District Court New South Wales Medium Neutral Citation: R v Wendy Lynette NEIL [2011] NSWDC 78 Decision date: 01 July 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: In respect of each of the 10 offences against s 29B of the Crimes Act 1914, sentences of 18 months imprisonment. In respect of the offence against s 135.1(5) of the Criminal Code 1995 a sentence of 2 years imprisonment. In respect of each sentence I make Intensive Correction Order. Catchwords: CRIMINAL LAW - Commonwealth offences - obtain benefits from the Commonwealth by a false representation - dishonestly cause a loss to the Commonwealth - failed to declare employment while receiving Centrelink payments - over-payment detected by Centrelink - declined to be interviewed by Centrelink but sent a letter admitting guilt - started to repay the Commonwealth before being charged - pleas of guilty at first available opportunity - long term untreated psychological and psychiatric problems - embarrassed and ashamed about actions - pre-sentence and psychological reports - no criminal history - Commonwealth submission that a sentence other than full-time imprisonment would involve appellable error - suspended sentence not appropriate - voluntarily ceased criminal behaviour - repayment plan in place and significant amount of money repaid - delay between detection of behaviour and laying of charges - sentence of imprisonment to be served by way of intensive correction order - reasons for this course Legislation Cited: Crimes Act 1914 s 29B Crimes (Administration of Sentences) Regulation 2008 regs 175, 178 Criminal Code 1995 s 135.1 Crimes (Sentencing Procedure) Act 1999 s 7 Cases Cited: Regina v Burns [2007] NSWCCA 228 R v McGuiness [2008] NSWCCA 80 Category: Sentence Parties: Regina Wendy Lynette Neil Representation: Mr Krisenthal for Ms Neil Ms Guillen for the Commonwealth Director of Public Prosecutions Mr Lynch for Ms Neil File Number(s): 2009/252300; 2009/272161 SENTENCE 1. Wendy Lynette Neil systematically defrauded the Commonwealth Government of over $75,000 over a period of some eleven years. From 1993 to 2004 whilst she was deriving income from employment she was also receiving certain Commonwealth benefits to which she was either not entitled or to which she was entitled to receive at a smaller rate. 2. As a result of that behaviour she has been charged with ten offences against s 29B of the Crimes Act 1914 of the Commonwealth and one offence against s 135.1(5) of the Criminal Code of the Commonwealth. 3. The Crimes Act offences all assert that Wendy Neil by a false representation obtained benefits from the Commonwealth. She imposed upon the Department of Social Security or its successor by an untrue representation by omission with a view to obtaining various benefits. The maximum penalty for crimes committed against s 29B of the Crimes Act is two years imprisonment. 4. The one offence against s 135.1 of the Criminal Code claims that Ms Neil dishonestly caused a loss to the Commonwealth knowing that such a loss would occur in that she obtained certain benefits when she was in receipt of other income. The maximum penalty for an offence against that section is five years imprisonment. 5. It is important for a judge in sentencing any offender to set out briefly what happened to bring about the charges and to make some assessment of how serious an example of the crime this particular, or these particular offences are. 6. In this case the information is conveniently set out in exhibit A which specified that Ms Neil over some two hundred and seventy three payment fortnights between 1993 and 2004 received more than she was entitled to as benefits. This came about because she failed to declare that she was employed by Woolworths during that period. Her benefits from the Commonwealth were paid in the name of Wendy Lynette Neil. At Woolworths she was employed as Wendy Lynette Sawtell. The total amount she wrongly obtained from the Commonwealth was $75,290.40. At various stages she was sent notices asking her to declare whether she was employed or not and she said that she was not employed therefore suggesting that she was entitled to the benefits. 7. On 25 May 2004 Ms Neil attended an interview at Centrelink about getting a job. The adviser offered her help in seeking to find a job. Of course Ms Neil already had a job but she had not told the department. Two days later Ms Neil phoned Centrelink and told them that she had " got the job" and would confirm her earnings. About a week or two after that she asked Centrelink to cancel the payments. In other words she voluntarily stopped the payments, I infer, after she became apprehensive about being detected. 