Director of Public Prosecutions (Cth) v Reynolds

[1999] VSCA 224

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 176 of 1999

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA

Appellant

v

LEONIE JANE REYNOLDS

Respondent

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JUDGES:	TADGELL, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 1999
DATE OF JUDGMENT:	10 December 1999
MEDIUM NEUTRAL CITATION:	[1999] VSCA 224

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CRIMINAL LAW – Sentencing – Defrauding Commonwealth – By employee of Commonwealth – Where particular offence serious, ordinarily sentence to be custodial and at least part to be actually served – Crimes Act 1914 (Cth.), s.29D.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W.E. Stuart	Solicitor for DPP (Cth)
For the Respondent	Mr P.G. Priest, Q.C. and Mr J.J. Croucher	Leanne Warren & Associates

TADGELL, J.A.: 

1  I invite Batt, J.A. to deliver the first judgment.

BATT, J.A.: 

2  On 28 June 1999, the respondent, Leonie Jane Reynolds, having been committed for trial, after a three-day hearing, pleaded guilty in the County Court at Melbourne to two consolidated counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Cth.)  The maximum penalty for that offence was a fine of $100,000 or imprisonment for 10 years, or both.  The respondent is now aged 40.  Her age ranged from 36 to 38 years during the period over which the offences extended.  She had no prior convictions.

3  The offences consisted in the fraudulent obtaining of money by the submission of fictitious claims for removals allowance in the names of former Army personnel while the respondent was an employee of the Commonwealth in the Department of Defence.  The first count related to the obtaining of $80,235.25 in the period between 28 August 1995 and 13 November 1996 by the submission on 56 occasions of 85 such fictitious claims, and the second count involved the obtaining of $30,174.51 by the submission on 11 occasions of 37 false claims between 9 January 1997 and 8 May 1997.  There were thus, in total, 122 false claims, presented on 67 occasions and producing for the respondent a total of $110,409.76.  None of that sum has been repaid.  In the claims covered by the first count the respondent used her former married name, Bowles, and in those covered by the second count she used her maiden name, Reynolds.

4  The respondent commenced employment with the Department of Defence in January 1990.  Following promotion, she commenced in the position of a Removal Operator on 2 February 1995.  She was at all material times head of a team of four.  When a soldier is posted, the soldier receives a posting advice giving official details of the posting.  The soldier then submits a completed Application for Renewal Claim detailing the soldier's family, method of travel and time taken to travel to the posting location.  From that form and any supporting documents a Removal Operator assesses the financial entitlements due to the soldier and prepares a claim for payment.  Claims are required to be signed by an authorised officer certifying that payment of the amount may properly be made.  Copies of all the papers relating to a removal claim are attached to the member's Removal File and the file is then sent to the Removal Section in the member's new locality.  The respondent and her fellow removal operators at St Kilda Road, Melbourne and later at the Defence Plaza in Bourke Street, Melbourne, processed claims in respect of Army personnel employed in the Melbourne area who were posted interstate, overseas or to another location within the Melbourne area.  The respondent's own duties required her to process the removal applications, raise claims for payment regarding removal allowances, and examine and certify removal claims for payment raised by her staff or by herself.  Until June 1996 or thereabouts claims for payment (and Orders to Pay Agent Forms, which I shall mention shortly) were prepared manually.  Thereafter they were generated by computer, but, in the event of a computer breakdown, they were raised manually.  Until June 1996 or thereabouts a claims register was kept manually.

5  The payees named on many of the false claims in question were located interstate at the time they received their final posting advice.  They were returning to the Melbourne area for the purpose of being discharged from the Army.  Consequently, the removal files for those members were received by the respondent's Removal Section and stored prior to being archived.  A file would be accessed only in the event of its being necessary to make an adjustment to the last claim.  Such adjustments were normally made within three months of the member's discharge.  The respondent had access to the Removal Files and this enabled her to obtain members' details used for the false claims.

6  The respondent created false claims using the names and service numbers of ex-Army personnel who had been discharged for some time.  (There was an exception, but in that case a serving member had taken his final removal allowance entitlement well before discharge.)  The respondent used 98 different names as payees on the claim forms.  In several instances, she used the same payee details on more than one occasion.  The persons whose names were used had no entitlement to any allowances and no access to their individual account in the departmental information system.  In using their names, the respondent knew that they would never become aware of the payments which would be credited against their names in the defence information system accounts.  The Removal Files of persons named as payees on the false claims revealed on later examination no documents relating to the claims, which is not the case with genuine claims.

