DPP v Balmocena [2017] VCC 1575 (25 September 2017)

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IN THE COUNTY COURT OF VICTORIA	Revised Not Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

V

AMOR BALMOCENA

JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2017
DATE OF SENTENCE:	25 September 2017
CASE MAY BE CITED AS:	DPP v Balmocena
MEDIUM NEUTRAL CITATION:	[2017] VCC 1575

Catchwords: Theft; dishonestly obtain financial advantage from Commonwealth entity; $65,091.13; carer payment and Newstart allowance

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Peretko

For the Accused	Ms T. Hartnett

1 Amor Balmocena, you have pleaded guilty to four counts of dishonestly obtaining a financial advantage by deception from a Commonwealth entity contrary to subsection 134.21 of the Criminal Code of the Commonwealth. The full circumstances of your offending are set out in the prosecution opening which will be annexed to the sentence.

2 To summarise your offending, the four charges you pleaded guilty to relate to your receipt of a Carer Payment and Newstart Allowance totalling $65,091.13 between 14 February 2012 and 18 November 2015 to which you were not entitled.

3 During the period of this offending, you worked and received income from three employees. When you made your claims for Carer Payment or the Newstart Allowance, you falsely represented that you were not employed. As a result of your false statements, you were not required to report your income in order to receive the benefits.

4 Charge 1 of obtaining financial advantage by deception relates to your actions on 14 February 2012. When in making a claim for a Carer Payment, you falsely represented that you were not employed. At the time, you were in fact employed by Regis Aged Care and Emerald Terrace Aged Care. During that period of offending you received some $60,461.82 gross from your employment, but you did not declare any of this income to Centrelink. Excluding the benefits you were entitled to receive, the total overpayment obtained by you during this period of offending was $19,452.20.

5 Charge 2 relates to your claim for a Carer Payment on 3 June 2013 when you falsely represented you were not employed. At the time, you were employed by Regis Aged Care and Emerald Terrace Aged care. You received $12,203.35 gross income from your employment and you did not declare this income to Centrelink. Excluding the benefits you were eligible to receive, the total overpayment was $6,133.32.

6 Charge 3 relates to your claim for a Carer Payment on 13 October 2013 when you falsely represented you were not employed. At the time, you were employed by Regis Aged Care, Emerald Terrace Aged Care and later by

TLC Aged Care. You received $96,660.61 gross income during that period. Excluding the benefits you were entitled to receive, the total overpayment was $38,844.45.

7 The final charge, Charge 4 relates to 24 October 2013 when you completed and signed a customer declaration form to apply for a Newstart Allowance as you waited for processing of your Carer Payment claim. You failed to complete the sections of the claim form relating to your current employment, but selected the box to say that you were not currently working. At the time, you were employed by Regis Aged Care and Emerald Aged Care but failed to report your income for the fortnight period you worked. You received $896.59 gross from employment and you did not declare this amount. Excluding benefits you were entitled to receive, the overpayment was $661.23.

8 Your offending was detected by way of a data match on 20 October 2015. During your discussions with Centrelink, you gave various explanations as to why you did not declare your income, including that you needed extra money, you were going to declare it later, but you never did, you needed the extra money because you were the only person to support your family here and overseas.

9 As at 15 August 2017 the sum of $4,801.32 has been repaid leaving a balance of $60,289.90.

27 November 1966, so you are 50 years old. You are the youngest of five children. You have four brothers who live in the Philippines and unfortunately they are deaf and unemployed. You completed the equivalent of Year 12 in the Philippines and then worked in the hospitality industry for a few years.

11 When you were 23, some relatives in Sydney sponsored you to come to Australia and you became an Australian Citizen aged 26. Since arriving in Australia, you have a history of working in hospitality, gambling and the aged care industry. You moved to Melbourne when you were about 31 and your most current employment has been in the aged care sector. You are also studying a Bachelor of Nursing part-time. You sponsored your parents to come to Australia. They are both elderly now and your mother has health issues. About five years ago you sponsored your two nieces to come and live with you in your rented premises in Oakleigh East. You are their guardian and the eldest girl is doing her Year 12 this year, while her sister is in Year 11.

12 Your counsel tendered a medical certificate from your doctor certifying that you have suffered from depression and anxiety since 14 April 2016. There was also a medical certificate from Dr Cohen certifying that you have been diagnosed with Obstructive Sleep Apnoea.

