Director of Public Prosecutions v Hayes

[2024] VCC 747

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00818

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMONE HAYES

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2024
DATE OF SENTENCE:	24 May 2024
CASE MAY BE CITED AS:	DPP v Hayes
MEDIUM NEUTRAL CITATION:	[2024] VCC 747

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing

Catchwords:     Plea of guilty – dishonesty offences – obtain financial advantage by deception – complex PTSD - Major Depressive Disorder.

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Markovic v The Queen [2010] VSCA 105; R v Verdins [2007] VSCA 102; Boulton v The Queen [2014] VSCA 342; R v Osenkowski [2005] SASC 142.

Sentence:Community corrections order for a period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Miss E. Strugnell	McNally & Gleeson Lawyers

HER HONOUR:

1Simone Hayes, you have pleaded guilty to one rolled up count of obtaining a financial advantage by deception.

Circumstances of the offending

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A, and this constitutes the factual basis upon which I sentence you. 

3You were employed by SLR Plumbing Solutions located in Cheltenham as a bookkeeper and executive assistant from 19 July 2019 until your termination on 19 October 2021. As such, you had access to electronic transfers of funds from the company accounts.

4SLR Plumbing Solutions is owned and operated by Samuel Rowlands and he has been its director since the business began in 2006.

5On 12 October 2021, Mr Rowlands noticed funds in his business account that had been transferred into your personal bank account. You were working from home at the time because of Covid and he immediately called you.  You told him it must have been a mistake and that you would pay back the funds later that afternoon. You partially transferred the funds back into the business account later that day.

6As a result of this incident Mr Rowlands contacted his accountants and requested that they conduct an audit on his business account from the start of your employment. They later advised that they had found at least $130,000 that had been fraudulently transferred into your account during the duration of your employment.

7On 13 October 2021, Mr Rowlands contacted his lawyers to start engaging with you on behalf of SLR Plumbing Solutions.

8On 14 October 2021, you were requested to attend a show cause meeting and were provided a notice of suspension.

9On 19 October 2021, you were terminated from SLR Plumbing Solutions in writing. In the letter SLR Plumbing Solutions requested your final pay and leave entitlements totalling $2,779.14 be taken off the sum you owed, which you agreed to.

10On 20 October 2021, you were served with a letter of demand and you were given seven days to repay the misappropriated funds.

11Between 18 and 28 October 2021 you made various different counter offers to pay back the funds. On 28 October 2021, you were sent a letter stating that SLR Plumbing Solutions would accept $30,000 but it was not the final settlement.

12By 4 November 2021, it was established the total amount of funds fraudulently transferred into your account was $165,934.70 comprising 57 transfers to your account under various descriptions and 10 transfers by way of overpayment of wages between 6 February 2020 and 11 October 2021. The individual amounts taken, dates and payment descriptions are set out in Schedule A to the indictment.

13The prosecution opening indicates that you have repaid $11,279.14 and at the time of the plea hearing you had made further payments in the amount of $750.  

14On 5 November 2021, lawyers on behalf of Mr Rowland filed and served on you a statement of claim in the County Court of Victoria.  Several times during the civil process you admitted to transferring the funds which included a letter you wrote in relation to the plaintiff’s statement of claim.

15On 18 November 2021, Mr Rowlands attended St Kilda police station where he reported the fraudulent transactions. Subsequently a warrant was issued and executed at the Bendigo Bank and your relevant bank account statements were seized.

16On 28 February 2023 you attended the St Kilda police station by invitation and were arrested and interviewed and made no comment.