7  The respondent used regular departmental Claim for Payment Forms.  Each false claim form submitted by her between 29 August 1995 and 13 November 1996 was signed by her "L. Bowles" as certifying officer and contained handwritten entries by her for her printed name, position number, date of signing and like details.  All the 1997 claim forms were signed by her "L. Reynolds".  The claim forms to 9 September 1996 were handwritten by her.  After that date the forms were computer-generated with the exception of one voucher on which the entries were typed.

8  Each false claim was accompanied by an Order to Pay Agent form, a form designed to allow money due to the payee to be collected by a person nominated by the payee.  The respondent used the standard Order to Pay Agent form of the Department of Defence.  That form required the signature of the payee and the agent of the payee before submission at a cash office.  Then, when a form was processed at the cash office, the form had to be signed by the agent and by the cashier.  Each false Order to Pay Agent form bore the purported signature, forged by the respondent, of the person named as payee.  With two exceptions, all the 1995 and 1996 forms were signed twice by the respondent in the name Bowles as the person to whom the order was given.  All the 1997 forms were signed twice by her in the name of Reynolds.

9  The claims the subject of count 1 were submitted at cash offices in St Kilda Road, Melbourne.  Those the subject of count 2 were submitted at the cash office at Watsonia.  The respondent used a Commonwealth car to travel from Bourke Street, Melbourne to Watsonia to make those claims.

10  In the case of three of the earliest claims, the respondent received cash and a cheque payable to the payee named in the claim form, because the amount of the claim exceeded the limit or discretionary limit for cash payments in existence at the time.  Otherwise all claims were paid in cash.  The respondent cashed the cheques at a bank branch where the Defence Department had an arrangement whereby Defence Department employees could cash Reserve Bank cheques.  In November 1995 a new direction was issued limiting cash payments to $1,000.  Most of the false claims thereafter submitted by the respondent were for amounts between $901 and $999.

11  His Honour heard a plea in mitigation of penalty on 28 July 1999.  Three witnesses were called on behalf of the respondent.  They were a man with whom she had formed a relationship in late 1998, her sister, and her eldest son, Shannon.  The sentencing judge described them as impressive witnesses.  Counsel for the respondent gave His Honour information about her which was not objected to or challenged.  Some of it was to the following effect.  The respondent's life had not been easy.  She left school early to work to help support the family.  She had two sons by a man named Bowles, whom she subsequently married in 1982. They were Shannon, born on 19 August 1977, and Marcus , born on 13 October 1981.  Her husband became violent to her.  They separated in 1991 and were divorced in 1992. In the divorce settlement she received the matrimonial house at Seymour but had to pay her husband his share.  She took out loans which she could not service.  She moved to Melbourne in 1993 to improve her position and rented a house in Box Hill.  She now lives in rented accommodation in Blackburn.  She sold the Seymour house in 1994.  The net proceeds were only about $6,000, and that sum seems to have gone in repaying other debts.  Counsel put it to His Honour that "at about the time of the commission of these offences" the respondent was "in a fairly financially desperate situation".  With reference to the use of the proceeds of the offences counsel said that, apart from a trip to Queensland with her children in 1996 and an overseas trip with a girlfriend.  There was no evidence of high living, so that it would appear that much of the money taken was eaten up in living expenses.  The evidence showed that the overseas trip was a three week one to Europe commencing at the end of May 1997, that is, significantly, after the respondent had been interviewed by police for the first time.  The respondent went bankrupt in May 1998.  The judge was informed that the respondent's son Shannon had been stabbed in the back in 1998 and that her son Marcus had been born with a disability in relation to his feet and had undergone several operations to correct the abnormality.  At the time of the plea Shannon was an apprentice baker and Marcus was unemployed and planning to return to Year 12 studies next year.  Counsel also put it to His Honour that the respondent's main concern all along had been for her children and providing for them.  The evidence of the respondent's sister supported that.  But that evidence and the evidence of Shannon showed that no plans had been made with respect to the sons against the possibility that the respondent might be sent to gaol.  There was nowhere to go, Shannon said in evidence.

