The offender Ms Wood has pleaded guilty to offences under the Commonwealth Criminal Code which are as follows. Firstly, an offence under s 135.1 of the Criminal Code 1995, namely that between 7 February 2019 and 20 December 2021 she submitted claims to Services Australia for welfare payments that were false with the intention of dishonestly obtaining a gain from the Commonwealth. The second offence is one committed jointly with Mr Michael Welsh, her then partner, of submitting claims between 11 February 2019 and 10 August 2021 to Services Australia for welfare payments that were false and containing false information with the intention of dishonestly obtaining a gain from the Commonwealth.
Each of the offences carries a maximum penalty of ten years' imprisonment and/or a substantial fine. The maximum penalty, of course, in each case is an important guidepost in the sentencing exercise to which I have had regard.
[2]
FACTS
The facts are agreed and in summary are as follows. At all relevant times, the offender was in a relationship with Michael Welsh and for periods of time during the offending they were living together. As I have already noted, count 2 is an offence that was committed jointly with Mr Welsh.
The offending before the Court involved the submission to Services Australia of false claims for payment of Australian Government benefits, being either Disaster Recovery Payments or Pandemic Leave Disaster Payment.
The false claims were made by telephone and it is agreed that in making the claims this was done with the intention of dishonestly obtaining a gain in the form of a financial benefit. Disaster Recovery Payment was a one-off payment available from the Commonwealth Government, designed to provide immediately financial assistance to Australian residents affected by a designated disaster. The payment was available to anyone who met the criteria, regardless of whether or not they were already in receipt of social security benefits, but only one payment could be made to each person in relation to each disaster.
Between January 2019 and June 2021 the relevant Minister declared a number of events to be disasters for the purposes of Disaster Recovery Payment, those essentially involving a number of floods, bushfires and cyclones in various parts of Australia. The Social Security Act set out eligibility criteria for Disaster Recovery Payment, which included that the applicant be adversely affected, and also set out some of the ways in which a person might be regarded as having been so affected. The payment was set at $1,000 per adult and $400 per child, although in January 2020 an additional $400 one-off payment was introduced for each child affected. Because the Disaster Recovery Payment was an emergency relief payment, claims could be made by telephone and could be paid prior to full verification of the claimant's identity and/or eligibility.
Pandemic Leave Disaster Payment was introduced in August 2020. It was a lump sum payment which could be made to persons who could not earn an income due to being requested to self-isolate due to contact with a positive COVID case, or where they were required to care for a positive COVID case, or required to care for a person with a disability or medical condition who was requested to self-isolate. A claim for Pandemic Leave Disaster Payment could be lodged for a seven-day payment period with the amount payable being determined on the basis of the number of hours work lost or expected to be lost. Where the person had lost 20 or more hours of work, $750 was payable, but if the hours lost were less than 20 but more than 8, then the payment was $450.
The count 1 offence before the Court relates to claims for Disaster Recovery Payment or Pandemic Leave Disaster Payment that the offender submitted between 7 February 2019 and 20 December 2021 in a variety of false names, as well as one claim which was in her own name. The claim in the offender's own name was made by telephone on 7 February 2019. It falsely asserted that the offender lived at an address in Currajong in Queensland, which was said to have been damaged by floods. The claim was made in the name of the offender and also her child.
The statement of facts notes that at the relevant time, the Currajong property was empty and was not damaged by the February 2019 floods. This claim was granted and $1,400 was paid to the offender. In addition to this, the offending in count 1 involved the offender submitting by telephone, between February 2020 and December 2021, 74 claims for Disaster Recovery Payment or Pandemic Leave Disaster Payment which were in false names and which at times included false names of children. Of the 74 claims that were submitted, 56 were granted, resulting in the payment to the offender of a total of $70,800.