8. It was not until some four years later in 2008 that the over-payment was detected by Centrelink. Ms Neil was asked whether she wanted to be interviewed but she declined. However she did send a letter to the department admitting effectively her guilt and pointing out that she had been very depressed and was looking after her elderly and unwell mother. She acknowledged that she had done the wrong thing and expressed her sorrow about what she had done. 9. Then commencing - as exhibit 3 shows - only a few months later, on 18 December 2008, she started to repay the Commonwealth what she owed. She has kept up those repayments regularly over the period of time and has, or had, up to a few months ago paid over $12,000 back to the government. 10. She has pleaded guilty to the charges and has come before me for sentence. 11. Mr Krisenthal of counsel in the sentence proceedings on 29 April 2011 called his client who said that she had two children whose father was Paul Sawtell but they had separated, that is, the parents, at an early stage and the relationship was on and off since then. But at this stage he was supporting her so far as this charge is concerned. 12. She has been working for Woolworths for some eighteen years and explained that she was using the extra money fraudulently obtained from the Commonwealth in her struggle to support herself and her children. She said she was not engaging in luxuries such as holidays or expensive clothes or items but they were basic needs for her and her family. In fact she said that she had never been on a holiday. She has suffered anxiety and depression for a long time. 13. Her children are now in their twenties, her son is at home and has a job. She told me that she felt very embarrassed and ashamed at what she had done. She had let everyone down and was very sorry. The only people whom she has told are her mother and her brother and, I expect, Mr Sawtell. Her children do not know about her present predicament, nor does her employer. She has been paying off the debt to the Commonwealth at about $100 a week regularly. 14. Part of exhibit A was a pre-sentence report prepared by Probation and Parole Service. It summarised Ms Neil's case in the following terms: " Ms Neil presented as an individual who internalised her family's financial stress and opted for the seemingly easy, albeit dishonest solution to ease her financial woes, fearing that she would otherwise be regarded less as a provider. She appeared genuinely regretful. She appeared genuinely regretful and extremely ashamed at her actions, though persevering with that habit of trying to support a household budget on her own. Despite her predicament, she advised that she intends to continue the current arrangement of providing for her two adult children, regardless of their employment and financial capacity to meet their own living expenses." 15. As additional evidence, Mr Krisenthal tendered a report by a forensic psychologist, Rima Nasr, dated 21 June 2010. Ms Nasr noted a long-term history of depression and anxiety which she thought was " consistent with a long term depressive disorder ". She thought it might be dysthymia. In addition, Ms Nasr noted that Ms Neil suffered from anxiety, worrying about most things and ruminating about finances which, Ms Nasr noted, " appears to be related to her offending behaviour and overwhelming concern about relationships ." Ms Nasr thought that the history she was given was " consistent with a generalised anxiety disorder ". Ms Nasr expressed the opinion that Ms Neil's excessive worry about finances appeared to have " been a contributing factor in her offending behaviour, to the point that she reportedly disregarded the law in order to ameliorate her anxious symptoms. " 16. In Ms Nasr's opinion she regarded it as essential that Ms Neil have access to consistent psychological treatment in order to address her various concerns. Finally, Ms Nasr expressed the opinion - given Ms Neil's " presentation of a psychologically fragile woman who was vulnerable in her inter-personal relationships " - that there were " concerns that a gaol term may expose her to victimisation or manipulation by more sophisticated offenders' groups, which would significantly exacerbate her already poor mental state ." 17. Another exhibit indicates that Ms Neil had commenced to undertake some psychological treatment with a psychologist in Brookvale. 18. It should be noted that Ms Neil has only one item on her criminal record, which is an offence of stealing which occurred in 1988, and which the law now regards as spent. So I do not take that into account at all and regard her as having a clear criminal record. 