Mr Papas.
68 MR PAPAS: Thank you, Your Honour.
69 HIS HONOUR: And if you would assist my associate and we will get the document signed. All the jury here, Mr Norris?
70 TIPSTAFF: Yes, ready to go.
71 HIS HONOUR: Very well. I will leave the Bench and allow for the other parties to make the changeover. Thank you.
72 MR PAPAS: If it please Your Honour.
73 HIS HONOUR: Thank you both for your help.
74 MS SEWELL: Thank you, Your Honour.
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