Director of Public Prosecutions v Newling

[2018] VCC 1691

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-01669

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOEL NEWLING

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Geelong
DATE OF HEARING:	11 October 2018
DATE OF SENTENCE:	16 October 2018
CASE MAY BE CITED AS:	DPP v Newling
MEDIUM NEUTRAL CITATION:	[2018] VCC 1691

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; defraud Commonwealth; dishonestly obtaining financial advantage by deception; social security fraud totalling $287,137.

Legislation Cited:                   Crimes Act 1914 (Cth) ss. 16A(1) and (2); 17.

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; R v Phelan (1993) 66 A Crim R 446; SA Police v John (1995) 181 LSJS 20; CDPP v Thomas; CDPP v Wu [2016] VSCA 237; DPP v Milne [2001] VSCA 93.

Sentence:Imprisonment totality 2 years 10 months; recognizance release after 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Henderson	Commonwealth Office of Public Prosecutions
For the Accused	Mr M. Vines	Vines Lawyers

HER HONOUR:

1Noel Jennifer Newling, you have pleaded guilty to one charge of defrauding the Commonwealth and one charge of dishonestly obtaining financial advantage by deception from a Commonwealth entity. 

2The maximum penalty for each of these charges is ten years' imprisonment and a substantial fine.  You are not going to receive a sentence anywhere near as high as the maximum for even one of those sentences, but I am going to tell you at this stage that you are going to receive a term of imprisonment which will require you to spend some time immediately in prison.

3Your offending occurred throughout a period of almost 21 years, from July 1995 until May 2016.  It began in July 1995, when you applied to the Commonwealth Department for a Widow's Allowance, providing information that you were single, whereas you now say that in fact you were living as part of a couple with Mr Michael Stansfeld.  Over the following years you provided further information when asked, always to the effect that you were single and not married or in a couple.  At various stages you did disclose that you were living with Mr Stansfeld, but as a friend, and at one stage you said you were paying rent. 

4In June 2004 you lodged a claim to transfer to the Age Pension, again claiming to be single, as you had been divorced from your former husband in September 1998.  You claimed to be living as a caretaker of a house and garden rent-free, where you lived until the owner decided to retire there, or not.  You now say that you were actually living with the owner, Michael Stansfeld, in a couple relationship.

5To be eligible for the Widow's Allowance you had to be single.  The single rate for the age pension is higher than the partnered rate.  The total amount overpaid to you was $287,137.98.  That is the amount paid in excess of amounts to which you were entitled, over the entire period.

6When Mr Stansfeld died in May 2016, you discovered that he had been much wealthier than you knew.  His estate was apparently worth in excess of $3.8 million.  He had no other dependents and no children.  Under his Will you were to receive $50,000, a unit at Camperdown which was said to be worth approximately $185,000, and a car.  The Will described you as the caretaker of his property.  He left the residue of his estate to charities.

7You obviously sought legal advice after Mr Stansfeld's death.  I accept that until that stage you had not known the extent of his wealth.  You faced the dilemma that to make a claim against Mr Stansfeld's estate under what are known as testator's family maintenance provisions, you would need to prove that you were Mr Stansfeld's domestic partner.  You would also need to disclose your own financial position, and that would mean disclosing that you had been receiving a pension on the basis that you were single.

8In August 2016 your solicitors wrote to Centrelink, at that stage keeping the identity both of you and Mr Stansfeld anonymous, putting a proposal that if you made disclosure that you had in fact been in a domestic relationship rather than single over the period that you had been receiving Commonwealth benefits, you would enter an arrangement to repay the Commonwealth the amount of the overpayments.  This proposal included several limitations, both as to only repaying the extent that you recovered from Mr Stansfeld's estate and net of legal costs, and seeking an undertaking that you would not be prosecuted.  The response from the Commonwealth was that there would be no negotiation without full disclosure. 

9About eight months later your solicitors wrote again to the Department of Human Services to the effect that you wished to report your overpayments and asking what information would be required.  On 8 August 2017, your lawyers wrote on your behalf, making fulsome disclosure of the circumstances and providing what information had been outlined as required. Since then, you have cooperated with the investigation, including agreeing to participate in a recorded interview.

