Director of Public Prosecutions v Caulfield

[2018] VCC 2213

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01810

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY CAULFIELD

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November, 2018
DATE OF SENTENCE:	20 December 2018
CASE MAY BE CITED AS:	DPP v Caulfield
MEDIUM NEUTRAL CITATION:	[2018] VCC 2213

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; rolled up charge of theft from employer; betrayal of trust personal as well as objective; $463,000 stolen over 3 years; money all lost gambling; no prior convictions; underlying emotional issues;  early plea and admissions; 49 year old mother and grandmother.

Legislation Cited:                   Sentencing Act 1991 s 6AAA

Cases Cited:Boulton & Ors v R [2014] VSCA 342; R v Grossi [2008] VSCA 51; R v Galletta [2007] VSCA 177; Keane v R [2011] VSCA 156; Melnikas v R [2016] VSCA 112; Bellizia v R [2016] VSCA 2; Akkalaa v R [2012] VSCA 29;

Sentence:  9 months imprisonment followed by 2 year CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown	Solicitor for DPP
For the Accused	Ms R Avis (on plea) Mr B. Barratt (on sentence)	James Dowsley & Assoc

HER HONOUR:

1Kerry Joan Caulfield, you have pleaded guilty to a single charge of theft. 

2Between February 2015 and February 2018, you stole a total of $463,028.80 from your employer, Hopper Motor Group. 

3You had worked for that employer for more than ten years, initially part-time, and full-time since 2011.  You started as a receptionist, then did payroll duties, and for the years when you committed this theft, you had the additional duties of banking and reconciliation.  In the office where you worked, five of your employer’s motor vehicle outlets were administered.  The money taken by you was cash that it was part of your duties to bank.  You created false entries in the accounts to disguise or cover up the deficiencies.

4In January of this year, a new chief financial officer was appointed who noticed discrepancies.  She spoke to you about them, following which you took sick leave, and then resigned on 8 March.  An auditing firm was appointed to investigate.  In a conversation in early April with the investigator and one of the principals of your employer - your long-time friend, Ms Joanne Seymon - you made admissions to stealing money from the Hopper Motor Group.  You submitted to an interview with the investigator auditors, and made full disclosure to them.  The matter was then referred to the police, by whom you were again interviewed, and to whom you made full admissions.

5I must assess the objective seriousness of this offending and your role in it. 

6The maximum penalty of ten years' imprisonment for theft covers a very wide range of conduct.  The charge for which I sentence you is a single charge of theft, so a single maximum penalty applies, but it is a rolled-up charge representing the totality of your stealing from your employer over a three year period.  It includes 84 separate occasions when you made false accounting records to cover up one or more occasions when you had taken cash that belonged to the employer rather than bank it.  The total is a significant amount of money- more than $463,000.  A schedule to the prosecution opening shows that money was taken by you in every month of that three year period, in varying amounts, but always of at least $1,000 - up to $21,000 on one occasion in July last year - and in less than two months at the start of this year, before your offending was discovered, the total you stole was more than $60,000.

7While by no means at the highest end of sums of money stolen that come before courts, the total amount, number of occasions constituting it, the length of period over which it occurred, and the fact that you attempted to disguise or cover it up by making false entries in the accounts, make this objectively a serious instance of theft.

8The fact that this is a rolled up charge covering so many individual acts of dishonesty over so long a period reflects that this was not a single lapse in judgment or rash action by you.  The first time may well have been that, but repetition over time reflects prolonged dishonesty.  I do not find evidence of pre-meditation in the usual sense, but once started, it was frequently knowingly repeated.

9In this case the offending had very considerable consequences for not only the business, but many people associated with it.  Ms Joanne Seymon, one of the Hopper family owners of the Hopper Motor Group, read her victim impact statement in court.  I accept that her distress expressed in that statement, and in her presentation in court, was genuine.  The impact of your offending on her has been far greater than purely financial loss.  As a family owned and run business, the betrayal and financial repercussions of the amount of loss have affected her personally, her children - who knew you as a family friend - as well as her father, brother and wider family.  She has suffered physical as well as emotional consequences of the stress this has caused her.  The business has been put under greater financial strain, and she says that there have been retrenchments as a result.  Those circumstances will inevitably have put strain on the directly affected employees and their families, and on other employees, making them feel less secure in what, for many, has been long term employment.