19. Ms Guillen, who appears for the Commonwealth Director of Public Prosecutions, in her helpful written submissions, made it clear that in all the circumstances " a sentence of full-time custody is appropriate ". Indeed she went on to argue that a sentence other than full-time custody would involve appellable error because of the period of time of eleven years and the amount involved, as well as the false representations and the fact that Commonwealth benefits were paid to her in a different name than the name in which she was employed. 20. Ms Guillen argued that little weight should be given to any submissions about good character because of the length of time over which the offences have occurred. I think that submission is right. 21. She submitted correctly that there were no relationships within the family that would warrant other than a sentence of full-time custody. 22. The plea of guilty Ms Guillen acknowledged was at the first available opportunity. 23. The overpayments were raised in 2008 and the court attendance notice was issued one year later, on 26 October 2009. Ms Guillen argues that the delay in those circumstances is not significant. 24. Ms Guillen argued that Ms Neil had " engaged in a deliberate and organised fraud on the social security system over a considerable period of time and involving a substantial amount of money ". She drew my attention to the authorities which suggested that this was not a question of temporarily " dipping into the till " to overcome a problem, but a consistent and persistent episode of criminal behaviour. She pointed out how important general deterrence was and that must be a correct submission subject to one factor which I will mention shortly. 25. There was no evidence, Ms Guillen said, of serious health concerns. She submitted that I should put little if any weight on the report of Ms Nasr. These submissions were prepared at a stage before Ms Guillen knew that the offender would be called to give evidence. In light of her evidence verifying much of what she told Ms Nasr, I do put weight on that report. 26. Ms Guillen acknowledged that in a case such as this, where there is one multifaceted course of criminal conduct or the offending was part of one criminal enterprise, it may be appropriate to make the terms of imprisonment concurrent. 27. Ms Guillen drew my attention to comparative cases for offences such as these. 28. Mr Krisenthal drew my attention to the options which were available to me. He realistically acknowledged that his client must receive a sentence of imprisonment, but argued that it could be served in a number of ways, including being suspended or by way of home detention. He added I could also impose a community service order. 29. I am of the opinion that no other sentence is appropriate in all the circumstances than a sentence of imprisonment. That follows from the matters which Ms Guillen has referred to and, as I said, has been realistically acknowledged by Mr Krisenthal. 30. Mr Krisenthal drew my attention to the chronology involved in his client voluntarily discontinuing the receipt of pension and also undertaking repayments. He pointed to the delay of a year before charges were laid. He said his client was obviously remorseful and had experienced a very insular existence, and he placed reliance on the report of Ms Nasr. He argued that her long term untreated psychological problems had contributed to his client's behaviour. I accept that submission. They were diagnosed psychological problems, indeed the psychologist went so far as to indicate that they seemed to be psychiatric disorders. 31. Mr Krisenthal argued that they were relevant in reducing his client's moral culpability and in reducing the significance of general deterrence in making a prison sentence more burdensome, and in reducing the significance of specific deterrence. He urged that I could suspend the sentence. 32. As I indicated, I do not regard it appropriate for a suspended sentence to be imposed in this case. The sentence needs to be served in a way which is more punitive because of the seriousness of the offending behaviour. 33. Both Mr Krisenthal and Ms Guillen referred me to authorities about the significance of delay. 34. I have determined that an overall sentence of two years imprisonment is appropriate in this case and I have decided that it should be served by way of an intensive correction order. 35. I owe it to Ms Guillen in light of her submissions to indicate why I do not regard full-time custody as appropriate. 36. In no particular order, first I take into account that Ms Neil voluntarily ceased her criminal behaviour. Such an action is relevant in the way suggested by Harrison J in Regina v Burns [2007] NSWCCA 228. In delivering the judgment of the Court of Criminal Appeal Harrison J, with whom the Chief Justice and Simpson J agreed, said that such action " is a significant factor in mitigation for a number of reasons ". His Honour referred to the public policy in providing encouragement to offenders to cease their criminal activities and to the reduction in the significance of specific deterrence. It provides, thirdly, strong evidence of remorse, contrition and rehabilitation and may support the proposition that the offence was committed as a result of need rather than greed. I regard all of those factors as being relevant to this case and therefore, as the Court of Criminal Appeal has said, amounting to a " significant factor in mitigation ". (I have quoted from [29] of the judgment.) 