DPP v Soliman [2020] VCC 1898

Ms A. Pavleka, Commonwealth Solicitor for Public Prosecutions

1. One unfortunate consequence of the COVID pandemic is that a larger number of Australians are now in receipt of social security benefits. Ensuring that those who claim benefits are rightly entitled to those benefits is an ever-present issue. Just like the taxation system which involves self-assessment, the social security system requires that persons claiming the benefit properly disclose to the relevant agency information that allows the appropriate calculation of their benefit entitlement.
2. Deliberate failure to provide the correct information and the subsequent obtaining of the relevant benefit gives rise to the criminal charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity[1]. The maximum penalty is 10 years' imprisonment.
3. You, Ms Soliman, have pleaded guilty to one such charge, admitting that you dishonestly obtained $65,298.58 from Services Australia in the period between 13 March 2013 and 27 November 2017 and I am now required to sentence you for that offence.

1. The background to your offending was set out in the prosecution opening which was read in open court this morning and which I incorporate by reference and will not repeat.[2] Interestingly, you are now aged 49 and have been on some form of benefits since 1998. During the relevant period you were in receipt of a Newstart allowance, as it was then known, which is payable to persons unemployed and who are looking for work. The rate of benefit is affected by other income received, including from employment.
2. Over the relevant period of the offending you in fact were in receipt of income from other employment. Contrary to your obligation, on 124 occasions over the period where you were required to report your income, you made 51 active false declarations of nil income and 72 false under-declarations of income. Over the offending period of around four and a half years you were working for a call centre under a labour hire arrangement and earned a gross income of $236,663, yet you only declared $22,126 to Services Australia.
3. You thus obtained social security payments to which you knew or believed you were either not entitled or only partially entitled to. You received the total amount of $67,853.52 but in fact over the period you were only entitled to receive $2554.94, therefore the overpayment was $65,298.58.
4. The offending commenced on 13 March 2013 and in February 2016 the Department received a tip-off and contacted you on 19 August 2016 to discuss the allegation. You advised that your job provider had brought the matter to your attention, and you were given information as to how to properly report your earnings. Subsequent to that you continued, except for one occasion where you overdeclared your income to under-declare your income. This continued until the end of the charge period.
5. On 9 November 2017 you were invited to participate in an interview with Services Australia which, as you were entitled to, you declined. Subsequently, the Commonwealth sought repayment of the outstanding amount from you. You repaid some of the amount and negotiated with them for a payment plan to repay the money over a period. They ascertained that you had available financial resources and ultimately you repaid the whole amount. No reparation order is sought.

1. The offending here does not have aggravating features that are often seen in this type of offending such as multiple identities and addresses. An aggravating feature of the offending here is its duration, particularly its continuation after the matter was brought to your attention by Services Australia. Further, it was persistent in that you must be taken to be familiar with the benefits system given that you had been paid benefits for well over a decade before this offending.
2. One aggravating feature here is that there is an element of greed in the offending. Over the four and a half year period you were earning an income of approximately $52,500 per annum or a net income of $1580 a fortnight. You were living in public housing. At the beginning of the period of offending you had two dependent children and were single and not receiving any benefits from your former husband.
3. Notwithstanding those factors, there was an element where it can be said that the offending was not caused by a need to provide, for example, for a large family. In terms of the quantum of the amount defrauded, it is a significant sum but it is to your credit that it has been repaid.

1. You have admitted a prior criminal record that includes convictions for criminal damage, unlawful assault, driving whilst suspended, driving while disqualified, using a carriage service to menace, and a further charge of criminal damage. You have been dealt with in the Magistrates' Court by way of fines and two community corrections orders. You have recently successfully completed a 12-month community corrections order that included a condition that you undergo treatment for alcohol abuse or dependency. It is not a prior conviction but rather an antecedent. The learned Crown prosecutor accepted that your criminal record is of relatively little moment in sentencing.