10Stealing from an employer by whom you have been entrusted with access to its bank accounts is a huge betrayal of trust.  In this case the betrayal was also very personal, as you had had a long-term friendship with Ms Seymon, and I gather she effectively initially gave you the employment, or assisted you into it.  You knew this was her family's business, started by her father and more recently run by her and her brother, with many employees, mostly long-standing.  Indeed you had been responsible for the payroll.

11Whilst all acts of theft are dishonest, I regard as a particularly serious aspect of your conduct that you were stealing from people you knew whilst working alongside them, while maintaining a close friendship with Ms Seymon, and knowing the concern by her and fellow employees if retrenchments were required.

12You not only took money - cash in substantial amounts over a very sustained period - but you made bookkeeping entries to try to disguise that.  It is conceded that they were not sophisticated measures and that the discrepancies were relatively easy to detect once someone independent looked at them, but your dishonest conduct extended not only to physically taking the money, but to trying to cover it up.

13Your motivation was to gain money to feed the compulsive gambling in which you had been engaging - apparently secretly from family and friends.  The money was effectively all lost through gambling.  That puts the offending into context, but does not excuse it[1].  I find that it was still for personal benefit in that it was to feed your gambling habits, but I accept that there were emotional issues underlying your gambling, and that the motivation was not to acquire luxury items, engage in a grandiose lifestyle ,  nor to amass a substantial capital sum for yourself directly from what you stole.

[1]R v Grossi [2008] VSCA 51

14Taking into account these objective and subjective features, I assess this instance of theft as being well into the mid-range of seriousness for such a charge.

15As soon as you were confronted with these matters you made fulsome admissions and cooperated with the investigation.  You were charged on 10 June 2018 and legal processes moved quickly after that, with a very prompt indication of a plea of guilty by you, and the avoidance of multiple or disputed hearings.  No witness had to give evidence.

16By pleading guilty you are entitled to some leniency in your sentence for the utilitarian value of saving the community the time and cost of disputed hearings, and saving witnesses the inconvenience - in some cases distress - of having to give evidence.  I regard the utilitarian value as high in your case; both because of the very early plea and because both auditor and police investigations were assisted and reduced by your co-operation.

17Trials of thefts of this nature inevitably take considerable court time because of the number of individual transactions and accounting records for them, which need to be proved, so the saving of disputed hearings by your plea, was of significant value.  Further I accept that once confronted about it, you immediately accepted responsibility for your wrongdoing.  I am also prepared to infer considerable remorse from the fact of the plea of guilty and cooperation, and I will discuss other indications of remorse later.

18I shall tell you after I have imposed sentence, what it would have been, had you not pleaded guilty, but been found guilty at trial of what would have been multiple individual charges of theft and quite possibly of false accounting.

19I turn now to your personal circumstances. 

20You are now aged 49.  You are the mother of two daughters, now aged in their early 20s, and you have a two year old grandchild.  You had primary responsibility for raising your daughters, after you and their father separated when they were very young.  You moved with them to live with your mother, and have lived with her ever since.  Of more recent years, you have been the primary carer for your mother, who is in her 80s, and I am told you have received a carer benefit for your role.  Your daughters and grandchild also live with you and your mother and you mind your grandchild most weekdays.  Until this offending was revealed, you had worked for many years to support your family. 

21I accept from this, that you have a long history of taking active responsibility, both in conduct and financially, for family members, and have been the central support to them.  This was confirmed in character references from your two daughters and from your sister-in-law. 

22I am told that you grew up as the youngest of seven children in a family in which there was practical but little emotional support.  I am told that your father was alcoholic and at times abusive.  Your parents divorced when you were about 12.  When this case came before me for hearing about three weeks ago, I was told that your father was terminally ill, and I allowed an adjournment two weeks ago, as his death seemed imminent.  I am now told that he has since passed away.

