R v Stephens (No 2)
[2022] ACTSC 335
•5 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stephens (No 2) |
Citation: | [2022] ACTSC 335 |
Hearing Dates: | 27 May 2022, 1 December 2022 |
DecisionDate: | 5 December 2022 |
Before: | Mossop J |
Decision: | See [84] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – intending to dishonestly cause a loss to a Commonwealth entity – obtaining a financial advantage from the Commonwealth by deception – scheduled offence of knowingly making a false or misleading statement in an application – offender with mild brain impairment and mental illnesses – loss to Commonwealth repaid – importance of general deterrence from dishonesty offences – sentences of imprisonment imposed and partially suspended |
Legislation Cited: | Crimes Act 1914 (Cth), ss 16BA, 17A(1), 20(1)(a), 20(1)(b) Criminal Code Act 1995 (Cth), ss 134.2(1), 135.1(3), 136.1(1) Principal Defence Determination 2005/15 |
Cases Cited: | Dickinson v R [2021] VSCA 50 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Zaky v R [2015] NSWCCA 161 |
Parties: | The King (Crown) Travis David Morgan Stephens (Offender) |
Representation: | Counsel M Hassall (Crown) M Dennis SC and J Nottle (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Operational Legal Australia (Offender) | |
File Numbers: | SCC 117 of 2021 SCC 118 of 2021 |
MOSSOP J:
Introduction
On 1 December 2021 the offender, Travis Stephens, pleaded guilty to the following offences:
1.One count of intending to dishonestly cause a loss to a Commonwealth entity, contrary to s 135.1(3) of the Criminal Code 1995 (Cth) (SCCAN 2021/163). The maximum penalty is 10 years’ imprisonment.
2.One count of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code (CC2020/41374). The maximum penalty is 10 years’ imprisonment.
Both pleas were entered in the Supreme Court following initial pleas of not guilty. The pleas were entered after a trial scheduled to commence on 29 November 2021 was vacated. The intention to enter a plea of guilty was indicated two weeks prior to the trial which had been estimated to run for 10 days.
The offender has also requested that for the second of these offences an additional offence be taken into account on sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). That offence is knowingly making a false or misleading statement in an application contrary to s 136.1(1) of the Criminal Code (CAN2020/41385). The maximum penalty, had the offender been convicted of this offence, would have been 12 months’ imprisonment.
The sentencing hearing commenced on 27 May 2022. At the conclusion of the hearing the offender sought an adjournment so as to permit the obtaining of further evidence and reports concerning a possible brain injury suffered by the offender that had been referred to in a report of Tabitha Frew dated 9 May 2022. The matter was then listed for hearing on 2 September 2022. That date was vacated with the consent of the prosecution because of difficulties obtaining that report. The matter was then listed for 1 December 2022. When the matter was called on, senior counsel for the offender made an oral application for the further adjournment of the matter based upon an affidavit of his solicitor of that day. That affidavit recorded the history of attempts to obtain a report from a neuropsychiatrist as distinct from a neuropsychologist. It indicated that the offender had obtained a neuropsychological assessment and a psychiatric report. He had not obtained a functional magnetic resonance imaging (fMRI) scan. The affidavit indicated that by March 2023 or early April 2023 the offender would have undertaken an fMRI and been seen by a neurologist, new treating psychiatrist as well as being seen again by the forensic psychiatrist that had previously provided a report. The affidavit said that this collection of reports would provide the court with “a comprehensive and complete neurological assessment of the brain functionality of Mr Stephens”.
I refused the application for the adjournment and reserved my reasons. It was not appropriate to grant a further lengthy adjournment of the sentencing hearing pending the further reports. The neuropsychological report prepared by Dr Alex Falcon, dated 3 June 2022 showed some modest impairment in some areas of brain function. It is unlikely that any significant change would be disclosed by additional evidence. Further, the offender has had a fair opportunity over the year since his plea of guilty to obtain any material relevant to sentence and it would be contrary to the proper administration of justice to further delay the finalisation of the sentence for many more months.
Facts
The facts are agreed and are in summary as follows.
