Director of Public Prosecutions v Rowse

[2017] VCC 1862

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

AT MELBOURNE
 CRIMINAL JURISDICTION

CR-17-01614

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROOKE ROWSE

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2017
DATE OF SENTENCE:	8 December 2017
CASE MAY BE CITED AS:	DPP v Rowse
MEDIUM NEUTRAL CITATION:	[2017] VCC 1862

REASONS FOR SENTENCE
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Subject:OFABD x 8; total of approximately $174,000, relatively lengthy period of offending, offending whilst on CCO, relevant prior history, 30 years old

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Mr P. Monagle	Peter Monagle Lawyers

HIS HONOUR:

1Brooke Rowse, you have pleaded guilty to eight charges of obtaining a financial advantage by deception.  You have a relevant prior criminal history.  The offences on this indictment are rolled-up in nature and they relate to dishonest conduct, spanning the period from late-December 2015 to March 2017.  You stopped only because you were caught by police in March of this year.  The eight charges rolled-up a variety of individual dishonest acts with over 1,400 such acts.  The maximum penalty for each charge is ten years' imprisonment.  You were on a community corrections order at the time.  Also you were on bail until you in fact failed to appear in January of this year. 

2This matter was opened to me earlier this week by Mr Roper, who appeared on behalf of the Director of Public Prosecutions.  He opened the matter in accordance with a detailed written opening, dated 24 November 2017, which was tendered on the plea and marked as Exhibit A. 

3Your counsel, Mr Monagle, told me that this was an agreed statement of facts.  It is unnecessary then to repeat now in my sentencing reasons, the full factual basis of sentencing.  Exhibit A will remain available for inspection on the court file and I will not stray beyond the agreed facts.  The summary refers off to the statements in the materials and I raised with your counsel your use of a false name in relation to at least one of the Baby Bunting transactions and your claim to the arresting policeman that you had suffered a miscarriage.  They are not matters of any great significance, but your counsel accepted that these matters had occurred.  That is, that you had used a false name and claimed to have suffered a miscarriage to the arresting policemen.  Anyway, I act on the basis of the agreed materials here.

4I will still say something, though briefly, about the offending.  Yours was quite dedicated offending.  You set about a process of committing fraud upon
a variety of retailers, where you sought refunds for returned goods.  The goods you purported to return had in fact been stolen and you had doctored receipts to return them.  In one subset of this fraud, rolled-up in Charge 1, you purchased gift cards, emptied the gift card balance into your own account at the self-service register and then complained to the store crowd that the credit to the card had not occurred.  You were highly dishonest.  

5In the Baby Bunting transactions, you raised the fact of a late term miscarriage suffered by your sister and that was done, no doubt, to obtain sympathy for your position and to aid your obtaining of the refund for the return of the items that you had with you, that in fact, had been stolen.  The word "brazen" hardly does justice to your conduct.  You were committing multiple offences at multiple locations on a daily basis and over a significant period of time, all the time on
a community corrections order  and on bail at times and with a sizeable criminal history behind you.

6The summary itself sets out the particulars of each of these eight charges.  There were over 1,400 dishonest transactions over the period covered in the indictment.

7Your police interview in June 2017 was a mixed bag, with some "no comment" answers, some quibbling as to some of the factual allegations, but also, it is fair to say, some admissions made against interest.

8The total advantage obtained dishonestly was a touch over $174,000.  It went into your account.  None has been repaid.

Victim Impact

9No victim impact materials have been filed, but these were not victimless crimes. They were generally large organisations that you defrauded, but they suffered loss, there is no question about that.  The truth is, I suppose, we are all losers for this sort of conduct.  The loss is as I have described and is unlikely to ever be repaid by you.  These sorts of losses are part of the cost of running the business and are they are, as a result, frequently passed on, indirectly, to the ultimate legitimate consumer.

In Mitigation

10In what was a realistic and sensible plea conducted on your behalf, your counsel, Mr Monagle, relied upon a number of matters in mitigation.  He relied mainly upon: 

·Your early guilty plea;

·The presence of some remorse;

·Your background;

·He argued that you had some prospects of rehabilitation;

·He tendered a Forensicare report from a psychiatrist, Dr Hemlata Ranga, as well as a report from a psychologist, Mr Staios;

·He placed before me summaries of the offending for which you had been given an 18 month prison term in the Magistrates Court on 17 November of this year.  A 12 month non-parole period was fixed at that time.