In each case, the offender, using the false identity details, asserted that she and, where applicable, a child lived at a particular address in an area affected by one of the natural disasters that had been declared by the Minister and falsely claimed that she had been adversely affected by a particular disaster. The claims that were successfully submitted but which did not result in payment being made were not paid because, as noted in the statement of facts, further requested details such as proof of identity were never provided.
Although there were 74 claims that were successfully submitted and 56 of them granted, these were not the only telephone calls in which attempts were made by the offender to lodge a claim. There were, in addition, a large number of other calls during the period in count 1 which did not result in a claim being submitted, as the call was terminated by the offender before the claim was completed. These are referred to in the statement of facts as "context only" and I treat them in that way.
The statement of facts contains examples of some of the claims in false names that were submitted by the offender and which form the basis of the count 1 offence. One of these was a claim submitted in the name of Zoe Dennis on 6 March 2020. This was a claim for Disaster Recovery Payment in relation to the New South Wales bushfires. The name Zoe Dennis was created by the offender, as was the date of birth of the claimant. It was asserted falsely that the claimant lived at an address in Batlow Avenue, Batlow, and when asked if she needed items to be replaced due to fire or smoke damage, the offender said, "Yeah, lots of stuff…the baby's cot, curtains, clothes, all the bedding, one rug and the lounge." The offender also told Services Australia that:
"We were actually lucky it didn't actually burn completely…There's people worse off. You just don't actually realise how much damage can be done just from smoke…Like, you just think fire…yeah, the smoke done a lot of damage."
The offender also asked if she could claim for a child as well, and then falsely stated that her child was named Emily Dennis, born 27 December 2019, and claimed that she was still waiting for a birth certificate. This claim was granted and $1,400 was paid into a bank account controlled by the offender. Other examples of fraudulent claims falling within count 1 include a claim made on 23 April 2021 in which the offender, using the false identity Natalie Dennis, sought Disaster Recovery Payment for damage said to have been caused by Cyclone Seroja. In this claim, the offender said that she had "one newborn" and asserted that, "Part of the roof blew off and water got in through the ceiling…and the carpet's all flooded, bed is ruined…clothes…"
In another call which took place on 12 November 2021, the offender assumed the false identity "Amber Willis" to submit a claim for Pandemic Leave Disaster Payment. Using this false identity, she claimed to be living in Wangaratta in Victoria, and that she had received an SMS that she had been a close contact to a COVID case and therefore had to self-quarantine. During the call in which this claim was made, the offender engaged in a long and entirely fictional narrative in which she referred to a friend from New South Wales who had tested positive to COVID, and referred to the army and police coming to the friend's front door to check on them, and referred also to herself receiving calls to check that she was okay and doing the right thing. This claim in the name of Amber Willis was granted and resulted in the payment of $1,500 to a bank account controlled by the offender.
Count 2 is an offence committed jointly with Mr Welsh. Between 11 February 2019 and 10 August 2021 the offenders telephoned Services Australia and submitted 46 claims for Disaster Recovery Payment either in their own names or in the names of 44 false identities. Of these 46 claims, 39 were granted, which resulted in a payment out of a total of $40,200. The remaining claims were not granted because following the submission of the claim, Services Australia requested further evidence in support of the claim, which was never provided. There were also other calls made by the offender or Welsh which involved attempted claims, but these did not result in an actual claim being submitted, as the call was terminated when questions were raised by the Services Australia officer. These calls do not form part of the offending under count 2 and are included in the statement of facts only to provide context. I approach them in that way, therefore.
On 8 February 2019 the co-offender Mr Welsh's Centrelink records were updated to include an address in Damson Court in Douglas, Queensland. On 11 February 2019 a false document purporting to be a rent certificate was uploaded to Welsh's Centrelink profile. On that same day, Welsh telephoned Services Australia and said he wanted to lodge a claim for Disaster Recovery Payment. He passed the phone to this offender, who falsely claimed to be Welsh's cousin "Rachel," who then gave details of the claim by Welsh relating to himself and two children. The claim falsely asserted that the property at Douglas had been damaged by floods in February 2019. The claim was approved and $1,800 was paid out the next day.