The offender enlisted as a solider in the Australian Army in 2000. He was commissioned as an officer in 2005 and became a major in November 2017. Between January 2010 and December 2019 he was posted to various units in the Canberra region.
In 2011 the offender was renting a property in the ACT and receiving rent allowance (RA), a form of housing assistance available to Australian Defence Force (ADF) members who privately rent a home in a posting location. These benefits are provided for by instruments made under s 58B of the Defence Act 1903 (Cth). Specifically, the conditions for RA were specified from 31 May 2005 in the Principal Defence Determination 2005/15, and from 1 July 2016 by the Defence Determination 2016/19. A member who owns or partly owns a suitable home in their posting location is not entitled to RA.
On or about 26 May 2011 the offender made a successful offer to purchase an apartment at an address in Kingston, ACT. On 13 June 2011, the buyer, as recorded on the sales contract for the house, was amended to the name of the offender’s mother, who is a co-offender in relation to these offences. His mother then signed the contract for sale.
Settlement was delayed due to difficulties in securing finance. On 27 June 2011, the offender emailed his mother in relation to the fact that he might be required to become a joint purchaser of the property to obtain a mortgage:
We’re the ones holding all the cards...Im 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. …. At worst (i.e., if Trav Stephens purchased/owned it), I’m entitled to $413 p/m on top of my repayments.
Finance was arranged, conditional upon both the offender and co-offender appearing on the mortgage and property title. In relation to this requirement, the offender said to his finance broker words to the effect of:
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.
On 28 September 2011 a non-conforming transfer, which added the offender as a joint transferee on the property, was lodged with the ACT Revenue Office. On 30 September 2011 the purchase settled. On 12 October 2011 the offender and his mother were registered as joint tenants on the property by the ACT Titles Office, which listed their joint mortgage with ING under the description of interests and encumbrances associated with the registration.
At numerous times during the offending period, the offender referred to himself and was referred to by others as the owner of the Kingston property, including when seeking advice on purchasing a yacht, requesting to be made a member of the executive committee of the body corporate responsible for the apartment, and when making enquiries with financial services companies.
Count one - intending to dishonestly cause a loss to a Commonwealth entity (claiming relocation assistance)
ADF members can apply for relocation assistance where they are required to vacate a property for which they receive RA, for reasons beyond their control. Relocation assistance may also be paid where an ADF member moves to a property that they own.
On 12 June 2011 the offender sent an email to LiveIn, the real estate agency managing the rental, stating:
…I’ve bought a place!! Currently look to exchange on Friday this week (17th) and settle about 8 July. Work will be invoking the release clause as it is a vacant settlement and therefore they evict me (with removal) from private rental into my residence.
On 30 June 2011, the offender sent an email to LiveIn following up on an eviction notice. An employee of LiveIn emailed the offender a “Notice to Vacate” stating the reason as being that “the lessor intends to live in the premises”. The notice was fraudulent in that the owner of the property did not authorise nor know of the notice, and she was not intending to live in the property.
On 5 July 2011 the offender submitted an application for relocation to Toll Transitions, the company contracted by the Department of Defence to conduct relocations of ADF members. He requested assistance relocating to the Kingston property, due to a change in personal circumstances being “Eviction from RA”. To support the application, he submitted the fraudulent “Notice to Vacate”.
On 13 July 2011 the offender’s furniture and personal effects were relocated by Toll Transitions to the Kingston property. The cost of the relocation was $4406.45.
Had the accused been moving into a property he had bought or was buying, he would still have been eligible for relocation at the Commonwealth’s expense. However, as at 13 July 2011, the proposal was still that the property be bought only in his mother’s name.
As a result of the offender’s false representations that he was evicted from his previous property, he caused the Department of Defence to pay for his relocation to the Kingston property in circumstances where he was not entitled to relocation assistance.
Count two - Obtaining a financial advantage from the Commonwealth by deception and knowingly making a false or misleading statement in an application (claiming RA and submitting a “ceiling increase” application)
On 12 July 2011 the sellers of the Kingston property granted an occupation licence to the co-offender (or her nominated representative) to use and occupy the property from 13 July 2011 until completion of the sale subject to a licence fee of $500 per week. No bond was required.