10In the meantime, I am told that a Supreme Court proceeding has been issued against the estate of Mr Stansfeld on your behalf claiming adequate provision for your proper maintenance and support.  Resolution of that proceeding is awaiting the outcome of this criminal proceeding against you. 

11You participated in a recorded interview with Centrelink representatives on 27 February this year.  It lasted almost two hours, with three representatives of Centrelink present and each did ask some questions, although there was one main interviewer.  Your lawyer was also present with you.  I shall say more about the content of that interview and my impressions from it when I discuss your culpability for this offending.

12Once charges were laid you indicated a plea of guilty at an early stage and will receive credit for that. 

13I turn now to the sentencing principles that apply in your case.  I shall not read out section numbers and case names, but they will be footnoted in the revised sentence. 

14As these are Commonwealth offences the court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offences[1].  The court must not impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all of the circumstances[2].  The court must have regard to a number of factors[3] which I shall now address.

[1]Crimes Act 1914 (Cth) s. 16A(1).

[2] s. 17.

[3] s. 16A(2).

15I start with the nature and circumstances of the offence[4].  As already stated, this offending continued over a period of almost 21 years.  It resulted in your obtaining some $287,000 by deception, and involved dishonesty in the original application, for initially the widow's allowance and later the age pension at a single rate.  You maintained that deception when specific questions were asked at intervals or on reviews. 

[4] s. 16A(2)(a).

16The fact that there are two charges does not make the offending worse in this case.  The offending that occurred continued over a period of almost 21 years, but there was a change in the relevant law in 2001 which has led to the separation into two separate charges for what occurred before and what occurred after that change in law. 

17Objectively the extent of your offending in time and amount makes it a serious example of this type of offence, although it did not involve what are often more serious aspects such as use of false names or receipt of multiple benefits. 

18I must next assess your subjective culpability or blameworthiness for this offence.  I am satisfied that you knew from the start that you were giving false information to the Commonwealth agency and you signed forms to that effect.  You continued that deception for over two decades. 

19It was submitted on your behalf, first in the disclosure letters to Centrelink and then in court here, that you were effectively led into this offending by Mr Stansfeld himself, whom you say refused to pay to financially support you, and in whose handwriting the original application form for the Widow's Allowance was written.  Further, you said in your record of interview that Mr Stansfeld told you at some stage that he had obtained advice from his solicitors in Colac that it would not be a good idea to inform the Department that you and he were partnered.  I can make no finding as to whether he did or did not tell you that, nor whether any lawyers did recommend that, but I note it is an explanation you gave to the Department.  It was originally argued by your lawyer here that you were overborne by Mr Stansfeld in deceiving the Commonwealth in this way.  Your plea of guilty to each charge, however, is an acknowledgement that you were not forced against your will to do this.

20Nevertheless, I have now read - although I have not watched or heard what were apparently audio visual recordings of the record of interview which you gave in February of this year to Centrelink officers.  What you said in that interview and my impression of your responses to questions does go some way to support the contention that although you were not actually overborne, you were in a situation where you felt under some pressure to engage in this deception. I gained the impression from reading the transcript of that interview that there was much of what you were being asked that you did not immediately understand.  You clearly did not understand some matters, and initially when you said so the interviewers tended to repeat matters in shorter sentences, but still waiting for you to give an affirmative response which often was "Mm" or the actual word "Yes".  That did not necessarily indicate that you fully understood, but you were certainly accepting of what they put to you in that regard.

21You say in the interview that you "just went along with it".  My impression is that that may be the nature of your personality.  You say in the interview that you had no money, that you had to have some money coming in, that Mr Stansfeld expected you to pay for your share, such as you would pay on alternative occasions if you went out for lunch, and you would pay for groceries and smaller bills, whereas he paid the rates on the property.  You also seem to have maintained separate health insurance cover, according to your answers in the interview. 

