R v Tadik

[2019] NSWDC 663

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Tadik [2019] NSWDC 663
Hearing dates:	18 July; 16 August; 4 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for a period of 1 year 10 months
Catchwords:	CRIME-SENTENCE - dishonestly causing a risk of loss to a Commonwealth entity.
Legislation Cited:	Commonwealth Criminal Code s.135.1(5)
Cases Cited:	R v SIOSAIA TUPOU [2018] NSWDC 399
Category:	Sentence
Parties:	Regina (Crown) Fatmana Tadik (Offender)
Representation:	Ms Nguyen (Commonwealth DPP) Mr Wiggins (Solicitor for the offender)
File Number(s):	2019/67802
Publication restriction:	Nil

​

1. Fatmana Tadik, you appear for sentence today in relation to one offence, and that is dishonestly causing a risk of loss to a Commonwealth entity.  This involves a contravention of s 135.1(5) of the Commonwealth Criminal Code.  The maximum penalty for that offence is a term of imprisonment of five years and/or a substantive fine.

2. The facts surrounding your offending behaviour are contained in an agreed statement of facts. Slightly recast by me as to style but not substance, those facts are as follows.

3. In the period 3 March 2011 to about 31 March 2017 you falsely claimed and received the Newstart allowance from the Commonwealth by using an assumed identity - that assumed identity being the name Elizabeth Bligh (a pseudonym).

4. Elizabeth Bligh was in fact a person who existed - and a person whom you knew and with whom you had gone to school.

5. In that period March 2011 to 2017 you obtained almost $100,000, falsely and dishonestly, by using that name. You did it by a sophisticated series of steps.  Amongst other things, you opened a Commonwealth Bank account in the name of Elizabeth Bligh; you produced false work references; you made false electoral enrolments; and you provided false medical certificates.

6. These are but some examples of the extent of your dishonesty.

7. Your dishonesty is not limited to defrauding the Commonwealth: you have obtained medical certificates dishonestly; you have opened bank accounts dishonestly; you have apparently obtained a home loan account dishonestly; and you have obtained a Flexi Loan account and various Visa cards dishonestly. Your dishonesty goes well beyond defrauding the Commonwealth of almost $100,000 - there are other entities who have also suffered loss at your hands.

8. And your dishonesty Ms Tadik in relation to the Commonwealth is not limited to your obtaining almost $100,000 over six years by using the name Elizabeth Bligh.  Reference to exhibit D will reveal, that as long ago as 2012, you were interviewed by officers of the Commonwealth in relation to another false identity that you used, that of Fiona Simmonds.  One might have thought that, having been caught with the misuse of the name Simmonds in 2012, it might have caused you to reconsider continuing to use the false name (Bligh) that brings you before the Court today for the next five years, but it did not.  You received a warning letter in relation to your misuse of the name Simmonds but that did not put you off continuing your dishonest receipt of money paid to the Commonwealth by hardworking and honest taxpayers.

9. You have told a psychologist that you needed this money to support the legal costs which you were incurring in the Family Law proceedings that you have with your former husband.  I have been told today by Mr Wiggins (who appears for you) that, to date, you have been charged $84,000 by your solicitors in those proceedings and $27,000 in counsel's fees.  

10. I was told by your solicitor on 18 July 2019 that you wished to repay the debt to the Commonwealth out of your share of the former matrimonial home.  I was told by your solicitor that a three day contested hearing on the property dispute between you and your former husband occurred as long ago as August 2016 but that as at 18 July 2019 that decision was still reserved. I have further been told that your former husband has now made an interlocutory application to the Court that has apparently delayed giving judgment for over three years to reopen the proceedings.  Notwithstanding that the property settlement had apparently been the subject of the contested hearing three years ago, I have also been told that: the matter was listed for a conciliation conference in recent days; that conciliation conference was unsuccessful; the husband's interlocutory application is listed for a call over in the next few weeks; and that interlocutory application will need to proceed to a hearing. 

11. I have no doubt that what I have been told by your solicitor is correct.  He is not acting for you in those proceedings but a well known firm of family law solicitors is acting for you and they have provided him with that advice and I have no doubt that they would not tell the Court something that was not true.

12. In the result, therefore, you have not been able to repay the monies you have dishonestly received from the Commonwealth because of the delays in the final determination of your family law case. A potentially important factor in mitigation has therefore not been available to you. 

