Director of Public Prosecutions (Cth) v Semmens
[2019] VCC 2184
•21 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-16-01616
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| SIMONE SEMMENS |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2019, 14 August 2019, 26 September 2019, 18 October 2019. |
| DATE OF SENTENCE: | 21 November 2019 |
| CASE MAY BE CITED AS: | DPP (Cth) v Semmens |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2184 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – dishonestly causing a loss to the Commonwealth – failure to register for GST - guilty verdict after trial – delay – immediate term of imprisonment – recognisance release order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Barry with Ms C. Nicholson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M. Bearman with Ms A. Cannon | Furstenberg Law |
HIS HONOUR:
1Simone Semmens, on 21 June 2019 you were found guilty by a jury of 10 charges of dishonestly causing a loss to the Commonwealth contrary to s.135.1(5), of the Criminal Code (Cth)1995 after a 14-day trial. The maximum penalty for each offence is five years' imprisonment. The circumstances of your offending are set out in detail in the Prosecution Opening for trial that formed part of Exhibit A on the plea behind tab 2, and will form part of my reasons for sentence. Of course, I also heard the lengthy preliminary argument in this matter, and I am familiar with the contents of the four-volume jury book and the evidence in what was a 14-day trial.
Circumstances of Offending
2In brief, your offending arises out of an enterprise you ran between June 2005 and December 2011 - and earlier, in fact - which was required to be registered for GST. You failed to register for GST throughout that period. The jury verdict reveals that you dishonestly caused loss to the Commonwealth by the failure to register for GST and thus pay GST on taxable supplies, at least knowing or believing that there was a substantial risk of the loss occurring.
3You became involved in activity that might loosely be described as property development from the end of 1999 when you and your then partner William Cowan formed Semco Developments Proprietary Limited (‘Semco’). The evidence revealed that in July 2001 you in your personal capacity together with Semco purchased the property at 188 Kooyong Road, Toorak, which was registered jointly for a purchase price of $1.45m. The Kooyong Road property was developed, resulting in two separate addresses, 188A and 188B. Each were sold separately, 188B in 2005 for $3,625,000, and 188A in 2006 for $3,150,000.
4In December 2007, Rose Craddock Place, Caulfield North was purchased by you for $7,800,000. The property was subdivided into seven separate lots. Five of these lots were sold in 2008 for sums totalling in excess of $8m. One of those lots was sold before settlement took place on your purchase of Rose Craddock, a sixth lot was disposed of in 2010 for $550,000. You purchased the Portsea property known as Noorah in December 2003 for $7.5m. It is clear from the evidence in this case that that property was dear to your heart and you desired to retain that house. You subdivided that property it seems, with a view to furthering your enterprise and so enabling you to retain a house.
5Complicated transfers to your former partner Mr Halstead for the Cliff side block in December 2009 in the sum of $3m, and the Road side block in November 2009 in the sum of $2m occurred as the bank loans buttressing your enterprise were becoming problematic. Throughout the period of your property development enterprise which spanned for at least eight years, you were engaged in a number of activities relating to the improvement of each property including arranging business loans, obtaining planning permits, dealing with heritage issues, organising works and subdivisions.
6The central issue at trial was whether you were running an enterprise, this issue being central to whether the sales of properties were taxable supplies within the meaning of the GST Act. Your position at trial and throughout the long history of this matter was that at no stage were you engaged in an enterprise. In very brief terms, your position was that your previous bad experience with property development had put you off the prospect and you had no desire to be engaged again.
7Your intention in purchasing and subdividing the Toorak property was to have one address for yourself and the other for your mother. In relation to Rose Craddock, the driving purpose that was said was heritage restoration and the subdivision and sales were necessary ancillary activities to that primary purpose. It was said that you intended to keep Portsea for yourself, and in any case, it was contended that the lots transferred were incidental to the house block and did not attract GST.
8There was some support for your position in the evidence, primarily in the form of your former husband and business partner Mr Cowan. Your accountant Arthur Roe also gave evidence that was generally supportive of your position, although it must be observed that Mr Roe advised you at relevant times based upon your instructions to him as to the activities you were engaged in, and for a crucial period in time, some five years from 2003 to 2008, you had ceased engaging the services of his firm.