22Ultimately you come before this court on the basis that you say that you and Mr Stansfeld were partners or a couple, as opposed to being single and his caretaker.  The fact that you moved into a retirement village together, albeit the unit was in his name only, is certainly indicative to me that you were in a relationship beyond caretaker.  The fact that he paid you no salary for 21 years is also indicative that you were not merely a caretaker, even if you were not paying him rent.  The provision for you in his Will is indicative that he did not see himself as being obliged to fully financially support you.

23Taking all of these matters into account, I have reached the view on the balance of probabilities that while you knew that you had provided false information to obtain the rate of the social security benefits that you received over so many years, you did not feel able to initiate some positive action to rectify that situation if you wished to remain living in what was apparently a comfortable arrangement with Mr Stansfeld. 

24It was said that at times he was abusive.  There is no evidence of that and I cannot make any such finding.  I am prepared to find that you were used to relying on a man to make financial decisions, and that after a long marriage and when it ended moving promptly into an arrangement with Mr Stansfeld, you were prepared to allow him to make decisions and control financial arrangements, and you felt the relationship would end if you refused to continue to receive social security payments.

25This deception lasted for a particularly long period, however I take into account that once the deception had been started, and indeed maintained in the changeover to the Age Pension, you probably did not know how to change it without bringing the whole arrangement with Mr Stansfeld to an end. As you aged that probably felt more and more difficult.   

26I next take into account whether there was injury or loss or damage that resulted from the offence[5].  Although there are some common beliefs that social security fraud is victimless crime, it is not.  The whole Australian community is the victim of social security fraud, in that tax payers bear a greater burden, alternative uses for such public moneys suffer, and recipients of Commonwealth benefits who are genuinely entitled to the full amounts they claim are often made to feel guilty or treated as if they are dishonest themselves.  As has been said by courts on many occasions, sentences for such offending must reflect the serious impact on the community of this type of offending, including that such offences are often hard to detect and require considerable resources to investigate.

[5]Crimes Act 1914 (Cth) s. 16A(2)(e).

27I next address contrition and with it reparation[6].  I find that there has been some contrition shown on your part, but I agree with the Commonwealth's submission that it has at times been limited.  I do not take the initial letter from your solicitors in May 2016 to reflect much in the way of contrition.  While it was no doubt in your interests for your solicitors to try to obtain those guarantees for you, they are not as consistent with true contrition as with an attempt to minimise the adverse consequences to you.  Nor did the Commonwealth's refusal to entertain that type of arrangement prompt immediate disclosure from you, which may also have reflected contrition.

[6] s. 16A(2)(f).

28I accept that in August 2017 there was fulsome disclosure made.  During the interview in February of this year you repeatedly used expressions that what you did was "bad", "not good" or "wrong", all of which expressions coming directly from you I do take to reflect some contrition.

29By your plea of guilty you have accepted responsibility for doing wrong, and to that extent it reflects contrition. I do accept that when you made disclosure it was fulsome and that from that time onwards your cooperation has been consistent with contrition. 

30This is a case where reparation or repayment is relevant in assessing contrition.  At one extreme, if an offender has made the sacrifice necessary to enable full restitution or reparation to be made before the case comes to court, that is an important consideration and courts like to encourage such action to be taken[7].  I recognise that the amount involved in this case would have been impossible for you to fully repay in advance of your receiving money from Mr Stansfeld's estate. During the hearing I discussed with your counsel that as you had been left some provision in Mr Stansfeld's will, reparation was not entirely dependent on the result of a successful testator's family maintenance claim against his estate, as had been suggested in the initial letter from your solicitors.  That is because if no such claim were made or succeeded against the estate you would still have inherited the more modest amounts that were left to you.  However, those alone would not appear to be enough to repay the whole amount of overpayments. So even a sacrifice to the extent of leaving you with no money at all, while reflective of greater contrition, would not have fully repaid the amount fraudulently obtained. 

[7] R v Phelan (1993) 66 A Crim R 446; SA Police v John (1995) 181 LSJS 20.

31I was informed, however, that you have entered an arrangement with the Commonwealth and that reparation has started by way of deductions from the pension to which you are now acknowledged to be entitled. Deductions have been made at the highest permissible level of $175 per fortnight.  A little over $1,500 has been repaid in this manner so far, and I find that that probably has imposed some real sacrifice on your part.  Nevertheless, there is still a substantial amount further that will need to be repaid, and is clear that deductions from your fortnightly age pension, even at the high rate that they are currently being made, would be unlikely to ultimately achieve total repayment, given your current age.