23I am told that you had difficulty at school with behavioural problems, quite likely due to unhappiness at home and lack of interest.  You left school aged 15.  You started an apprenticeship as a chef with a family friend, but did not complete it.  You worked in cafes and hospitality, then at age 19, started as an office junior, remaining with that employer ten years, mainly working in accounts.  You apparently attempted to study accounting to gain a formal qualification, but found the study too difficult.  After having your two daughters, you worked at two jobs.  As I have said, you started working part time for the Hopper Group more than ten years ago, and became full time in 2011.

24You had a six year relationship with the father of your two daughters, and although that ended when they were very young, in circumstances that felt like abandonment for you and your children, you reconnected with him when they wanted contact with him.  I am told that you maintained contact and remained on good terms until his unexpected death in 2014.  That event was apparently quite traumatic for you because you were called to his house by his aunt and found him there dead, and also you had to break the news to your daughters, anticipating their distress.  I accept that his death probably evoked unresolved grief in you. 

25Your daughters believe that this event had considerable impact on you and attribute your descent into gambling and this offending, to the impact of his death on you.  Your offending started in February 2015.  It is not entirely clear when you lapsed so deeply into gambling.  You are said to be a person who keeps your emotions to yourself to protect others, and particularly to protect your daughters from worrying about you.  But you resorted in secret to using poker machines, in the main, as an outlet for your emotions.

26In 2012 you had married a man you had known for about eight months and he moved into the home you shared with your mother and daughters.  The marriage did not go well.  There were cultural differences as he was from Ethiopia, and tensions apparently arose with your mother and daughters.  You have told a psychologist that he was emotionally controlling of you and of your movements.  One of your daughters moved out of the household during that time, and both daughters felt he came between you and them.

27I was told that it was during the difficulties in this marriage, that you turned to gambling as an outlet, kept secret from both your husband and your daughters.  You recently told a psychologist, Ms Ferrari, that you had a long-standing problem with gambling, and had attended Gamblers Anonymous in 2000.  Given their ages, this was likely to have been totally unknown to your daughters.  It seems that even though you had a long-standing problem with gambling, you had kept it under control for more than ten years, but it increased under the stresses that arose during your marriage.  Then the death of the father of your daughters and your stress from that, apparently placed further strain on your marriage and also increased your resort to gambling.  

28I am told that the marriage ended in 2016.  However, that does not seem to have brought about any relief in your gambling habits nor in your stealing from your employer. 

29You say that you had not realised the extent of the amounts you had stolen.  That, unfortunately, is something often heard in this court in cases of this nature, where a person starts and continues stealing from an employer.  I am told that you were in somewhat of a haze over the time of the offending, but this offending lasted over a three year period.  As the amounts taken were all in cash, none less than $1,000 and most for several thousands of dollars, I find that you must have realised that the total you had taken over three years had reached very substantial proportions, even if you did not know the exact amount.

30You told police that you had hoped to repay some of the money taken from winnings from gambling, but you do not seem to have repaid any amount throughout the three years of offending.  It is perhaps an unfortunate reflection of the delusions, or the extent of compulsion of people who become heavy gamblers, that they believe that there will be substantial winnings.  You have never owned significant assets and have had no means of repaying the stolen funds since discovery of the offending.

31You come before this court with no prior criminal history.  For that, you are entitled to be considered a person of good character, at least until the age when this offending started.  That is, unfortunately, again quite often so for offenders in cases of this nature, as often the offender has been in a position to steal from an employer because of his or her prior good character, as they have been trusted with access to bank accounts and financial records.  Nevertheless, I have taken into account that your lack of prior criminal history is to your credit, especially as you must have had some financial pressures over the years as a single mother raising and supporting your daughters.  Your prior good character is also relevant to your prospects of rehabilitation.

32Apart from diabetes, you have no other physical health conditions.  You do have a long history of emotional difficulties.  You were assessed by a consultant psychologist, Ms Carla Ferrari, who saw you only the week before the plea hearing, and was asked for opinions relevant to sentencing.  Ms Ferrari took an extensive personal history, which I shall not repeat, and which is largely consistent with what I have been told by your counsel.