9There was also evidence of an audit meeting with the Tax Office in 2010, during which statements were made on your behalf that were supportive of your ultimate defence. The documentary evidence, for the most part business records and in particular bank memorandums, but also correspondence with others, undermined the characterisation of your activities as advanced by you to your advisors and through them to the representatives from the Tax Office in 2010 and maintained by you up to and throughout the trial.
10The jury rejected this characterisation of your activities, no doubt due to a large extent based upon the documentary evidence. Viewed in its entirety, and I include here the evidence of Ms Crossley, the evidence relating to your activities subdividing each property, obtaining relevant permits and engaging contractor where required, as well as the vast trail of documentary evidence, the evidence was overwhelming as to your enterprise at the relevant times.
11It has not been set out in any direct or clear form, but it seems apparent that by the end of your enterprise your financial liabilities were swamping your gains. Having said that, the objective facts reveal that at the very least you enjoyed the benefit over several years of residing in high-value properties whilst your own source of income was child maintenance. You also, it seems, enjoyed an allowance of living expenses as part of the complicated loans' arrangements. The loans were capitalised loans.
12As I have stated, a component of some of the loans related to your living expenses, presumably acknowledging that you were engaged in the activity as a business. The bank business records reflect that you presented yourself as a professional in the field and the series of transactions, subdivisions and sales were presented to the bank as profit-making enterprises. It is by no means clear the extent of any actual realised benefit you received from your dishonesty in the long term, if indeed there was any. Nevertheless, over a period of four years you caused a loss to the Commonwealth in gross terms of the GST that applied to each sale. That amount was an agreed fact at the trial and is in the vicinity of $1.7m.
13Turning to issues of quantum. Matters were raised before me via written submission but also in oral argument on behalf of you by Mr Bearman of counsel that addressed what I will refer to as the 'true loss' to the Commonwealth from your conduct. In a written submission from Mr Bearman dated 2 September 2019, the essence of the defence submission is set out at paragraphs 1 to 4 with reference to the agreed facts at trial, which in part reads:
14'Defence neither resiles from that agreed fact nor contends that no loss was suffered by the Commonwealth, nor contends that Ms Semmens can now change the impost of the GST upon her to some other or different amount. Rather, defence submits that the agreed GST is not the true loss suffered by the Commonwealth in consequence of Ms Semmens' conduct as established by the Crown. That is because the agreed GST comprises only one element of the fiscal consequences that flow from that conduct.'
15As I stated during the hearing of the matter, it is not controversial to consider that had you been registered for GST, you would be entitled to balance input tax credits that related to the taxable supplies against the GST owing. Given the nature of the enterprise, it is not difficult to understand that such input tax credits would have been substantial. Having said that, it should also be noted that the evidence demonstrated that you were invoiced by Semco for input tax credits in the hundreds of thousands paid by that company in respect of works at Kooyong Road, Toorak, and that invoice remains unpaid.
16Mr Bearman submits further that had you been registered for GST it would have been in your interests and the interests of the purchasers of each taxable supply for the contract of sale to be subject to the margin tax scheme. Mr Bearman submitted that had the margin tax scheme been applied to your enterprise the GST owing would be lower again. In either case, input tax credits undoubtedly available or the availability and suitability of the margin tax scheme are each matters relied upon by the defence in moderation of sentence in two ways.
17First, the 'true loss' to the Commonwealth is relevant to the overall criminality. Two, extra-curial punishment was said to flow to you due to your criminal conduct in the form of orders for reparation for the gross GST and the prospect of civil penalties and interest. In the context of this case, the second item in my view does not carry a great deal of weight. As I understand matters, there remains a proceeding on foot that has been stayed relating to your tax liability.
18Your capacity or willingness to pay any sum ordered remains a matter of speculation. Moderation is available via item 1 being the true loss effect on the overall criminality. It will surpass any conceivable mitigation due to extra-curial punishment and its effect. Finally, there is a difficulty in separating what is described as extra-curial punishment from the elements of the offending. I do, however, take the possibility of civil penalties and other orders incidental to this matter hanging over your head into account in mitigation.