32I do take into account that it is likely, ultimately, that full repayment will be made, because substantial amounts are due to you from that estate, whether or not you succeed in the Supreme Court application that is currently on foot.

33I next take into account your plea of guilty[8].  That counts in mitigation - that is, overall reduction in your sentence.  You have pleaded guilty to these charges and did so at an early opportunity - at a committal mention, so relatively soon after charges were laid.  There is utilitarian value in saving the time and cost of disputed hearings, including a trial[9] and I accept that this was also a reflection of your willingness to facilitate the course of justice once the decision had been made to make disclosure.

[8]Crimes Act 1914 (Cth) s. 16A(2)(g).

[9] CDPP v Thomas; CDPP v Wu [2016] VSCA 237.

34I have already said that the plea of guilty reflects some contrition by the time you had made disclosure and were charged.  I also take into account that you have cooperated with law enforcement agencies in investigation of this offence.  Even if that was partly motivated by your wish to make a claim against Mr Stansfeld's estate, in making disclosure of your deception, you not only were cooperative, but brought to the attention of the relevant Commonwealth Department, a very longstanding deception and fact of overpayments. These would probably not have been discovered had you not made your disclosures and provided the information which you did.  That is another factor in your favour.

35I turn next to take into account your personal circumstances, including your character what are called antecedents, or any prior criminal history, your age, means and physical and mental conditions[10].  You are now aged 76.  You have no previous criminal convictions and I take into account that this offending did not commence until you were in your early 50s.  I accept that you had led a law-abiding life until then.  This is not the type of white collar crime where it is your good character that has enabled you to deceive other people and therefore, in my view, your previous good character does stand for something in your favour for this type of offending.

[10]Crimes Act 1914 (Cth) s. 16A(2)(m).

36However, prior good character does not weigh as heavily in your favour as it might for some other types of offending, because it is important that courts strongly condemn dishonesty in the obtaining of social security benefits, to discourage other people from engaging in that type of offending, even if you, or they, have not led lives of entrenched dishonesty.

37I am told that you grew up in the Camperdown area, as one of eight siblings.  Your youngest sister was in court to support you.  I am told that you completed Year 12 at school.  You must have married relatively young and were married for, I am told, approximately 40 years, but I think it must have been a bit less than that, as you were in your early 50s when you separated.  You had recently separated from your husband when this offending commenced.

38You have three adult children, one of whom has since passed away.  I am told that you had worked at an aged care facility in Camperdown for about 12 years and had ceased there in November 1994, after which you were in receipt of unemployment benefits, as was your then husband. In your record of interview, you said that you had previously met Mr Stansfeld while he was visiting his mother, who was resident at the aged care facility where you worked. 

39I am told that you now have seven grandchildren and two great grandchildren.  None of your children or grandchildren were in court to support you, nor have any of the adults amongst them provided written references for you.  As I have said, only your younger sister was in court.  I am told that it is of relatively recent times that you have reconnected in your relationship with her.  I have been given no other details about your lack of close involvement, or anything that would have led to more support from family members.

40Not long after your separation from your husband, you started living with Mr Stansfeld.  Apparently your houses were only a few doors away at the time.  Over the years of living with him, he bought and sold other homes where you lived with him, and then in 2012 he purchased a unit in a retirement village, where you again lived with him.  I am told that you are still living there with the consent of the executors of the estate, because the unit was solely in his name.

41There is some medical evidence before me from your general practitioner that you are suffering from some chronic conditions, including hypertension and diabetes, which require medication to control, and regular medical review.  You also suffer another condition which does not need to be repeated here, but which has required surgical management and which your general practitioner says continues to require specialist review.  I was told that you were treated in hospital for it about a week before the plea hearing, although there was no medical information to clarify any effects of that particular instance.  You also suffer asthma, which is normally well controlled, but occasionally requires additional treatment for an infective flare up.