Victim Impact

17Mr Rowlands has provided a victim impact statement in which he outlines the significant impact of your offending on all facets of his life. As he states, his small business, SLR Plumbing Solutions, ‘is quite literally my name and my life’s work.’  He started his business as a young man and clearly takes pride in his work and in supporting his staff.  He is the Sole Director of the company and had nine full time staff at the time of your offending.  When the suspicious bank transactions were first brought to his attention he was in ‘complete shock.’  He states:  ‘Simone is not only an employee, she was my friend who my fiancé, my family and I trusted with my business but also with our personal lives.  She was our friend and our confidant.’  He speaks of feeling overwhelmed by the shock and betrayal.  ‘I simply felt like I did not have any strength or resilience left in me after I had just survived the Covid construction restrictions to navigate this also – I felt like I had nothing left to give.’ He refers to the pressure and responsibility of trying to keep his staff employed and his customers satisfied and of the extra work and effort this required.  He speaks of depression overtaking him during these ‘dark times’ and of his appreciation for those who provided him with essential supports, particularly his fiancé and father.  Notwithstanding his ability to overcome these challenges, his business ‘still incurred a significant disruption and downturn in work and revenue.’  Your offending has also impacted his ‘trust in humanity’ and contributed to him feeling ‘isolated, depressed and alone.’  In sentencing you, I do take into account the impact of your offending.

Gravity of the offending

18The charge you have pleaded guilty to is serious, as indicated by the maximum penalty.  Your offending continued from February 2020 to October 2021.  It was protracted, planned and deliberate.  The amount of each transaction, as I have already noted, is outlined in Schedule A of the indictment and the totality of your offending was significant. You fraudulently transferred to yourself over $165,000.00 comprised of 67 transactions. Also, I assess your moral culpability as high as your offending involved a gross breach of trust given your position.

19You claim to have no recollection of your offending. There is no evidence to suggest the presence of permanent cognitive conditions or impairments or an underlying cognitive basis to explain this lack of memory.  On the face of it, this is a difficult claim to comprehend given your offending was protracted, and as I have already noted, involved over 60 transactions. Ms Lechner suspects that your amnesia is psychogenic in nature; borne of your deep sense of shame and the incongruity that you perceive between your view of yourself as a trustworthy person and the dishonest nature of your offending. 

20You told Ms Lechner that ostensibly you had no reason to steal the money.  You said to her, ‘with Covid I took out $20,000 in super...  I had money but I had a shopping addiction...  Because I couldn’t sleep, I’d get onto Instagram...’.  You apparently purchased a number of items including beauty products, hair and skincare, a home gym and Uber Eats.

21During the offending period you were suffering some personal challenges and significant health issues.  Your father-in-law, with whom you and your children were very close, passed away in January 2020 and the Covid pandemic caused additional stress and uncertainties, which started to impact your health.  In summary, in December 2020 you had a three day admission for investigation of a reported two week history of headache and dizziness and an aneurysm was located.  In February 2021 you met with a consultant neurosurgeon who confirmed aneurysms and the need for surgery. There was another two day admission in February 2021 with a migraine.  Later in February you were admitted for a craniotomy and clipping of aneurysm and you were discharged on 5 March 2021.  On 15 March 2021 you attended emergency following a brief episode of situational confusion and disorientation.  CT brain scans did not report any abnormalities but high blood sugar levels were noted.  On 23 June 2021 you had a two day admission with migraines.  In early 2022 you attended hospital on several occasions in respect of chest pains and elevated blood sugar levels. 

Plea of guilty

22  Ms Hayes, you entered an early plea of guilty to the charge which entitles you to a significant sentencing discount.  Your plea of guilty has utilitarian benefit to the community and spares your victim the trauma of giving evidence in court.  The plea also has some added utility in accordance with the Worboyes principles.[1] 

[1] Worboyes v The Queen [2021] VSCA 169.

23I also take into account that you did make full and frank admissions when confronted with the allegations and that you also made full admissions in your civil case.  To this end your Counsel, Ms Strugnell referred to the Defence Response to the civil action (Exhibit 7 on the depositions), dated 11 November 2021.  At the commencement of that document you state, ‘I acknowledge and admit that I misappropriated funds into my own account.  I have no explanation as to why, or when, it started.’   Further, I take into account your apologies over time, including your apology read out by your counsel dated 16 May 2024.  You state, ‘it saddens me deeply to listen to the pain and hurt I’ve caused Mr Rowland and his family for my actions.  Further, my actions hurt Mr Rowland and his family, my family and in particular, my children.  I have let them all down by my actions.  The values I have always lived my life by is honesty and integrity.’  I accept that you are ashamed of your dishonest conduct.  In your recent assessment with Corrections you stated: ‘I’m devastated I have hurt so many people, especially my employer as he trusted me with his business and personal life.’