12 The following day, 29 July last, his Honour sentenced the respondent to be imprisoned on each count for a term of 18 months. He ordered that each of the sentences commence as from that day, thereby making them concurrent. Having thus sentenced the respondent to terms of imprisonment not exceeding three years in aggregate, his Honour was obliged by s.19AC(1) of the Commonwealth Crimes Act to make a recognisance release order under s.20(1)(b) unless satisfied under s.19AC(4)that such an order was not appropriate.  But, as s.20(1)(b) makes clear, his Honour was not obliged to order the respondent's release forthwith, but had a discretion to do that or to direct that she first serve such period as he might in his discretion specify.  His Honour in fact ordered that the respondent be released forthwith upon her own recognisance in the sum of $500 to be of good behaviour for two years from the day of sentencing.  His Honour also ordered the respondent to pay, by way of reparation, $110,409.76 to the Commonwealth pursuant to s.21B of the Commonwealth Crimes Act.

13  In the course of his sentencing remarks his Honour said that he regarded the respondent's plea of guilty, although not made at the earliest possible moment, as showing contrition and attracting some sentencing discount.  It had saved time, trouble and expense.  Then, having reviewed the respondent's life and financial affairs, his Honour said:

"At the time of the commission of these offences you were in a desperate financial situation, isolated emotionally since the marriage breakdown, seeking to preserve order in the lives of yourself and particularly the boys.  In those circumstances you then started to commit these offences.  Your main concern was for the boys."  

It was debated before us whether the second sentence in that passage affected, or case light on, the meaning of the others.  The first sentence reflects the somewhat imprecise submission of the respondent's then counsel to his Honour, but, in the absence of any challenge below to that submission, I am prepared to treat the first sentence as a finding of fact that is not limited to the initial offending. 

14  His Honour then expressed the view that the trip to Europe was aberrant behaviour on the respondent's part.  After bringing the position of the respondent and her sons down to the trial of sentencing his Honour returned to the facts of the offences, saying:

"The facts I have outlined show these crimes involved a high degree of fraud on the Commonwealth, carried out systematically over a substantial period, involving a considerable sum.  In their perpetration you abused your situation of trust and responsibility. 

The crimes are to be regarded as serious.  You were a leader of your four person unit and it is to be borne in mind that this type of crime is difficult to detect and prosecute.  It is also unfortunately prevalent.  Ordinarily such crimes will merit immediate custodial sentences to deter others and show disapproval of such conduct".

15  After citing cases to support that statement his Honour said that at the same time there were many different forms of commission of offences under s.29D and that, in principle, immediate custodial sentence was not necessarily the only way to deal with all of them.  He referred to four revenue fraud cases which had not resulted in immediate custodial sentences and said that two cases of false claims allowances forged by payment clerks that had resulted in immediate custodial sentences were distinguishable.  He then said that he was satisfied that acting very dishonestly in the commission of the offences the respondent had engaged in a single course of conduct, succumbing to financial desperation which was beyond her control in an attempt to hold her family in tact for the well-being of the two children.  He continued:             

"Your immediate incarceration would put the futures of your two boys at risk at a vulnerable stage of their lives.  You are a person with potential to still serve the community well in the workforce and worth every effort for your rehabilitation... 

I think that the interests of the prosecution and the community in the matter of deterrence, punishment and the need to show disapproval of your conduct, all factors of substantial importance, are sufficiently served without the imposition of an immediate incarceration, but at the same time with a substantial head sentence." 

His Honour then proceeded to pass sentence.

16 By Notice of Appeal served on the respondent on 23 August 1999 and filed on 25 August the Director of Public Prosecutions of the Commonwealth appealed to this Court pursuant to s.567A of the Crimes Act 1958 and s.68(2) of the Judiciary Act 1903 (Cth.).  There are four grounds of appeal stated in the notice.  The first is that the sentences are manifestly inadequate having regard to all the circumstances.  The second is that the judge erred in ordering the respondent to be released forthwith pursuant to s.20(1)(b) upon entering into the above-mentioned recognisance.  The third is that His Honour erred in failing to give sufficient weight to: 

"(a) The nature, circumstances and gravity of the offences committed by the Respondent,

(b)      the culpability of the Respondent,

(c)      the fact that the offences involved a breach of trust,

(d)      the amount fraudulently obtained,

(e)      the number of individual fraudulent transactions,

(f)      the period over which the offences were committed,

(g) the fact that no explanation was provided as to the manner in which the amount fraudulently obtained was used,

(h) the fact that no part of the amount fraudulently obtained had been repaid,

(i) the need to pass a sentence that would be calculated to deter other persons disposed to commit similar offences from committing such offences."