37. Next I take into account that a repayment plan had been in place for some time and Ms Neil has repaid a significant amount of money. In many of these cases the offender is in no position to pay any money at all. Ms Neil, whose employment as an assistant in a delicatessen in Woolworths means that her income must be limited, has made a significant effort to repay. 38. Next I accept the submission that the long term untreated psychiatric and psychological problems contributed to the offence in this case. I accept Ms Nasr's report in that regard. I take into account the moral culpability is reduced and general deterrence is not as significant and, in particular, I take into account the opinion expressed by Ms Nasr about Ms Neil's vulnerability in the prison system. 39. Next I take into account, although it may somewhat overlap with the voluntary cessation of criminal behaviour, that Ms Neil's prospects of rehabilitation are good. She has commenced a form of treatment. She is, in my opinion, unlikely to re-offend. This offence was not aggravated by greed. 40. Finally, I take into account the fact that there was a delay of one year between her offending behaviour being detected and charges being laid. I am not critical of the Commonwealth for such a delay, but it is relevant for the reasons which the Court of Criminal Appeal said in R v McGuiness [2008] NSWCCA 80 at [49]. The delay in that case was also about a year and its relevance was pointed out in a joint judgment of Bell JA, as her Honour then was, and Simpson and Rothman JJ where the Court said it is " because of the impact on the offender, who after making full admissions of guilt and entering into an arrangement to repay the agency, is lulled into a belief that the matter will be resolved without the intervention of the criminal law ." It is, as the Court said, a factor to be taken into account. 41. For those reasons, in my opinion, it is appropriate to order that the sentence be served by way of an intensive correction order. HIS HONOUR: I will just suspend my reasons there and ask for Mr Guillen's assistance here. There are ten Crimes Act offences and one Criminal Code offence, and I think you acknowledged that, and tell me if I'm wrong, I refer to it in my reasons, that they can be served concurrently. Do you maintain that? GUILLEN: Yes, that's correct, your Honour. HIS HONOUR: I have in mind concurrent sentences of 18 months in respect of the Crimes Act offences and a sentence of two years in respect of the more serious Criminal Code offence which carries a maximum of two years. Do you have anything to say about that on the concurrency and accumulation issue-- GUILLEN: Your Honour while of the view that because you're imposing a ICO that you don't need to actually specify for each particular offence the amount of time. HIS HONOUR: That's a relief, right. GUILLEN: I think you just need to say that you're sentencing the prisoner to two years, the date that it will commence and the date that it will expire for all those. HIS HONOUR: You both agree on that, do you? LYNCH: Yes, I think that is right. HIS HONOUR: That's in section what? Where do you get that from? GUILLEN: It's not really in any section, your Honour, it's just that under the Crimes (Sentencing Procedure) Act when you impose an ICO that's how the other courts have done that. LYNCH: The other thing your Honour might do, although I haven't had a judge yet do it, is avail yourself of the recent amendment for an aggregate sentence. HIS HONOUR: Is that available for Commonwealth offences? It always has been, hasn't it? LYNCH: I don't see why it wouldn't be because it's a way of addressing, where your Honour would simply in fact indicate what you've just said but pronounce an aggregate sentence of two years, and it's then that sentence that would be served by way of the Intensive Corrections Order. I think it's 53 or thereabouts, the aggregate sentence. HIS HONOUR: And Ms Guillen, that applies to Commonwealth offences, does it? GUILLEN: I'm not sure, your Honour. I haven't come across that. HIS HONOUR: What we don't do is, I don't fix a non-parole period or whatever it's called, do I? GUILLEN: That's right, your Honour. HIS HONOUR: That's right, okay. I think I will conservatively - if I was conservative, I would still sentence in the way I propose, that is, 18 months for each of