·He also placed before me a contravention report, relating to the community corrections order that was dealt with by way of breach on that same date. 

·He accepted that the offending for which I must pass sentence was serious and your history before the courts was plainly of relevance.  He accepted that there would be the need to increase your overall head sentence and that you would be exposed necessarily to a lengthier
non-parole period.  He asked me to pay due regard to the principle of totality of sentence and argued that perhaps, just perhaps, you were at a stage in your life where you could actually change for the better.  

Prosecution

11Mr Roper, who appeared the other day on the plea, had little to say by way of submission and that was, no doubt, owing to the fact that there had been, in the whole, very sensible submissions made by your own counsel, submissions as to the inevitability of prison terms and increases in both the head sentence and the non-parole period.

Background

12I will deal only briefly with your personal background, before turning to the various submissions made on your behalf.  Your personal background was referred to quite briefly in the oral submissions of Mr Monagle, but that was as a result of the fact that it had been set out in far greater detail in the two expert reports that are placed before me.  I have no reason not to accept the family background that has been placed before me.  Of course I take into account, it is your background and I take it into account as far as I am able to.  After all,
I am sentencing you.

13You are now 30 years of age, born in July 1987.  You have a younger sister.  Your parents separated when you were 13.  You were then thrown into
a challenging phase of your life.  It is obvious that you struggled to cope and it would seem, you were manifesting symptoms consistent with bipolar disorder from a quite early age.  A diagnosis was apparently made when you were about 16 years old, but there was only a single appointment and a prescription of lithium at that point.  See paragraph 8  of Dr Ranga's report.

14You were educated to the end of Year 10 at Mentone Grammar, though your schooling had obviously suffered.  Your relationship with your mother deteriorated and you left home and at one point, you moved in with your father. You formed a relationship with a man when you were about 17.  You had a child when you were only 20 or so.  That relationship broke down and you have not seen him for at least decade.  For most of her life, your daughter has been cared for by your mother.  That is owing to your drug use and instability in life.  You are married, though you and your husband each have had significant drug problems.  

15You have had a very sketchy employment record, as the report of Mr Staios makes plain enough.  Drugs have been a massive issue for you for over
a decade, with ice a real problem and thereafter oral heroin use.  When it has been prescribed, it would seem that you fail to take your medication and you also take these various non-prescribed drugs.  See the report of Mr Staios, paragraph 3.7.  

16You have been on methadone in custody.  Things are more stable in custody.  You have also been prescribed medication and you are medication compliant.

17There was an incident occurring some years back, as described in the report of Dr Ranga, which set you back a fair way.  That is referred to at paragraph 9 and 11 of that report and I take that into account.  

18You have a lengthy criminal history and there is really little point my working my way through that history, appearance by appearance.  It spans ten years and it coincides with your drug use.  As you know, you have been before the courts for a large variety of dishonesty offending and you have been given many chances.  You have not taken them.  Nor in the time that you were committing the offences for which I must pass sentence, can you plead any ignorance as to prison and what it actually involves.  You had been sentenced to a 20 month term, with a non parole period of five months in March 2008, upon a very sizeable consolidation of offences.  

19You completed that parole order, but you have, regrettably, continued to trouble the courts on a variety of offences dealt with on a number of occasions, including trafficking in drugs and many dishonesty offences.  You have breached order after order, orders which were no doubt designed to keep you in the community and to rehabilitate you.  

20You were placed on such an order, a community corrections order in September 2015 for some serious offending, which included an attempted robbery, but alas, you continued to offend in the currency of the order, including committing all of the offences that I am to deal with and a good portion of the matters previously dealt with in November of this year in the Magistrates Court.

21The breach report placed before me for that community corrections order breach, makes for pretty depressing reading.  It follows, I am afraid, that you no longer have youth on your side, you have not taken the chances offered by the courts and there have been many such chances.  You have offended whilst on bail and whilst on a community corrections order.  