19In assessing true loss, the prosecution concede that had you not offended there would have been an opportunity to claim input tax credits against GST owing on sales. Key phrase being, had you not offended. It is neither feasible nor possible to litigate as to the exact sum of input tax credits that would have been accepted as legitimate in the hypothetical event that you were able to claim them. In relation to the margin tax scheme, prosecution submitted that this is a matter not even available to be considered in any mitigatory way. They say it involves speculation upon speculation. It was not available because you were not registered for GST. Contracts did not refer to the margin tax scheme as required. You had not obtained the agreement of the purchasers, and the reason none of these matters were available was due to your dishonesty.
20Further, the margin scheme argument depends upon valuations and apportionment of the purchase price, which may be subject to conjecture. Indeed, experts may reasonably differ on the matter to some degree. Yesterday I received further submissions as invited from Mr Bearman, setting out the notation assessment under the hypothetical margin scheme based upon valuations and assessment of apportionment. I will make these submissions together with the valuer's report in a folder received this morning that the valuer was provided with, Exhibit 1E. As expected, that assessment predicts in hindsight that if you had registered for GST and if you had acted honestly and followed advice, the conditions may well have arisen where the margin scheme could be applied, and your GST liability would be a fraction of the gross amount agreed at trial.
21This submission is sought to be a guide only as I understand the discussion over the course of the plea. It would serve no purpose to now enter into separate litigation as to what the liability would have been, had the myriad circumstances and conduct required been present between 2005 and 2009, rather than the dishonest and criminal conduct we are dealing with. The figures raised in Exhibit 1E are not to be taken as accepted. I regard them as a rough guide only, and one open to conjecture.
22As was observed on the plea, there were many stages over the past 15-plus years where you could have taken advice, acted reasonably, acted honestly, listened and negotiated your way through the issue of liability for taxation. The most obvious point being near the beginning of the enterprise. Having been through a lengthy civil litigation in this court that related to GST liability for the sale of property, one would expect you would obtain clear advice based on honest and genuine instructions as to the requirement to register for GST.
23There was evidence from Ms Crossley on the trial that demonstrated you ignored advice you did not want to hear. Even once the die was cast and sales had taken place, you were being asked by those who had been close to you not to have your head in the sand regarding the ATO and tax obligations. The audit interview in 2010 was another opportunity to perhaps reach a compromise to accept the facts, follow advice and find a solution. As we have heard in open court there were even opportunities right up to the hearing of the trial to reach a compromise and avoid your current situation, and these were stated clearly in open court.
24The evidence in the trial, oral and documentary, revealed you to be stubborn and steadfast in your insistence that you did not owe GST or any other form of tax at crucial times. The evidence also showed that adopting this position lead you to an increasingly isolated and unrealistic existence. The loans you had accumulated and the capitalised interest attached created a situation from which the rational exit was to cut your losses and sell, and you exhibited great resistance to that course.
25The story told by the analysis of hypotheticals, by that I mean the assessment as to what GST liability might have been in a perfect world where you have behaved ethically, adds to the tragedy of your current situation. It need not have come to this, but it did. You have your dishonesty and perhaps also your intransigence and stubbornness to blame. The gross GST as agreed at trial is a real loss based upon the criteria that applied, given your criminality. The theoretical loss may be substantially less.
26I have formed the view that it is beyond the sentencing exercise for me to speculate or prefer a view as to whether, had you not offended, either the input tax credit system or the margin tax scheme would have prevailed. Indeed, I am not even in a position on the evidence before me to determine whether the input tax credit system or the margin tax scheme would have left you in a better position. It suffices for sentencing purposes to recognise that if you had acted lawfully, the sum owing in GST would have been substantially less than the $1,738,636 calculated, but a significant sum nonetheless. This observation is relevant to an assessment of your overall criminality.