42The prosecution argues that these conditions are not an impediment to a sentence of immediate imprisonment.  The prosecution also submits that they don't enliven any of what lawyers call Verdins' principles.  Although it can be expected that prison authorities will provide appropriate medical treatment and, in particular, continue necessary medication, it seems to me that each of these physical conditions is capable of making the serving of time in prison more onerous for you, but certainly is not an impediment to a sentence of immediate imprisonment.

43You also apparently have a long history of suffering depression associated with significant anxiety symptoms, including generalised anxiety and panic.  A letter from your treating psychiatrist, who has treated you over the last eight years, confirmed a childhood history, giving rise to some borderline personality traits.  He sets out the variety of medications which have been tried and states that he has seen fluctuations in your mental state, with a clear pattern of association between your mood state and the stability of your interpersonal relationships. When he last assessed you in June of this year, your mood was quite stable, with anxiety symptoms reasonably well controlled.  However, he notes that even at baseline, you experience some level of generalised anxiety.

44Your psychiatrist's report did not specify whether he knew you were facing these charges, and did not specifically address any effect that imprisonment might have on you.  Nevertheless, I am prepared to infer from his and your general practitioner's reports, that confirm a long history of depression with generalised anxiety and panic that has undergone different medication regimes with fluctuations in your mental state, that this condition is likely to make the experiencing of a term of imprisonment more onerous for you than for a person not suffering such a condition.  Again, I make that finding notwithstanding that I infer that prison authorities would maintain the same or a similar medication regime to that which has been prescribed by your long time treating psychiatrist.

45In relation to both your physical and mental health, I do not see the conditions outlined by your doctors as being of a degree that would make it an impediment to your serving a sentence of immediate imprisonment. However I do find, on the balance of probabilities, that both physical and mental conditions are likely to make serving of a sentence of imprisonment more onerous.  That is relevant to the duration of any such sentence that I fix, and on that basis I have moderated your sentence a little.

46I have also taken into account that not only your specific physical and mental health conditions, but also your age and with it the fact that you've never been subject to any imprisonment before, are all likely to make you find the experience of imprisonment very difficult.

47I turn next to the need for certain purposes in the sentence.  In particular, deterrence and just punishment[11].  The interests of the community are in maintaining a social security system of integrity, so that the tax paying community that contributes can have confidence that the system is being administered in favour of those who qualify for the benefits, and with a view that those who dishonestly seek to obtain such benefits be suitably punished, requires that a sentence convey the community's expectations in this regard.  That involves that there be just punishment for those who seek to obtain such benefits dishonestly.  It also requires that a sentence send a clear message to those who are tempted to engage in this type of offending, that they can expect serious punishment.  This is the principle that lawyers call general deterrence.  In my view, general deterrence is the most important sentencing consideration in this case, with just punishment also important.

[11]Crimes Act 1914 (Cth) s. 16A(2)(ja) & (k).

48I do not consider that there is much risk that you would commit similar offending again.  So, although the offending continued over a very long period, I do not find that there is much need for what lawyers call specific deterrence, that is, the need to send a further message to you to not repeat this type of offending.  In my view, you have learned a very salutary lesson from this experience and are unlikely to reoffend.

49Another consideration raised by the prosecution was that it submitted that I should find that your motivation in this offending was greed, rather than need.  If I were to find it was greed, that would be an aggravating factor requiring a more severe sentence.  It has been held that if such fraud is based on greed, the custodial sentence should be longer. On the information and evidence available, I could not find beyond reasonable doubt, as I would need to do, to regard it as an aggravating factor, that you acted through greed.  I do not even find that you acted through greed on the balance of probabilities. 

50I have already outlined what I perceive from the record of interview and the information you provided to Centrelink officers in it.  That is, that it is likely that you well knew that you were doing wrong by giving some false information to Centrelink, but that, as you say, you had no other money. It seems to me that you did not put to the test whether, if you stood on principle and refused to mislead the Commonwealth, Mr Stansfeld would have paid more to support you. I accept that with your background it was probably hard for you to face the prospect of putting to the test whether he would let you continue to live with him and in the relationship you were in.  I accept that at your age and with your background it would have been difficult to face that prospect and in particular, of living alone. My impression, as I have said, is that you knew it was wrong to mislead Centrelink, but, as you say, “just went along with it”, as you preferred to stay in the relationship you had with Mr Stansfeld. 

