R v Stephens

[2023] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Stephens
Citation:	[2023] ACTSC 226
Hearing Date:	16 August 2023
Decision Date:	16 August 2023
Before:	Mossop J
Decision:	See [46].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – making a false statement in an application – offending below the mid-range of objective seriousness – no criminal history –
recognizance of good behaviour and fines imposed
Legislation Cited:	Crimes Act 1914 (Cth), ss 17A(1), 19B, 20 Criminal Code (Cth), s 136.1(1)
Parties:	The King Ilze Stephens (Offender)
Representation:	Counsel
M Hassall (Crown) J Moffett (Offender)
Solicitors
Commonwealth Director of Public Prosecutions
Tim Sharman Solicitors (Offender)
File Number:	SCC 266 of 2022
MOSSOP J:
Introduction
1․	On 9 November 2022, the offender, Ilze Stephens, pleaded guilty to four counts of
making a false statement in an application contrary to s 136.1(1) of the Criminal Code
(Cth). The maximum penalty is 12 months’ imprisonment. The maximum fine is 60
penalty units.
2․	The pleas were entered on these summary charges in the Supreme Court following initial
pleas of not guilty to charges on an indictment. The guilty pleas were entered after the
matter was listed for trial.
3․	The offender’s son, Travis Stephens, was the co-offender. He was sentenced on
1 December 2022: R v Stephens (No 2) [2022] ACTSC 335.
Facts
4․	The facts are agreed and are in summary as follows.
5․	At all relevant times the offender resided in Croydon Hills, Victoria.
6․	Travis enlisted as a solider in the Australian Army in 2000. Between January 2010 and
December 2019, Travis was posted to various units in the Canberra region.
7․	Housing assistance is provided to Australian Defence Force (ADF) members and may
be given to a member requiring accommodation who does not have a “suitable own
home” in the member’s posting location. A member is taken to have a “suitable own
home” when the member holds an interest as an owner of the home. The interest can be
a controlling interest or an equal share and may be legal or equitable.
8․	Rent Allowance (RA), a subsidy paid to the ADF member fortnightly, is a form of housing
assistance paid to a member who privately rents a suitable home to live in, in his or her
posting location. A member who owns or partly owns a suitable home in his or her posting
location is not entitled to RA.
9․	In 2011, Travis was in receipt of RA for an apartment he rented on Giles Street, Kingston
(“the Giles St property”).
10․	On or about 26 May 2011, Travis made an offer to purchase an apartment on Wentworth
Ave, Kingston (“the Kingston property”). The offer was accepted, and Travis paid a cash
deposit of $5000. The original buyer recorded on the sales contract was Stephens Estate
Pty Ltd, with the address of the Giles St property rented by Travis. On 13 June 2011, the
buyer recorded on the Sales Instructions was amended to “llze Stephens”, the offender.
The offender signed the contract for sale on 30 June 2011 which was then exchanged.
11․	Settlement of the purchase of the Kingston property was delayed due to difficulties
experienced by the offender and Travis in securing finance. On 27 June 2011, Travis
emailed the offender in relation to their financing issues and the potential requirement
for Travis to be a joint purchaser of the property, stating:

We're the ones holding all the cards...lm sure it'll be all good, but worst case scenario, we'll bring me on board IOT prop-up the finance that can be brought to support. Going this route doesn't necessarily mean I can't still get the allowances/kickbacks either. At worst (i.e., if Trav Stephens purchased/owned it), I'm entitled to $413 p/m on top of my repayments.

12․	Finance was ultimately arranged with the ING Bank Australia via a finance broker. The
finance was conditional upon both the offender and Travis appearing on the mortgage
and property title. This requirement was made clear to the offender and Travis. On
25 August 2011, Travis commented to his finance broker:

My name shouldn't be a massive issue - we wanted it left off as it potentially restricts my Rent entitlements from defence and therefore decreases the level of repayments we'll be making. We have a solution should this still have to take place, Mum will be in a position to discuss.

13․ On 29 August 2011, the finance broker wrote to the offender and Travis advising:

You will need to liaise with your own solicitor now as far as the Transfer of Land having

Travis David Morgan Stephens included on it and perhaps to extend the settlement date?