13. There is no corroboration of any kind of the assertions contained in the psychological report, which has been tendered on your behalf, about domestic violence. Because of your history of dishonesty, I have had to pause and think carefully about that.  I have noticed, however, that the psychologist does mention the names of two particular psychiatrists and, although no report from those psychiatrists has been forthcoming, I am prepared to accept (and notwithstanding your proven and persistent history of dishonesty) that the assertions of domestic violence are correct. 

14. That, of course, provides no excuse for what you have done. However, it provides a context. As the Crown has correctly submitted, although it is not a mitigating factor, if you had done it for greed the sentence would have been increased. 

15. That being said, I note that, although you said to the psychologist that the money was required for legal costs, the current outstanding costs would suggest that none of the dishonestly obtained money has in fact been paid to the solicitors. This anomaly was, however, not developed in submissions and I shall not speculate about it further adversely to your interests. 

16. I note you have no prior convictions. However, that factor (which would ordinarily be of some significance in sentencing proceedings) is of limited application for crimes of dishonesty - and also considering the period of time over which you have committed this offence.  This was not one discrete event on one particular day; it was persistent fraud over six years involving sophisticated arrangements and repeated over 128 false representations to the Commonwealth.

17. You are currently employed in the health sector working with, as the Crown has submitted, vulnerable people. That is a matter of concern.  The Court has no evidence as to whether your employer knows of your persistent dishonesty.  There is certainly no reference from your employer which suggests that the employer does know that you have stolen from the taxpayers for over six years - and in more than one context.

18. I do not agree with the author of the sentencing assessment report who says that your risk of offending is low.  The length of time that you committed this particular offence; the steps you took and the numerous other agencies and organisations that you have defrauded or were dishonest to in order to carry out this dishonesty (i.e. the false home loans, the false Flexi accounts, the false representations to the Electoral Commission; and the persistence notwithstanding the warning in 2012 in relation to another false identity) - all show a flawed and deeply dishonest person.  

19. You did not give sworn evidence of your remorse. The Court of Criminal Appeal has said that sentencing judges are entitled to look with scepticism on second‑hand expressions of remorse - and the more so in cases like this. 

20. Your prospects for rehabilitation, Ms Tadik, are guarded.

21. You entered an early plea and you will be given a discount of 25% because of that facilitation of justice. The plea was, however, in the face of a strong Crown case.

22. These crimes are easy to perpetrate and very hard to detect. The principles of general deterrence (that is, imposing a sentence that will discourage others from doing what you have done) and specific deterrence (that is imposing a sentence that will discourage you from reoffending) are fully engaged - as is the principle of protecting the community.

23. No sentence other than one of imprisonment is appropriate.

24. Taking all matters into account, except for your plea of guilty, I would have sentenced you a term of imprisonment of 2 years and 6 months. Because of the discount of 25%, the term of imprisonment is 1 year and 10 months. 

25. The question which I now need to consider is: how will that term of imprisonment be served? 

26. Mr Wiggins has submitted that it should be served by means of an Intensive Correction Order. 

27. The paramount consideration in determining whether to make an Intensive Correction Order is the assessment of whether such an order, or fulltime detention, is more likely to address an offender's risk of reoffending. Unless a favourable opinion is reached in making that assessment, an Intensive Correction Order should not be imposed.

28. Additionally, if the objective seriousness of the offending is such that such an order would be inappropriate it should also not be imposed.

29. For each of those reasons, I am not going to order that it be served by way of an Intensive Correction Order.

30. There is a third and independent reason why I would not order the sentence to be served by means of an Intensive Correction Order. The sentencing assessment report noted that, if the sentence was served by means of a supervised order, supervision would be suspended unless there was an electronic monitoring or a home detention condition.

31. I have on a previous occasion drawn attention to the problem which arises when Corrective Services say that they will suspend supervision. The Court has no power to direct the Commissioner as to whether or not supervision will be suspended. In R v Siosaia Tupou [2018] NSWDC 399, I indicated that, except for the fact that the offender had independently engaged specialist addictive supervisory assistance, I would have ordered that sentence (which otherwise ought to have been served by way of an Intensive Correction Order) to have been served by full-time imprisonment because of the intention of the Department of Corrective Services to delete supervision.

32. I do not think supervision in your case should be suspended, so that even if I were otherwise inclined to order the sentence be served by an Intensive Correction Order, the notification by Community Corrections that supervision would be suspended would have been, of itself, a sufficient reason for me not to order that you serve the sentence by that method.

33. I therefore order that you serve a non‑parole period of 12 months to date from today.  I order that you be released to a recognizance release order for 10 months as and from 3 October 2020.

34. I make a reparation order of $98,879.36.

Amendments

18 November 2019 - Para [9] - PAC File number removed.

Decision last updated: 18 November 2019