Director of Public Prosecutions v Langdon

[2012] VCC 817

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-09-00436

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID LANGDON

---

JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2012
DATE OF SENTENCE:	8 June 2012
CASE MAY BE CITED AS:	DPP v. Langdon
MEDIUM NEUTRAL CITATION:	[2012] VCC 817

REASONS FOR SENTENCE

---

Catchwords:               

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Mandy	CDPP
For the Accused	Ms R. Greensill	Tait Lawyers

HER HONOUR:

1         David Michael Langdon, you have pleaded guilty to two charges of theft. The maximum penalty for each offence is ten years' imprisonment which I must and do take into account as an indication of the seriousness with which the offence of theft is regarded. 

2         Both charges arise from your having taken money that was paid as the aged pension to your aunt for many years after her death.

3         In 1978 your aunt, Audrey Jean Archibald was granted the aged pension, and payments from the Department of Social Security commenced into a nominated bank account, in the name “J Archibald”.  For some years before she died, she lived with you and your sons at Pearcedale and you looked after her. In March 1995 she lodged a form appointing you as her nominee, to deal with correspondence between her and Centrelink, giving the reason that she was restricted partially to bed, and due to bad health was unable to travel or walk without medication.  This form gave a postal address as a post office box number in Pearcedale, and her residential address as yours.

4         Your aunt died on 1 July 1995.  Centrelink did not record that until approximately 1 April 2008.  Payments of the aged pension into her nominated bank account had continued in the meantime.  Bank statements for the period for which they can be obtained, apparently from 2000. confirm regular fortnightly payments of the aged pension into the account, and that up until 21 February 2002 there were regular withdrawals of amounts equivalent to the pension amounts made by either an automatic teller machine (ATM), or an electronic point of sale transaction (EFTPOS).

5         From 28 February 2002 to 10 April 2003, while the pension continued to be deposited into her account, there were no withdrawals and the account balance grew to a little over $13,000.  From 11 April 2003 to 12 June 2003 a series of withdrawals reduced the balance to $39.  Thereafter, the pattern of fortnightly deposits of the pension and subsequent withdrawals of the same or similar amount resumed, continuing until 13 March 2008.

6         The reason for the two charges against you is that the period up until February 2002 is the subject of Charge 1, being a charge under Victorian law as it preceded the enactment of the equivalent Commonwealth offence.  From the time of resumption of withdrawals in April 2003, they are covered by Charge 2 which is brought under Commonwealth legislation.  Charge 1 alleges that during the period, 13 July 1995 to 22 February 2002 you stole a total of $72,712.39, and Charge 2 that between 15 April 2003 and 14 March 2008 you stole $76,738.57.  The total amount alleged to have been stolen is therefore $149,450.96.

7         You pleaded guilty to these two charges earlier this year.  However, you sought to contest certain facts, specifically that you were responsible for taking as much as the total alleged, namely, $149,450.96.

8         To this end you gave sworn evidence before me earlier this week, that as best you could calculate, you had taken between $30-40,000.  Further, you swore that after your aunt's death you did not make any of the withdrawals, and did not know of the misappropriations prior to your own mother's death which you say was in February 2003.

9         You say that your mother, or people associated with her, made all the withdrawals the subject of Charge 1.  In relation to the amounts, the subject of Charge 2, you say that although your mother had died by the commencement of that period, you did not start taking the money yourself until a new card arrived in the post for your aunt's account.  You felt it through the envelope and decided to continue to use the money in the account.

10        For me to sentence you on the basis of the facts as you put them, I would need to be satisfied of them on the balance of probabilities.  I am not.  I raised with your counsel that your version of events now is inconsistent with your plea of guilty to Charge 1.  I gave time for this to be discussed further with you, and was told that you were not withdrawing your plea of guilty to Charge 1.  That plea of guilty amounts to an admission of each of the elements of the charge, namely, that you dishonestly appropriated money belonging to the Commonwealth.  Both prosecution and your own counsel submit that in those circumstances I should proceed on the basis that either you yourself took it or you were complicit in the taking of the money the subject of Charge 1.

11        Further, I note that when interviewed by Centrelink investigators in a recorded interview, you did say that you took the money, although mainly to give to your mother to assist her through her many hardships and ill-health, and because there was no one else willing to help her.  You also said you used some of the money for living expenses for your own household, which included your two sons whom you were raising, and who at that stage were still at school.