33Ms Ferrari states that you appear to have suffered depression and anxiety symptoms for many years.  However, she does not make a diagnosis of a recognised mental health disorder based on those symptoms.  She notes you had never been engaged with a psychologist or psychiatrist for treatment until this year, when your GP prescribed antidepressant medication and referred you to a psychologist.  I am inferring that occurred after this offending was discovered.  You apparently ceased the medication after only one day, as it made you feel unwell, and you only attended one session with the psychologist, explaining that you find it difficult to express yourself and feel overwhelmed by your emotions.  You try to avoid emotions to minimise your symptoms, so as not to have to deal with them.  You also do not want to upset or burden your daughters.

34 You describe to Ms Ferrari feeling anxious and flat.  On testing designed to assess your symptoms for anxiety and stress during the preceding week, your scores showed extremely severe disturbances to your mental state and functioning.  However, as those were tested in the week before you were coming to court for this matter, and related to your symptoms in the preceding week, it could be expected that they would be unusually high.  I accept that the prospect of imprisonment is likely to have increased your anxiety and any depressive symptoms, and that it is likely to make your experience of imprisonment more burdensome for you.

35Ms Ferrari describes diagnostic impressions and states that certain diagnoses are hypothesised.  Your counsel understood that that terminology would not assist the court to make findings on the balance of probabilities, and apparently tried to make a further enquiry, but there is no evidence of a diagnosed mental health disorder such that would formally enliven the legal principles that require some moderation of a sentence if there is a diagnosed mental health disorder and in particular if there is one connected to the offending.  The hypothesized diagnoses were of major depressive disorder, recurrent and severe, generalised anxiety disorder, and a gambling disorder.  However, it is unclear to me whether, in particular, the first two were based on that test which related specifically to the symptoms in the period of two weeks before you were to face this court.

36Ms Ferrari did not consider that you had any entrenched personality disorder.  Ms Ferrari's view is that aspects of your upbringing caused a predisposition to mental health issues, and contributed to difficulty expressing and regulating your emotions.  This led to a pattern of avoidance to cope, and the development of depression and anxiety symptoms, from which you distracted yourself through gambling.  She felt precipitating factors for you including unresolved grief and loss from your relationship with your children's father, a feeling that he had abandoned you when stressors overwhelmed him, and his unexpected death only six months before the offending started, as well as significant tension in your marriage at the time.  She felt that led you to relapse into gambling as an escape.  Gambling was the only aspect of your life that you felt was your own.  It distracted you from your emotional state and provided short-term relief.  Financial stress from gambling losses became significant.  Ms Ferrari pointed out that research demonstrates that the consequences of depression, anxiety and addiction can cause deficits in judgment and ability to make rational decisions.  She also says an inability to manage your emotions increased your potential to engage in thoughtless and careless acts.  However, I do not regard the pattern of your offending consistent with thoughtless or careless acts, as it continued over too long a period, and as entries were made to disguise the money that had been taken. 

37Ms Ferrari regards you as of low risk of reoffending.  However, the risk of your relapse will increase if you do not engage in appropriate treatment for your longstanding issues.  She says you need programs to enhance your self-awareness and develop strategies to moderate symptoms of emotional and psychological distress, and support around your addiction.  She suggests relinking with Gamblers Anonymous as well as addressing the underlying emotional issues which underpin your gambling.

38I accept that your background circumstances led you to seek emotional release and refuge in gambling, which led to financial stress.  I accept that the offending occurred against a background of you suffering emotional disturbances that  clouded your judgment.   However, it is not argued by your counsel that the opinion of Ms Ferrari supports a connection between any diagnosable mental health disorder and the offending.  As I have already said, that means that there is no legal basis to moderate your sentence due to lowered culpability or any other connection between your emotional state and the offending.

39I do accept that you have recently been found to be suffering significant symptoms of depression and anxiety - and I interpolate here, I have little doubt that your father's recent death will have contributed to that further.  I accept that the symptoms are likely to make your experience of imprisonment more difficult or burdensome for you, and I have taken that into account.