27Your dishonestly caused a substantial loss, one that is referable to the GST that attaches to each taxable supply. I am satisfied that you were well aware of the substantial risk of the loss occurring. No doubt on occasions you were in denial or sought to convince others that you were not liable and hoped yourself perhaps that that maybe was the case -what might be described as wishful thinking. But at some level you knew or believed there was a substantial risk of the loss occurring.
28The Prosecution has made some submissions in relation to the gravity of the offending in this particular case, together with general submissions. The point is made by the prosecution that you knew well before 30 June 2005, the start of the offending period, that the GST paid by the purchaser was payable by you to the ATO when you sold a developed property, and that this was so because of your experience as a director of Semco relating to 26 Canberra Road, Toorak, which ended up in litigation over the payment of GST.
29I accept that you would have been aware of the issue of GST in relation to the sale of property at the relevant time. Not registering for GST, notwithstanding that you were conducting a high-profile enterprise, the prosecution submitted, was blatant dishonesty. The finding of the jury reflects that. The Prosecution also referred to the interaction with Crossley, and I find that at the very least, you were aware that there was a real issue in relation to GST and you preferred to ignore that issue and seek clear advice and follow it.
30I accept that there is some significance in your ceasing contact with Arthur Roe & Associates between 2003 and 2008, 2008 being the commencement of the period when the audit has arisen. All of the contracts for sale of land refer to GST. You were experienced in the field and had some experience in it years prior to the commencement of this particular enterprise. The evidence revealed that you were a diligent worker in furtherance of the enterprise, and that you paid close attention to detail.
31In answer to the prosecution submissions as to the gravity of this particular instance of tax evasion, defence pointed out and I accept that your offending is absent many of the features that more serious examples of tax fraud or evasion exhibit, including careful and detailed planning, preparation and implementation, systematic offending involving the creation of false documents, sophisticated schemes involving acts of deception on a number of levels, breaches of trust, activities that are difficult to detect.
32Your offending had two simple aspects to it. First, the failure to register for GST in circumstances where you knew or believed there was a substantial risk that you were required to. And second, your furthering throughout the relevant period of explanations and justifications relating to your conduct which in your view would indicate that you are not required to be registered for GST. I view your offending as a continual state of affairs, so there was continuing dishonesty. Having said that, it is also appropriate to regard the charges on the indictment as a series of offences occurring in the context of your enterprise.
Personal Circumstances
33Turning to your personal background. You grew up in Surrey Hills, with your mother Barbara and father Barry, two younger sisters, Susanne and Samantha. Your early childhood was happy. Your life changed dramatically when at about age 9 your father suddenly left the family home. A number of consequences arose as a result, and I accept that you suffered in the years that followed as a direct or indirect result of that separation. Understandably, you were confused and devastated by your father's sudden absence. Divorce was unusual in that era or less usual than it is in the present day, and there was some stigma attached, and also of course, the sadness and confusion of a child arising from feelings of abandonment and frequent occasions of being let down.
34Your father's actions apparently also put your mother and in turn, you and your siblings, into dire financial straits. The house was sold and you were moved from a private school Strathcona, to the local high school where you were unhappy. At around age 16 you went to your father's house because you decided you want to live with him. He told you that this was impossible because his new wife and family wanted nothing to do with his previous family, and you were sent to stay with a family friend, a man in his 30s, where you suffered a deeply traumatic event.
35You moved in with your grandmother and endeavoured to stay at school. You left school during Year 11, you commenced a Year 12 equivalent at RMIT but did not complete it. You also attempted an architecture course, your father was an architect, but you could not stay focused. I was told that you have now identified that you suffered from a form of dyslexia throughout your schooling, and I accept that that is one of the challenges you faced throughout your life.
36After ceasing your studies, you moved to Richmond and worked at Coles for a period, followed by a weekday job in a boutique and weekend shifts at a milk bar. You worked at Spaghetti Graffiti in Richmond for a few years. In around 1984-85, you agreed to enter Ms Australia at the urging of a sister of the milk bar owner where you worked who had some connections to that charitable organisation. You were crowned Ms Victoria, this opened doors for you and you went straight into media, the then Channel 8 in Gippsland where you met your future husband Mr Cowan. A stint at Channel 7 in Brisbane was followed by a position as a weekend newsreader in Melbourne for a few years.