12        Before me you defended what you had said to the Centrelink investigators, by saying that you were too stressed to know what you were saying at that time, that you did not want to blame your mother who was dead by then, and you were not aware that you were being interviewed by police.  I reject your explanation for that.  First, I reject it because the transcript of the record of interview clearly sets out from the first page that you were warned that you did not have to answer questions, but what you said could be used in criminal proceedings against you.  And, when you did not appear to clearly understand that, it was further explained to you at some length. The people asking the questions were not police. They were Centrelink investigators and stated that they were to you at the time.  

13        Secondly, I reject your explanation that you did not want to blame your mother, because later in the interview you did say that your mum sometimes took it, that is the money (that is in your answer to Question 70) and that you were with her (answer to Question 71).

14        Having read your record of interview in full and compared it with what you said in evidence before me, I am satisfied that at least some of your motivation for taking your aunt's pension payments after her death was to assist your mother, and that she may have been given the ATM card and pin number for a time, to make some withdrawals or have someone make them on her behalf.  However, I am satisfied beyond reasonable doubt that you were at least complicit, and legally responsible for the taking of all of that money, whether or not you made every withdrawal personally. The card and the purpose for giving it and the pin number must have been known to you, as you were the person who otherwise had been the only person authorised by your aunt to use the account.

15        In relation to the amounts taken after your mother's death, being those the subject of Charge 2, I am satisfied beyond reasonable doubt that access to the account during the whole of that time was under your control, and whether or not you used the money to assist your sister or other family members undergoing hardship, you were directly responsible for the taking of all of those moneys.

16        I regard the circumstances of this offending as serious.  I do take into account that it started passively, in that it began by inaction by you in failing to more actively stop the payments into your aunt's account, rather than deliberate setting up of dishonest or fraudulent claims under false identities for social security benefits.

17        I note that you say you tried to notify Centrelink of your aunt's death on many occasions, and that you also made enquiries with the hospital about a death certificate, which you never received.  There is no independent evidence of any of that, but I am prepared to accept that initially you did try to orally notify the department, and that bureaucracies can be very slow to act, or even let some information such as this slip through the system.

18        However, access to the account was clearly within your control, in that after your aunt's death, you remained in possession of her ATM card and pin number, and/or made it available to your mother or others at certain times.  I have already indicated that I reject your explanation that you handed it over to your mother and did not see it again, and did not know that the card was being used to withdraw your aunt's pension.

19        It was also within your power to close the bank account.  The account would normally have been frozen on the production of a death certificate to a bank. However, you had been authorised by your aunt to operate the account, so that even if there were not a death certificate, you could have approached the bank to close the account.  Even if you legitimately thought for many months after your aunt's death, that the Centrelink system would eventually catch up and adjust the situation, there can be no honest explanation for letting the situation continue for the next six and a half years, until there was a cessation of withdrawal of payments, and of course, even after that for a further five years.

20        There is no specific explanation for why regular withdrawals stopped between February 2002 and July 2003.  It may have been connected with your mother's condition, as you say she died in February 2003.  However, it is clear that from the commencement of the period covered by the second charge, namely April 2003, there was a deliberate decision made to recommence those withdrawals, and indeed to take the accumulated balance from the previous year.  Thereafter, withdrawals continued for almost another five years, and I am satisfied that you were the person most involved, if not solely involved in the taking of the money over that period.

21        Again, after your mother’s death you could have again attempted to notify Centrelink and your aunt's bank, of her death.

22        You have pleaded guilty to these charges, and thereby saved the community the time and cost of a disputed trial.  In cases like this, I am aware that an extensive amount of paperwork is required to put together the evidence to trace payments of this type, so the avoidance of a trial and the need to call those witnesses is of real utilitarian value to the State of Victoria and the Commonwealth.  You will receive some leniency in your sentence for that, the extent of which I will tell you after I have told you the sentence.

23        I am not satisfied that you have really acknowledged that you have done wrong, in particular because of your seeking to dispute, and indeed, going on oath to dispute that you were responsible for any of the amounts taken during the period of the first charge, and even some of those under the second charge.  I also note that your pleas of guilty were more than two years after this case had been listed for a disputed trial, with three trial dates having been set before the indication of your being willing to plead guilty.  I do not infer any true remorse in relation to your having committed these offences.

24        I accept that you now regret your actions, and indeed, said and meant that you were sorry when interviewed by Centrelink investigators.  Although you also said it was in a good cause, and you would probably do it again to help your mother and sister (that is your answer to Question 88). In my view that is sorrow and regret for the difficult position you ultimately placed yourself in, and find yourself in now, rather than remorse for taking the money. 