On 13 July 2011 the offender moved into the property pursuant to the licence, as the co-offender’s nominee.
On 26 August 2011 the offender submitted an application for RA to Defence Housing Australia (DHA), claiming RA for the Kingston property. The application was accompanied by a “ceiling increase” application, which was an application for the offender to be paid RA at a higher than normal rate.
In the RA application, the offender made the following representations:
1.he had entered into a lease to rent the Kingston property;
2.the term of the lease was 13 July 2011 to 12 July 2012;
3.the rent for the property was $700 per week;
4.he wished to claim advance payments of both bond and four weeks’ rent ($2800 each); and
5.that neither he nor any member of his dependent family owned or part-owned a residential property in his posting locality.
In the application, the offender checked boxes that he had received a copy of the guide to RA and that he undertook to advise DHA and his commanding officer in writing of any changes to the details provided in the application within 10 days of the change. The offender also checked a box agreeing that he must provide DHA with supporting documents such as a copy of the signed lease or an initial receipt detailing the rental address, amount of rent paid, the person payment was made to and the bond payment. The offender wrote a note indicating that this documentation was to be provided and that an “Owner/Member” statement would be sent in lieu.
The offender also checked boxes declaring the information he provided was true and accurate and that he was aware that giving false or misleading information, documents or statements to DHA was a serious offence under the Criminal Code, signing the declaration.
In the ceiling increase application, the offender made representations that the application was for rent at the Kingston property, that he was paying $700 in weekly rent and that his basis for applying for the increase was:
Evicted at short notice from previous RA. Property due to owner reoccupying. Properties available in the area were either poor quality/unsuitable or excessive for need/expensive. Market has increased beyond 10% p.a. Took first available (suitable) IOT prevent disruption at work. Vacancy rates at all time low.
The offender signed the form, declaring the information provided was true and accurate.
An “Owner/Member” statement signed by the offender and co-offender on 25 August 2011 was submitted in support of the RA. In part A of the statement, the offender declared that he was living at the Kingston property and paying $700 per week in rent. Part B of the statement was completed by the co-offender as the “owner” of the property, who asserted that the details in Part A were correct, and further represented that she had received a bond payment of $2,800 from the offender on 11 July 2011. Both the offender and co-offender signed the 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 DHA was a serious offence. However, the information provided was false.
As a result of the application for RA, the offender received RA for the Kingston property with effect from 13 July 2011. However, the offender and co-offender owned the property as joint tenants from the date of settlement on 30 September 2011. He therefore held a joint tenant interest in a suitable home in his posting locality and was not entitled to RA from one week after settlement, being from 6 October 2011.
The offender did not inform DHA or his commanding officer that he had purchased a residential property in his posting locality. As a result, the continuing representation made in his RA form, that he did not own or partly own a residential property in his posting location, was false.
The offender received advance payments of both bond and four weeks’ rent, which were sums of $2800 each. No loss was suffered by the Commonwealth in respect of the bond payment, which was repaid to the Commonwealth as required by the RA scheme.
Between 26 April 2012 and 19 April 2018, the offender submitted roughly annual rent allowance reviews to DHA. In each review, he falsely represented that he did not own a property in the posting location and that he was renting the Kingston property from the co-offender. Except for the review submitted in April 2012, an “Owner/Member” statement signed by the offender and co-offender was submitted to DHA on each occasion as evidence of a purported ongoing rental arrangement.
As a result of these reviews, the offender continued to receive the following RA payments for the Kingston property to which he was not entitled:
Period
Total amount of RA paid
6 October 2011 to 11 April 2012
$6,430.09
12 April 2012 to 18 June 2013
$23,447.91
17 June 2013 to 26 May 2014
$12,107.81
26 May 2014 to 12 May 2015
$12,085.18
28 April 2015 to 8 May 2016
$12,497.07
4 May 2016 to 29 March 2017
$11,306.61
26 March 2017 to 26 April 2018
$13,624.95
TOTAL
$91,705.54
The Australian Defence Force Investigation Service commenced an investigation into the offender’s receipt of RA on 11 December 2017 following an anonymous tip-off made to DHA that he had been receiving RA to which he was not entitled.