37Apparently you were encouraged by Mr Cowan to take up a role as a corporate spokesperson for Telstra when that opportunity presented. Initially this was offered as a 12-month contract but you ended up remaining in the role for 10 years. You left Telstra in about 2000 to spend more time with your children. You and Mr Cowan married in 1989, your daughter Imogen was born in 1994. You separated in 1996. You met Mr Halstead through Mr Cowan as they worked together at the time. A relationship commenced and in 1997 your son Chester was born.
38The relationship was a turbulent one apparently and had many problems, and Mr Halstead spent a deal of time out of Australia. By 2009 the relationship seems to have finally broken down. In 2013 you agreed for your son Chester to move to the United States to live with his father in the United States, because of your circumstances. You found the separation terribly difficult, understandably. In 2014 you moved to the United States and you and Mr Halstead managed a reconciliation and were subsequently married. You are understandably proud of the fact that Chester is now starting a Bachelor of Economics in Colorado.
39Reliance was placed by your counsel on the report of Professor Lorraine Dennerstein dated 27 November 2013. Professor Dennerstein saw you on a number of occasions between 2012 and 2013. I accept that you struggled with some mental health issues around the time of your son's birth. You were able to cope with your mental health concerns until about 2011, when your issues with the Tax Office escalated. You have continued to suffer crippling anxiety and prior to going into custody you were prescribed anti-depressant and anti-anxiety medication in America.
40Whilst in America in 2018 you obtained your real estate licence in the United States, and prior to returning to Australia earlier this year you had begun to build a new career for yourself in this industry. I have taken into account - what might be loosely described as your steps towards rehabilitation that has occurred over that period from the audit with the Tax Office to the present. I have also taken into account in mitigation the fact that as a result of your conviction and sentence on these charges it is unlikely you will be entitled to re-enter the United States as a visitor without great difficulty if at all.
41It is unlikely you will be entitled to enter as resident. This will have an obvious impact upon you regarding your previous employment and contact with your family, in particular, your son. There is also a possibility of a punitive penalty to be applied once the outcome of the AAT determination is made. It is difficult to attribute much weight to this matter as it involves speculation as to the nature of the penalty and its impact upon your circumstances. However, I take it into account as a matter hanging over your head.
42The delay in this matter is a significant factor in mitigation. The prosecution filed a chronology which formed a part of Exhibit A on the plea. I will not go over that chronology now, but it sets out the lengthy history of the matter. It was pointed out by your counsel that the period of time from the execution of the search warrant until conviction was about six years and three months, which on any view is a substantial period of delay. There are a number of reasons for that delay which I will not go into.
43The fact of the matter is that you come before the court as a person of previous unblemished character, and notwithstanding the length and breadth of the offending subsequent, you have demonstrated resilience and rehabilitation particularly in recent years in America. It is not disputed by the prosecution that mitigation in respect of delay is available and I regard it as significant.
44Considering specific deterrence and your prospects of rehabilitation, I accept what was said in relation to your background and personal matters. It was submitted that these matters suggest you are unlikely to reoffend. I accept that. I accept that your prospects of rehabilitation should be regarded as excellent. You complied with bail conditions, you returned from the United States on multiple occasions to face these charges.
45I was provided with a great many references, all of which I have read, all of which speak highly of you and indicate the positive aspects of your character and the good works you have done for others. Based on these materials I am satisfied that your prospects of rehabilitation are excellent. You have been in custody for some time now, in fact, 153 days, and as would be expected you have found that time in custody difficult. Any person going into custody for the first time would find it extremely difficult, and you no doubt have.
46Further, your mother is in a frail state, having recently moved into a nursing home after complications from heart surgery and a broken hip from a fall on 9 July this year, and because of your circumstances you have been unable to visit her, of course. It is weighing heavily upon you as to the future, and when or if you will see her again. Likewise, it is causing you great distress because you can only see your son on the infrequent visits that he may be able to manage to come to Melbourne, as he studies and resides in the United States.
