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Fraud case riles judge

Wednesday, 4th April, 2012

A District Court judge has sharply criticised the Commonwealth for seeking to have a mother of three children jailed for fraud when there was no evidence that she had benefitted in any way from her wrongdoing.

The case involved the fabrication of financial statements in order to maintain government funding for the child care centre in Tibooburra.

Joanne Nicholls, the former secretary of the Tibooburra Multi-Purpose Centre, pleaded guilty in the Local Court last year to six charges of forging documents and six of using them to defraud the Commonwealth Department of Education between 2005 and 2009.

Ms Nicholls (42) was in the District Court yesterday to be sentenced and the Commonwealth Prosecutor said that it wanted her jailed due to the seriousness of the offences and the fact that the fraud had continued for more than four years.

But at the outset, Judge Tupman told the prosecutor, Olga Guillen, that she had no intention of sending Ms Nicholls to prison.

Ms Guillen agreed with the judge when she said that there was no evidence that Ms Nicholls had “siphoned off” any of the money for herself.

There was also no evidence, the judge said, that either the Commonwealth or the child care centre had suffered in any way from the fraud.

On the contrary, she said, the township had gained because its only child-minding facility had continued to run as normal.

“It was serious dishonesty but unlike most other offences of this type there is not the slightest evidence that any of the money went anywhere other than to the Tibooburra Multi Purpose Centre.

“Nor is there any suggestion from the evidence that she benefitted in any way as a result of this offending.”

Judge Tupman also rebuked the Commonwealth for insisting that the case be dealt with in the District Court when it could have been handled in the Local Court, as Ms Nicholls’ defence team had requested.

Ms Nicholls’ barrister, Emmanuel Kerkyasharian, said she had helped establish the child care centre and volunteered as its secretary when it opened in 2000.

But, he told the court, by 2005 local participation on the committee had waned and when too few people turned up for its annual general meeting she fabricated the minutes and submitted them to the department to keep the funds coming.

After that she had to keep up the fraud so as not to be found out and to keep the centre open.

Child care was important to the township because many people worked part time and a lot of their work was seasonal, Ms Nicholls told the court.

“People can work because there is child care. It is also for social interaction because there is no preschool,” Ms Nicholls said.

It was used by an average of six children a day and the daily fee was $6 “so we are heavily reliant on funding.”

Ms Nicholls admitted to twice forging the signature of an auditor and to not reporting any of the small profits that the centre made because that would have resulted in its funding being cut.

When the Department sent investigators to Tibooburra in 2010 Ms Nicholls admitted her wrongdoing and gave them all the documents they needed to prosecute her, yet it took the Commonwealth 14 months to charge her with the offences.

Judge Tupman described this as “unexplained and inexcusable.”

The judge also told the Crown Prosecutor that she did not accept that the offences were as serious as the Commonwealth had tried to make out, for three reasons: 

“One, she got nothing out of it; two, the (child care centre) only got what it was entitled to; and three, her purpose, though misguided, was entirely altruistic.”

Judge Tupman said the Commonwealth was wrong to seek to imprison Ms Nicholls who had no criminal record and was the mother of three children, including a seven-year-old, whom she had to look after while her husband was away working three weeks of every month.

She was also an important member of the Tibooburra community who worked full time of the School of the Air while also serving as a volunteer for several organisations including the Parents and Citizens’ committee and the Aboriginal Land Council.

Nonetheless, a custodial sentence was required under Commonwealth law so the judge sentenced Ms Nicholls to two years’ jail, with the sentence wholly suspended.

In effect, this means that she will be on a good behaviour bond.

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