the ten, and I won't specify, although it might have to be the case in the order, I don't know, and two years for the other. Would that be an error? GUILLEN: That's over two years. LYNCH: It's not over because the commencement date is the same. GUILLEN: Okay, concurrent, yes, okay. HIS HONOUR: Yes, commencement date's the same. That wouldn't be an error? LYNCH: I don't think so. HIS HONOUR: I don't think so. LYNCH: The problem is, too, the language of the Act does seem to assume, oddly, a singular sentence, because it talks about an intensive correction order. GUILLEN: And it said it must serve the full term of the sentence as well. LYNCH: Yes. HIS HONOUR: It's probably got to be an order in respect of each of the sentences. LYNCH: It won't matter because-- HIS HONOUR: No, it won't matter. LYNCH: --in the same way that a sequence of suspended sentences and bonds attaching to each is really just the same thing X amount of times. HIS HONOUR: Okay. LYNCH: If your Honour wants to do it that way-- HIS HONOUR: I do. Well, I'm just to err on the side of caution. I mean, you don't want to end up in the Court of Criminal Appeal on this point if possible The Crown's made it clear that they have a view about non-custodial-- 42. In respect of each of the ten offences against s 29B of the Crimes Act 1914, I sentence Ms Neil to eighteen months imprisonment. In respect of the offence against s 135.1(5) of the Criminal Code , I sentence Ms Neil to two years imprisonment. In respect of each of the sentences I make an Intensive Correction Order under s 7 of the Crimes (Sentencing Procedure) Act 1999, directing that each sentence be served by way of intensive correction in the community. I direct that each of the sentences is to commence on Friday, 15 July 2011. LYNCH: I think that's too short, your Honour, and I hate to interrupt. HIS HONOUR: Tell me if I'm wrong. LYNCH: It's too short. HIS HONOUR: I'm looking at s 71. LYNCH: 71, no later than 21 days. HIS HONOUR: " Having made an Intensive Correction Order, a court is to fix the date of commencement so that the date is no later than 21 days after that on which the order is made." LYNCH: But in relation to exhibit 4, for some reason, they've asked that it be no earlier than in the concluding para, 21 business days. That appears on p 2 just above the signature of the officer that did the assessment. I don't know why, but it might well suit their procedures. HIS HONOUR: The Act has to prevail and I guess if there's a problem then you'll have to come back under s 43, is that not right, I mean I can't-- LYNCH: Can I suggest this, wouldn't the 21st day-- HIS HONOUR: Yours is 21 business days, that says, is that right? LYNCH: Yes, I don't think your Honour can do that, but if your Honour picked the 21st day to comply with s 71, that's as much as your Honour can give them. HIS HONOUR: All right. So that'd be 22 July? LYNCH: Yes. HIS HONOUR: I'll revise the last order. 43. Under s 71 of the Crimes (Sentencing Procedure) Act I fix the date of commencement of each of the sentences as 22 July 2011. HIS HONOUR: All right? LYNCH: Thank you, your Honour. HIS HONOUR: So, so far so good. From memory there are standard conditions. GUILLEN: Sorry, your Honour, because it's a Commonwealth matter, you also need to state the expiry date of that ICO. I know you said two years, but 44. The sentences for the ten offences against s 29, the ten offences under the Crimes Act will expire on 21 January 2013. The sentence for the offence against the Criminal Code will expire on 21 July 2013. HIS HONOUR: Now, there's reference to cl 175 of the Crimes (Administration of Sentences) Regulation. I don't happen to have that. LYNCH: Neither do I and that's in vol 4. HIS HONOUR: I'll have my associate just look that up, cl 175 Crimes (Administration of Sentences) Regulation 2008 . GUILLEN: I think your Honour just has to specify the local office of the Corrective Services department. HIS HONOUR: That may be right, but chances are I've got to specify conditions as well, is that not right? LYNCH: I think that's right because under s 72 you've got to explain them. HIS HONOUR: Exactly right. And also, I'd like to ask each of you to consider what the consequence of failure to comply is. LYNCH: State Parole Authority on advice from the Commissioner of Corrective Services. HIS HONOUR: Section? LYNCH: Section 88 to 91. HIS HONOUR: 88? LYNCH: Yes, I'll just check it. HIS HONOUR: All right. 