47Notwithstanding those difficulties, consistent with what I commented on during the plea, as your resilience and resourcefulness, you have tried to make the best of your time in custody. You were involved in a theatre production, that no doubt showed some commitment from you but also a considerable effort. I was provided amongst the references a reference from Somebody's Daughter Theatre Company, authored by Dr Lloyd O'Brien AO Chairman, and Maud Clark AM CEO, that spoke to your character. It said:
'Simone shone in the performance, her presence had a huge impact on both women in the prison and outside audiences. Simone stood fearlessly by every woman in the cast, giving voice and power to every woman that has felt excluded, disregarded and unseen.'
48No doubt it was also a positive experience for you in some regards, but it indicates your effort whilst in custody.
49Your fall from grace has been dramatic. I remarked and I have remarked again in these sentencing remarks, but I remarked during the hearing that you had demonstrated considerable resilience and resourcefulness throughout your life. You continue to do so. You scaled heights you probably only dreamed of as the 16 or 17-year-old trying to make her way in the world. It was no doubt a long way up from the Coles counter, and no doubt the way down has not been easy. But you have strong support from friends and loved ones, and it is in no small part to your resilience and resourcefulness that I consider your prospects for rehabilitation to be excellent.
50Turning to sentence. I have considered an aggregate sentence. It was submitted to me that it was open to the court to proceed on the basis of imposing an aggregate sentence. Whilst the counts on the indictment referable to each location; Toorak, Caulfield, Portsea; perhaps in relation to each location it would be appropriate for an aggregate sentence. The full breadth of the offending has led me to the conclusion that that is inappropriate. Having said that, the principle of totality applies in my view and in one sense the indictment reflects a series of offences arising out of an ongoing situation, being your enterprise.
51I have considered the severity of the sentence appropriate in all of the circumstances of your offending. In doing so, I have had regard to each of the factors applicable that are set out in s.16A, sub-s.2 of the Crimes Act. Offences of this nature are serious. I am guided by the maximum penalty of five years for each offence. Further, it is recognised that offences against the Commonwealth of this nature, depriving the ATO of the revenue that it is entitled to, are serious. They are very difficult to detect, offences of this nature. It is not amiss to consider them akin to theft.
52General deterrence is very important in these circumstances, as is denunciation in the sense of the community-reaffirming community values- that people must meet their tax obligations.
Sentence
53I sentence you as follows, Ms Semmens,
On Charge 1 you are sentenced to 12 months, commencing from today's date.
On Charge 2 you are sentenced to 12 months, commencing two months from today's date.
On Charge 3 you are sentenced to nine months commencing six months from today's date.
On Charge 4 you are sentenced to nine months commencing eight months from today's date.
On Charge 5 you are sentenced to nine months commencing 10 months from today's date.
On Charge 6 you are sentenced to nine months commencing 12 months from today.
On Charge 7 you are sentenced to nine months commencing 14 months from today's date.
On Charge 8 you are sentenced to 10 months' imprisonment commencing 18 months from today.
On Charge 9 you are sentenced to 10 months' imprisonment commencing 20 months from today.
On Charge 10 you are sentenced to eight months' imprisonment commencing 26 months from today.
54That makes a total effective sentence of 34 months' imprisonment and I direct that you be released after serving 14 months upon giving security by recognisance of $100 to comply with the condition that you be of good behaviour for a period of two years.
55In relation to that sentence I declare that you have served 153 days of pre-sentence detention in relation to the sentence.
56I was also asked to make an order for reparation. I am open to further submission in relation to that, and I will stay the making of that order, or adjourn the making of that order.
57I will just make this observation that the sum $1,738,636 is what I have referred to as the real loss, given the circumstances of this case. As I observed at one point well before the commencement of the trial, there was an AAT proceeding as I understand it, it has been stayed. But if it continues, might have something to say about the figure owing, and if I were to make this order today, it has the effect of civil debt, and I would be reluctant to do so in circumstances where a resolution of the AAT matter might actually reveal a different sum.
58So that is the end of my sentencing remarks. Mr Barry, is there anything I should do - is there any obstacle to making a reparation order at a later time if there's some figure the parties can agree on?