40I am satisfied that you do genuinely regret your offending, not only for the consequences to yourself and your family, but also that you now realise and regret the consequences to the Hopper family members and your former fellow employees. 

41Although you made fulsome disclosure to your employer's representatives and to police, you apparently found it much harder to admit this offending to your family and friends.  Your daughters have been told, have been in court, and written references to support you.  One sister-in-law similarly.  But on the day I heard the plea on your behalf, you had apparently not yet disclosed your offending or the fact you were facing court on this charge to either of your parents.  I have confirmed today that you have now told your mother, and further, that there are arrangements made for her ongoing care.

42I consider that the consequences you are now facing, of which you have been aware for some months, will act as a very salutary reminder to you that you must not repeat any such offending in future, even were you to get the chance to work in accounting or bookkeeping roles which unfortunately for you is unlikely with this conviction on your record.  I therefore do not believe that there is much call for specific deterrence as a sentencing purpose.  That means that as a factor in your sentence there is not much need for the sentence to be a further reminder to you that you must not repeat offending of this or any other type.

43Although rehabilitation is generally not a significant sentencing purpose for someone of your age, I am satisfied that you will have strong family support, especially from your daughters, on your release from prison, and that with no prior criminal history and indeed a very solid history of employment and commitment to your family, your prospects of rehabilitation are good.  That is provided that you do not relapse into sustained gambling. 

44It seems to me crucial that you avoid that occurring and that you address your gambling inclinations and underlying emotional reasons for it.  I read from Ms Ferrari that you recognise that you do need to address these underlying issues, and it will be up to you to do so to give yourself the opportunity to re-establish yourself on your release from prison, and hopefully look forward to some happier times.

45As your daughters are now aware of the risks for you, I am satisfied they will be alert to the signs and anxious in their support of you, although it is not ultimately their responsibility - it is your own.

46As previously stated, I consider that this offence falls well into the mid-range on the spectrum of seriousness for offences of theft, and the nature of the offending calls for general deterrence, denunciation, and just punishment to be the principal sentencing purposes.  General deterrence means that the sentence must signal to other people who may be tempted into this type of offending that they can expect stern punishment.

47In the circumstances, and as was conceded by your counsel, no sentence other than a period of actual imprisonment would be adequate to meet all sentencing principles. 

48I was urged by your counsel to consider a combination sentence, or alternatively, a sentence of imprisonment that set a lower than usual non-parole period to expose you to an extended period under some supervision to re-establish yourself in the community.

49The prosecution submitted that a combination sentence would not be appropriate, by which I understood the submission to mean that a sentence of no more than 12 months' imprisonment to be served would not be sufficient.

50To have both sentencing options available, I had you assessed for a Community Correction Order, with the prospect that it would follow a term of imprisonment.  You were found suitable.  You were also assessed as at medium risk of re-offending, which is higher than I expected, but it depends on the particular assessment tool being used by Community Corrections.  I conclude it may well be because you disclosed to the person assessing you that you have still engaged in gambling when under stress, even since this offending was discovered, although less frequently than when you were offending.  Ms Ferrari seems to have not been aware that you still engaged in some gambling. 

51Finally, I am required to have regard to what is called current sentencing practice, by considering other sentences for similar offending and the comparable or less comparable circumstances of those.  However, looking at current sentencing practice is just one sentencing factor, and does not set upper or lower boundaries on what might be an appropriate sentence. 

52There are many cases that come before this and other Victorian courts, where there has been theft from or related to employers, and I am not going to list all of the cases to which I have had some regard, although I will probably footnote some of them in my revised sentence[2].  I am not going to spend time reading out case names and citations here. 

