CRIME - SENTENCE - dishonestly obtain a financial benefit by deception.
Legislation Cited: Criminal Code (C'th) s134.2(1)
Crimes Act 1914 (C'th) s20(1)(b).
Cases Cited: R v Hurst
ex parte Director of Public Prosecutions (C'th) [2005] QCA 25
Totaan v R [2022] NSWCCA 75
Category: Sentence
Parties: Rex (Crown)
Source
Original judgment source is linked above.
Catchwords
CRIME - SENTENCE - dishonestly obtain a financial benefit by deception.
Legislation Cited: Criminal Code (C'th) s134.2(1)Crimes Act 1914 (C'th) s20(1)(b).
Cases Cited: R v Hurstex parte Director of Public Prosecutions (C'th) [2005] QCA 25Totaan v R [2022] NSWCCA 75
Category: Sentence
Parties: Rex (Crown)
Judgment (2 paragraphs)
[1]
Judgment
Janina Issac, you appear for sentence today in relation to one offence, i.e., dishonestly obtaining a financial benefit (from the Commonwealth of Australia) by deception.
This involved you, between 20 August 2013 and 3 December 2020 (i.e., a period in excess of seven years), engaging in a continuing deception whereby you repeatedly, and on very many occasions (the details of which are set out in the statement of agreed facts), falsely representing to Services Australia that you had separated from your husband (Mr Audisho) and that, as a result, you were not a member of a couple.
You made these false representations in the context of applying for, and receiving, payments of Parenting Payment Single ("PPS").
PPS is an income support payment by the Commonwealth government for sole parents. It is payable to persons with dependent children until the date of the youngest child's 18th birthday. A parent is eligible for PPS only if that parent is not a member of a couple.
In the period that you received PPS, you gave birth to three children in June 2013, March 2017 and April 2019.
And throughout the totality of the time that you received PPS for those children, you were a member of a couple - i.e., you were living with your husband, the father of those children.
You submitted the first of very many false claims to Services Australia on 20 August 2013. Your offending only stopped because on 10 August 2020 your fraudulent activities came to the attention of the authorities when another Commonwealth agency disclosed the relationship between you and your husband to Services Australia.
I pause to observe that, as a result of that disclosure, a search warrant was executed at your residential premises on 3 December 2020 - the residential premises you shared with your husband and three young children. I shall turn to the significance of that date later in these remarks.
A Court Attendance Notice was ultimately issued on 6 December 2021 - to which you pleaded guilty at an early opportunity.
You were committed for sentence to this Court by the Local Court on 28 October 2022.
The total amount that you fraudulently received was $170,787.11. All of the payments you received were paid into a Commonwealth Bank of Australia account held solely in your name.
Your offending involves a contravention of s134.2(1) of the Criminal Code (Commonwealth). The maximum penalty for that offence is imprisonment for 10 years.
In terms of the objective seriousness of the offence for an offence of its kind, by having regard to: the period of time over which the offending took place; the very many occasions when the fraudulent representations were repeated (even extending on 15 July 2019 and, in connection with the birth of your third child, to you (again) asserting that you were a single mother; that the birth of that child had not been planned; that you were separated from your "ex-husband"; and that your "ex-husband" had a new partner); and the total amount of the payments, the offence is just below a mid-range offence.
You did not give sworn oral evidence in the sentence proceedings.
Rather, your subjective circumstances were placed before the Court through:
1. two medico-legal reports from Dr Dayalan (a psychiatrist) dated 24 February and 13 March 2023);
2. selective medical records;
3. a referral from your general practitioner to a prospective treating psychiatrist, Dr Stringeri, dated 15 March 2023;
4. a report from a treating psychologist, Dr Mohammod, dated 25 March 2023 - who initially saw you only on 26 April 2023;
5. correspondence from a consultant paediatrician to the GP of one of your children dated 5 May 2023; and
6. a sentencing assessment report.
Except for the sentencing assessment report (which was tendered without objection in the Crown's case), all of these documents were tendered on your behalf without objection by the Crown - and generated after you were committed for sentence by the Local Court.
Notwithstanding that lack of objection by the Crown, some care needs to be exercised when considering those parts of Dr Dayalan's first report which rely solely on a history provided to him by you - in circumstances when (bearing in mind the nature of your offending) you did not give sworn evidence as to the truth of that history.
Based on those various documents, I am satisfied of the following facts on the balance of probabilities.
You were born in Iraq. You have one brother and two sisters. You have a close relationship with your parents and siblings. You were brought up in a loving and supportive family. Your family, however, suffered religious persecution in Iraq because your family is Christian.