59MR BARRY: I don't believe so, Your Honour, and as I understood Your Honour, Your Honour was open to further submissions.
60HIS HONOUR: I am. Yes, not now, but I just really want to make sure there is no obstacle to me putting it off, in the sense of whether it has to be given at the time of sentence or not. I looked at the Act and it didn't say, as in the state system it says something like you can - any time within six months of sentencing an application can be made. It's silent on it.
61MR BARRY: Yes. It doesn't say that in the Commonwealth Act.
62HIS HONOUR: No, it does not.
63MR BARRY: Silence probably means that you can put it off, Your Honour.
64HIS HONOUR: Yes, that's what I anticipate.
65MR BARRY: But in any event, I understand what Your Honour's saying.
66HIS HONOUR: Yes, I just wanted to explain the reason. It's not because I think that figure that I have been given is the inappropriate one.
67MR BARYY: No.
68HIS HONOUR: At the moment it is the only figure I have.
69MR BARRY: Yes.
70HIS HONOUR: And I received some correspondence from those instructing you urging me to - if it was different figure, to land on a figure. That is simply beyond this exercise for me to do that, and there's no material for me to do it on in any event.
71MR BARRY: Yes.
72HIS HONOUR: And why would I do it when there's another proceeding in another place that's designed to determine exactly that. The only reason I've been reluctant to make the order in the terms today, is because it has that effect of a civil debt and it would seem to me to - for those charged with assessing the correct formed a different view, why that should ‑ ‑ ‑
73MR BARRY: I understand all that, Your Honour, and totally respect it. I don't know much about the civil side, other than it seems to me from recollection, that involves a larger figure than this because it's an income.
74HIS HONOUR: Yes, well, it's interest and all that sort of thing, I mean, that's the other aspect. When you start talking about true loss, what we really mean. I mean the loss at the time.
75MR BARRY: Yes. In any event, Your Honour, I'll take some instructions about it and provide Your Honour with whatever material is deemed appropriate.
76HIS HONOUR: Well, I suppose what I'm saying is I'll leave it in abeyance, liberty to apply. It can be mentioned and it's not refused or rejected.
77MR BARRY: Yes. I mean, Your Honour's always able to simply defer this part of the sentencing process to a later point in time.
78HIS HONOUR: Yes. Well, that's what I'm doing.
79MR BARRY: Thank you, Your Honour.
80HIS HONOUR: Defer it to a later time. Mr Bearman, you follow all that? Ms Cannon?
81MS CANNON: Yes, Your Honour.
82MR BARRY: The only thing that needs to be done is the signing of the recognisance.
83HIS HONOUR: Recognisance. All right.
84MR BARRY: We have one here.
85HIS HONOUR: You've got it there. Yes. The other trial, Mr Barry.
86MR BARRY: Yes, Your Honour.
87HIS HONOUR: I've been given a number for that, and I'll just read it into the record, CR-19-02154, that's the trial that's listed on 19 October 2020.
88MR BARRY: Yes.
89HIS HONOUR: And I've told the bailer to remand Ms Semmens, so I was proposing to bail her on that matter on her own undertaking to that trial date, given that this sentence will expire, well, the term - the period to be serve will expire before that trial is reached.
90MR BARRY: Yes, and in relation to that, Your Honour, it may not be appropriate to do it now, but the Crown is looking to get a timetable in place as to when things need to be done.
91HIS HONOUR: You can just leave that for now.
92MR BARRY: Thank you, Your Honour.
93HIS HONOUR: Thank you.
94MS CANNON: Your Honour, may I also approach the dock.
95HIS HONOUR: Sure.
96MS CANNON: Your Honour, could I ask when Your Honour does leave the Bench, if Ms Semmens could remain just for a couple of minutes?
97HIS HONOUR: Yes, I'll allow that.
98MS CANNON: Thank you.
99HIS HONOUR: All right. They're the matters?
100MR BARRY: Yes, Your Honour. As Your Honour pleases.
101HIS HONOUR: I wish you all the best, Ms Semmens.
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