24The Prosecution submit that your claimed lack of memory and some of your comments to Ms Lechner deflecting from your criminal conduct suggest a lack of insight.  I agree that it is concerning, though I do accept the suggestion of Ms Lechner that it is likely indicative of an inability on your part to confront and reconcile your thoroughly dishonest actions with your sense of identity.  While I do accept that you are ashamed and that you regret your actions, I also consider, Ms Hayes, that you need to develop a greater insight into your offending and its causes.

Personal circumstances

25As to your personal circumstances, you are now 50 years of age. 

26You report growing up in an extremely difficult family environment and you were exposed to a significant degree of domestic violence. Your parents separated shortly after your birth and you had no relationship with your biological father who died some years ago.  Your stepfather’s violence left you feeling chronically anxious. Ms Lechner states that your ‘exposure to domestic abuse sowed the seeds of long-term problems with low self-esteem, interpersonal mistrust, hypervigilance, avoidance and emotional dysregulation, symptoms of complex PTSD.’ 

27Your mother and stepfather have since separated. You have a positive connection with your mother who has recently been diagnosed with dementia and transitioned into a nursing home. You have three half siblings.  You have no contact with your brother and had reasonable relationships with your sisters.  One of your sisters committed suicide in November 2023.    

28You attended Mentone Girls Grammar and were a relatively good student.  You left home at the first opportunity and managed to secure steady work.  You have worked as a custom’s agent, in custom’s clearance, and you operated your own small shop between 2004 and 2009.  You also studied accounting at Holmesglen TAFE.  In the past you have consistently been employed but are now largely reliant on Centrelink, though hopeful of resuming work in the future.

29You were married for some 17 years and you have three children, two daughters in their early 20s and a son aged 17.  You separated in 2015 in the context of learning of your husband’s infidelity.  You struggled psychologically and financially after separation.  The property settlement was limited, notwithstanding that you once owned a business together, and you were left to support your children.  Currently all of your children, along with your young grandchild, approximately seven months old, live with you.

30As described in the report of Ms Lechner, you have subsequently had two intimate relationships in which you experienced abuse, as detailed, which has led to ‘a resurgence of post-trauma symptoms’.[2]

[2] Report of Psychologist Carla Lechner, dated 5 October 2023, page 3.

31In October 2020 your daughter moved to Queensland for her university studies and ultimately you moved north to be with your family.  All of your family now reside in Queensland and you have no family or social connections in Victoria. 

32As I have already noted, in December 2020 your health deteriorated further and you were diagnosed with two aneurysms that have subsequently been ‘clipped.’ 

33You have no history of any drug or alcohol issues. 

34You are currently prescribed medication for diabetes and high cholesterol, along with anti-depressant medication. I accept your Counsel’s submission that your multitude of medical issues are likely to increase the burden of imprisonment.  In this respect, I note that your neurologist is unable to say how long your cerebral aneurysms have been present or whether the aneurysms may return in the future, and that this causes you anxiety.  I further note that you suffer from insomnia and also have a history of unstable sugar levels and you are prescribed DPP-4 inhibitors, metformin and sulfonylurea.

Mental health

35You have experienced some recent mental health treatment and admissions. 

36Between 30 October 2021 to 13 November 2021, you were admitted into the Currumbin Clinic in Queensland following medication overdose and attempted suicide, in the context of the related civil action.  Diagnosis was adjustment disorder with mixed depression and anxiety. 

37Between 8 and 24 March 2023 you admitted yourself to the Robina Private Hospital  in the context of psychosocial stressors and the diagnosis was Major Depressive Episode. 