13 Unfortunately you have a history of dishonesty offences. You have appeared in court on dishonesty charges on five prior occasions including for obtaining a benefit not payable or only part payable by Centrelink. Your most significant offending related to obtaining property by deception which involved the use of a false credit card, for this offence you were sentenced to 15 months' imprisonment with a nine month non-parole period.

14 In her plea on your behalf, your counsel acknowledged that your offending called for a sentence of imprisonment. However, in mitigation of your offending she relied on the following matters;

• the delay of ten months between your interview and the laying of the charges;

• that you use the money that you obtained to assist in supporting your elderly parents and your brothers in the Philippines rather than using it to enrich your own lifestyle.

15 Your counsel also relied on the principles in a case called Verdins. This was in relation to the fact that you have been diagnosed with depression and anxiety, and as a result of this condition, your time in custody will be more difficult than for those who do not suffer from such a condition.

16 The prosecutor submitted that an immediate gaol sentence was the only suitable sentencing disposition and that your offending was serious. It was not at the low end of offending for this kind, and concerned a significant sum of money which had been obtained dishonestly over a period of nearly four years. The offending was aggravated by the fact that you stopped and then recommenced your offending for each charge period by making a new claim. There was a significant discrepancy between the income received by you and the income declared to Centrelink, over the charge periods, where you earned a total gross income of $169,325.78 of which nil was declared to Centrelink.

17 In sentencing you, the primary obligation of the court is to impose a sentence or make an order that is of severity appropriate in all the circumstances of the offence. In doing so, I have taken into account all the relevant matters which are set out in s.16A(1) of the Commonwealth Crimes Act of 2014 and all the mitigating matters referred to by your counsel. Your plea of guilty has utilitarian value as it has avoided the necessity for a trial. I accept that there is no suggestion in this case of enrichment and that your motive for claiming the benefits was to support your family and overseas. While there has not been a significant delay in this matter, I accept that the charges were laid at a difficult time for you in that your eldest niece is doing Year 12. Further, I accept and take into account that, given your depression and anxiety, imprisonment will be more onerous for you than prisoners who do not suffer from those conditions and also of course the sleep apnoea.

18 Section 12A of the Crimes Act provides that a court should not pass a sentence of imprisonment on any person for a federal offence unless having considered all other available sentences. The court is satisfied that no other sentence is appropriate in the circumstances. In your case, your counsel conceded that, given the serious nature of your offending, a sentence of imprisonment was appropriate.

19 Taking into account the deliberate nature of your offending, the significant amount of money dishonestly obtained, the significant discrepancy between the income received by you and the income declared by you to Centrelink, the sustained nature of your offending and your prior history of dishonesty, I am satisfied that a sentence of imprisonment is the only appropriate sentence.

20 In sentencing you, I have taken into account that the preeminent sentencing consideration with social security frauds is general deterrence, and the appellant courts have repeatedly emphasised that a sentence of imprisonment is ordinarily required in such cases. The reasons provided are set out in the various authorities and they include that the social security system, being based on trust, is open to abuse with the result that, when abuse is discovered, sentences must be salutary. Fraud tends to undermine the integrity of the social security system, offences of this type are prevalent, easy to commit, often difficult and expensive to detect and the social security system is a major impost on the Australian Government revenue, and on tax payers, and the burden of fraud on the system falls on the whole community.

21 In sentencing you, I have also taken into account the comparative sentences for social security fraud provided by the prosecutor as providing guidance as to the appropriate sentencing range. This is just one of many factors I have taken into account, in sentencing you as all cases are different, must be decided on their own facts.

23 On the four charges of dishonestly obtain a financial advantage by deception from a Commonwealth entity, you are sentenced to a term of imprisonment of three years, to be released after serving 12 months on a reconnaissance of $1,000 to be of good behaviour for a period of two years. The commencement date of that sentence is today, Monday, 25 September 2017.

24 The prosecution sought an order for reparation for the outstanding amount of $60,289.19 and I'll make that order.

25 But for your plea of guilty you would have been sentenced to four and a half years, to serve three.

MS PERETKO: I have the draft orders, Your Honour, if you just give me a moment I'll complete them.

County Court of Victoria

DPP v Balmocena [2017] VCC 1575 (25 September 2017)