[2]Melnikas v R [2016] VSCA 112; Bellizia v R [2016] VSCA 2; Akkalaa v R [2012] VSCA 29; Thorpe v R [2016] VSCA 158; Keane v R [2011] VSCA 156;

53Some sentences in cases of this nature have involved wholly non-custodial sentences, in the form of CCOs, since the abolition of wholly or partially suspended sentences and the decision in the Court of Appeal in Boulton, as to the appropriateness of a CCO for relatively serious offences[3].  Some combination sentences are reflected, and many wholly custodial sentences have been imposed for offending of this nature.  Obviously all cases depend on the circumstances of the offending and the circumstances of the individual and of course the other sentencing principles, many of which I have outlined here, were applicable to you.  There is one charge only against you, albeit a rolled up charge, whereas many other cases involve multiple charges. 

[3]Between the plea hearing and this sentence being handed down, in the case of DPP v Ciriani before me (CR- 18-01426), the prosecution conceded that a non-custodial sentence was appropriate in a case of at least as high moral culpability but where the total stolen had been wholly repaid (and was half the total in the current case - $210,000). Also cited: DPP v Howard [2018] VCC 967.

54Where the amount stolen has been as high as in this case, and where no restitution has been made, I have found no comparable case where a wholly community-based sentence was imposed, and your counsel conceded that, by conceding that no sentence other than some imprisonment would be approprate. 

55Unfortunately in cases where thefts have resulted from compulsive gambling, there are often no assets left, if ever there had been, from which restitution could be made.  That does not make the offending worse or more serious, but the mitigatory factor of substantial restitution is not available.

56It is a fundamental sentencing principle that a court must not impose a sentence any more severe than the minimum necessary to meet all sentencing purposes and requirements.  I have considered whether a sentence of no more than 12 months imprisonment followed by a Community Correction Order would adequately meet sentencing needs in this case. 

57In light of your lack of prior criminal history, fulsome admissions, cooperation and early plea of guilty, what I take to be genuine remorse, and your family circumstances and the context in which this offending occurred, I have decided that notwithstanding the huge betrayal of trust by you of your employer, its principals and your fellow employees, and the adverse impact on all of them, a sentence that requires a term of imprisonment of less than 12 months, followed by extended supervision under a CCO, would be sufficient in this case, to meet sentencing requirements.  That, therefore, is the sentence structure which I intend to impose. 

58Would you stand up now, please.

59Kerry Caulfield, on the single charge of theft, you are convicted and sentenced to nine months' imprisonment, to be followed by a Community Correction Order to last for two years from the date of your release from prison.  The conditions on that order will be that you be subject to supervision, attend as directed for assessment and treatment for your mental health, and attend any program to which you are directed to reduce the risk of re- offending, in particular a gambler's help program is suggested in the Community Corrections report.  I shall also impose a condition requiring you to perform a modest amount of unpaid community work, in this case 50 hours, as part of the overall penalty.  That has been set relatively low, in light of my requiring you to first serve a term of imprisonment.

60In addition to those conditions, all usual terms of a community correction order apply.  I know they will have been explained to you, but I will summarise them again briefly.

61First, you must report within two working days of the date of your release from prison, to the nearest Community Corrections office to which you will be living.  On this assessment, it was assumed that was the Werribee Community Corrections service office and the address, 87 Synnot Street, Werribee will be on the order.  I am sure approaching the time of your release, there will be a reminder of that.  So you must report there within two working days of your release.   Throughout the order, you must report to Community Corrections officers, any change of address of where you are living or where you are working, and you must do that within two clear working days of that occurring.  You must obey all lawful directions of Community Corrections officers, and you must submit to visits from them, or go as directed by them to appointments.  You must not leave the State of Victoria throughout that order without the prior permission of Community Corrections officers.  And above all, you must not commit any further offence during that time which could be punished by imprisonment.

62Now, you have been sentenced here for, as I have said, a serious instance of theft.  I have also said that theft involves a wide range of offending.  Stealing a can of soft drink or an extra packet of biscuits from a supermarket is theft, and as you now well know, carries a potential term of ten years' imprisonment.  That means that any offending of that nature - or indeed, multiple other types of offences - would constitute a breach of the community correction order even if you were not ultimately sentenced to imprisonment for that breach.