On 2 April 2018 a member of the public who was an employee of Collection Corporation Australia confronted the offender by email, stating:
I refer to our conversation this afternoon and attach a copy of the title search which shows you are a joint owner of the property, you have been “renting” per the Defence Documentation since 2011…It seems you are receiving the rental subsidy from the Defence Force to subsidize living in your own property, which seems prohibited.
On 3 April 2018 the offender disclosed the allegation in the email from the Collection Corporation Australia employee to his superior officer and sought legal advice about the allegation. He claimed that he was unaware his name was registered on the title of the Kingston property and claimed that he had been renting the property from his mother.
The same day, the offender emailed DHA to advise that his partner had moved into the property on 26 March 2018. He did not disclose that he was registered on the title for the property.
On 19 April 2018, the offender completed an online review of his entitlement to RA in which he falsely represented that he did not own property in his posting location. He submitted a copy of a tenancy agreement between himself, his partner and his mother dated 9 April 2018. The agreement represented that he and his partner had entered into an agreement to jointly rent the Kingston property from the co-offender for $750 per week.
As a result, the offender continued to receive RA payments at a reduced rate until 21 January 2019. However, the prosecution did not allege any successful deception of DHA beyond 26 April 2018.
Of the $91,705.54 overpayment, by the time of the hearing on 1 December 2022 the offender had repaid the whole amount to the Commonwealth. Some of these repayments were made via salary deduction while the offender was employed by the Department of Defence. However, the offender was administratively discharged from the ADF on 18 December 2019. $42,118.64 remained outstanding. The balance of the overpayments was paid on the first day of the sentencing hearing.
Objective seriousness
Count one, dishonestly causing a loss to a Commonwealth entity, involved flagrant dishonesty including the use of a fabricated notice to vacate. The amount of relocation assistance was relatively modest. There would have been an entitlement to an amount of relocation allowance even if the true position had been disclosed. It is in the low to mid-range of objective seriousness.
Count two, obtaining financial advantage by deception, involved a lengthy course of dishonest conduct. It covered a period of six years and eight months. The total amount dishonestly obtained was $91,705.54. It involved false assertions of a lease. It was motivated by greed, not need. It was unsophisticated in the sense that upon investigation, it was relatively easy to detect the true position. However, that lack of sophistication does not significantly affect the assessment of objective seriousness because it also reflects the brazenness of the offending or confidence of the offender that he would not be detected. That the fraud might have been detected earlier if there was a more detailed system of checking statements made by applicants for benefits does not reduce the objective seriousness of the offending. Rather, it emphasises the significance of honesty on the part of the pool of Commonwealth officers, including the offender, who had the potential to benefit from the regime of allowances. The immediate loss or damage to the Commonwealth has now been removed by the repayment of the amounts in question.
The scheduled offence of knowingly making a false or misleading statement in an application is to be taken into account in relation to count two. It involved the application for a ceiling increase repeating the false representation that he had been evicted from his former accommodation and was paying $700 per week to rent the Kingston property. While the moral culpability of the offending was high, the potential consequences of it were modest. Once again it was motivated by greed, not by need. It is a low to mid-range example of this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 9 May 2022 as well as in various medico-legal reports and references tendered on behalf of the offender.
The offender is 41 years old. He reported that he had an uneventful childhood in a safe and supportive family home, without alcohol or other drug abuse or family violence issues. His father is deceased and he has a close supportive relationship with his mother, the co-offender, who lives in Victoria.
The offender is in a long-term relationship and has a child from this union who is currently around 17 months old. The author of the pre-sentence report stated that his partner appears to be prosocial and was, at the time of the report, on maternity leave from permanent employment.