14․	On 9 September 2011, the offender and Travis jointly applied for a mortgage loan from
ING Bank Australia.
15․	On 28 September 2011, a non-conforming transfer adding Travis as joint transferee in
relation to the Kingston property was lodged with the ACT Revenue Office. The transfer
was supported by a statutory declaration made by the offender on 13 September 2011
stating:

I am contracted to buy Unit 6 Block 20; Section 28; Kingston ACCT 2604 from Garry Laurence Raffaele and Elizabeth Raffaele and intend to nominate my son, Travis David Morgan Stephens, as the joint Transferee.

16․	On 30 September 2011, the purchase of the Kingston property settled.
17․	On 12 October 2011, the offender and Travis were registered as owners (joint tenants)
of the Kingston property, listing their ING mortgage under the description of
interests/encumbrances associated with the registration.

Offending

18․	In July 2011, the sellers of the Kingston property granted an occupation licence to the
offender to use and occupy the property from 13 July 2011 until completion of the sale. The licence was formalised in an Occupation Agreement signed by the offender's
solicitor on 12 July 2011.
19․	On 13 July 2011, Travis moved into the Kingston property.

Charge 1

20․	On 26 August 2011, Travis signed and submitted an Application for Rent Allowance to
the Defence Housing Authority (DHA) claiming RA for rent of the Kingston property.
21․	An Owner/Member statement signed by the offender and Travis on 24 August 2011 was
submitted in support of Travis’s application for RA. In Part A of the statement, Travis
declared that he was living at the Kingston property and paying $700 per week in rent.
22․	Part B of the statement was completed by the offender as "Owner" of the property, and
she asserted that the details in Part A of the statement were correct and further
represented that she had received a payment of bond of $2800 from Travis on
11 July 2011.
23․	Both the offender and Travis signed the Owner/Member statement declaring that the
information provided in the form was true and accurate and that they were aware that
giving false or misleading information, documents or statements to the DHA was a
serious offence under the Criminal Code. The statements the subject of the charge were
that she was the owner of the unit, that Travis Stephens was the tenant of the property,
that he had paid her a bond of $2800 and was paying weekly rent. Notwithstanding the
declaration on the Owner/Member statement, the information which they provided was
false in that she was not the only owner of the property, Travis was not her tenant, he
was not paying rent and no bond had been paid.

Charges 2 – 4

24․	Between April 2012 and May 2018, Travis electronically completed and submitted annual
RA reviews to the DHA via his account on the DHA online portal. In each review, Travis
falsely represented that neither he nor any of his dependents owned or was purchasing
a property and further falsely represented that he was renting the Kingston property from
the offender. With the exception of the RA Review submitted in April 2012, an
Owner/Member statement signed by the offender and Travis was submitted to DHA on
each occasion as evidence of a purported ongoing rental arrangement.
25․	The offender manually completed and signed seven Owner/Member statements. In each
Owner/Member statement, the offender represented that:

(a)	she was the “Owner” of the Kingston property listed by Travis;
(b)	she received rent from the Travis in the amount per week listed by Travis; and
(c)	she had received a bond payment for the property of either $2400 or $2800 on

either 12 June 2011, 11 July 2011 or approximately 13 August 2011.

26․	Various comments were added to the forms to suggest that the offender was carrying
out inspections of the Kingston property and/or monitoring the rental market in Canberra.
The wording of some of these comments was suggested to the offender by Travis in
emails preceding the relevant Owner/Member statements.
27․	The offender signed the declaration on each form declaring that the information provided
in that form was true and accurate and that she was aware that giving false or misleading
information, documents or statements to the DHA was a serious offence under the
Criminal Code.
28․	The false statements the subject of the charges are that she was the owner of the unit,
that Travis Stevens was the tenant of the property and that he was paying weekly rent.
The offender knew the information provided in the Owner/Member statements was false.
29․	The Owner/Member statements completed and submitted by Travis to the Department
of Defence in lieu of formal lease documents and rent and bond receipts enabled him to
receive RA payments to which he was not entitled.
30․	In April 2018, the Department of Defence commenced an investigation of this matter.
31․	In August and November 2018, investigators from the Department of Defence attempted
to contact the offender in relation to this matter. The offender did not respond.

Objective seriousness

32․	The offending was relatively unsophisticated. However, it occurred in the context of the
offender’s son obtaining significant financial benefits from Commonwealth. The scope of
s 136.1(1) of the Criminal Code is unlimited. That indicates that the present offending is
below the mid-range of objective seriousness for this offence.