45. The Intensive Correction Orders are subject to the conditions prescribed by reg 175 of the Crimes (Administration of Sentences) Regulation 2008. HIS HONOUR: I won't list those in the formal order, but I'll have to read them out to Ms Neil. It says here for such local office of the Corrective Services, would that be a Probation and Parole office? LYNCH: It is because they're now called Community Corrections. HIS HONOUR: Okay. And what's the nearest? Your client lives at Allambie Heights. LYNCH: Allambie. They said you'd have to go to Parramatta. GUILLEN: If I can assist, your Honour, you can just say "specified local office of the Corrective Services department or on such other date as may be determined by the Commissioner for Corrective Services. LYNCH: Just so your Honour's aware, as a matter of practicality, Ms Neil says that she was told that in due course if this all went through it'd be Parramatta, but she can certainly report to Brookvale which would be the nearest to Allambie. Dee Why, in fact, no you're quite right, Dee Why, your Honour. Just while I'm on my feet, your Honour is probably looking at the fuller version of what I don't have. One of those mandatory conditions I think is the one - at least the bench book notes you've provided - suggests offender is to engage in activities to address factors associated with offending. That is the one that your Honour might have some latitude to address the mental health factor that's identified by the assessing officer as relevant to the offending,. 46. In respect of reg 175(b), Ms Neil is to report on 22 July 2011 or on such later date as may be advised by the Commissioner, to such local office of Corrective Services NSW or other location as may be advised by the Commissioner. HIS HONOUR: Now, how are we going so far? LYNCH: Yes. GUILLEN: Yes. HIS HONOUR: In a moment I have to explain the correction order, and what are the consequences of failure to comply; where do I find those? GUILLEN: 88. HIS HONOUR: Of the Crimes (Sentencing Procedure) Act ? LYNCH: Well, unless I've got a really old one, it doesn't match the notes. HIS HONOUR: I reckon it's the Crimes (Administration of Sentences), s 88, which my associate will print out in a moment. LYNCH: Was your Honour - in relation to that psychological thing - I'm not trying to sound like I'm quizzing, your Honour - cl 175 lists 17 mandatory condition ..(not transcribable).. to be imposed by the court. These include on the dot points the last - I know I'm banging on a big about it, but the mental health one worries me, because if the suggestion is that having been identified in exhibit 4, your Honour must make an order. I don't have the legislation and obviously I'm in your Honour's hands. I'm just concerned - you can see my problem - if the officer raises it as being a factor associated with the offending and if the regulation suggests that your Honour mandatorily has to deal with that if it's identified, that's all I'm asking your Honour to do if that's how you read it. HIS HONOUR: And the report identified mental health issues? LYNCH: It does, it's the last page. The following factors associated with the offending would be targeted if an Intensive Correction Order is made, dot mental health. I'm putting that together with the bench book extract which seems to suggest that it comes under the mandatory conditions as a - to address the factors associated with his or her offending as identified in the assessment report. So it does seem like if the report identifies it, your Honour has to deal with it somehow. It's only a matter of formality. I'm just concerned that the order not be inadequate for that absence. HIS HONOUR: Yes, mental health, the following factors associated with the offending, so that clearly falls within - all right. In a moment I'll explain it. Is there anything - any other formal orders I need to make before I explain? Anything Commonwealth things that I need to do? GUILLEN: Your Honour, I'd be seeking orders in relation to court cost, nothing to do with the ICO, though, and a reparation order. HIS HONOUR: Reparation order seems appropriate: how much? GUILLEN: The amount that's currently outstanding is $62,140.40. HIS HONOUR: Does that sound right, Mr Lynch-- LYNCH: It did on my maths when I did it-- HIS HONOUR: Just say the figure again? GUILLEN: $62,160.40. LYNCH: Does that include interest or just outstanding? GUILLEN: No, just outstanding. HIS HONOUR: You'll seek a reparation order in that amount? GUILLEN: Yes. And court costs of $76 for filing the court attendance notice, your Honour. HIS HONOUR: Court costs $76, okay. I've got power to order that, do I. SPEAKER: Yes. HIS HONOUR: Do you agree, Mr Lynch? LYNCH: Yes, your Honour. 