38In November 2023, and I note that this was during the time of your sister’s passing, you again self-referred and were admitted between 8 to 21 November in the context of ongoing stressors with a diagnosis of Major Depressive Episode.

39In your assessment with Ms Lechner you completed the International Trauma Questionnaire which indicated the presence of symptoms of both Post-Traumatic Stress Disorder and Complex Post-Traumatic Stress disorder.  Long term symptoms were indicated, arising from both your ‘exposure to violence in [your] formative years as well as [your] experiences of sexual assault, the break-down of [your] marriage and other failed relationships.’[3]

[3] Report of Ms Lechner, page 5.

40Ms Lechner opines that you currently present with symptoms of Major Depressive Disorder and Complex PTSD.[4]

[4] Ibid page 6.

41Ms Lechner considers that your mental health is ‘quite precarious’ and you are a potential risk of suicide should your depression deepen.  She opines that your:

‘Mental health would be adversely affected by a term of immediate imprisonment, especially as [you] would be separated by immense distance from [your] family and [your] sense of self-worth would decline even more.  Additionally, [your] ability to cope with such an environment is reduced on account of [your] poor mental health and lack of robust coping skills.’  Ms Lechner anticipates ‘an increase in [your] level of anxiety, potential further resurgence of post-trauma symptoms and a decline in [your] mood state and therefore [your] ability to cope.’[5] 

[5] Report of Ms Lechner, page 8.

42In light of your reported cognitive difficulties, Ms Lechner recommended a neuropsychological assessment, and this assessment was undertaken by Dr Kelly Sinclair on 1 March 2024.  Your overall neuropsychological profile indicated ‘intact cognition’ in the ‘average range or above’.[6]

[6] Report of Neuropsychiatrist Dr Kelly Sinclair, dated 15 March 2024, page 11.

43On the basis of Ms Lechner’s report, your Counsel submits that Limbs 2 through to 6 of Verdins are enlivened[7].  The prosecution do not challenge the opinions of Ms Lechner, however they submit, and I agree, that while you may have experienced some challenges, there is no evidence to support a finding of Verdins considerations at the time of your offending. However, I do accept, as submitted by your counsel, that your current mental health is relevant to the kind of sentence that is imposed; should result in a sensible, though I consider modest moderation of general and specific deterrence; that a term of imprisonment will weigh more heavily on you than an offender in ‘normal health;’ and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.  In assessing the weight to be given to these matters, I have taken into account the assessed severity and extent of your conditions, which appear presently to be relatively stable, alongside the serious nature of your offending.

[7] R v Verdins [2007] VSCA 102.

Hardship

44Your counsel submits that an immediate custodial sentence would have a devastating impact on several members of your family. 

45Your sister, Kylie, was recently diagnosed with epilepsy, experiencing regular seizures and requires you to drive her to medical appointments.  Your mother resides in residential aged care with a number of medical conditions, including, as I have already noted, dementia and chronic kidney disease and you are the primary point of contact. Your daughter, Lauren, is pregnant with her second child and her pregnancy has been complicated and is high risk and she has a toddler at home whom you help care for most days.  Lauren provided an email in which she outlines her personal circumstances.  Her partner works away from home on a three week on and one week off roster and she states: ‘Life at the moment is very stressful for myself with my partner being away and potentially my mum going away.’ Also, your daughter Alanna experiences complications after recent gastric bypass surgery and is engaged in seeking further surgical opinions.  Alanna provided a letter to the court and also gave evidence as to her ill health, medical challenges and anxiety and the way it impacts her and also renders her incapable of providing help to others, including her young nephew, that is, your grandson.  Further, your counsel submits that your family presently pays $750 per week in rent and they will not be able to continue residing in their house should you be incarcerated. 

