THE QUEEN v MICHAEL JOHN DEEDE GEASON J
COMMENTS ON PASSING SENTENCE 3 JULY 2019
Mr Deede, you have pleaded guilty to a single count of theft. That crime is an offence under s 131(1) of the Criminal Code (Cth). By your plea of guilty you have accepted that between 16 January 2003 and 18 September 2018 you dishonestly appropriated aged pension payments from Centrelink in the sum of $249,131.42.
Your offending occurred this way: your mother was in receipt of Centrelink benefits from 1971 and began receiving aged pension payments in 1987. Your mother died on 23 May 1995, however the Department did not become aware of her death until about July 2018.
Your mother was entitled to receive an aged pension during her lifetime. Between May 1995 and June 2009, that pension was deposited into a bank account in her name. Between 10 June 2009 and September 2018 her pension was deposited into a different account, but that account was also in her name. These aged pension payments were withdrawn by you in a number of ways; cash withdrawals, telephone bank transfers and electronic bank transfers into a bank account in your name. During the period the subject of your offending, you contacted the Department on a number of occasions in relation to these pension payments. In August 2004 you made an enquiry resulting in your nomination to act on behalf of your mother and contact details were updated by the Department. In July 2005 following the cancellation of your mother’s pension, you contacted the Department and again, you updated her contact details stating to the Department that you mother was severely disabled and could not phone or visit the Department herself. Payments continued to be made. In August 2008 you contacted the Department again and changed the payment details and the required nominee forms were issued. You contacted the Department again in May 2009 on three occasions. On the third occasion you provided updated bank account details for your mother confirming with the Department the details of the account to which payment had been made to that point. In September 2009 you contacted the Department following the suspension of payments and that contact resulted in the restoration of payments to which you were not entitled. Further contact was made in that month by you in order to further update contact details. In June 2010 a general enquiry was made at the Department, and in April 2011 you contacted the Department again to update contact details.
I have set out each of those attendances on the Department because each of those interactions with the Department represented an opportunity for you to pause, reflect upon your conduct and desist, but you did not. Those contacts with the Department exhibit your commitment to continuation of the receipt of these payments to which you were not entitled, and the result of that conduct was a significant overpayment.
Your offending was detected by way of data matching, and in consequence a warrant was issued and a search was undertaken at your residence in September 2018. As part of the investigation the Department contacted you inviting you to participate in a formal interview. You agreed to participate in that interview, and you made admissions including that you knew your mother was not entitled to an aged pension after her death and that you saw her death as an opportunity to address financial difficulties you were experiencing in the aftermath of that event. It was for this reason you said, that you did not notify the Department of her death. You admitted that you contacted the Department to ensure those payments continued.
You are 58 years old. Your offending commenced when you were 44 years old, so that is some 14 years. Though you present without relevant prior convictions apart from two very old charges of forgery and two of uttering in 1985, the extent of your offending behaviour amounts to prolonged dishonesty for that period. In those circumstances you cannot call in aid any claim to previous good character.
I listened carefully to your history and I did so sympathetically. You wanted to hand me a written document setting out the matters which explained how you fell into this pattern of offending. You indicated to me that you wanted to proceed that way, in order to avoid publication of those details. I will accept your desire to keep private many of those matters noting those points in a general way to which I have had regard in assessing your character and the need for personal deterrence, and to address matters that are relevant considerations for the purposes of s 16A of the Commonwealth Crimes Act.
I accept that you fell into the pattern of offending behaviour in the aftermath of your mother’s death in circumstances where you were concerned for your own future and your capacity to make provision for yourself. It appears to me that the temptation to continue to receive those payments in circumstances where to do so would ameliorate your financial difficulties was overwhelming, and you succumbed to that temptation. I am prepared to accept that you had a sense of entitlement to something from your family by way of financial support because you saw your upbringing, indeed your life more generally, as one which was characterised by a lack of love and a lack of provision of any of the things necessary for your physical or emotional well-being. I accept that yours has, in many respects, been a life of deprivation occasioned by some incidents of physical abuse. I also accept that you have proffered your history, which I have merely summarised, not as an excuse for your offending, but as an explanation for it. I can accept that you are not fundamentally a bad person, but rather someone who has turned the event of your mother’s death into an opportunity for a little bit more from life. But as you acknowledge, that is not an excuse and provides no justification for your conduct. As I have observed you had an opportunity to reflect on that conduct on more than one occasion. And not just on the occasions you made contact with the Department. You had a multitude of opportunities to reflect and desist but you did not.
I have regard to your plea of guilty. You are entitled to mitigation for it. I have regard to the fact that you co-operated with police. Your conduct indicates acceptance of responsibility for your wrong-doing and it assists in progressing the matter to a conclusion without the need of the considerable expense of a trial. In that respect it has a utilitarian benefit which I take into account in fixing sentence. I also have regard to your co-operation with the Department and investigating authorities. In the circumstances, I have reduced the sentence which I would otherwise regard as appropriate by 20% to account for those matters.
I also have regard to your personal circumstances as they present today, noting that you operate a small business with your partner and have done so for a number of years. In that respect you have contributed to the small community in which you live. I observe and have regard to the fact that from the modest income that business derives, you have made repayment of a small sum of the amount that you have taken. There is a repayment arrangement in place and that is a relevant sentencing consideration. Whether all of the money will ever be repaid I do not know. At the current rate of repayment it seems doubtful.
I discern that your contrition is real and I am satisfied that the prospect of further offending is remote. Whilst the Court has an obligation to impose a penalty which has a punitive element, in my view, the need for personal deterrence is reduced in your circumstances.
However, as has been put to me by Mr Driver, and as is so often noted in the reported cases, detection of offences such as yours is difficult. The Court must impose a penalty that deters the commission of offences like this. Your conduct undermines the integrity of the aged pension system. In a very real way it is the case that if those who are not entitled to the aged pension take it, there is less for those who are entitled to it. There is also a greater burden on taxpayers. The honesty of those claiming under the welfare system is essential to its successful operation as has been so often observed. Because of the nature of the benefit in this case, the aged pension, you were not required to inform Centrelink of any information in order to continue to receive that payment.
I am required to impose a penalty that properly reflects the need to address the general deterrence considerations which arise from your offending and which denounces your conduct in a public way. The sum of money involved in your stealing is significant, and but for the fact that Centrelink undertook its own internal audit of persons aged over 90 years still receiving the aged pension, there is a possibility that your conduct would have continued. This is not a case where you voluntarily desisted from your wrong-doing. Previous good character is a less significant factor in instances of sustained and deliberate offending such as this, as I have already noted.
Under the Crimes Act I am required to impose a sentence that is of the severity that is appropriate in all the circumstances. I have decided, having considered all other available sentencing options, that no sentence other than a term of imprisonment is appropriate in your case. Whilst the Crimes Act permits me to conditionally release you forthwith, in my view, to take that course would be to ignore the other principles of sentencing which are relevant and applicable, and in particular the need for general deterrence. That determination, in part, reflects the need for consistency across jurisdictions within Australia in relation to punishment for offences like this.
Mr Deede, you are convicted. I have determined that the appropriate penalty is a term of imprisonment. You are sentenced to imprisonment for three years and six months from today. I am not constrained to a minimum period in fixing the non-parole period for commonwealth offences, and order that you be eligible to apply for parole having served 18 months of that sentence.
I make a reparation order pursuant to s 21B of the Crimes Act 1914 in the sum of $249,131.42.