47. I make a reparation order in the sum of $62,160.40 which Ms Neil must repay. In addition, I order that she pay court costs in the sum of seventy-six dollars. HIS HONOUR: No other Commonwealth-type orders I need to make? GUILLEN: That's all your Honour. HIS HONOUR: No? GUILLEN: No. HIS HONOUR: No. Any other orders before I formally explain it, Mr Lynch? I don't think so. No other formal orders? LYNCH: Only if your Honour, with the benefit of the legislation-- HIS HONOUR: I will. I'm just about to do that, yes. LYNCH: If you cover the mental health aspect I'm happy. HIS HONOUR: I will, good, okay. LYNCH: Thank you, your Honour. HIS HONOUR: Ms Neil, if you'd stand up. Now, you've received a gaol sentence, you understand that, a prison sentence? You're not going to have to serve it in prison, but I've imposed a prison sentence. Do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: In fact, I've imposed 11 of them. You've got 18 months for each of the Crimes Act ones and you've got two years for the one under the Commonwealth Criminal Code , do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: So the total is two years, and I've directed that it start on 22 July, three weeks from today, so the total of two years will expire on 21 July in 2013, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: So you've got a prison sentence. Now, I've made an order that you serve that prison sentence by way of Intensive Correction Order in the community. So you can stay at home and go to work, but you're serving your prison sentence by way of this Intensive Correction Order, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: It's got certain conditions which are compulsory. There's about a dozen of them and I have to read them out to you, do you understand that? Mr Lynch will probably give you something which - it might be a good idea, Mr Lynch, to print out regulation 175, or I might actually give it to you before you go. LYNCH: I can cut and paste it in a file and give it to Ms Neil, thank you, your Honour. HIS HONOUR: Good, all right. You've got to be of good behaviour. You've got to behave yourself, stay out of trouble, don't commit any other offences. That's a condition, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: The Commissioner of Corrective Services will ask you to report to an office of his somewhere. Sounds like it might be Parramatta, but you'll get a notice about it, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You've got to report there. You'll have a supervisor and you can only live at a place, reside at premises approved by the supervisor, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: I doubt whether the supervisor will have any problem you living at home, but it's got to be approved by the supervisor. This is why it's an Intensive Correction Order, they really keep an eye on you. You're not allowed to leave New South Wales or stay out of the state - you're not allowed to leave the state without the permission of the Commissioner, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: You're not allowed to leave Australia without the Parole Authority giving you permission, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: Or stay out. You've got to accept visits by your supervisor at any time, provided it has connection with the order. They can turn up at any time and visit you, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You are required to authorise your medical practitioner, your therapist or counsellor, to provide information to your supervisor about that that's relevant for the order, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You've got to allow them to search things, places or thing under your immediately control. That's unlikely - this is hardly a drug offence or anything like that - but they've got that power. If they turn up and want to search then you've got to permit it, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You're not allowed to use prohibited drugs or get drugs or abuse drugs, and I don't think you've ever had an issue about that, have you? OFFENDER: No. HIS HONOUR: But it's a condition. You've got to submit to breath testing, urinalysis or medical approved tests about drug and alcohol if they require it. Once again, this is not that sort of case, but it's a condition, do you understand it? OFFENDER: Yes, your Honour. HIS HONOUR: You're not allowed to have any firearm or explosives, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You've got to agree to surveillance or monitoring. They might have you on electronic surveillance or monitoring, as the supervisor suggest, and you've got to comply with instructions give by the supervisor about operating that surveillance. I don't know how they do that or whether they do it, but if they want to do it you've got to agree, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: You're not allowed to damage or interfere with the surveillance or monitoring equipment if they put it on you, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: You've got to comply with any direction given by a supervisor which might require you to stay at a particular place during particular hours or which otherwise restricts your movements during hours. So they might say that