There is no express evidence as to when your family came to Australia. However, I have inferred from Dr Dayalan's first report that your education, which included starting, but not completing, a teaching course, was largely undertaken in Iraq. "After you coming to Australia", you started (but did not complete) an unidentified course at TAFE, which you discontinued in order to seek paid employment.
Your work history (the length of which I do not have any more detailed evidence about) included working in some capacity at OPSM and in the cleaning business conducted by your husband, whom you married in 2007 - a marriage which has been continuous to the present time.
As I have already indicated, you have had three children with your husband.
In about August 2009 (when you were in your late 20s) you were diagnosed with cancer in your left breast. This ultimately resulted in a mastectomy and subsequent chemotherapy and hormonal therapy.
According to Dr Dayalan, he saw records of the Fairfield health services which indicated that, as a result of that very undoubtedly challenging medical condition, you experienced depression in 2009, the symptoms of which persisted for two years (that is, to 2011). However, there is no independent medical record in the evidence before me of you being diagnosed with depression, or receiving treatment for that condition, after 2011 - until after the execution of the search warrant in December 2020.
In this context, the selective medical records tendered on your behalf included a perinatal psychosocial referral dated 10 December 2012 (misdescribed by Dr Dayalan in his report as 10 December 2020) in which, immediately after referring to your mastectomy, the author noted "Husband not very supportive. Has great support from family". It should also be noted that, in those medical records, a further perinatal psychosocial referral dated 30 July 2013 noted:
"…Women (sic) stated Hx experienced depression in 2009 during a breast CA and chemotherapy treatment. Stated was medicated by GP for short period and experienced depression for about two years. Did not have any professional help e.g. counselling, felt had good support by partner, mother and family. Women (sic) stated is fine and happy now, Women (sic) declines any contact…".
It is after this point in the chronology that some caution needs to be exercised in relation to the history you gave to Dr Dayalan.
You told him that, around this time, your husband had been unfaithful, had been spending money on gambling, and that you and your husband struggled to manage your finances. With that history, Dr Dayalan wrote:
"Due to her mental state, Ms Issac's did not feel confident to return to work either. She had not wanted to be reliant upon her husband. She had therefore made claims to receive parental allowance from Centrelink" (First report, page 3).
In relation to this aspect of the history (and the associated and surrounding passages in that report), I make the following observations.
First, there is no independent document in evidence confirming that history - and no express statement by Dr Dayalan that he had seen any such document.
Secondly, such a history appears inconsistent with what you (i.e., both on your own and with your husband) were able to do in the following transactions, and in circumstances where you were not in paid employment, and where the only evidence as to your husband's income is in [36] in the statement of agreed facts which states that his gross income in 2020 was $286,571.00:
1. in November 2015, you and your husband took out a joint home loan of $524,000.00 for renovations to your matrimonial home which you jointly owned with your husband. This loan was fully repaid by March 2017;
2. on 23 February 2017, you alone took out a residential investment loan in the amount of $850,000.00. This loan was fully repaid by August 2020;
3. on 20 August 2020, you and your husband jointly took out a further residential loan in the amount of $500,000.00;
4. between 1 July 2017 and 30 June 2020, you were the sole signatory for what is described in the statement of agreed facts as a transaction account for your first child in which almost $590,000.00 was deposited;
5. between 7 September 2017 and 17 April 2020, you were the sole signatory for a transaction account for your second child into which a total of almost $390,000.00 was deposited;
6. between 23 September 2019 and 1 September 2020, you were the sole signatory for a transaction account for your third child into which almost $200,000.00 was deposited; and
7. in relation to each of the three transaction accounts, not only were significant sums deposited, but also significant sums were withdrawn - necessarily by you as the sole signatory.
But this was not the full extent of your financial interests and activities in the relevant period.
You and your husband also had three other joint accounts.
The first was a joint personal bank account into which a total of almost $245,000.00 was deposited between 14 December 2015 and 30 August 2017.
The second was a joint account operating under the name RMJ Group Pty Ltd into which a total of in excess of $7 million was deposited between 1 July 2016 and 31 December 2020.
The third was a joint account (in respect of which an unnamed third party was also involved) operating under the name Aqua Management Group Pty Ltd into which just under $1 million was deposited between 12 October 2015 and 30 September 2016.
Dr Dayalan's reports do not engage in any meaningful way with the various and significant transactions set out at [30] and [32] to [35] above.
There is no explicit evidence as to how you used the fraudulently obtained funds. I am unable to make any finding of fact on that issue.
Dr Dayalan noted a subsequent history of fluctuating energy levels, suicidal thoughts, panic attacks - with ambulance call outs and hospital admissions. There is also no independent document in evidence confirming that history - and no express statement by Dr Dayalan that he had seen any such document.