The fourth is that his Honour erred in giving undue weight to: 

"(a)      the Respondent's personal circumstances,

(b) the effect that the incarceration of the Respondent would have upon her two children who are aged 17 and 22 respectively,

(c) the assertion made by counsel on behalf of the Respondent that the Respondent was in desperate financial circumstances at the time the offences were committed, given the facts before him as to the Respondent's employment income and the sums obtained from her fraudulent activity."

17  It was made clear in the argument for the appellant that the terms of imprisonment imposed  were not challenged nor was the absence of, in effect, any cumulation as between the two terms of imprisonment.  Rather, the sole challenge by the appellant was to his Honour's failure to include in the recognisance release order a requirement that some part of the total effective sentence of imprisonment be actually served before release.  All the grounds of appeal were argued together for the appellant, with the second ground being, in effect, explanatory of the first and the third and fourth grounds constituting particulars of the error alleged in the second.

18  The principles applicable to the determination of a Director's appeal are well known:  Lowndes v. The Queen (1999) 195 C.L.R. 665 at [15] and R. v. Clarke [1996] 2 V.R. 520. Of particular relevance is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion differently from the sentencing judge. As the High Court said in Lowndes, the discretion which the law commits to sentencing judges is of vital importance in the administration of criminal justice.  In the circumstances of this case, and subject still to this Court's overriding discretion to decline to intervene, the appellant, to succeed, must establish that the offences were such that, notwithstanding the mitigatory factors, to order the immediate release of the respondent upon recognisance was outside the range of sentences properly available to his Honour, that is, that the sentence was so manifestly inadequate as to constitute error in principle.  In my opinion, for the reasons which follow, the appellant has established that.

19  One starts from the proposition, trite but fundamental, that whenever it is alleged that the sentence is so manifestly inadequate as to betoken error of principle the determination of that question depends in each case upon the particular circumstances of the offending and the particular circumstances of the offender.  All that I say is subject to that: unqualified statements cannot be laid down.  But, subject to that, it may, I think, be said that frauds against s.29D by Commonwealth employees in breach of trust are different in kind from tax frauds or social security frauds falling within s.29D.  As regards revenue fraud itself, in DPP v. Carter [1998] 1 V.R. 601 at 610-611 and 611 respectively two members of this Court, Ormiston, J.A. And Phillips, J.A., expressly agreed with the view of Higgins, J. In R. v. Whitnall (1993) 42 F.C.R. 502 at 519 that, "At least, so far as the Courts are concerned, serious frauds on the revenue will result in custodial sentences. In the absence of 'substantial mitigating circumstances', that sentence will include a period actually to be served." Ormiston, J.A. said that that view had been concurred in by Davies, J. and Drummond, J. and pointed out that it had also been accepted by the Court of Appeal in Queensland in R. v. Wright (1994) 74 A.Crim.R. 152 at 153 per Davies, J.A. And White, J.  His Honour stated that the views expressed by two appellate courts as to the consequences of breaches of the Commonwealth Crimes Act, and in particular ss.29B and 29D, should not be departed from unless shown to be clearly erroneous, no doubt having in mind the principle applied in cases such as Deputy Commissioner of Taxation v. Access Finance Corporation Pty Ltd (1987) 8 N.S.W.L.R. 557; cf. Australian Securities Commission v. Marlborough Gold Mines Ltd (1993) 177 C.L.R. 485 at 492. Phillips, J.A. also referred to Wright and in addition to R. v. Nguyen & Phan [1997] 1 V.R. 386 at 389.

20  It is true that Winneke, P. in Carter said that ritual incantations, such as "serious frauds on the revenue will result in custodial sentences" (referring to Whitnall) are of little practical value because what is "serious" must inevitably depend upon the findings of a sentencing judge in the case under consideration.  His Honour had immediately before that said that the degree of culpability of an accused person relevant to the punishment to be imposed must be dependent upon the facts, as found, in each case.  With both of his Honour's statements I respectfully agree, as I have foreshadowed in stating the starting proposition as I see it.  But in view of the first statement of his Honour, it is as well to state at this stage my opinion that the sentencing judge's very accurate summary of the principal features of the offences here, which I have set out earlier in the passage commencing, "The facts I have outlined show ...", makes it plain that the offences were serious.  Indeed his Honour so described them.