25        While you and others may have the view that offences of this nature are victimless, that is a misdescription as described by the then Acting Chief Justice Winneke in Milne's case.  It is the whole Australian community which is the victim of fraud against the social security system.  The system itself is threatened if enough people take a dishonest approach to the obtaining of benefits, and even though the system may continue under the strain of theft from its resources, ultimately the pool of money available to increase benefits from time to time, to eligible pension recipients, is likely to be diminished if those not entitled to the payments continue to receive them.

26        To support the integrity of the social security system, courts have for many years stated that general deterrence is a very significant factor in sentencing for social security fraud, which will ordinarily require a term of imprisonment to send the message to anyone tempted to take benefits to which they are not entitled, that they can expect very serious punishment.

27        You have admitted some prior offending, the last being driving offences in 1993, and the only matters involving dishonesty being more than 20 years before the commencement of the offending for which I sentence you.  Except to the extent that you cannot claim to come before this court in your mid 50s with a totally unblemished record, I do not regard any of your prior offences as of relevance to this sentence.

28        I turn now to your personal circumstances.  You are now aged 56 and describe yourself as a stonemason and landscaper, although currently unemployed as your business is currently the subject of litigation elsewhere.

29        You were born and raised in Victoria, in complicated family circumstances which I accept were at times very difficult for you, and led to your leaving home aged about 15.  You apparently have numerous half siblings, many of whom you helped raise as there were prolonged absences by your mother, and some of whom you have helped support both financially and emotionally through difficult times, and continue to do so.

30        You have told the psychologist, Mr Healey, that none of your siblings would help take responsibility for your mother in her later years, but you did so.  Dr Walton says that you may have an overdeveloped sense of victim empathy.

31        You left school in Year 9, and from age 16 worked in various jobs.  At the age of 19 you commenced in landscaping and stonemasonry, in which you apparently gained on the job training, and which has been your field of work ever since. You were employed in that field until your mid 20s when you opened your own business and undertook the work as a subcontractor.  I gather that your landscaping business had good and bad times over the years, and that your financial position was often tight, especially with the expense of raising children and looking after extended family members.  I note that at times you chopped and sold wood to supplement the family income.

32        Subsequently, you apparently did some teaching in stonemasonry aspects of landscape gardening, at Holmesglen College.  Since 2009 there has been dispute about a particular landscaping job, which I am told has led to the filing of a petition to wind up your landscape business company, which will have very significant financial consequences for you, as that company owns your long term home.  You have said you do not have legal representation in that matter, and you may be well advised to try to obtain some legal advice.

33        You were married in your 20s and had two sons, now themselves in their late 20s and independent. Both were in court to support you on the plea hearing.  Apparently, your wife developed cancer while the children were young, underwent significant treatment, and in that context wished to end your marriage.  You told Mr Healey that the children remained in your care, but it emerged during the hearing that they were initially with their mother. Through a letter from Cane, I gather he moved to live with you after four or five years, when aged nine or ten, and his brother at an even younger age.

34        I accept that you were raising your sons as a single parent for much of their youth, and this was while working at your landscaping business and also having your aunt living with you and helping her, through long term illness and ultimately significant disability.

35        I accept that all of those circumstances reflect a strong sense of responsibility by you for family, and that you would have been sacrificing much of what would otherwise have been your leisure time, to meet these responsibilities.

36        You have told Mr Healey and Dr Walton of also trying to support one of your sisters through difficulties in her marriage, then with the successive and traumatic deaths of her two sons.  The timing of those events is unclear to me insofar as they interrelate with your offending, but I accept that you have a history of trying to assist family members through their respective hardships and crises.

37        You are now in a relationship with Ms Leanne Provin, as you have been for some eight years.  She provided a letter and also gave oral evidence before me, and is here again to support you.  She also has some serious health problems, being a very long term Type 1 diabetic, requiring insulin from a pump four times a day, and apparently subject to intermittent diabetic comas, to which you know how to respond and have done so on many occasions, she says, saving her from death.

38        She gave evidence about your support for her, explaining that although she does live part of the time with her parents, they are out of date in relation to her medical needs and she describes you as having a huge heart, that you will help anyone, and that it is because of your knowledge and care that you have saved her on many occasions. She has also earlier this year undergone major surgery on her back, and has been in need of extra care due to that.  I note from a letter from her surgeon that the need for the extra personal care may well have expired by now, but she is still unable to return to her work as an integration aide.

39        I accept that you play a significant role in looking after Ms Provin, and that your absence would be a blow to her, but your counsel concedes that the circumstances do not amount to what the cases say must be exceptional hardship to warrant a non-custodial sentence.  I accept that you would worry about her if you were not available to look after her when needed, and that is a factor in mitigation as it would make your time in prison more onerous.