The offender completed schooling in Victoria and denied “any concerns at all” throughout school. He joined the ADF in 2000 and was discharged in 2019 in part due to the commission of the offences the subject of these proceedings. He regrets the loss of his employment and remains unemployed, at least as at the date of the first sentence hearing, due to physical and mental health issues.
The offender has received treatment for physical and mental health issues. A report from Dr Adesina Adesanya, consultant psychiatrist, indicated that the offender was anxious and depressed in light of the actions arising out of the allegations of offending.
The report of treating psychologist Tabitha Frew, dated 9 May 2022, supported the pre‑sentence report’s statement that the offender has been diagnosed with:
· Autism Spectrum Disorder (ASD), level 2, without intellectual or language impairment
· Attention Deficit Hyperactivity Disorder (ADHD), combined presentation, moderate
· Posttraumatic Stress Disorder (PTSD), complex, with dissociation
· Major Depressive Disorder, with anxious distress
The offender received these diagnoses in 2019. He has attended 22 counselling appointments with the Open Arms – Veterans and Families Counselling Service since 6 June 2019.
The report of consultant psychiatrist Dr May Matias stated that the offender had attended the practice on dates in 2021 and 2022, that Dr Matias had diagnosed the offender as having major depressive disorder and anxiety and possible ADHD and ASD.
The report of general practitioner Dr Richard Evans dated 10 May 2022 noted that the offender has additional current medical conditions including alcohol use disorder, osteoarthritis of ankle, labral tear of right shoulder, lumbar spondylosis and right ankle injury, and reported that he is taking a variety of medications
Ms Frew reported that the offender had reported a significant history of repeated head injuries. She stated that he requires a referral for medical brain imaging and neurocognitive testing to assess for a traumatic or acquired brain injury with onset of symptoms from the year 2000, with cumulative impact and decline in functions from a lightning strike injury in 2006.
Some of the statements made to a forensic psychologist, Bradley Jones, who reported to the offender’s solicitors, do not appear to reflect acceptance of responsibility for the offending due to continuing assertions of lack of knowledge that he was on the title to the relevant property.
After the sentence proceedings were adjourned in May 2022 for the offender to seek neuropsychological testing, the offender tendered the report of neuropsychologist Dr Falcon.
Dr Falcon recorded the history of occasions in which the offender likely sustained concussion-style injury:
1.while deployed with the ADF in 2002;
2.in a football game in 2003;
3.during obstacle course training in 2005;
4.after being struck by lightning in 2006;
5.falling down a hill in training at Duntroon in 2006 or 2007; and
6.when another trainee dropped a weight on the back of his head/neck twice within a few days in 2006.
The offender was dazed after events (1)-(3) and reported that he was admitted to a hospital in Victoria after the lightning strike, where he had difficulty recalling colleagues’ names, short-term memory loss and ongoing memory difficulties and hand trembling since then. Falling down the hill resulted in ongoing headaches and having weights dropped on him resulting in nausea and vomiting.
The offender reported he was medically cleared for aviation training, but noticed increased headaches and processing speed problems when under stress. He was not allowed to continue this training after he would forget processes. He was redeployed to Darwin in 2008 where he also sustained ‘big hits’ from sporting games.
Dr Falcon administered 10 neuropsychological assessments to the offender. He found that the offender’s immediate attention span for simple auditory information was within average ranges, as was his performance on tasks assessing working memory and mental arithmetic. There were deficits in the offender’s ability to sustain attention and concentration and his overall performance on processing speed indexes varied from average to “low average”.
In relation to learning and memory, the offender demonstrated average performance in immediate and delayed retention of well-organised and structured verbal information, but was within the borderline impaired to impaired ranges for learning a list of unrelated words, and showed average to low average performance on other “less structured information” metrics. His visual memory and visuospatial reasoning was above average and his grasp of language processing was adequate, although he did require some repetition of instructions. In terms of executive abilities, the offender’s ability to identify conceptual similarities was average while his nonverbal abstract reasoning skills were above average. Something described as “verbal generativity for phonemic categories” was poor. Other tests of executive function were within average ranges.