you can't go somewhere or you've got to stay at a particular place. As I said, I don't know how these operate, but you've got to agree if the supervisor says so, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: Now this is important, this one. You have to undertake a minimum of 32 hours of community service work a month as they direct you. So 32 hours a month. So that's about eight hours a week, about an hour a day, so to speak, but you've got to do 32 hours of community service work a month as they direct you, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: That's part of the punishment. It's going to be really inconvenient. That's the idea because you've not going into gaol, but your life's going to be interfered with out of gaol, but hopefully you'll be able to keep doing what you're doing so far as living at home and working. The second last one is the one Mr Lynch is concerned about, you've got to engage - you've got to do whatever they say to address your offending, to address the reasons that you committed these crimes. You've got to co-operate with them, and if they suggest you do certain things - for example, my guess is counselling - then you've got to comply, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: And they've actually said in the assessment report, the factor associated with offending which would be targeted in your case, mental health issues, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: That was obvious from your psychologist's report, from your evidence which I heard, from Mr Krisenthal's submissions, what Mr Lynch says. You're on the track but they will require you to stay on that track of addressing it, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: The last one is you've got to comply with any reasonable directions which the supervisor gives you, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: I've got to tell you if you don't comply with any of those. If you mess up and you don't comply with any of those you can get a formal warning or they can make the conditions stricter, you know, make it even tighter and harder for you, they can do that, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: Or they can refer it to the Parole Authority if it's a really serious breach, do you understand? OFFENDER: Yes, your Honour. HIS HONOUR: And if there's a serious breach and you end up in the Parole Authority they can do the same, give you a formal warning, or apply - more strictly, or they can give you up to seven days' home detention and make you stay at home for seven days so you wouldn't be able to go to work, do you understand that? That's the sort of power they have. Or they can actually revoke the order altogether which I've made. Revoking the order means that you - and tell me if I'm wrong - you go to gaol because there's no order directing to serve the gaol by way of intensive correction. You would have to serve the prison sentence which I've given you, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: Have a seat, Ms Neil. You don't need any of these things, Mr Lynch, you'll cut and paste as you say. LYNCH: No, your Honour, thank you. HIS HONOUR: Is there anything else I need to do, Mr Lynch or Ms Guillen? LYNCH: No. GUILLEN: No, your Honour. HIS HONOUR: I'll just tidy up while you look at the-- LYNCH: I might just add that on that point about the ultimate breach, as your Honour will be aware, but I will point out to my client, there's no power in the Parole Authority to differentiate the sentence such as there would be on the breach of a suspended sentence. There's no power to set a non-parole so there's significant sting in the tail. HIS HONOUR: There's a risk that she'd serve the lot? LYNCH: Yes. HIS HONOUR: I wondered that. I couldn't see anything there. LYNCH: I've spoken to Judge Christie and he's confirmed it. HIS HONOUR: Is that right? LYNCH: There no power to set a non-parole period. HIS HONOUR: All right. Now my associate's printed the order; we'll just check it. I think exhibit 1, the report must have gone to the people who assess. LYNCH: Does your Honour want a copy? HIS HONOUR: It must have gone to the Parole Authority. LYNCH: What was it? HIS HONOUR: And it'll go with her on her file. LYNCH: Did your Honour want a copy for the file? HIS HONOUR: Of exhibit 1? No, thank you. That's MFI 1 and we'll just get MFI whatever the other one was back and we'll put a yellow tag on it. And as you know, Mr Lynch, your client will need to turn up at the registry to sign up, I imagine. That's what my associate thinks and she's usually right about these things. LYNCH: I think so, your Honour. Yes, I'm running with that. HIS HONOUR: And given the time, it's now half past 1, there may not be anyone there, but-- ADJOURNED ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2011