The statement of agreed facts also addresses the nature of the relationship that you had with Mr Audisho. Amongst other things, reference was made to a large volume of SMS messages and chat messages sent by you to various recipients throughout the offence period "which demonstrate that the couple were in a stable and functional marriage". The material also "revealed a very significant number of images and videos depicting [you] and [Mr Audisho] together and in a loving and committed relationship". The statement of agreed facts also states that an analysis of your financial affairs with that of your husband indicates that significant amounts of money were spent on what are described as luxury items. In this context, your husband purchased for you on 31 July 2020 a Mercedes Benz motor vehicle as a gift in the amount of $118,000.00 which he paid in cash.
In its outline of supplementary oral submissions on sentence, the Crown submitted, on the question of your mental health (at [5]):
"The Crown accepts the offender was suffering from a major depressive disorder and that at least at certain points of time this impaired her ability to carefully consider the consequences of her decision making".
This submission, in light of the evidence to which I have referred, was a generous one. Except for that submission, it would have been difficult for me to have found, on the balance of probabilities, that the (self-reported only) marital difficulties of which you complained to Dr Dayalan had been proved. It would also have been difficult for me to have found that you had diagnosed and significant depression from 2011 until the execution of the search warrant. And it would have been difficult for me to have found that, in that period, there was any meaningful impairment of your decision making capacity. Because of that submission, I make no finding on those issues beyond the terms of the submission.
Noting the concessions of the Crown, I, nevertheless, do not accept your condition reduces your moral culpability to any significant degree - not least because there were very many occasions when you had the opportunity of discontinuing your dishonest conduct by simply informing Services Australia that you were no longer a sole parent; nor should it significantly reduce the engagement of general deterrence. In this context, the following dicta from R v Hurst; ex parte Director of Public Prosecutions (C'th) [2005] QCA 25 at 7 per McMurdo P remains apposite:
"The honesty of those claiming under the welfare system is essential to its operation. Offences against the welfare system lead to public loss of confidence in the social security system and create a risk of demonising the genuine and needy in society who require assistance from time to time".
Insofar as remorse or contrition is concerned, Mr James KC, on your behalf, relied on the contents of Dr Dayalan's reports; the plea of guilty; and the repayment which you have made (since April 2021, you repaid the total amount of your fraudulent criminality - the last instalment in the amount of $53,269.73 was paid on 9 June 2023.).
In the absence of sworn and persuasive evidence of contrition and remorse, I am not satisfied that in fact you are genuinely remorseful - as opposed to being sorry for finding yourself in the position you currently are. The extended period of offending only came to an end after discovery. There were, as I have already said, many opportunities for you to discontinue the offending. The plea was entered in the face of a strong Crown case. The repayments are also capable of being regarded as steps taken by you to reduce the penalty you will receive.
In the result, I am not satisfised on the balance of probabilities that you are genuinely remorseful.
You have no prior offences - but the significance of that consideration (which in appropriate circumstances can result in leniency being extended to a first offender) is reduced because of the extended period of your offending - reduced, but not eliminated.
You have continuing good family support. There is no evidence that you do not have the full support of your husband.
You have taken no steps to secure employment since your arrest but, in the circumstances in which you find yourself, that is understandable.
You have taken steps to engage with mental health professionals - but those steps were only taken after your offending came to light - and only in relatively recent times.
On balance, I regard your prospects for rehabilitation as guarded.
Specific deterrence is, therefore, fully engaged.
The Crown has called for a term of full-time imprisonment. Undoubtedly, a term of full-time imprisonment would result in hardship to your three young children which I have taken into account (cf. Totaan v R [2022] NSWCCA 75). Nevertheless, they have the love and care of their father and your supportive extended family.
Taking all of the factors I have mentioned into account, I have come to the conclusion that no sentence other than full-time imprisonment is appropriate for your offending.
Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. Because of your plea of guilty, the term of imprisonment is 3 years to date from today.
Pursuant to s20(1)(b) of the Crimes Act 1914 (C'th), I order that the execution of the sentence be partially suspended after you serve a period of 16 months (which expires on 15 October 2024) upon condition that you enter into a self-recognizance, without security, in the sum of $1,000.00 for a period of 20 months.
The conditions of the recognizance are:
1. you be of good behaviour;
2. you accept supervision of NSW Corrective Services; and
3. you report to Community Corrections Office at Fairfield no later than 4:00pm on the day you are released - in the first instance by telephone.
[2]
Amendments
16 June 2023 - 20 months varied to 16 months.
19 June 2023 - First amendment (20 months varied to 16 months) was made to the headnote only.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 June 2023