46Ms Hayes, I accept that you provide significant supports to your family and I also accept the unchallenged evidence that your daughter Alanna gave in court.  It is clear that several members of your family are struggling with their own health issues and personal circumstances and that you are an integral support to them.  I also accept that the court is entitled to take into account in its assessment of whether the exceptional circumstances threshold has been met, the combination of health needs that are presented.

47As the court in Markovic explained:  ‘In exceptional circumstances family hardship may be taken into account in the exercise of the sentencing discretion, as an exercise of mercy properly extended by the court in such a case.’[8] 

[8] Markovic v The Queen [2010] VSCA 105.

48Each case ultimately turns on its own unique circumstances and the assessment of the court.  In the New South Wales case of Spicer referred to by your counsel, there were three people (mother, daughter and wife) with pressing major health problems who needed sustained care and assistance with living and the appellant was the full-time carer.  While I accept that a term of imprisonment will likely adversely impact your family, on the material before me I do not consider that individually or cumulatively it rises to the level of exceptional circumstances.   

49The court also made clear in Markovic’s case that the effect on an offender of hardship caused to family members by his or her imprisonment is quite a separate matter.  An offender’s anguish at being unable to care for their family can properly be taken into account as a mitigating factor.  In your case, Ms Hayes, I am satisfied that consequently the experience of imprisonment will be more burdensome for you. I also accept that it materially affects the assessment of the need for specific deterrence and your prospects of rehabilitation. 

Other factors

50Addressing other mitigating factors, I accept that your experience of imprisonment would also likely be more isolating and difficult as you have no family or connections in Victoria.

51Further, I also take into account your effort to make some restitution in the approximate amount of $12,000 to date. While there is a very large amount that remains outstanding, I do accept that your efforts are further indicative of remorse.

52Also, I take into account the delay in the matter, that is between detection of your offending and the plea hearing.  While not inordinate, I accept given your recent mental health history, that it has likely caused you some anxiety and stress. 

Prospects of rehabilitation

53In all the circumstances, I consider that you have very good prospects of rehabilitation.  You are a mature woman with no prior criminal history or any subsequent matters. 

54I received character references on your behalf which collectively speak of this offending as out of character.

55Your sister Kylie refers to you as always being ‘the most loving and supportive person in our family’ and she speaks of the invaluable support you have provided her.  Jennifer Cockburn, who has known you for some 20 years, describes you as a ‘decent, hardworking, honest, caring, loyal and trustworthy person.’  Lachlan Sim, your nephew, states that you have instilled in him and his siblings the values of ‘honesty and kindness’ and that you have helped his mother, that is, your sister, and their family during their own hardships.  Your 17 year old son has also provided a letter where he says ‘mum has always worked really hard’; ‘she encourages me to work hard so I am able to buy what I need.’  Vicki McMahon has known you since 2018. You previously worked together for 12 months in ‘a small high-pressure office’ and she says that you always ‘performed [your] duties with the highest integrity and honesty.’.

56As already stated, your offending was protracted and serious and stands in stark contrast with the person presented in these character references.  I consider that structured treatment and supports will assist you to develop your insights and best help to maximise your rehabilitative prospects. Ms Lechner considers that you would benefit from psychological counselling and specific trauma therapy.  Dr Sinclair also refers to the importance of monitoring and managing your symptoms of stress, low mood and anxiety and recommends ongoing support relating to your mental health symptoms, including psychological counselling. 

Sentencing principles

57The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation and protection of the community.  In cases of this nature, as the higher courts have made clear, denunciation and just punishment are very important sentencing purposes.  In your circumstances, I accept that less weight can be given to community protection, though it of course remains a relevant factor.

58I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant in your case. Further, I have taken into account the principles of parsimony and proportionality.

59I have also taken into account the relevant sentencing landscape for such offending, including the cases referred to by your counsel and the statistics referred to by the prosecution. The current sentencing practices are of course but one factor to consider and each case ultimately turns on its own facts and circumstances, and while the statistics are helpful, they are of course inherently limited. 