40        In May 2010 you were assessed by Mr Bernard Healey, who provided a psychological report at that stage.  He carried out intelligence testing and concluded that you are in the average range for intellectual capacity.  He concluded that on personality testing you showed signs of serious depression, anxiety, a hypomanic trend - that is of thoughts racing ahead and making choices between alternatives difficult - and a schizoid trend which he considered was linked to social alienation.

41        He considered that your powers for delayed recall were reduced, and your memory function faulty.  On discussing the circumstances of the offending with you, he records that it was your belief that you had notified Centrelink by phone, and then wrote a letter as instructed, of your aunt's death.  However, moneys continued to be deposited into her account which you used to assist your mother.

42        He said that you realised that what you did was wrong and do not seek to excuse your conduct.  I note that this opinion was given some two years ago.  At the same time Dr Lester Walton also recorded that the facts in the matter are fairly straight forward and not in dispute, and that is that you continued to collect your aunt's pension payments after she died.  I note that is in contrast to the attitude you have taken in this hearing, and indeed since 15 March of this year when matters in dispute for the contested plea were filed.

43        Mr Healey did not specify how your psychological condition might have directly related to the committing of the offences.  He did conclude that a term of imprisonment would be likely to worsen your already serious depression, increase your anxiety, and he said that that ultimate loss of morale could precipitate suicidal thoughts or even actions.

44        I have also read and taken into account two reports by Dr Lester Walton, consultant psychiatrist whom you saw first in June 2010 and then again in April this year.

45        As already outlined, you gave Dr Walton the impression that you did not dispute the facts in the sense that you continued to collect your aunt's aged pension payments after she died.  He accepted from you that your motivation was not of undiluted personal greed, but as you had been looking after your aunt for many years, you then were trying to assist both your mother and your sister, although you conceded some of the moneys went towards meeting your own needs, including the raising of your sons.

46        Dr Walton found you obviously distressed and given to tearfulness, as I note you were when you gave evidence in front of me.  He concluded that you were suffering from a chronic depressive disorder.  I note he concluded that you have no striking cognitive deficit, and remain of normal intelligence, consistent with Mr Healey's findings on testing.

47        Dr Walton was of the view that your depression was not of the order that would give rise to a defence of mental impairment.  He noted that it is recognised that depression may erode a capacity for consistently exercising proper, social judgment, but your counsel conceded that was not sufficiently linked in time to form a reason why your condition would have so influenced your criminal actions, as to decrease your moral culpability, or to indicate that your condition is so different from most other people as to reduce the significance of general deterrence.

48        Dr Walton did state in his most recent report that attempts to treat your condition so far have not had much success, and he recommends that you be reviewed by a treating psychiatrist after sentencing, should there not be a significant improvement in your mood once relieved of the stress of the outstanding criminal hearing.

49        Finally, I have read a report from Phillip Samuel, a psychologist whom you attended for some treatment, initially only twice in August 2010, but returning from October 2011 for some nine further sessions.  You presented with symptoms of depression, anxiety and lack of capacity to concentrate and attend, and had been referred to him by your general practitioner, Dr Lim. Mr Samuel considered your first consultation to show more anxiety than depression, but with inconsistent capacity to recall. More recent testing showed more heightened anxiety than depression.

50        Mr Samuel reports that he has been treating you for the symptoms of both anxiety and depression.  His description of therapy of a simplistic psychodynamic approach is criticised by Dr Walton, nevertheless I accept that the psychological evidence confirms that you are suffering from chronic depression, and symptoms of anxiety, and that further therapeutic treatment is warranted.

51        I accept that you have shown considerable altruism and sense of responsibility for extended family members over much of your life. You have justified to yourself the taking of your aunt's aged pension money after her death, on the basis that you felt much of it was being spent on others and not you, namely your mother and sister, both of whom apparently had significant emotional needs.  I accept that you were not taking the money to live any sort of high life, nor to indulge in any spendthrift or overindulgent aspects of life.  I accept that it was all taken to use to assist in everyday living for other family members and certainly to assist in simply providing the basic needs for your own household and your sons.

52        I am also mindful that the reports of Dr Walton, Mr Healey and Mr Samuel confirm that you are suffering from depression and anxiety, to which the worry of this court case has no doubt contributed significantly.  The fact that it has hung over you for so long is largely due to your continuing to dispute the charges, at least until you entered a plea of guilty earlier this year, and even then another adjournment was required from the date in April, for you to give evidence to dispute whether you had been responsible for taking all of the money.