21  So far as serious frauds against s.29D by employees of the Commonwealth are concerned, few decisions by intermediate appellate courts were drawn to our attention.  Those that were, however, in my opinion, show that, in the absence of substantial mitigating circumstances or perhaps "special" circumstances, immediate imprisonment for some period is called for.  Thus, in R. v. McKendry (unreported, Court of Appeal, 5 June 1996) a sentence of 3 years' imprisonment with release after serving 2 years for a 27 year-old travel clerk in the Army with no prior convictions was upheld, Charles, J.A. saying at p.5 that the offence was of a type where general deterrence needed to be given special emphasis on the ground that offences of that kind were prevalent and apt to be committed on a wholesale scale. It is true that the number of occasions involved was roughly treble that here and that the amount involved nearly four times that here. Perhaps of more use because it shows immediate release to be inadequate in the circumstances is DPP v. Martin (1994) 74 A.Crim.R. 252. There the Court of Criminal Appeal of this State allowed a Director's appeal against an order for immediate release upon recognisance in respect of a fraud involving some $95,000 by an office manager of a Removal Section of a Commonwealth department notwithstanding the inhibitions upon allowing a Director's appeal, and required the offender to serve 6 months of the 2 year term of imprisonment that had been imposed by the sentencing judge. Southwell, J. at 258 made it clear that the period of 6 months was less than it would have been if there had been no element of double jeopardy. Crockett, J., with whom the other members of the Court agreed, said:

"Those authorities, I think it true to say, generally speaking, show that a serious breach of trust by a servant of the Crown who steals a substantial sum of money over a not inconsiderable period of time calls for a sentence of such deterrent effect that it must involve some loss of the culprit's liberty.  Imprisonment for a not insignificant period must be imposed notwithstanding that factors might exist that invite the exercise of clemency."

His Honour then quoted a passage from the decision of the Court of Criminal Appeal in R. v. Moffat (unreported, 15 December 1992) to like effect.  It is true that in DPP (Cth.) v. Rogers (unreported, Court of Appeal, 20 April 1998) this Court on a Director's appeal declined to interfere with an order for immediate release upon recognisance in the case of a Commonwealth employee who altered computer data so as to divert benefits. But there were some usual aspects of that case, which was not strictly a social security fraud but a computer-related offence, and there were certain mitigatory factors. The amount obtained was considerably lower than that here, being a little over $16,000, and it had been repaid.

22  In the light of the more general statements in McKendry and Martin and on the particular facts of the offences here in question, which I have indicated were correctly described by his Honour as serious, and had been so described by the respondent's counsel during the plea, an immediate custodial sentence was, I consider, required unless there were substantial mitigating circumstances.  I do not trouble to repeat the features of the respondent's offending which his Honour catalogued, though I would add the use of forgery and of names unlikely to excite attention as well as the number of instances of submitting false claims.  The features identified reveal substantial criminality.  I recognise that a sentence of imprisonment, albeit wholly suspended, is acknowledged by the authorities to play a role in deterring others (Carter at 607-608 and cases there cited), and not to be merely an exercise in leniency  (DPP v. Buhagiar and Heathcote [1998] 4 V.R.540 at 547 and cases there cited as well as Whitnall at 518. But in the case of serious frauds McKendry, Martin and Moffat show that, in the absence of substantial mitigating circumstances, more is required by way of deterrence in particular and denunciation and retribution or punishment, than immediate release on recognisance provides: cf. DPP v. Bulfin [1998] 4 V.R. 114 at 132. That, indeed, was the burden of the argument of counsel for the appellant before us, at any rate in relation to general deterrence. The appellant has, in my view, shown that, as regards the offending, his Honour failed to give sufficient weight to the factors mentioned under ground 3 and listed earlier, other than factors (g) and (h). (I do not find it necessary to consider whether the latter is merely the absence of a mitigating factor.) I likewise consider that two other factors relied on in argument for the appellant were, at least in combination with the others, undervalued by his Honour. First, there was the fact that the respondent's method of using files of discharged personnel was calculated to hide her offending (which continued until her ultimate detection) and, secondly, and similarly, the offending was of a kind difficult to detect. In view of his Honour's finding, as I have interpreted it, with regard to the explanation for the continuation of the offending, the appellant has not made out his contention that the continuing was insufficiently explained, but that does not, in my view, derogate from the conclusion I have expressed.