60The prosecution submit that a term of imprisonment is required, with a non-parole period.  Your counsel submits that a community corrections order is within range. I had you assessed for a Corrections order and you were assessed as suitable and as being a low risk of general offending.

61As the court stated in Boulton v The Queen, in determining whether to sentence an offender to a community corrections order, the court should first assess the objective nature and gravity of the offence and the moral culpability of the offender[9]. The court should then consider whether the crime as so assessed is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment. 

[9] Boulton v The Queen [2014] VSCA 342.

62Synthesising all relevant matters, and that includes the seriousness of the offending and its impact on your victim, ultimately I do consider that the punitive and deterrent aspects of sentencing can adequately be reflected by the imposition of a stern community corrections order.  I have taken into account the powerful mitigating factors of your case and I consider that some mercy should be extended to your circumstances[10].  I consider that a community corrections order is the just and appropriate sentence.  Such an order is intrinsically punitive and, depending on its length and nature and extent of the conditions imposed, it is capable of being highly punitive.  For the period of its duration, Ms Hayes, your life will be regulated by the obligation to comply with the conditions.

[10] R v Osenkowski [2005] SASC 142.

63Could you please stand.

Sentence

64On the one charge before me, Ms Hayes, you are convicted and sentenced to a community corrections order of three years and the following conditions will apply to it:

·Supervision

·Treatment and rehabilitation for mental health

·Treatment and rehabilitation for programs. 

·Community work – and I am setting that at 330 hours.  I am offsetting 70 hours against treatment that you engage in. 

65Pursuant to s38(2) of the Sentencing Act, I will order that the commencement date of the community corrections order is – and I will check this with counsel but I am proposing to set the date for 20 August which falls just under the maximum period that I am permitted, but I will have counsel confirm that with me – and it is to facilitate the transfer of your order to Queensland.  I just want to make something clear.  I do not have control over this transfer process.  It seems appropriate to follow the recommendation of Corrections and allow for a short period of time for the application to be made without uprooting you from your home and your family.  To be clear, however, I have not made this order on the assumption that it will be transferred, I have made the order, whether it be served in Queensland or Victoria, as I consider it to be the just and appropriate sentence. 

66Pursuant to s6AAA, I can indicate that had you not entered a plea of guilty to this charge I would have sentenced you to some two years and four months’ imprisonment with a non-parole period of some one year and five months.

67You can take a seat.

68Counsel, there is not a compensation order, we confirmed that on the last occasion.  Are there any other ancillary orders?

69MR ROPER:  No, Your Honour. 

70HER HONOUR:  And I just want to check; I nominated that Corrections recommend and suggest it takes up to three months, so I thought it prudent given the purpose of doing this to nominate 20 August, which, and I do want counsel to check this, is under three months.

71MR ROPER:  Yes, it is.  I was looking – I was thinking just under - 23 August is a Friday, the 20th, yes, that’s within the three months - - - 

72HER HONOUR:  It just seems to me it’s perhaps best to bring it a few days earlier.

73MR ROPER:  Yes, I understand that Your Honour.  That’s quite correct.

74HER HONOUR:  Thank you.  And I’m just going to check with my staff if our order is to be printed in a moment.  Ms Strugnell, what I’ll do then is once that order is printed, I will remain on the bench, you will be able to – you and your instructor can approach Ms Hayes and make sure she understands the order itself.  While that’s being done though - I am going to ask Ms Hayes to stand up again.

75Ms Hayes, this order also has other conditions that apply to it, they are basic conditions.  I am going to explain them to you now while the order is being printed out.

76You must follow – this is in summary, you will have it in written form – the directions of Community Corrections.  You must seek their permission – I understand there will be a transfer process but wherever it ends up being served, whether it is here or in Queensland, you need their permission before you travel interstate, you need to advise them of certain things, along with the conditions that I have imposed. 

77Those conditions include therapeutic conditions, and also the amount of community work set I consider to be highly punitive, and that is its design.  It is a three year order from when it commences.  I have deferred the commencement date and that is clear.  As of that date it is three years whereby you are required to comply.