53        I have taken into account that your mental health state is likely to make imprisonment more difficult for you, and in Mr Healey's opinion, given two years ago now, may cause it to deteriorate.

54        I accept that there are some strong mitigatory factors in your case, from your personal history and circumstances. I accept that the offending did not start with any deliberately false claims for benefits, but rather took advantage of the ongoing payments, and did not take more direct action to stop them.

55        However, in my view, the duration of the offending, the two periods charged - totalling almost 12 years - the fact that it was resumed in April 2003 after more than a year without withdrawals, indicating that there was a deliberate decision to resume the offending, and that it lasted five further years until being discovered by Centrelink, together with your apparent attitude even now to try to minimise your involvement, not withstanding the pleas of guilty, lead me to the conclusion that no sentence short of some immediate imprisonment would sufficiently condemn the offending, and send a message to you and to others that such offending will attract severe punishment.

56        As to the term of imprisonment, I have significantly reduced the period before eligibility for parole, to take into account your psychological condition and extra vulnerability in that regard.

57        David Langdon, on Charge 1 of theft covering the period July 1995 to February 2002, you are convicted and sentenced to eight months' imprisonment.  On Charge 2 of theft covering the period April 2003 to March 2008, you are convicted and sentenced to 12 months' imprisonment.  The sentences both commence today and are therefore to be served concurrently, creating an effective sentence of 12 months' imprisonment.

58        On Charge 1 I fix a non-parole period of four months.  On Charge 2 I order that after serving four months of the sentence, you be released under s.20(1)(b) of the Commonwealth Crimes Act, on your own recognisance with a surety of $100, to be of good behaviour for the balance of the sentence.  The actual wording of whether that has to specify the precise period, I will wait to hear from the counsel for the Commonwealth, but the net effect is that I am imposing a total sentence of 12 months, with a non-parole period of four months' imprisonment.

59 As one of these matters is a State charge to which there was a plea of guilty, to that extent for the purposes of s.6AAA of the Sentencing Act, I state that had you not pleaded guilty to that charge, I would have imposed a sentence on that charge of 12 months' imprisonment with a non-parole period of six months.

60        Take a seat because there are technical aspects of the combination of the State and Federal sentence that I need to have checked and clarified. Take a seat if you wish to Mr Langdon.  The other matter - and I will speak to both sides’ counsel first about whether technically I have created the sentence I have said I am aiming to create, but I also intend to add a custody note.  Ms Greensill, you may want to consult your client, but I intended to create a custody note, both specifying what medication he is on, what diagnosis of his mental health problems there have been, and quoting Dr Walton, stating that if Mr Langdon were imprisoned, I think Dr Walton's words were, "Should he be imprisoned then prison-based psychiatric service needs to be alerted to his presence".  I think if that is said to come from Dr Lester Walton it would carry some weight, but those are private matters, and if your client does not want them noted on the documentation, I of course would not.

61        Would you like to seek instructions from him about that?

62        MS GREENSILL:  Yes, Your Honour.  No there's no problem with that Your Honour, that's regarded as a good thing to do.

63        HER HONOUR:  I can provide copies of those reports, but they probably will make their way into the system in due course anyway, and I don't want to have too many people have access to them unless your client wants them provided.

64        MS GREENSILL:  Yes, Your Honour.

65        HER HONOUR:  The custody note will appear on the return, so that it will accompany - - -

66        MS GREENSILL:  Yes - no I understand that Your Honour.

67        HER HONOUR:  It's in small print I must admit, but it accompanies your client into the system.  Now - - -

68        MS GREENSILL:  Your Honour, excuse me for being so bold.  Might I take a small personal break for a moment, I've just developed a bit of an illness this afternoon and I just need a break for about three or four minutes.

69        HER HONOUR:  Certainly, I just don't want to hold up your client any longer than that.

70        MS GREENSILL:  No, I don't either Your Honour I just - - -

71        HER HONOUR:  But I do need to check that structurally the sentence works as I've intended it to work.  I'll just leave the Bench for a few minutes.

72        MS GREENSILL:  I just need one moment Your Honour, very short.

73        HER HONOUR:  Yes.

74        MS GREENSILL:  Thank you.

(Short adjournment)

75        MS GREENSILL:  Thank you Your Honour.

76        HER HONOUR:  Yes, Ms Curmi, so far as the structure of the sentence is concerned I am always hesitant with Commonwealth matters.