On 11 April 2019 Welsh again called Services Australia to submit another claim for Disaster Recovery Payment relating to himself and a child. In this claim, it was asserted that the interior of the residence had been disaster-affected and that the residence had been evacuated due to damage from smoke, fire and ash to walls, floors and furnishings. The claim resulted in a payment of $1,400 into a bank account controlled by one of the offenders. In each of the calls making up the fraudulent claims that are the subject of the count 2 joint offence, either Welsh or the offender would claim to be the first false identity before passing the phone to their "partner," which was the other offender taking on the second false identity. Usually they would claim for the same address, which was in an area affected by either a cyclone, the New South Wales floods of March 2021, or the Victorian floods of June 2021.
An example of a fraudulent claim that is the subject of count 2 is as follows. On 10 August 2021 Welsh assumed the false identity "Raymond Talbot" to make a claim for Disaster Recovery Payment. The offender Ms Wood also participated in this call, using the false name "Taylor Wall." During this call Welsh said that water had entered his backyard and it got into the house and that he had to throw away a TV and lounge. Welsh referred to his partner "Taylor Wall" and handed the phone to this offender, who provided false details such as date of birth and address. This claim resulted in the payment of $1,000 in relation to the two names, which was paid into bank accounts controlled by the offenders.
On 21 December 2021 a search warrant was executed at the shared residence of the offenders at Narara in New South Wales. During that search, handwritten notes relating to the name "Mervin Moodley," which was one of the false identities, was found, as was a bank card in that name. Investigators also found text messages on a phone seized from the property which was sent on 30 August 2021 which said, "Someone has dobbed me in to Centrelink," as well as, "I'm gone," and, "What if I go to gaol?" The statement of facts notes that earlier that same day the offender - that is this offender - had been contacted by a Services Australia investigator in relation to the alleged offending. Those in summary are the facts for the purposes of sentence.
[3]
CRIMES ACT 1914 (CTH) S.16A(2)
As these are Commonwealth offences, it is necessary that I have regard to the relevant paragraphs of s 16A(2) of the Crimes Act 1914.
I have already set out the nature and circumstances of the offence in the summary of the facts. Each of the offences are clearly serious, as is acknowledged by the significant maximum penalty. In my view, each of the offences are also serious examples of this type of offence. That is in part because of the significant amount of funds that were the subject of the fraudulent claims and the amount that was actually approved and paid out under those claims.
The offences also involved a level of planning and sophistication and they were committed over considerable periods of time. To some extent they both involved a breach of trust because welfare systems like this are necessarily designed to be readily accessible to persons in need, which makes them vulnerable to abuse such as has occurred in this case. Although it is not necessary to classify offences according to some sort of theoretical range, I would regard each of these offences as being around the mid-range of objective seriousness.
Also, the offending clearly involved a course of conduct as contemplated by para (c) of s 16A(2).
Paragraph (d) of that same subsection refers to the personal circumstances of any victim of the offence. In this regard, there is no single identifiable victim. Rather, the victims are the taxpayers of Australia and also the Australian community generally, because offending like this means that the limited funds available to help people in need are wasted on selfish, greedy individuals like this offender and Welsh, who had no legitimate need for the money.
Paragraph (e) of s 16A(2) refers to any injury, loss or damage arising from the offence. In this regard, the loss, as I have said, is the availability of funds for persons in real need.