22The old summaries that have been placed before me, speak of a pattern of offending, being caught, being interviewed by the police, being charged and then released and then your offending continuing, so continuing despite bail, continuing despite the community corrections order, despite the expressions of remorse that you made when interviewed, despite what has happened to you in the past, despite having seen the inside of a prison.  There is a pattern of dishonesty offending running from December 2014 until March 2017.  Of course, I am only dealing with the offending between December 2015 and March 2017. 

23The need for specific deterrence is very plain here.  You have been in custody now since March 13 of this year.  One would hope that prison would provide something of a circuit-breaker, though I note that in November of this year in the Magistrates' Court, you pleaded guilty to an offence connected to having the drug, ice, with you in prison, as recently as May of this year.

Guilty plea

24I turn then to the matters raised in mitigation on your behalf.  The first of those is your guilty plea.  You have pleaded guilty. You have done that at the earliest stage.  That is important.  You must be rewarded for that stance.     

25I take into account the fact of your early guilty plea and I do reward you for it.  You have facilitated the course of justice.  Witnesses have been spared the experience of coming to court to give evidence.  You have accepted responsibility for your crimes and at that early stage.  It follows then that the community has been saved the time, the cost and the effort that is associated with a trial in this court, or for that matter, a committal in the Magistrates' Court. But for your guilty plea, I would have imposed a more significant term upon you.  This would have been a potentially lengthy trial, owing to the sheer number of charges in a trial setting.  They could not have been rolled-up conveniently in the way they were for a plea, into eight charges.  Well that experience that sort of trial has been avoided by virtue of your plea.  You also did make some admissions to the police, I do not ignore that fact. Indeed I take that into account in a mitigatory fashion as well.

Remorse

26As to remorse, well I have your admissions in the police interview.  I also have your earliest of guilty pleas and some mention of remorse, in at least one of the expert reports.  An early guilty plea is ordinarily an indication of at least some remorse and I am prepared to treat this early plea as indicative of some remorse.  I am prepared to find then the existence of some remorse in this case and I do take that into account in mitigation, as your counsel urges me to.

Rehabilitation 

27What then are your prospects of rehabilitation?  Your counsel argued that you had at least some prospects of rehabilitation, that you wished not to ring in your 40th birthday in the same hopeless position that you found to exist at your recent 30th.  The trouble is though that you might easily have said as much on your 20th birthday.  Your history before the courts can really give me no confidence at all as to what lies ahead for you.  Your failure to take such opportunities as have been extended to you is a worry.

28I have your continued offending in the face of a community corrections order and then arrests, charges being laid and your being admitted to bail.  Still you offended.  The community corrections order breach report discloses a pretty minimal effort.  You have breached many court orders, not just the most recent one.  This offending for which I must pass sentence, involved something of an escalation.  You have even offended since being placed in custody.  That offence highlights that you have a serious and long-term issue with drugs of dependence.  You also have mental health issues, which have no doubt been complicated by your failure to take prescribed medication in the past and your preparedness to self-medicate with illegal drugs.  There is also the prolonged and calculated nature of this offending.  It was not isolated, far from it.  

29Your counsel directed me to the commission date of the matters dealt with in the Magistrates’ court.  That offending started in December 2014 and continued up until your arrest date.  You are, for whatever reason, I do not know why,  highly dishonest and you have been so for many years, it would seem.  You have pleaded guilty.  You have done that at the earliest opportunity and you do have some remorse, but it is hard for me to be optimistic as to your future prospects.  I accept that the sentence which I will soon pass, will have some deterrent effect upon you.  Maybe, just maybe you are at an age where you can change, though I see little evidence of that being particularly likely here and now.  But I have been wrong before.  Maybe you will do as your counsel suggests and seek out residential rehabilitation upon your release.  That would be a very sensible step. 

30I can only be very guarded as to your future prospects and surely the reasons for that are obvious to you.  Without sizeable efforts by you in the future to deal with your mental health issues and your drug abuse issues, you will have virtually no prospects of rehabilitation.  However, I am prepared, on the material placed before me, to find that you do have some prospects of rehabilitation. 
I am afraid I cannot put it any higher than that.  You provide no reason for any great optimism.  You presently have a quite high risk of re-offending in
a dishonest way in the future and that will persist unless you take very serious steps indeed now and upon your ultimate release from prison.