77        MS CURMI:  Generally it looks fine Your Honour.  The only points I'd like to make are, with the recognisance release order the provision requires that you set a period during which the accused is required to be of good behaviour.

78        HER HONOUR:  Yes.

79        MS CURMI:  So at the moment you've got the 12 month sentence and to serve four months.

80        HER HONOUR:  And that I think that's what I meant, I was referring to that I wasn't sure technically whether I nominate - I'm not extending the good behaviour period beyond the 12 months.  So I don't know whether I express it as to be of good behaviour for the balance of the sentence, or whether I specify for eight months.

81        MS CURMI:  Eight months Your Honour.

82        HER HONOUR:  All right, I am happy to word it that way. I was not extending that period beyond the 12 months.

83        MS CURMI:  Yes, yes understood.  Your Honour, also the amount of the recognisance.  You mentioned $100, but you also mentioned surety.  So normally it's his own recognisance.

84        HER HONOUR:  Own recognisance.

85        MS CURMI:  That he might suffer the loss of $100 if he doesn't comply with the bond to be of good behaviour.

86        HER HONOUR:  Yes, that is what I meant.

87        MS CURMI:  Yes, thank you Your Honour.

88        HER HONOUR:  That is what I meant.  If I misworded it I am sorry, but the - - -

89        MS CURMI:  That's fine.

90        HER HONOUR:  I do not do them often enough to be on top of the wording, and words like recognisance do not come up for most members of the population very often, so I have to feel I should explain it.

91        MS CURMI:  Absolutely Your Honour.

92        HER HONOUR:  To make very clear, I regard the penalty as having to serve some period of time in prison and, whilst the balance of the total term hangs over Mr Langdon, I intended only a nominal amount to be the supposed security or however it is worded.  It is worded as recognisance is it?

93        MS CURMI:  That's it Your Honour.

94        HER HONOUR:  Yes, all right.

95        MS CURMI:  That's fine Your Honour, I'll finish that shortly.  Two other matters, 6AAA also applies to Commonwealth sentences.

96        HER HONOUR:  Does it?

97        MS CURMI:  Yes, Your Honour.

98        HER HONOUR:  In that case - I was not sure about that.  All right, in that case I will specify that Charge 2, without the - if there had not been a plea of guilty, but taking into account all the other mitigatory factors, the total sentence would have been 15 months' imprisonment with a non-parole period of six months.

99        MS CURMI:  Thank you Your Honour.

100      HER HONOUR:  Sorry, a recognisance release period of six months.

101      MS CURMI:  That's fine Your Honour.  The last matter is reparation Your Honour.  However Your Honour's minded to make a reparation order or not.

102      HER HONOUR:  I am not sure what the defence attitude to that is, I was told during the hearing that there has been a deduction from the fortnightly benefit that Mr Langdon has been receiving.  I was also told that he is facing the loss of his - - -

103      MS CURMI:  Facing bankruptcy.

104      HER HONOUR:  - - - home, that is apparently owned by the company that there is a judgment debt against, and I would want before I would make any such order, I would have thought there should be a chance for a hearing to put much more detail in front of me about the reality of that.  Now, on the other hand if - now of course the obligation would be his personally, not the company's.  So even if the company were wound up, that is not missing the opportunity for that to be proved.

105      Thinking aloud on this, I am reluctant to embark on such a hearing this afternoon.  If it is sought to be brought on, on another occasion I think I can do that.

106      MS CURMI:  Yes, yes.  It's a matter for Your Honour.  Centrelink obviously has extensive powers to recover these moneys.

107      HER HONOUR:  Yes.

108      MS GREENSILL:  Yes.

109      MS CURMI:  Yes.  I just thought I'd raise it Your Honour.

110      HER HONOUR:  I understand why.  I am not inclined unless the defence wants me to deal with it on the spot, to deal with that.  I think it requires a chance for further material to be brought before the court.

111      MS CURMI:  As Your Honour pleases.  Just allow me a moment Your Honour.

112      HER HONOUR:  Yes.

113      MS CURMI:  I'll complete the form.  If I can hand this form up Your Honour.

114      HER HONOUR:  Yes.  Has Ms Greensill seen it?

115      MS GREENSILL:  Yes, Your Honour.

116      HER HONOUR:  All right, thank you.  I have signed that order.  Mr Langdon, because one of the charges is under the Commonwealth Act, it has got a complication.  We do not call it a non-parole period, we call it a recognisance release.  What I have told you is that the total sentence is 12 months' imprisonment, but effectively you will get parole and released after four months, although on the State charge, strictly speaking the Adult Parole Board has to make that decision.