The offender also reported symptoms that Dr Falcon said were “suggestive of severe depression, and extremely severe anxiety and stress related difficulties”.
Dr Falcon stated that while the offender’s psychological difficulties probably compounded his cognitive impairments, his cognitive profile was “consistent with an underlying organic basis for such deficits”. He assessed the offender as having “mild overall difficulties” and suggested he may have underlying executive dysfunction consistent with the profiles of individuals with a history of repeated concussion or traumatic brain injury.” Dr Falcon could not state with certainty whether the offender had ADHD but noted that his absence of behavioural issues in school would suggest that “current cognitive inefficiencies are more related to his repeated concussion / mild [traumatic brain injury] and the lightning strike event…”.
The offender stated he spends most of his time with his partner and child, denying any antisocial friends, contacts or activities.
He does not have any current problems with illicit drug use or alcohol abuse.
The offender reported that he spends his leisure time with his partner and child, as well as being active in the “Rural Fire Department”, sky diving club and scuba diving. However, he reported that due to his health issues these engagements are limited.
The offender provided seven character references, from:
1.The CEO of Omnesse Technologies, whose management team hired the offender as a consultant “Chief Information Security Officer’ and who indicated that he would not hesitate to reinstate the offender in the position once these court proceedings are finalised.
2.The offender’s godfather, who described the offender as “trustworthy, loyal and a strong family man”.
3.The training and service manager at Frog Dive Scuba Centres, who outlined the offender’s volunteer work with the scuba diving organisation.
4.A former lieutenant colonel who held a supervisory role over the offender, who found him to be “careful, considered, highly motivated and with impeccably high personal standards”, and that “[t]hese offences are the antithesis of his character”.
5.A friend and legal practitioner who noted that the offender has been known to be “honest and of high moral and ethical standing and is someone who takes their obligations under the law seriously”.
6.A subordinate of Mr Stephens at the Royal Military College in Duntroon, ACT, who suggested the offender regularly advocated for his subordinates’ best interests, even when this strained his relationships with more senior peers.
7.A former ADF colleague who has maintained contact with the offender, who regards him as a “trusted and honest friend”.
The author of the pre-sentence report assessed the offender as being at a low risk of general reoffending.
The offender was assessed as not suitable for a community service work condition due to his physical and mental health concerns. The offender was assessed as suitable for an intensive correction order (ICO). Although he initially indicated a reluctance to sign an undertaking to comply with all the obligations of an ICO he indicated a willingness to do so at the sentencing hearing.
Criminal history
The offender has no relevant criminal history.
Plea of guilty
A trial date was set for 29 November 2021. The offender notified the prosecution of the intention to plead guilty on 15 November 2021. This listing was vacated on 24 November 2021 at the request of the prosecution.
The two pleas of guilty entered in the ACT Supreme Court on 1 December 2021 came after the matter was committed for trial, following criminal case conferencing, and after a pre-trial hearing in which the offender and the co-offender unsuccessfully opposed the admission of tendency evidence: R v Stephens [2021] ACTSC 308.
The plea of guilty had significant utility given that the trial was estimated to run for 10 days. The offender will receive a sentence reduction of between 10 and 15 percent on account of the plea.
Time in custody
The offender has spent no time in custody in relation to these offences.
Consideration
The objective circumstances of the offending and the personal circumstances of the offending are largely described above. I accept that outside of this offending, the offender is a person of good character and was a highly capable soldier. He has lost that career as a result of his offending. He has repaid the whole of the amount obtained as a result of his offending.
It is necessary to say something more about the significance of the offender’s mental health and the need for general deterrence.
I accept the evidence of Ms Frew in relation to the offender’s current diagnoses of ASD, ADHD, PTSD and major depressive disorder. It is possible to conclude on the balance of probabilities that the first three of these pre-dated the offending conduct. In light of the report of Dr Adesanya dated 12 March 2019, the fourth only post-dated it and arose as a consequence of the investigations and prosecution of the offender.