51It was said that you were living comfortably, which it would appear to a degree that you were. But the reference to domestic and international holidays with him made by the Commonwealth seems to be based on your saying in your interview that you had been with him on some bus trips, for which you paid your share, and an international trip to New Zealand.  I do not consider that this supports a conclusion that your motivation was greed. There is no indication of greed for a luxurious lifestyle and I make no further finding in that regard.

52It was conceded by your counsel that in most cases, fraud, or obtaining by deception against the Commonwealth, at least where there are substantial sums of money that have been obtained dishonestly, will usually require a custodial sentence - a sentence that involves some immediate imprisonment -unless there are exceptional circumstances[12].  That is particularly so when significant amounts of money have been obtained and I would add, in this case, the offending lasts a long time.

[12] CDPP v Milne [2001] VSCA 93.

53I have taken into account your age, and that both physical and mental health conditions are likely to make the serving of a sentence of immediate imprisonment more onerous.  I have taken into account the overall circumstances of the offending and given you credit for the plea of guilty and ultimately cooperation with the Commonwealth Department, including revealing what might never have been discovered.

54I have taken into account the three cases provided to me by the Commonwealth, said to be comparable cases.  One of those was after a trial, rather than a plea of guilty, so no contrition could be attributed, nor a discount for the utilitarian value of a plea.  Although the amounts in those cases were not as great as you obtained, each case does depend on its own objective seriousness.

55Certainly there must be some consistency between courts of different states when sentencing on Commonwealth offences.  However, the three cases selected from other states are not necessarily, in my view, a particularly helpful selection to indicate the range of sentences that might be consistent, or regarded as current sentencing practice, compared with yours.

56I have decided that no sentence that did not involve imprisonment would adequately meet sentencing principles.  Further, in my view, the objective seriousness of the offending, its duration and the total amount dishonestly obtained, and the need for general deterrence, outweigh the mitigatory factors.  For those reasons, in my view, some immediate time in prison is necessary to achieve general deterrence and just punishment.

57However, taking into account the plea of guilty, the good prospects that the full amount of overpayments will be repaid (and I will be making a reparation order to that end) and taking into account, as I have said, your age, health issues and the fact that I am not convinced that this offending was solely of your own instigation, I have decided that a moderate time in prison, followed by a release to be of good behaviour for the balance of the sentence, in other words, a partially suspended sentence, would be appropriate.

58Would you stand up now please.  Ms Newling, would you stand up please?  Noel Jennifer Newling, on each of the charges, you are convicted and sentenced as follows.  On Charge 1, you are sentenced to six months' imprisonment, commencing today.  On Charge 2, you are sentenced to two years and nine months' imprisonment, commencing on 16 November 2018.  That is, one month from now.  That has the effect of creating a total effective sentence of two years and ten months' imprisonment, or 34 months.

59I direct that after serving four months' imprisonment, you be released on a recognizance of $2,000 to be of good behaviour for a period of two years and six months'.  That means that you are to serve four months' in prison, commencing today.  After that, you will be released on an undertaking to be of good behaviour for the following two and a half years.  That is for the balance of the sentence.  If you commit any offence during those two and a half years, which could be punished by imprisonment, and clearly any offence of dishonesty could, then you could expect to be brought back to court and to be ordered to serve more of the sentence in prison.  How much, or whether that would be reimposed would depend on all the circumstances at that time.  Do you understand this order?

60OFFENDER:  Yes.

61HER HONOUR:  In addition, I make a reparation order.  That is, that you repay to the Commonwealth an amount that ultimately will mean repayment of the total amount of overpayments.  I am told, having regard to the amounts that have already been deducted from your age pension that that amount is now $285,629.  I am not going to include the 18 cents.