Paragraph (f) refers to the degree to which the person has shown contrition by taking action to make reparation for any injury, loss or damage resulting from the offence, or in any other manner. The offender told the psychologist Lee Knight that she mainly used the defrauded money to gamble, saying that she would go the pub, "play the pokies and gamble." She said that she did not believe that it was "okay to defraud the government" because the "funds are there for people in need," while she wasted them on gambling. Also, in an email dated 6 August 2024 the offender said she sincerely apologises for her crimes, that she has abused a system that helps people in need, and is disgusted with herself. This is reasonably consistent with the comment in the Sentencing Assessment Report that the offender demonstrated good insight into the impact of her offending. I accept that these comments by the offender are positive and at face value are indicative of remorse and contrition, but they do need to be considered in light of the offender's extremely dishonest and cynical abuse of the Disaster Recovery and Pandemic Leave Disaster Payment systems, which went on for a considerable period of time.
The offender's apparently contrite statements also do not sit well with her history of similar forms of dishonesty, which includes the fact that she was subject to a Community Corrections Order for dishonesty during some of the offending, and committed other dishonesty offences in November 2021 and July 2022. There is, I note, evidence that the offender is repaying her debt to the Commonwealth by means of withholdings from her social security benefits. While I take this into account, it provides little in support of a finding of remorse, given that these repayments involve mandatory automatic deductions. In conclusion, while I remain sceptical of the offender's assertions of remorse and contrition, I accept that there is some limited contrition in this case.
Paragraph (g) of s 16A(2) refers to the guilty plea, the timing of that plea and the degree to which these things resulted in any benefit to the community, any victim or witness. The offender pleaded guilty in the District Court, which was not at the first opportunity. Also, in my view, the prosecution case was fairly strong, and so the plea of guilty was, to some extent, a recognition of the inevitable. I say "to some extent" because while the prosecution case was reasonably strong, I accept that in the absence of the plea of guilty the Crown may have had some difficulties in proving all of the fraudulent claims that have been acknowledged by the plea of guilty and the agreed facts. The pleas of guilty have therefore been of utilitarian value. There is no set percentage of discount for the utilitarian value of a plea of guilty in Commonwealth matters. Having regard to what I have said, I consider it appropriate to allow a 20% discount by reason of the pleas of guilty.
Paragraphs (j) and (ja) of s 16A(2) refer to the deterrent effect on the person and the deterrent effect on others. There is clearly a need for the sentence in this matter to give significant weight to both general and personal deterrence. I think personal deterrence is important because of the offender's history of dishonesty, and the clearly deliberate and exploitative nature of the offending before the Court. As to general deterrence, it has been said for many decades that this is important in welfare type frauds, given their prevalence, and given the fact that they are easy to commit and often hard to investigate and detect - see De Faria v The State of Western Australia [2013] WASCA 116.
It is for these same reasons that in my view, as contemplated by para (k) of s 16A(2), the need for adequate punishment looms large.
Paragraph (m) refers to the character, antecedents, age, means and physical or mental condition of the offender. The offender's background and current circumstances are set out largely in the psychological report tendered in her case and in some other written materials.
She is now aged 34 and has five children ranging in age from 4 to 15. The children are the product of a long-term relationship with the co-offender Mr Welsh.
The offender was born in Maitland and left school in about year 9. She described an "all right childhood," although there were constant arguments between her parents and some domestic violence towards her mother by her father. She also reported experiencing sexual abuse at about age nine in the form of a relieving priest touching her on the genitals, although this appears to have been a one-off incident.
The offender also suffered a traumatising experience around December 2020 when her partner and co-offender suffered a heart attack and the offender had to perform CPR until an ambulance arrived. The offender appears also to have been subject to some domestic violence in her relationship with the co-offender, which included having her nose broken and being rendered briefly unconscious in 2021. The offender has never been admitted to a psychiatric hospital, although she has been on prescribed antidepressants for about ten years. The psychologist notes that her GP has reported a history of anxiety, depression and gambling addiction.
As earlier noted, the offender, during the period of her offending or much of it, was spending a great deal of time and money gambling. While she told the psychologist that she did this as a form of escape from her mental health issues, gambling is essentially a choice and it is not a matter that mitigates the offending in any way, even though it provides some context. Ultimately, the psychologist diagnosed the offender as having generalised A nxiety Disorder, Obsessive Compulsive Disorder, Gambling Disorder and Alcohol Use Disorder, and says that she also partially meets the criteria for Post-Traumatic Stress Disorder.
Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. The offender is assessed in these Sentencing Assessment Report as being a medium to low risk of reoffending. She told the psychologist that she would "never offend again" and was willing to do "whatever it takes" to avoid offending in the future. While I take this into account, it would, in my view, be unrealistic, given the nature of the offences and the offender's criminal history, to conclude that she presents no risk of similar sorts of offences in the future. The fact that she has a history of gambling and alcohol use disorders as well as other difficulties for which the offender has had little if any treatment to date, plus the possibility that she will continue in some form of relationship with her co-offender, who has himself a fairly lengthy criminal history, leads me to the view that the offender will remain some risk of similar offending in the future.
Paragraph (p) of s 16A(2) refers to the probable effect that any sentence would have on family or dependants. This is a consideration that is of real significance in this case. As this is a Commonwealth offence, it is not necessary for me to conclude that the impact on family would be exceptional before I can give it significant weight in the sentencing exercise; see Totaan v R [2022] NSWCCA 7. At the time of this psychological assessment - which was in the first half of 2024 - the offender's eldest child was not in her care as she was being looked after by the offender's mother, who lives in Maitland. However, I was informed during the sentencing hearing that since then, this child has returned to the care of the offender and so she once more apparently has responsibility for five children.
I was also informed during the hearing that the offender's partner and co-offender Mr Welsh is currently awaiting sentence for his part in the same fraud and that a warrant has been issued for his arrest, given his failure to attend Court for sentencing. Having reviewed the facts of the offences committed by Mr Welsh, as well as his lengthy criminal history, which includes a number of earlier periods in custody, I have formed the view that it is inevitable that once apprehended and sentenced, Mr Welsh will receive a period of full-time imprisonment. This is of importance because it means that the offender now before the Court is effectively the only full-time carer available for the five children. This is a significant factor that I have taken into account in determining firstly, whether a term of imprisonment must be imposed, and if so, secondly, the duration and nature of that sentence.
[4]
DETERMINATION
The s 17A threshold in the Crimes Act 1914 is crossed in this case in the sense that no sentence other than a term of imprisonment is appropriate for each offence. Given that there are two offences, I intend to impose an aggregate sentence. In those circumstances, I am required to nominate the sentences that I would otherwise have imposed. These are called the indicative sentences. Each of them have been arrived at after a 20% discount for the plea of guilty.
The indicative sentences are as follows. For count 1, two years' imprisonment. For count 2, 18 months' imprisonment.
In determining the ultimate aggregate head sentence, I have had regard to principles of totality. In other words, given that I am imposing a sentence for two offences, that I avoid, insofar as I can, imposing an inappropriately crushing sentence. I have also had regard to the question of the need for any notional accumulation or concurrency in the sentences, given that there are two offences. In my view there is a need for some notional accumulation, given that there are two separate offences, which to some degree involve separate criminality.
I impose an aggregate head sentence of two years six months. It has been submitted on behalf of the offender that if a head sentence of three years or less is imposed, then the Court should consider ordering that the sentence be served by means of an Intensive Correction Order.
The Crown has conceded that such an outcome would be within range. In making that assessment, s 66 of the New South Wales Crimes (Sentencing Procedure) Act 1999 provides that community safety is to be the paramount consideration. As was said by the High Court of Australia in Stanley v DPP [2003] HCA 3, the assessment requires a judge to look into the future, having regard to the offender's risk of reoffending generally, but specifically the risk of reoffending in a way that may affect community safety.