23  I turn now to consider whether there were substantial mitigating circumstances or some other special reason justifying immediate release.  Counsel for the respondent before us listed the following as mitigating circumstances:  co-operation; absence of prior conviction; plea of guilty "showing contrition"; character evidence; financial difficulties; bankruptcy; family hardship; and prospects of rehabilitation.  These factors cover those the subject of the fourth ground of appeal.  In my opinion, they do not individually or collectively in the facts of this case constitute substantial mitigating circumstances or other special circumstances justifying immediate release on recognisance.  The co-operation was of a low order in this case.  Not infrequently offenders against s.29D have no prior convictions and yet are given actual imprisonment.  The same may be said about a plea of guilty "showing contrition" and evidence of good character, also about general prospects of rehabilitation.  Subsequent bankruptcy, in my view, is not a mitigating circumstance at all here.  Whilst financial difficulties may be an explanation, they do not, in my view, mitigate the offence in this case at least.  That leaves for consideration family hardship, a matter which clearly weighed heavily with his Honour.  Although a court sentencing for a federal offence must, by reason of s.16A(2)(p) of the Commonwealth Crimes Act, take into account the probable effect that any sentence under consideration would have on any of the offender's family or dependants, hardship to family members has to be exceptional for it to have real weight whether under that provision or at common law.  Here at the date of sentence one of the children was a young man of almost 22 and the other had but two and a half months before he became an adult.  Whilst one can readily have sympathy for them, I do not regard the hardship to them as exceptional:  R. v. Wall (1999) 105 A.Crim.R. 426 especially at [9-11].

24  There being no substantial mitigatory factors, I conclude that, even allowing for the part which leniency and mercy may properly play in sentencing (R v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-213), it was not open to his Honour to order immediate release upon recognisance in the circumstances before him and that the inadequacy of the sentence is manifest. The final question then arises whether, nevertheless, in the exercise of our overriding discretion we should decline to interfere with his Honour's sentence. The respondent invoked this discretion, inviting us to say that the sentence was not a benchmark and yet to dismiss the appeal. We were reminded of the part which mercy and lenience may play on appeal also. The discretion was invoked both generally and specifically on the ground that she had been at liberty since the sentence was imposed on 29 July and it would be an extremely drastic step now to order her immediate incarceration. Reference was made to what was said in R. v. Soo (unreported, Court of Appeal, 30 October 1997) and R. v. Smallacombe (unreported, Court of Criminal Appeal, 28 October 1993). The fact that there was immediate release on recognisance or a wholly suspended sentence below cannot, however, be a universal bar to the allowance of a Director's appeal: Wright at 160. I would not on this or any other ground refrain from the intervention which I think is necessary in this case in pursuance of this Court's function of ensuring the maintenance of adequate standards of punishment, but the period of imprisonment required to be actually served before release should reflect, in addition to the double jeopardy in any event involved in a Director's appeal, this additional aspect of double jeopardy: Wright at 160.

25  In my view, the appeal should be allowed, and a suitable order made requiring the respondent to serve a period of 180 days before being eligible for release on recognisance.  That period is, in my view, the appropriate period in the light of all the facts which I have mentioned and the double jeopardy considerations to which I have referred.

TADGELL, J.A.: 

26  I agree.

CALLAWAY, J.A.: 

27  I also agree.

TADGELL, J.A.: 

28  Subject to the respondent's agreeing to give an appropriate recognisance, and subject to any submissions from the Bar, the judgment of the Court will be in accordance with these minutes: 

1.          Appeal allowed. 

2. Recognisance release order made on 29 July 1999 in respect of the respondent set aside. 

3.Order that a warrant issue for the apprehension and imprisonment of the respondent to serve the sentence of imprisonment imposed on her in the County Court on 29 July 1999. 

4.Order that the respondent be released on her own recognisance of $500 to be of good behaviour for two years from the day of her release after having served 180 days of the sentence of imprisonment imposed on her on 29 July 1999. 

MR PRIEST: 

29  If the Court pleases.

TADGELL, J.A.: 

30  Ms Reynolds, would you stand while I explain to you the effect of the order which we now propose.  It is this.  First, that the sentence of 18 months' imprisonment imposed by the County Court and the reparation order made by that court stands.