1. I turn now to matters put in mitigation by your counsel in a comprehensive plea which I incorporate by reference and have considered.[3] You are of Egyptian extraction although you were born in Australia. You suffered a disadvantage in your formative years when your parents separated when you were aged seven. You were in Egypt for a couple of years between the ages of nine and 11 and were the subject of sexual abuse by a family member. Your father died when you were 17 and you were involved in a suicide attempt at that point. Your final year of schooling was disrupted, and you had learning difficulties, it took three attempts to achieve your VCE.
2. You were involved in an arranged marriage at age 21 and were the subject of family violence there in the context of alcohol and gaming addiction. The marriage ceased after two years and at age 24 you remarried in a relationship that lasted 18 years and you had four children, two sons and two daughters. The youngest daughter is aged 17. When the marriage broke up you were involved in a bitter property dispute and spent a period in a women's refuge. In the property dispute with your ex-husband your two older sons sided with their father and you are estranged from them. Your eldest daughter, aged 21, has recently given birth so you are now a grandmother. You have been in public housing since 2007.
3. You left the workforce to raise your children but from 2004 you were able to obtain employment as a parking officer and a ranger over the period until 2011. From 2012 you have been employed as a call centre operator and it was whilst employed in that capacity that the offending occurred.
4. Between 2014 and 2019 you have been involved in a bitter property dispute with your former husband and that has given rise to a couple of the criminal damage convictions that you have. He has apparently defaulted on moneys owing to you under a property settlement and has not paid child support. The pressure of the legal proceedings may provide some explanation for your offending but cannot provide any excuse.
5. Your counsel relied on a psychological report from a psychologist, Dr Carla Ferrari, provided in the context of a plea 12 months ago in the Magistrates' Court matter for property damage.[4] She opines that you had major depressive disorder, PTSD and alcohol use disorder, at that stage. Her opinion was that the depression is recurrent and was severe at the time of the property offending. She noted the property offending related damage to your ex-husband's car. There was a nexus between the offending due to your experience of psychological stress, which reinforced your PTSD which led to self-medication with alcohol.
6. In relation to this particular offending she opined that the stress of the litigation worsened your symptoms and reinforced your experiences from childhood and may have served as a motivating factor for the offending to escape a difficult situation 'impacted by her poor decision-making under stress and in the context of untreated psychological issues'. She goes on, 'A causal connection was not supported' but her opinion was that the mental health issues are likely to have impacted on your cognition and judgment compared to an individual without those conditions.
7. Your counsel did not rely on Verdins[5] considerations to reduce your moral culpability. You have not had any psychological treatment for your longstanding depression, preferring to deal with the matter on your own, but it is clear from the report that you require psychological assistance. I take into account the opinion of Ms Ferrari that any sentence of imprisonment will have an impact on your psychological wellbeing; however, this cannot be decisive in sentencing.

1. I turn to other matters in mitigation. Your counsel referred to your plea of guilty. The matter was not the subject of a committal and you originally pleaded guilty on 19 December 2019. The matter was listed for a plea on 24 June this year. Subsequent to your plea you indicated that you intended to withdraw your plea and the plea date was vacated. Later, you reversed that position and the matter proceeded on this day.
2. You are entitled to the utilitarian benefit of the plea. It has facilitated the course of justice. You have accepted responsibility for your conduct. The original plea was entered before the legal system was disrupted by the pandemic and thus must be accorded in the circumstances significant utilitarian value.
3. On the plea there was only limited evidence of remorse. I do, however, note an expression of remorse to your work colleague, Ms Samarias, in a reference that she has provided.[6] Further, you did repay some of the money and ultimately after failing to agree a payment plan, you ultimately repaid all of the money so there is some remorse and there is some contrition.
4. I turn to other matters raised by your counsel on the plea that includes the hardship of imprisonment. You are the sole provider for your 17-year-old daughter who is here in Court to support you and you care for her. She lives with you. You will be separated from her during the period of any term of imprisonment and this will mean imprisonment will weigh more heavily on you. Similarly, you may be at risk in relation to your housing and your employment. Those are matters I take into account.
5. You do have the family support of your two daughters, as well as from Ms Samarias. That is relevant to your prospects of rehabilitation. Given your age, your family support, and your successful completion of a community corrections order wherein you have been able to reclaim yourself from the alcohol abuse which gave rise to the offending against your former husband, then with appropriate psychological support, as recommended by Ms Ferrari, the psychologist, I would regard your prospects of rehabilitation as good. You do not have prior convictions for dishonesty offending and, you have a good employment record since you joined the workforce after bringing up your children.
6. In sentencing, your counsel also raised the issue of the pandemic in the prisons, and the impact of a sentence of imprisonment. The prison authorities have put in place a strict quarantine period for new arrivals and face-to-face visits are currently suspended. Programs are limited. This does make imprisonment more onerous, although it is not clear how long this will continue given the current outlook but I still give it some weight.
7. I also take into account that there has been some delay in this matter. After the authorities sought to interview you, when you declined, as you were entitled to do so, it took some 15 months before you were charged. After you were charged the matter moved relatively expeditiously, although it was delayed due to your proposed change in plea. The period of delay has allowed you to repay the money so the delay has, in a sense, benefited you as submitted by the learned Crown prosecutor, but I do take into account in your favour the delay.
8. I turn now to sentencing submissions as to an appropriate disposition in the matter. It is clear from the High Court case in Pham[7] that in sentencing for a federal offence regard must be had to sentences throughout the Commonwealth in order to consider current sentencing practices and consistency across the nation.
9. I have been provided with a chart of comparable cases by the learned Crown prosecutor; cases that she submitted were roughly comparable. I have also been provided by your counsel with decisions of this Court, as well as the case of Baker[8] from the ACT which is also included in the Commonwealth prosecutor's submissions.
10. In considering the various cases provided I give greater weight to those that have been the subject of consideration by intermediate appellate courts than decisions of my brother and sister judges in this court. In sentencing you, I am required to take into account the matters set out in s.16A of the Commonwealth Crimes Act which requires me to impose a term of imprisonment as a sanction of last resort, and to take into account the matters set out in s.16A, including the principle of parsimony.
11. As has been noted on a number of occasions, comparable cases provide guidelines to assist in ascertaining an appropriate sentencing range. The circumstances of the offending in other cases will vary, the personal circumstances of the offender will vary, and for any particular case or set of facts there is no correct answer. What is required is consistency of principle.
12. The relevant principles to be applied in sentencing for this offence are not in dispute and are set out in the learned Crown prosecutor's submissions and I incorporate in my sentencing reasons paragraph 10 of her plea submissions, which are comprehensive. In paragraph 10 she says this:

'Appellate courts have repeatedly emphasised that an actual sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberately fraud against the social welfare system. This is because it is unlikely that mitigating factors will be of sufficient significance to outweigh the primary purpose of imposing sentence in such cases, namely general deterrence. This is the case even if the fraud is relatively unsophisticated and lacking aggravating features such as obtaining multiple benefits, the use of false identities or where the fraud is committed for the benefit of another.'[9]

1. Then she goes to quote another case of Kovacevic v Mills.[10] So general deterrence must be the principal sentencing consideration. Then in the sentencing submission at paragraph 13 which I also accept as properly setting out the law, she says that s.16A(ja) of the Crimes Act provides that general deterrence is one of the matters the court must take into account in determining the sentence to be imposed.

'In cases of social security fraud appellate courts have stated that general deterrence is of paramount consideration. The authorities have emphasised the need for general deterrence for the following reasons. Social security fraud offences are prevalent in our society. The penalties imposed ought to reflect a concern for the protection of the revenue and the integrity of the social security system, and the social security system is a major impost on the Australian Government's revenue and on taxpayers and the burden of fraud on the system falls on the whole community.'[11]

'As in the present case, offenders who perpetrate frauds over significant periods of time cause substantial losses to the public revenue. Such frauds also risk public loss of confidence in the social security system. The fact that such offending occurs over an extended period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. Courts must impose salutary sentences to deter others who might be tempted to engage in similar frauds'.[12]

1. In the case of Newton[13], which is referred to by the learned Crown prosecutor, which is a case coming out of the Queensland Court of Appeal, there was an appeal against a two-year sentence for fraud, followed by release after service of five months to serve, a fraud that was over a four-year period and the total amount defrauded was $50,379. The decision is in 2010.
2. There was an appeal against the manifest excessiveness of the sentence. Justice of Appeal Chesterman dissented and would have maintained the sentence. He says a couple of things that are relevant to this case. He said:

'One can always sympathise with those convicted of this kind of offence. They are inevitably lowly paid and poorly skilled members of society for whom life is a struggle and they succumb to the temptation to lighten the financial burdens they daily face.[14]

1. He quotes a case referred to by the leading judge that:

'Offences against the welfare system leads to public loss of confidence in the integrity and worth of the social security system and creates a risk of demonizing the genuine and needy who require assistance. Those who intentionally abuse the system to gain substantial benefits by their dishonesty must expect to be sent to prison as a deterrent to them and others who might feel similarly tempted.'[15]

1. Then he mentions the issue how it is easier to detect due to data matching, but he pointed out that Centrelink's resources do not allow for all matched cases to be reviewed and he said:

'Accepting that there is now a greater likelihood of detection than before and to that extent the need for deterrence is diminished, it still remains a significant factor in the sentencing discretion. The certainty of being detected in the commission of the offence is not itself a deterrent. If the penalty imposed does not outweigh the benefit gained from the offence, the game must not be worth a candle. The penalty must persuade those tempted to defraud the Commonwealth that any benefit will be offset by a greater affliction.'[16]

1. Applying these principles, with which I agree, this was a serious case of defrauding the Commonwealth. The offending was perpetrated over a period of four and a half years. The offending continued after the matter was brought to your attention. It was thus calculated. There was an element of greed. Considerations of general deterrence call for a sentence that sends a signal to all members of the community, in particular those in receipt of government benefits, that the burden of fraud falls on all members of the community and those defrauding the system can expect significant punishment. This is notwithstanding that there may be significant matters of personal misfortune.
2. In the present case, having considered all the matters put forward, and in particular your blighted upbringing, two failed and abusive marriages, and your longstanding and untreated psychological conditions, the sentencing considerations raised by the prosecutor and set out in s.16A of the Crimes Act[17] still require that you serve a sentence of imprisonment.
3. I have considered whether it is appropriate to order that upon the imposition of a sentence of imprisonment you be released after serving part of that sentence by way of a recognisance with or without conditions. I formed the view that it is appropriate to release you after serving a period of imprisonment. I do not propose to condition that on you undertaking psychological treatment but I will refer my sentencing remarks and the report of Ms Ferrari to the prison authorities so that you can commence some psychological treatment during your period of imprisonment.

1. Could you please stand.
2. The sentence of the court after having taken into account all the sentencing submissions made by your counsel and the sentencing submissions by the learned Crown prosecutor is that you be imprisoned for a period of 20 months. I direct that if you consent, after you have served a period of five months' imprisonment you be released on entering a recognisance in the sum of $1000 for the balance of the 20 months.
3. I declare that had you not pleaded guilty I would have imposed a sentence of 0 months' imprisonment with a non-parole period of 20 months' imprisonment.
4. Madam Prosecutor, I will have my associate send the draft recognizance order to your solicitor, you can check it, send it to the court. We will print it out, have the prisoner sign it, have her counsel explain to her and then when that is all done I will resume.
5. MS TATAS: That's fine. Thank you, Your Honour..
6. HIS HONOUR: Any other matters at this point?
7. MS TATAS: Nothing from me, Your Honour.
8. HIS HONOUR: Anything from you?
9. MR BARRERA: No, Your Honour.
10. HIS HONOUR: All right. I will stand down while this document is produced, engrossed, checked, given to you to explain to your client and signed by her and then I will resume.

1. MR BARRERA: Thank you for that time, Your Honour. The order has now been signed.
2. HIS HONOUR: And you have explained it to her?
3. MR BARRERA: Yes.
4. HIS HONOUR: Ms Soliman, I have to explain my sentence to you. The seriousness of the offending is such that I had to send you to prison. I have set a term of 20 months. However, you have agreed that after you have served five months you have agreed to enter a good behaviour bond for the balance of the 20 months in the sum of $1000. That means if you commit an offence after you leave prison for the balance of the 20 months that breaches the good behaviour bond and you will forefeit $1000, and then you face the risk of being resentenced on this particular offence. So you have signed that and I have explained it to you, and I have also declared, as I said, that if you had not pleaded guilty I would have sentenced you to 30 months' imprisonment with a 20-month non-parole period.
5. You will be taken away now and I wish you all the best.
6. I want to thank counsel for their assistance.
7. Adjourn sine die.

[1] Contrary to.s134.2(1) of the Criminal Code (Cth)

[4] 'Report of Carla Ferrari' dated 24 November 2019, Exhibit 2 on the plea.

[5] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269

[6] 'Reference Nikki Samaris,' dated 21 November 2020, Exhibit 3 on the plea.

[7] R v Pham [2015] HCA 39; (2015) 256 CLR 550

[8] R v Baker [2019] ACTSC 319

[9] 'Crown Submissions on Sentence' dated 27 November 2020, Exhibit C on the plea. Also see, R v Milne [2001] VSCA 93

[10] [2000] SASC 106; (2000) 76 SASR 404

[11] Ibid [40] (Doyle CJ, Mullighan, Williams, Bleby and Martin JJ)

[13] R v Newton [2010] QCA 101; (2010) 199 A Crim R 288

[15] See R v Willoughby [2009] QCA 105