62The Commonwealth urged me to state what your sentence would have been if you had not pleaded guilty. There is no Commonwealth law requiring me to state that and indeed, Commonwealth law in relation to sentencing requires an overall instinctive synthesis, rather than singling out any one factor from the others and making it a two-step approach. There is, however, case law that says that it is not a sentencing error for a Victorian court dealing with Commonwealth offending to apply what is a provision of a Victorian statute, that is s.6AAA of the Sentencing Act.

63I am prepared to say that if you had not pleaded guilty, but all other circumstances had been the same and you were found guilty after a trial, I would have imposed a sentence of imprisonment that required you to actually serve more than double the time I have set as the period before you can obtain release.  Otherwise, I decline to specify the exact sentence I would have imposed.

64You can take a seat now, Ms Newling, while I check the paperwork.  I think I have got to deal with the recognizance order.  I think a draft was forwarded, but do you have one?  My associate may have already filled it in, based on what I have said.  Have I left something out?

65MS HENDERSON:  Yes, that will be of assistance.  No, no, that will be of assistance, Your Honour.  The draft I have has a lot of other conditions that Your Honour ‑ ‑ ‑

66HER HONOUR:  Yes, I think my associate has managed on the computer to complete that.  I have signed the form of order for the recognizance release, but I will have it shown to both counsel to check and then there is a recognizance for Ms Newling to sign that she's bound by, but I'll have you both look at those and if I've made a mistake, which is not unusual with the Commonwealth recognizances, I stand to be corrected.

67MS HENDERSON:  That looks fine, Your Honour.

68HER HONOUR:  All right.

69MR VINES:  I'm of the same view, Your Honour.

70HER HONOUR:  Well, I'll ask my associate to approach Ms Newling, to have her sign the recognizance.  Do you want to accompany her to explain it to your client?

71MR VINES:  I think I would, Your Honour, yes.

72HER HONOUR:  Now, Mr Vines, before I have your client taken into custody, I had in mind including a custody note that it would be her first time in custody.  I would, subject to you asking me not to, add the general practitioner's report that sets out her medication and her psychiatrist's report, which also mentions her medication.  Have you any objection to my providing those immediately to custodial officers ‑ ‑ ‑

73MR VINES:  No, no, not at all, Your Honour.

74HER HONOUR:  ‑ ‑ ‑ so that gives them the information immediately.

75MR VINES:  Yes and I am told that she has brought with her today the necessary medications.  I have indicated that to the custody officers.

76HER HONOUR:  Yes.  I think ultimately they get taken from her ‑ ‑ ‑

77MR VINES:  Yes.

78HER HONOUR:  ‑ ‑ ‑ but if there is the doctor's list of what she's taking ‑ ‑ ‑

79MR VINES:  Yes.

80HER HONOUR:  ‑ ‑ ‑ someone should be able to assess her quickly for those.

81MR VINES:  Yes, yes.

82HER HONOUR:  Well, I'll make sure that those two documents accompany the final order and have a custody note included.

83MR VINES:  Yes.

84HER HONOUR:  I will then ask that Ms Newling be removed from the court please.  I'm assuming you'll go and speak to her?

85MR VINES:  Yes.  I'm just concerned ‑ ‑ ‑

86HER HONOUR:  Ms Newling, Mr Vines will come and speak to you while you're in the cells here and explain.

87MR VINES:  Can we, just out of an abundance of caution, Your Honour, before she is removed ‑ ‑ ‑

88HER HONOUR:  Well, just, can we just wait a moment?  I'm being asked ‑ ‑ ‑

89MR VINES:  When Your Honour came in to court, her sister wasn't here.  She apparently had the overnight bag.  Has that been provided?

90VOICE (from body of the court):  No, she left.

91HER HONOUR:  I think she left the courtroom a little while ago.

92MR VINES:  I might bring it down, if I'm given it.

93HER HONOUR:  Yes, all right.

94MR VINES:  Yes, thank you.

95HER HONOUR:  Can Ms Newling be kept in the building to give time for her lawyer to come and speak with her please?  All right, I will now leave the Bench and adjourn until I think we're 10 o'clock tomorrow morning.

96MR VINES:  Your Honour pleases.

97MS HENDERSON:  Your Honour pleases.

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