63I must also inform you that if you fail to comply with that Community Correction Order - either by not complying with the terms and conditions or by further offending - that would constitute a contravention of the order.  It is a separate offence to contravene a CCO and it is an offence that carries up to three months' imprisonment in itself.  Further - depending on the circumstances of non-compliance or contravention and on how much of the order had been satisfactorily completed - it would be open for the court to re-sentence you on this charge; the stealing from your former employer.  Now, whether there would be a re-sentencing would depend, as I say, on the circumstances and how much compliance there had been and the nature of the breach.

64Do you understand the terms and conditions of this order and the implications were you to breach it?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  Do you agree to comply with it?

67OFFENDER:  Yes, Your Honour.

68HER HONOUR: All right. Now, I must state for the purposes of s.6AAA of the Sentencing Act what your sentence would have been if you had not pleaded guilty but had been found guilty of the equivalent of this offending after a trial.  In those circumstances I would have imposed a total effective sentence of three years' imprisonment with a non-parole period of two years' imprisonment.

69Now, I think I was also asked to make a compensation order, but none has been submitted.  Is that pursued?

70MS BROWN:  Your Honour, I don't believe that the - that application was made on the last occasion.

71HER HONOUR:  Sorry.  I thought I had a notation of it, but if it wasn't made I will make no such order.  Strictly there's a period of time when it could still be sought.  Is a forensic sample order pursued?

72MS BROWN:  Now, a forensic sample order application was made on the last occasion.

73HER HONOUR:  I think -  of course I don't have transcript.  What I saw was that there was a draft order apparently e-lodged?

74MS BROWN:  Yes.  That's correct, Your Honour.  And that's - I'm just checking my notes - and that's certainly my understanding and that application is pursued.

75HER HONOUR:  I didn't have a note of any submissions from
Ms Caulfield on it last time.  You can take a seat for a moment, Ms Caulfield.  I just want to sort this out. 
Mr Barratt, do you?

76MR BARRATT:  I don't, Your Honour, no.  No, I haven't received anything in terms of notes from the last ‑ ‑ ‑ 

77HER HONOUR:  I have to say I've had so many matters on I may be confusing my memory with others.  I beg your pardon, I've just seen the note.  My note is that there was consent to a forensic sample order.

78MR BARRATT:  As Your Honour pleases.

79HER HONOUR:  I'm sorry, I had overlooked that.  If you stand again for this, Ms Caulfield?

80An application was made by the prosecution - and I now see my note - consented to through your counsel for you that a forensic sample be taken from you.  That is for the purpose of placing a record of your DNA on the national   database.  As it was consented to I am prepared to make that order.  I limit the order to a sample that they call a scraping from the mouth, rather than a blood sample.  The reason I limit it to that is I have been told, over many years now, that scientifically that gives sufficient sample for the DNA to be tested.   It is called a scraping from the mouth, but it involves a cotton wad being pressed against and rubbed against the inside of the cheek, inside the mouth, and it should not be intrusive or painful unless you resist.  I am obliged to warn you that if you resist the taking of that sample authorised officers can use reasonable force to take it, but there should be no need for that.  Have I got a copy of an order to sign?

81ASSOCIATE:  We do.

82HER HONOUR:  Sorry.  I will sign that order too.  You can take a seat.  The orders have to be prepared and the CCO signed at this stage by you, and then by me, so I need to wait for that to occur.  If there is a copy, I will have a look at the forensic sample order and be signing it.  Thank you. 

83All right.  I will have - perhaps Mr Davis could take this to counsel to check.  While the orders are being amended, if both counsel would check that CCO to check it complies with what I have just expressed? 

84MS BROWN:  Yes, thank you, Your Honour.  There's no issues with that.

85HER HONOUR:  All right.  I will ask my associate, then, to take it to Ms Caulfield to check.  Ms Caulfield, counsel has, but you read it through also, and sign that that is what you are agreeing to.  Thank you.  I will now sign that CCO also and copies will be made, so you will have one and no doubt one will be provided - reminded of it before you are released from prison.  And also, I have signed the forensic sample order, and again you will receive, as will, of course, the prosecution, a copy of that.

1. Now, that is the completion of this sentence.  Please take Ms Caulfield into custody, and remove her from the court.