Mr Staios/ Dr Ranga

31I have already referred to the reports of Mr Staios and Dr Ranga.  I take them into account in the way urged upon me by Mr Monagle.  They set out your various diagnoses, they set out your background and spell out what is required in the future for you.  

32Dr Ranga’s report followed a court call for such a report in the lead-up to the sentence being imposed by the magistrate in November.  Your counsel, on this plea, was not relying upon any of the principles from the case of Verdins.  Indeed he explicitly disavowed any application of those principles in this case, stating directly to me that there was no evidentiary foundation to lead to any reduction in moral culpability, any reduction in the weight to be given to specific and general deterrence and no evidence supporting the presence of any increased prison burden or likelihood of serious deterioration in custody.  The reports were still of use to me, as I have made plain and I do take them into account.  I accept that you will need much support in the community upon your ultimate release, though it is obvious that a community corrections order is not open here, whatever Mr Staios may say.  Your counsel concedes as much.

33Indeed I should make plain, if I have not already, that I take into account all of the materials placed before me.

General remarks

34I turn now to some general remarks in relation to sentencing.  Sentencing, as you may or may not know, involves a balancing of a number of purposes or principles.  I am required to manifest this court's denunciation of your criminal conduct and I do.  This was serious criminal conduct and it is deserving of strong denunciation by this court.  It is no answer to say they were individually small amounts, or  amounts that ultimately could be borne by the victim, given the size of the organisation.    

35You must be punished for your crimes, though I must do so justly and proportionately.  But punishment is obviously an important purpose in this sort of case.   

36I am required to consider the need to deter or to dissuade you from further offending, as well as others, from committing these sorts of offences in the future.  I am required also to consider the protection of the community.  That is, again, another purpose of sentencing.

37I have to take into account your prospects of rehabilitation and your risk of
re-offence and that risk is, I believe, presently quite high.  Maybe it will reduce. It is hard to know.  But as to specific deterrence, well it is clearly an important purpose of sentencing here, given the duration and nature of the offending and the criminal record which you have admitted.  Also the fact that you were on
a community corrections order and on bail.  You have been given many chances by the courts.  Many courts have tried to lead you away from offending. They have tried to rehabilitate you.  They have tried repeatedly also to deter you from offending, with an evident lack of success to this point.  I will try again. Community protection is also an important consideration here.

38General deterrence is a very significant purpose of sentencing in a case such as this.  That is, the need for this court to deter other offenders.  The court is required to send a loud and clear message to others who might be minded to commit this sort of systematic dishonesty offending.

Nature and gravity

39I have to pay regard to the nature and the gravity of the particular offences charged before me.  Your offending was serious, your counsel concedes as much.  The level of dishonesty was high.  Your culpability was high.  Your counsel argued that you had essentially lost sight of the total value, that you could rationalise your conduct, as it contained many small or smallish transactions, committed as against large entities and in a setting where you kept getting away with it and hence kept doing it.   Well, I understand the submission, but there are a number of problems with that submission. 

40I can easily enough see how one might draw a distinction between a large corporate entity and an individual, or between a small sum and a large sum. That is easy enough to understand.  The fact is though, that your offending was highly calculated and organised.  To commit the offences, other than in the instance of the gift card scams, you needed to have stolen goods to then pretend to ‘return’ them.  You needed to have the doctored receipt in most cases.  There was a good deal of “front” to your offending, as you told lie after lie, directly to the face of staff at these various outlets.  Brazenly you went about this almost as a business, driving from location to location, or being driven, it matters little which.   The point is, you were going to many different outlets of the same store on the same day to maximise your returns.

41An examination of the schedules attached to the indictment will give a true sense of the scale and the frequency of your criminality.  You must have understood the scale.  Sometimes there were over 20 transactions in a day at a variety of store outlets.  Nor did you get away with it.  You were caught in relation to some of the other similar matters dealt with in the Magistrates Court.  You were charged, you were bailed and then continued to offend.  You continued to offend whilst on the community corrections order and also whilst on bail.  There was almost a complaint voiced on the plea by your counsel as to your having been bailed on the earlier transactions and he spoke of the sense of relief felt by you as you eventually went into custody in March 2017.  No doubt you were bailed, as you wished to be bailed.  