78You will breach an order if you do not comply with its conditions or if you commit another offence punishable by imprisonment within the period, that is the three years.  If you do breach it you will be required to attend back before court before me, I will deal with you for the breach and it is open for me to re-sentence you on these matters.  Do you understand?

79OFFENDER:  Yes, I do, Your Honour.

80HER HONOUR:  Thank you, you can take a seat.  Can we have a copy to Mr Roper please, provide a copy to Ms Strugnell.  Ms Strugnell, you and/or your solicitor can approach Ms Hayes to go through those conditions and have her sign please.

81MS STRUGNELL:  Thank you, Your Honour. 

82HER HONOUR:  You will note, Counsel, the core condition has just been changed in terms of the report within two working days,’ ‘as of the commencement of the order.’  Mr Roper, those conditions reflect what I have indicated?

83MR ROPER:  Yes, Your Honour, they do.

84MS STRUGNELL:  Your Honour, just in terms of the core conditions.

85HER HONOUR:  Yes.

86MS STRUGNELL:  The condition not to leave Victoria may be problematic.

87HER HONOUR:  Well, look, I’m not quite sure because that will be a condition if and once transferred.  There will be an equivalent condition.  I’ll just have a copy of that.  I’m just not – I mean Corrections have internal mechanisms; they can suspend orders, they can – if it’s transferred then the order itself is transferred and the conditions are changed without a variation.  It’s an internal process, they don’t have to come back before the court for that to be done.  So it just seems to me that there will be a prohibitive condition in whatever State it might be.  I can’t act on the assumption that it will be transferred so I propose to leave that as it is, unless both counsel wish to be heard further.  Can I have a copy of it please.

88MS STRUGNELL:  We’re just thinking through it, Your Honour.  We think it is okay - - - 

89HER HONOUR:  No, I’m not proposing to change it, I have to say.  ‘You must not leave Victoria without first getting permission to do so from the Secretary or delegate.’  If this order is transferred these conditions will be transferred.  If not and it requires a variation application then it ought to come back before me - - - 

90MS STRUGNELL:  Yes, Your Honour. 

91HER HONOUR:  But I am – I defer it and I am empowered and able to do it, as counsel agree, but I am not – and I have changed the condition in respect of the commencement but I am not proposing to tinker with other conditions because it really is an internal process that doesn’t involve this court.

92MS STRUGNELL:  I think that’s correct, Your Honour.  I think the commencement date actually solves that particular problem with the courts.

93HER HONOUR:  It may.  If it requires this Court’s intervention we will no doubt be told but I am comfortable and confident that these conditions are appropriate.  Do you both agree with me?

94MR ROPER:  I agree, Your Honour, given that it won’t commence until 20 August anyway - - - 

95HER HONOUR:  Yes.

96MS STRUGNELL:  Thank you, Your Honour. 

97HER HONOUR:  Thank you.

98MR ROPER:  And I’m sure in the processes about reporting within the working days that’ll be part of the transfer process - - - 

99HER HONOUR:  Yes, that’s right, Mr Roper - - - 

100MR ROPER:  If I can put it that way - - - 

101HER HONOUR:  There’s an unknown element to this and so the order is clear in its terms and that is certainly my primary concern.

102MR ROPER:  Yes, and any modification that might be needed can be mentioned if the need arises.

103HER HONOUR:  Yes, if need be. 

104MR ROPER:  No, we’re just saying, Your Honour, my instructor reminds me that the same situation pertained as in Queensland and there was no issue.

105HER HONOUR:  I see, thank you, Mr Roper.  And thank you to your instructor.  I have signed copies here.  Ms Hayes will receive that, Counsel will receive it also and I want to thank both Counsel, and also I’m not sure whether Mr Roland is still on the link but I also convey again my thanks to him for his participation and contribution in this process.

106MR ROPER:  Yes, I think they’ve got other things on their mind, Your Honour.

107HER HONOUR:  Yes, I understand that.  Thank you.

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