Subjective circumstances

33․	The subjective circumstances of the offender are described in a pre-sentence report
dated 27 March 2023, two reference letters and a letter from her daughter dated
6 August 2023 containing more details about her personal circumstances.
34․	The offender’s parents emigrated from Latvia after the Second World War. She was born
in Townsville and reported that she maintained strong relationships with her parents until
their death.
35․	She has two adult children, and despite one being her co-offender, has reported positive
relationships with both children. Her husband and the children’s father died tragically in
an accident in October 1997. The offender was then solely responsible for raising her
two children.
36․	She has re-partnered and been with her partner for 11 years, a relationship which she
describes as stable and rewarding. She reports that she presently resides alone in
Croydon Hills, Victoria.
37․	She successfully completed Year 12 before proceeding to study nursing and completed
three years of general training in 1970. In 1974, she completed a year of midwifery
training and joined the Royal Australian Air Force as a trained nurse. She is currently
employed as a night coordinator for a hospital, a position she has held for 36 years.
38․	She does not presently suffer from financial difficulty, alcohol or drug related issues or
medical, emotional or mental health issues.
39․	The two reference letters establish that in her work she occupies a position that has the
highest level of responsibility and requires her to exhibit honesty and trustworthiness in
all aspects of her role. She is obviously well respected.

Criminal history

40․ The offender has no criminal history.

Plea of guilty

41․	The pleas of guilty were not entered at an early stage. However, they had a significant
utilitarian value, the matter having been listed for a 10-day trial on three separate
occasions. The plea of guilty will be taken into account in determining the appropriate
sentence.

Time in custody

42․ The offender has spent no time in custody in relation to these offences.

Consideration

43․	The offender clearly had a subordinate role in the overall scheme of the offending. She
willingly went along with her son’s plans. It is easy to see how a parent might do so when
they are outside the ADF system that generates the scheme of benefits, and their child
behaves as though he knows what is going on. This case emphasises the ongoing
significance of ensuring that government documentation is completed truthfully. Here,
the offender failed to recognise the significance and gravity of the documentation that she was signing, and this led her to pay insufficient attention to the necessity to tell the
truth.
44․	Given the prevalence of such documentation as the foundation for government schemes
generally, and the regime of ADF benefits in particular, general deterrence is obviously
a significant consideration. However, in the present case the significant features are the
offender’s subordinate role, her lack of criminal history and her positive good character.
I accept that the offender has a minimal risk of reoffending and that her positive good
character over her life entitles her to significant leniency.
45․	The prosecution did not submit that threshold in s 17A(1) of the Crimes Act 1914 (Cth)
was crossed. The offender did not submit that a non-conviction order should be made
under s 19B of the Crimes Act. The offender submitted that a conviction and a bond
under s 20 of the Crimes Act would be appropriate. I agree. Having regard to her
subordinate role in the offending, the absence of any criminal history and the positive
evidence of her good character it is appropriate to deal with the matter by ordering that
she gives security without sureties by recognizance that she will be of good behaviour
for a period of 12 months. It will be a condition of the recognizance for the latter two
offences that she pay a pecuniary penalty of $1000.

Orders

46․ The orders of the Court are:

1.       On the charge of false or misleading statements in an application

(CAN 41325/2022), the offender is convicted and required to enter into a

recognizance that she be of good behaviour for a period of 12 months with

security of $100.

2.       On the charge of false or misleading statements in an application

(CAN 41323/2022), the offender is convicted and required to enter into a

recognizance that she be of good behaviour for a period of 12 months with

security of $100.

3.       On the charge of false or misleading statements in an application

(CAN 41324/2022), the offender is convicted and required to enter into a

recognizance that she be of good behaviour for a period of 12 months with

security of $100 and a condition pursuant to s 20(1)(a)(iii) of the Crimes Act

1914 (Cth) that the offender is to pay to the Commonwealth a pecuniary penalty

of $1000 on or before 15 August 2024.

4.       On the charge of false or misleading statements in an application

(CAN 41326/2022), the offender is convicted and required to enter into a

recognizance that she be of good behaviour for a period of 12 months with

security of $100 and a condition pursuant to s 20(1)(a)(iii) of the Crimes Act

1914 (Cth) that the offender is to pay to the Commonwealth a pecuniary penalty

of $1000 on or before 15 August 2024.

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 24 August 2023