117      On the Commonwealth charge I make that decision, and I am making it here that after four months you should be released, provided you undertake to be of good behaviour for the next eight months.  Do you understand that?

118      PRISONER:  Your Honour - - -

119      HER HONOUR:  You do not?  Let me start again.  The total sentence being imposed is 12 months' imprisonment.

120      PRISONER:  Yes.

121      HER HONOUR:  But I am ordering that after four months on the Commonwealth charge you should be released, but that is provided you undertake to be of good behaviour for the rest of the 12 months, that is for the eight months after you are released.

122      PRISONER:  I will.

123      HER HONOUR:  I thought you would, but you are required to sign an undertaking agreeing to that.

124      PRISONER:  So, Your Honour - - -

125      HER HONOUR:  You are going to be imprisoned today.  In four months time you should be released, but for the following eight months you have got to undertake not to commit any other offences.

126      PRISONER:  What about Milly?

127      HER HONOUR:  I am afraid, as I have explained, I have already taken those sorts of matters into account.  I have reduced the time I am requiring you to spend in prison, but I have explained that I have decided that some immediate imprisonment is required because of how long the offending went on, and overall the whole amount, the total amount but in particular how long it went on.

128      PRISONER:  Thank you Your Honour.

129      HER HONOUR:  What you are going to be asked to do now, is to sign a document undertaking or agreeing that, after four months' in prison, you will be of good behaviour for the following eight months.

130      PRISONER:  I will.

131      HER HONOUR:  It has been seen by your solicitor, Ms Greensill, and she understands that this is normal and that she has seen that it includes terms that it is appropriate for you to sign, but if you would like her to discuss it with you, I will let her approach you about it.  Otherwise, I would ask my associate to bring it to you for you to sign, that you agree - - -

132      PRISONER:  I'll just sign it.

133      HER HONOUR:  - - - that after you are released, you will be of good behaviour for eight months and you have to understand that if you do commit any offences in that time, you may well be brought back in front of me, in front of this court.

134      PRISONER:  All right.

135      HER HONOUR:  I trust that you will not commit any further offences then, but I am going to ask my associate to bring the document to you, to sign.

136      PRISONER:  Thank you.

137      HER HONOUR:  You are asked to sign on the back, the front sets out what I have just been explaining.

138      PRISONER:  Thank you Your Honour.

139      HER HONOUR:  Just take a seat, we will have some copies made of that.  I will stand the matter down while the order gets finalised, so I can sign it but I do not think the court needs to sit through that.  It will be done as soon as possible.

(Short adjournment)

140      I have called everyone back because I realise I have made an error in the sentence, I apologise to you Mr Langdon and to everyone else concerned but it is a technical matter that I got wrong and it is best to be corrected as soon as possible.  My only excuse is that I was paying so much attention to the Commonwealth side that I overlooked some basics about the Charge 1 and what I did with the State charge.

141      It is not permissible to fix a non-parole period if the head sentence is less than 12 months, and also there has to be at least a six month differentiation between head sentence and non-parole period.

142      That leaves two options to achieve what I intended to achieve, and Ms Greensill, I thought I would allow your client effectively the choice because of this.  I can achieve what I said I intended by, instead of fixing a non-parole period on the State charge, by partly suspending the sentence, so that four months is to be served and the other four months is suspended for eight months.

143      That makes certain release after four months on both of the two charges.  On the other hand, it means that there is no supervision or assistance from the Parole Board, which I have thought might be useful for your client in all the circumstances.  If there is to be Parole Board involvement, I would need to increase the sentence on Charge 1, to 12 months' imprisonment, I can leave the four months as the non-parole period but that would no longer differentiate as I had intended to do, that I thought the culpability Charge 2 was more than on Charge 1. But the net effect would still be total concurrency so the net effect would be the same.  So it really comes down to whether you and your client would prefer that he have the supervision and assistance of the Parole Board, although, that of course leaves in the Parole Board's hands, the actual decision as to what date the release would be.

144      MS GREENSILL:  I'll just have a word to him Your Honour.

145      HER HONOUR:  Thank you.  Ms Curmi, I do not think it particularly would concern the prosecution.  It is just to get it right.

146      MS CURMI:  No, thank you Your Honour.

147      MS GREENSILL:  Yes, Your Honour the first option.

148      HER HONOUR:  All right, partly suspended.

149      MS GREENSILL:  Yes, Your Honour.

150      HER HONOUR:  That means that the proportionality stays the same.

151      MS GREENSILL:  Yes.

152      HER HONOUR:  But instead of fixing a non-parole period, what I will order is that the sentence be partly suspended, the term to be suspended is four months' imprisonment with an operational period of eight months.  I think the system, the computer throws up that term to be immediately served will be four months.

