District Court New South Wales Medium Neutral Citation: Genoli v R [2015] NSWDC 238 Hearing dates: 9 June 2015 Decision date: 09 June 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: 1) Appeal allowed and sentence imposed by the Magistrate set aside. 2) Offender to enter into a conditional good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999. 3) Leave granted to withdraw appeals against sentences already expired. Catchwords: CRIMINAL LAW – appeals against sentence – particular offences – making and uttering counterfeit money – appeals allowed and sentences varied – time served taken into account – first time in custody – prior criminality – record not extensive – no prior offences of dishonesty – employment available on release from custody – offender would benefit from supervision in the community to address problems with addiction Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 20 Crimes (Currency) Act 1981 (Cth) Crimes (Sentencing Procedure) Act 1999, s 9 Category: Principal judgment Parties: Kaben Jade Genoli (Appellant) Regina (Respondent) Representation: Solicitors: B Drinkwater, Barraclough Jones & Associates (Appellant) A Baker, Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/0044887 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 14 April 2015 Before: McCosker LCM File Number(s): 2015/00044887 Judgment 1. Kaben Genoli was sentenced by Magistrate McCosker to four months' imprisonment on 14 April 2015. The sentence was backdated to commence on 15 March 2015 and therefore expires on 14 July 2015. His Honour was sentencing Mr Genoli for two serious crimes. Both crimes were offences against the Crimes(Currency)Act 1981 (Cth). One was making counterfeit money. That is so serious that Parliament has fixed a maximum of 14 years imprisonment for the offence. The second crime was uttering counterfeit money, knowing it to be counterfeit. Parliament fixed a maximum of 12 years imprisonment for that offence. 2. Mr Genoli has been in custody since 15 March 2015 and has therefore served almost three-quarters of the sentence imposed by his Honour. Incidentally there were two other offences dealt with by his Honour which are listed on exhibit A, the severity appeal cover sheet, but both sentences have expired. In due course I will grant leave for Mr Genoli to withdraw those appeals. 3. Briefly, what happened is this. Kaban Genoli decided to make counterfeit banknotes. He bought himself a scanner machine and then using printer paper and coloured and black ink he managed to produce over $2,000 worth of fifty dollar notes. It was, as Ms B Drinkwater who appears for him on the appeal said, a fairly amateur attempt. Mr Genoli then, during January this year, took himself around to various businesses in the Taree and Newcastle area – they were fast food outlets – and, with varied success, passed the fifty dollar notes in for buying small items and received legitimate notes in his change. Somebody alerted the police, he turned himself in on 12 February 2015 and pleaded guilty on 16 March 2015. He must have been bail refused from about that time because the sentence was backdated to 15 March 2015. 4. Mr Genoli has a criminal record but it did not start until he was 25, which is, relatively speaking, quite late. He has a number of traffic offences and a common assault which is domestic violence related. Other than that, in the context of domestic violence again, there is a carriage service offence concerning a threat to kill. Obviously that was potentially a serious offence but it was dealt with by a fine in the Local Court which indicates that it was not likely to be regarded as very serious by the court. He has a record interstate but in each case there was no conviction recorded. 5. Mr Genoli was raised in Gloucester. He is now 28. He lives at home. He had what is described as a supportive and loving upbringing and continues to have positive relationships with his family members. I take that from a helpful pre-sentence report prepared by a Community Corrections officer. He had some trouble with one of his relationships. There is an apprehended violence order. They lost a baby and the relationship broke up. Around about that time, which was during last year, he first used methylamphetamine. He quickly became addicted. Mr Genoli was also engaged in gambling on a regular basis, frequently losing a week's income. That suggests a gambling addiction as well. He completed year 12 and has some qualifications in the automotive trade. 6. Mr Genoli's offending was linked to "financial strain due to his illicit drug use and gambling activities". He acknowledged that his activities were "just stupid". The author of the report assesses his risk of re-offending as medium. This is Mr Genoli's first time in custody and the author of the report noted he said "his experience of incarceration has motivated him to avoid future offending behaviour". The author thought that Mr Genoli "would benefit from a period of supervision" and Mr Genoli told the author that he was willing to engage in some intervention. 7. Ms Drinkwater proposes that I allow the appeal and consider the time served to date to be sufficient in the sense that I would substitute a sentence of a good behaviour bond. She points to her client's record - which is not extensive as I said - and commenced relatively late in his life and to the fact that he has never been in custody before and the offences did not involve dishonesty. 8. Mr A Baker, who appears for the respondent Director of Public Prosecutions, acknowledges the force of these submissions. In addition, Ms Drinkwater has made available a letter from Mr Genoli's brother pointing out that there is employment available for Mr Genoli when he is released. I think there is a good deal of force in Ms Drinkwater's argument. Clearly what Mr Genoli needs in the community is some supervision so that he can deal with what appear to be two significant addictions, namely prohibited drugs and gambling. 9. I think the time he has served, which is nearly three months, is sufficient for the purposes of punishing him for the serious crimes he committed. I propose to allow his appeal and to release him on a good behaviour bond. 10. The formal orders which I make are these. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by setting aside the sentence. Instead of the sentence imposed by the Magistrate, under s 9 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing Mr Genoli to enter into a good behaviour bond for 12 months. The conditions of the good behaviour bond are these - 1. that he be of good behaviour; 2. that he notify the Registrar of this court of his address and any change; 3. that he attend court if called upon to do so; 4. that he accept supervision from Community Corrections and accept all reasonable recommendations and directions from officers of that service, specifically related to areas of finance, domestic violence, alcohol and drug problems and gambling. HIS HONOUR: Now Ms Drinkwater and Mr Baker I will explain in a moment, are they all the orders I need to make? DRINKWATER: I apologise I missed - how long your Honour was it? HIS HONOUR: Twelve months. BAKER: I think your Honour might already have withdrawn the other appeals. HIS HONOUR: No I did not. 1. I grant leave to Mr Genoli to withdraw his appeals in counts 3 and 4 listed on exhibit A. 2. Returning to my reasons, I make it clear that in allowing this appeal I have taken into account the time he has served to date. HIS HONOUR: Are there any other orders I need to make? Ms Drinkwater? DRINKWATER: No your Honour. BAKER: No your Honour. HIS HONOUR: Mr Genoli have allowed your appeal. Can you hear me? APPELLANT: A little bit yeah, yes your Honour. HIS HONOUR: You have won your case do you understand that? APPELLANT: Thank you your Honour. HIS HONOUR: Ms Drinkwater made a good case for you. You have served time. You committed some pretty serious crimes so far as the Federal Government is concerned which is why you got the gaol sentence. I am going to direct your release today or as soon as possible. Practically that might be today or tomorrow I am not too sure, do you understand? APPELLANT: Yes your Honour. HIS HONOUR: But you are on a good behaviour bond for 12 months. Do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: The good behaviour bond is conditional. You have got to keep out of trouble which means all trouble, no being busted for drugs or drink driving or anything like that, do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: You have got to turn up to court if you get a notice and you have got to let the court know of your new address do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: You have got to allow Community Corrections to supervise your supervision do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: They are going to focus on particular areas like your drug problem, your gambling problem and help you with finance and employment and things like that, do you understand? APPELLANT: Yes your Honour. HIS HONOUR: You have got to let them help you. They know what they are doing, that is going to be very important, do you understand? APPELLANT: Yes your Honour. HIS HONOUR: All right where are you going to live - where are you going to go when you leave the gaol today or tomorrow? APPELLANT: My girlfriend has a house which I put up bond for as well so me and her have worked things out so I'll go there and then from there I'll go to Tamworth after I find out what's going on with my employment. HIS HONOUR: So where is your girlfriend's house, we had better make a note of that address. APPELLANT: It's-- HIS HONOUR: Unless somebody in court knows. DRINKWATER: His partner is in the body of the court. HIS HONOUR: Is that where you are going tonight when you are released today or tomorrow? APPELLANT: Yes your Honour. HIS HONOUR: Does your partner know that? Is she expecting you? APPELLANT: Yes we talked about. DRINKWATER: She is in the back of the court and she is nodding your Honour. HIS HONOUR: All right good. DRINKWATER: He does have work in Tamworth, it's a question of when - if he goes to that work - and if that's the case presumably Taree can transfer it to the Tamworth office. HIS HONOUR: I guess so. Where is the nearest office to Gloucester for him to report to? DRINKWATER: Taree. 1. It is a further condition that within seven days of his release he reports to the Community Corrections office at Taree to commence his supervision. I have noted that his address on release will be 736 Waukivory Road, Gloucester. HIS HONOUR: So Mr Genoli once you are released you go to your girlfriend's place and then once you have got another address where you are working, you have got to let them know do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: The other thing you have got to do is turn up at the Taree Community Corrections office, 41 Wynter Street, Taree. Ms Drinkwater will help you find that but you have got to go there and sign up for supervision do you understand? APPELLANT: Yes your Honour. HIS HONOUR: These are a lot of formalities which you have got to follow and understand but Ms Drinkwater will explain them to you because it is part of your sentence that you allow yourself to be supervised and that you let them help you. If you do not, they will breach you and you will be back before me and then I will have to consider setting aside the good behaviour bond or something worse do you understand that? APPELLANT: Yes your Honour. HIS HONOUR: Anything else, I do not know how long the process takes do you for him to be released? DRINKWATER: It could be this afternoon if they get the message quickly enough, if not in the morning. HIS HONOUR: Now get on with the rest of your life now Mr Genoli. You are still not 30 yet are you. APPELLANT: No. HIS HONOUR: You have got a relationship with your partner is that right? APPELLANT: Yes. HIS HONOUR: So use this opportunity to clear your life up and settle into work and you have got two major issues you have got to deal with. One is the drugs and we have all heard about ice and how addictive it is. The other is your gambling and it might take a while to deal with those two problems. Be patient with yourself and then get on with your life do you understand? APPELLANT: Yes your Honour thank you so much. HIS HONOUR: Good luck. Ms Drinkwater I am going to ask my associate to print out another version of my orders here and make them available to you for your client Mr Genoli. DRINKWATER: Thank you. HIS HONOUR: Because I want him to see those conditions. You can either fax them to him or give them to him when you see him. How does he sign up for the bond? SPEAKER: In the registry. HIS HONOUR: I think Ms Drinkwater you need to give him some advice about going to SPEAKER: ..(not transcribable).. HIS HONOUR: Oh is that how it works? So he signs up before he is released. ********** 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: 30 October 2015