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DPP (Cth) v O’Brien [2022] VCC 1046

The offender was sentenced following a plea of guilty to 1 count of dishonestly causing a loss to a Commonwealth entity contrary to s 135.1(5) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender was in receipt of a social security benefit, Parenting Payment Single, which was paid on the basis that they were not in a relationship. Offender had an ongoing obligation to inform the Department of Human Services of a change in circumstances. Offender accepts they were aware of this obligation. On 4 occasions offender failed to disclose they were in a relationship. Offending was protracted and only ceased due to the tip off and investigation. Offending persisted over more than 6 years and offender received $113,949.46 to which they were not entitled. Offending did not involve additional deceptions or conduct.

Mental Condition: Offender was diagnosed with anxiety and depression in 2019. Psychologist considered that offender meets the criteria for post-traumatic stress disorder, persistent depressive disorder, major depressive disorder, and recurrent and severe borderline personality disorder with significant indications of a masochistic personality pattern. Prison will weigh more heavily on offender due to their mental state, and continuing to see a psychologist would be more difficult in prison. Offender’s primary motivation for not cancelling the payments was financial, but their decision to take no action was affected by their personality structure and past experiences, including their disruptive and destabilising childhood. Offender’s decision-making and judgment were diminished to a modest degree. Offender’s moral culpability is somewhat lower than it otherwise would have been.

Family and Dependants: Both parties submitted that exceptional circumstances need not be established. Offender’s incarceration would have a significantly negative impact on their youngest son in particular, but also on their eldest son and daughter. Offender’s younger son has severe autism spectrum disorder. Disruption from his normal routine would be very challenging and upsetting for him and those who care for him.

Specific Deterrence: The offending persisted over many years, and offender needs to be deterred from committing any such offence in the future. While offender does have reasonable prospects for rehabilitation, the factors which contributed to their decision to keep the benefits going will persist and have the capacity to impair their decision making in the future.

Offender sentenced to 18 months imprisonment, to be released immediately on recognizance in the amount of $2,500 and to be of good behaviour for 3 years.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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