153      MS GREENSILL:  Your Honour, might I say I think that's neater anyway.  With the fact that there's a recognisance release order after four months coupled with the Parole Board decision, it's still in the hands of the Parole Board.

154      HER HONOUR:  It is.

155      MS GREENSILL:  I think this is a neater way of - - -

156      HER HONOUR:  I did understand that that was so, I was just originally intending that there be the assistance of the Parole Board.

157      MS GREENSILL:  I might apologise for not assisting you further before Your Honour, I should have found - - -

158      HER HONOUR:  It is my responsibility solely this, I just had - - -

159      MS GREENSILL:  It's very complicated Your Honour.

160      HER HONOUR:  - - - concentrated on the other charge to the detriment of this one and it is one of the basics that it should have occurred to me earlier than it did.  All right, I am sorry to call everybody back and to cause the concern.  Again, I apologise to you Mr Langdon, I should have got it right the first time.  It is always troubling when things are protracted but it is best to have fixed it on the spot.  That does give certainty, that after four months there will be release, under both charges. It will not be supervised released.

161      I am obliged to explain to you Mr Langdon, so far as on the State charge, four months of the sentence is suspended for eight months.  That means if during the eight months you commit any further offence, any further crime that could be punished by imprisonment, and even theft of a can of soft drink amounts to theft that could be punished by imprisonment, even though a court would probably not impose that, but if you commit any further offence after your release for those eight months that would amount to a breach of the suspended sentence and you could expect to be brought back in front of me, and unless there are exceptional circumstances that arise after today, that would make it unjust, that other four months of the sentence might well be ordered to be served.

162      But if you stay out of trouble, if you do not commit any offence that could be punished by imprisonment, you will not have to serve any more than the initial four months in prison.  Do you want - - -

163      PRISONER:  May I talk Your Honour?

164      HER HONOUR:  Yes, what do you want to ask.

165      PRISONER:  I just want to thank you.  I know you've had a hard basket with this.  Thank you for what you've done for me.

166      HER HONOUR:  It is my duty to give the best consideration I can to these cases and that is what I am trying to do.  I know it is tough but it is tough when anyone is sentenced to imprisonment.

167      PRISONER:  I just worry - - -

168      HER HONOUR:  I have stated my reasons and those will be, once they are typed up, they are available for you to - your lawyers will have them if you want to read it, why I have decided to do what I have.

169      PRISONER:  I wouldn't challenge anything you've done Your Honour, thank you.

170      HER HONOUR:  All right, thank you Mr Langdon.

171      MS GREENSILL:  Your Honour, can I just clarify what the period of the suspension, the term would be for that four months suspended for - - -

172      HER HONOUR:  The eight months.  I think I have to express it as eight months don't I?

173      MS GREENSILL:  No but there's four months and then four months - - -

174      HER HONOUR:  Four months - it's the operational period I thought actually goes from now, rather than from the time of the release.

175      MS GREENSILL:  But I just wanted to check, normally when someone sets a suspended they would say you've got a suspended sentence for one year, the amount - the four months - - -

176      HER HONOUR:  Operational period.

177      MS GREENSILL:  Yes the operational period.

178      HER HONOUR:  Yes, well I think I have to make the operational period eight months.

179      MS GREENSILL:  Yes Your Honour.  That's fine Your Honour.  I just wanted to make sure what it was - I may have missed it if Your Honour said it, that's all.

180      HER HONOUR:  I thought I said eight months.

181      MS GREENSILL:  Yes and I just missed it.

182      HER HONOUR:  That is what I - - -

183      MS GREENSILL:  Thank you Your Honour.

184      HER HONOUR:  Four months - eight months sentence, partly suspended.  Four months being suspended for an operational period of eight months.

185      All right, the system has completely frozen up apparently and my associate has to get in touch with CLMS.  We will have to have this done as soon as possible and I know it is a Friday afternoon and I do not want to hold you up any longer Mr Langdon, but you cannot leave the building until the order comes through.  I will leave the Bench and let your counsel leave, and I will sign it as soon as the computer allows it to be printed.

186      MS CURMI:  Thank you Your Honour.

187      HER HONOUR:  It has come back on now, so it should not be too long.

188      MS GREENSILL:  Thank you Your Honour.

189      HER HONOUR:  We will adjourn again until 9.30, Tuesday.

- - -