None of the conditions have been proved, on the balance of probabilities, to be causally related to the offending. As the supplementary submissions made on behalf of the prosecution explained, the authorities after Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 do not make clear whether the second principle in that case (that the mental health of the offender may make him an inapporpiate vehicle for general deterrence) was dependent upon there being a causal connection between mental condition and offending. I will address the matter on the basis most favourable to the offender, namely, that it may.
The mental conditions (ASD, ADHD and the moderate functional impairments disclosed in the report of Dr Falcon) were not sufficient to prevent him from having a successful career in the army and reaching the level of major. His mental health conditions are not so significant that they would be so unlike the relevant population that they would reduce the validity of the theory of general deterrence or indicate that using him as a vehicle for that would amont to an injustice. However, it is appropriate to give some weight to his mental health conditions as part of his general subjective circumstances. I also accept on the balance of probabilities that the conditions of imprisonment will, to some extent, weigh more heavily upon the offender. In particular, his ASD may make it more difficult for him to cope with prison life. However, that impact is unlikely to be great having regard to the generally high level of functioning that he has demonstrated previously in his life.
General deterrence of dishonesty offences relating to allowances provided within the military is important. Unless there is to be an oppressive and expensive system of checking and enforcement, a system of allowances can only operate on the basis of the honesty of those making representations as to facts necessary to determine their eligibility for such allowances. Unless dishonesty in relation to the making of such representations is firmly punished then there is a risk that an attitude of laxity will develop which will significantly undermine the administration of the scheme of such allowances.
Although some of the statements made by the offender, of which there was evidence, were consistent with the lack of insight into or remorse for his conduct, having regard to the consequences of his present offending conduct, it is unlikely that it will be repeated. Specific deterrence is not a matter of great significance in this case having regard to the offender’s otherwise good character and the unlikelihood of him repeating this type of offending behaviour.
So far as count one is concerned, having regard to the circumstances of the offending and that it was the offenders first offence, it is a matter in relation to which it is not possible to say that the only appropriate sentence is one of imprisonment: Crimes Act, s 17A(1). It can be dealt with by way of a recognizance.
Count two, in relation to which it is necessary to take into account the additional offence of making a false or misleading statement, is in a different category. The amounts involved, the time over which the offending occurred, the number of occasions on which dishonest representations were made and the significant maximum penalty available for the offence combined indicate that only a sentence of imprisonment would be appropriate.
The parties helpfully provided a range of cases said to be comparable to the present. Of those I have found the following cases to be of assistance: The Queen v Allred [2015] ACTSC 327; R v BE [2018] ACTSC 101; R v McMahon [2019] ACTSC 25; R v Woods; R v Matthews; R v Matthews [2019] ACTSC 33; R v McDougall [2021] ACTSC 102; Zaky v R [2015] NSWCCA 161; R v Lovel [2007] QCA 281; Dickinson v R [2021] VSCA 50; Leighton v R [2010] NSWCCA 280.
In my view, the significance of general deterrence is such that only a custodial sentence that involves a period of full-time detention will adequately meet the purposes of sentencing. Having said that, the period required to be served will be a modset one having regard to the offender’s good character and mental health conditions.
The starting point is a period of imprisonment of 18 months reduced to 16 months on account of the plea of guilty. The sentence will be suspended after a period of four months upon giving a recognizance to be of good behaviour for a period of two years.
Orders
The orders of the Court are:
1.On the charge of intending to dishonestly cause a loss to a Commonwealth entity (SCCAN2021/163) the offender is required to enter a recognizance under s 20(1)(a) of the Crimes Act 1914 (Cth) with security in the sum of $100 without surety to be of good behaviour for a period of two years.
2.On the charge of obtaining a financial advantage by deception (CC2020/41374) the offender is sentenced to 16 months’ imprisonment (to commence on 5 December 2022) to be released after four months upon a recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth) with security in the sum of $100 without surety to be of good behaviour for a period of two years from the date of his release.
3.Note that offence on the s 16BA of the Crimes Act 1914 (Cth) schedule (CAN2020/41385) has been taken into account on the sentence imposed under order 2.
| I certify that the preceding eighy-four [84] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 16 December 2022 |
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