In this particular case, I have already concluded that the offender will likely remain some risk of similar fraudulent offending in the future. In Chan v R [2023] NSWCCA 206 the New South Wales Court of Criminal Appeal was considering an appeal in relation to sentence imposed for making false claims under the Pharmaceutical Benefits Scheme. The Court said at para 146 that although a non-violent offender might not pose any risk to the individual safety of any person in the community, it must be accepted that if the person was to re-offend in the same way, then the community would be harmed.
This observation is pertinent in the case before the Court because in my view the greatest risk posed by this offender is the risk that she will again commit offences involving fraudulent claims upon government funds or perhaps against financial institutions. This does, as is acknowledged in Chan, involve a risk to community safety. However, the risk that the offender poses to community safety is more oblique than in many cases, such as those involving an offender with impulse control or anger management problems and a history of violence. In those sorts of cases the offender's risk to community safety is more acute or immediate by reason of the risk of an outburst of violence.
By way of contrast, the risk posed by the offender currently before this Court is both less acute and of a lesser magnitude for two primary reasons. Firstly, the type of offence she is likely to commit will not involve a sudden loss of control or judgment, but will more likely be the result of deliberation or planning over time. Secondly, while there will be harm flowing from any offences that she commits, the impact on community safety is likely to be less than in many other cases.
The question then is whether this risk of financial harm to the community will be better addressed by requiring the offender to serve a full-time custodial sentence or by releasing her into the community on an Intensive Correction Order. While community safety is the paramount consideration, I have also had regard to the other purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.
While the availability of an Intensive Correction Order was conceded by the Crown, I have found this question to be finely balanced. That is largely because, in my view, the insidious and persistent offending in this case, combined with the offender's history of dishonesty, and the fact that she was subject to a Community Correction Order for a dishonesty offence during part of the offending, means that significant weight must be given to personal and general deterrence.
Ultimately, however, and in no small way by reason of the Crown's concession, I have reached the view that community safety would be better served by imposing an Intensive Correction Order. In my view, while a term of actual imprisonment is certainly deserved in this case, such an outcome would expose the offender to negative influences that may well increase her risk of re-offending. There is also the fact that in a custodial environment the offender is unlikely to receive the treatment that she requires to reduce her risk of re-offending.
Ms Wood, if you just stand up and I will announce the sentence. I impose a head sentence of two years six months' imprisonment, however, pursuant to s 7 of the Crimes (Sentencing Procedure) Act I order that that sentence of imprisonment be served in the community by means of Intensive Correction Order. You are convicted. That Intensive Correction Order will commence today and will be for a period of two years six months. It will be subject to a number of conditions.
The first two conditions are what are called standard conditions and they are as follows: firstly, that you not commit any offence during that period; secondly, that you submit to supervision by Community Corrections for the term of the order. I impose five additional conditions. The first one is that you engage in treatment with Ms Crosbi Knight of Depsypher Mental Health Services, Terrigal, or other psychological treatment as directed by Community Corrections. The second additional condition is that you engage in any other counselling or treatment as directed by Community Corrections. The third one is that you not engage in any form of gambling. The fourth one is that you not consume alcohol. The fifth one is that you take medications as recommended by your general practitioner. I direct that the offender report to the Community Corrections Office at Liverpool by this Friday, 23 August.
Liverpool is the correct office, is it? Yes. Ms Wood, you will need to go with your solicitor to the registry here at the Court and sign documentation relating to that Intensive Correction Order.
OFFENDER: Thank you.
HIS HONOUR: You will be subject to that Intensive Correction Order for two years six months from today. It is actually a term of imprisonment. If you break any of the conditions, then you will not come back to this Court; rather, you will be liable to simply serve the remainder of that term in actual custody. Understood?
OFFENDER: Yes, your Honour.
HIS HONOUR: I hope you realise just how lucky you have been because my initial intention was to send you to full-time gaol, and it is only after a lot of thought and the concession by the Crown that I have not done that. Understood?
OFFENDER: Yes, your Honour. Thank you.
HIS HONOUR: The Court will adjourn.
[5]
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Decision last updated: 26 November 2024