31  Secondly, that the recognisance release order made by the County Court is set aside, with the result that you are now to be taken into custody.

32  Thirdly, if you are prepared to give an appropriate recognisance, you are to be released after you have spent 180 days in custody.  An appropriate recognisance will require you to give security in the sum of $500 and to undertake that you will be of good behaviour for a period of two years commencing on the day on which you are released.

33  Now, are you prepared to give that recognisance?

PRISONER: 

34  Yes, sir.

TADGELL, J.A.: 

35  If during the period of two years immediately after your release you are not of good behaviour, the sum of $500 mentioned in the recognisance may be forfeited and you may be brought back before a court to be dealt with.  That court would, in that event, have a number of options open to it, including one of requiring you to serve the whole of the 18 months' sentence which was imposed on you in the County Court.

36  I should say also that the recognisance which you will be asked to sign this morning may be discharged or varied upon the application made to a court under s.20AA of the Commonwealth Crimes Act.  Do you understand that?

PRISONER: 

37  Yes, sir.

TADGELL, J.A.: 

38  Very well.  Take a seat for the time being.

39  Mr Stuart, a document was handed up the other day which had been made out with a view to getting the respondent to sign it.  I think it needs a number of amendments.

MR STUART: 

40  Yes, sir.

(Discussion ensued.)

MR PRIEST: 

41  There is one last matter.  We would seek a certificate pursuant to s.15 of the Appeal Costs Act of 1998.

TADGELL, J.A.: 

42  Yes.  Yes, you may take that certificate, Mr Priest.

43  This document that has been handed up, Mr Stuart, seems, on one sighting of it, not to provide for signature by the respondent. 

MR STUART: 

44  Would Your Honour excuse me for a moment.  Yes, my instructor advises me that is so, and an extra line will have to be inserted.

TADGELL, J.A.: 

45  It is a pretty inaccurate  document , the respondent is misspelt.  A good deal of surgery is required, I think , excision and addition.

MR STUART: 

46  Very well, sir.

TADGELL, J.A.: 

47  What we will do is make a copy of it and give a copy to you and to Mr Priest and both sides ought to check very carefully that the document which is to replace it is accurate and includes all the things that have been added and excludes those that have been excised .

MR STUART: 

48  Yes.

TADGELL, J.A.: 

49  This ought to be attended to within the hour or thereabouts, I should hope, and I simply say for the benefit of the prison authorities that an order has been made this morning that the respondent now be taken into custody.  Is there anything further?

COUNSEL: 

50  No, Your Honour. 

(Short adjournment).

(Upon resuming, Batt, J.A. sitting alone):

BATT, J.A.: 

51  Gentlemen, has the retyping of the document been checked?

MR PRIEST: 

52  Yes, Your Honour.

BATT, J.A.: 

53  Is it vouched for?

MR PRIEST: 

54  It complies with the copy that was provided by the court.  Curiously, I notice that "recognisance" is spelt with an "s" and yet in my copy of the Crimes Act it is spelt with a "z" but I don't think anything much is going to turn on that.

BATT, J.A.: 

55  All right.  I don't think I will alter it.  Well now, it is in order for me to sign this document now?

MR PRIEST: 

56  Could I indicate, Your Honour, that the signature on the document that has been provided is that of my client, so there is absolutely no reason why Your Honour should not now sign the document.

HIS HONOUR: 

57  Thank you.  Ms Reynolds, would you just stand, please.  You have already signed the recognisance on the back of this document?

PRISONER: 

58  Yes, sir.

BATT, J.A.: 

59  And the Associate saw you sign it, so in a moment he will sign it.  By the document, you understand that you say that you have had explained to you the purpose of what is called a recognisance release order, the consequence that if you fail without reasonable cause or excuse to comply with the conditions of the order, and that it may be discharged or varied under s.20AA, the Presiding Judge explained that this morning.

60  You have also agreed to be bound in accordance with the order and agree that you have been, or will have been given a copy of this order.  The procedure is, as I understand it, that, once it has been signed by the Associate, it will be photocopied and you will be given a photocopy with the facsimile signatures on it.

61  Gentlemen, I think all I need to do is just wait while the Associate signs that he did see the respondent sign.  Subject to anything you gentlemen tell me, I propose to leave to allow the photocopying to take place.

MR PRIEST: 

62  Yes, if Your Honour pleases.

MR McKENNA: 

63  That is appropriate, Your Honour.

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