42You were the person receiving these funds into your account.  Your conduct was essentially unstoppable.  The only thing that stopped you was being caught and imprisoned.

43This was a systematic organised course of dishonest conduct.  It was of reasonably long duration, made up of more than 1,400 dishonest acts and netting over $174,000.  Now, it is true, there is no material suggesting you were leading some extravagant lifestyle, I am pretty confident that you were not.  It seems likely to me that you were using large portions of the money to fund your drug habit.  I note that there is also some reference in one of the Magistrates’ Court summaries to some issues with gambling as well.  Nor was it particularly sophisticated offending.  The money went into your own account, but it was significantly organised, there is no question about that.  From the summary, it appears that not all the stores making refunds insisted on proof of identity.  You were committing these offences in person, but from the store's perspective, the first step was to even detect the commission of a fraud.  You were posing as
a customer returning goods.  You had goods, you were returning them and
a receipt was possessed by you and no doubt you hoped to avoid detection.

44There are some dishonesty offences that achieve the sort of monetary total that I am dealing with, with really a single isolated dishonest act.  It can be achieved with a single stroke of a pen on a cheque or a single taking.  That is not the character of your offending.  Here, as I say, we are dealing with over 1,400 relatively small dishonest transactions that are rolled-up into these eight charges, spanning the period in the indictment and committed by a woman with a highly relevant criminal record.  Of course, you do not fall to be sentenced
a second time for you past crimes.  You have committed them and you have received sentences for them and you have served those sentences.  However, it is relevant to my assessment of your future prospects and the need to give weight to specific deterrence.  Specific deterrence is a very powerful factor in this case.  You must somehow get it into your head that you must not act dishonestly in the future.  You really can no longer expect any leniency from the courts at all.

45General deterrence, as I have said already, is an important factor in a cases such as this, one involving systematic dishonesty offending, which this most clearly was. 

Totality

46I have given consideration to the overall effect of the sentences imposed by me.  I have to give regard to the principle of totality of sentence.  I cannot just ignore the fact of the earlier offending, or the sentence imposed for that earlier and concurrent offending.  That sentence was imposed only a few weeks ago.  Nor can I ignore that you have been continuously in custody since 13 March of this year.  It is not for me to make any formal pre-sentence detention declaration under the Sentencing Act, as the Magistrate has made the full pre-sentence detention  declaration and you have then been undergoing that sentence ever since.  But I must have regard to that period, that much is very plain.

47I have engaged in a last look at the overall effect of the sentences to ensure that the effect is consistent with your overall criminality and is not crushing upon you.  The Magistrate's sentence is instructive in one sense, in that he imposed an 18 month term, with a 12 month non-parole period.  Now three months of that 18 month head sentence was referrable to the re-sentencing exercise on the community corrections order breach and a part cumulation order which he made.  However the dishonesty offending that he was dealing with, was far less serious, both in terms of monetary amount and the number of individual acts.  It was in relation to less than 90 charges, with an amount less than $50,000.  
I am dealing with over $174,000 over a period of close to 15 months, with the number of individual transactions rolled-up, as disclosed in the schedules,  over 1,400.  

48I suppose one way of approaching the task is to consider the sort of sentence which would have been imposed, had you been sentenced by one judge at the same time for all of the conduct, including that dealt with by the magistrate.  The answer is plainly that you would have done a good deal worse, in terms of the head sentence and the non-parole period.  That must be so, given that the quantum in such an exercise would have been well over $200,000.  Well it was only about $50,000 in the Magistrates Court.  It is $174,000 in relation to the charges before me, with over 1,400 transactions embraced by the rolled-up charges.

Current sentencing practice

49I must and I do pay regard to current sentencing practices, but of course, they are not a single controlling factor.  No cases are ever the same, nor are any offenders exactly the same as others.  Statistics are of very little use in this sort of case.  The crime of obtaining financial advantage by deception covers a large range of factual settings.  Well these charges are rolled-up charges, covering in some instances, many hundreds of individual acts.  What I must do is pass an appropriate sentence in your case. 

50Sending any person to prison is always a matter of last resort for any court.  It always has been, I am sure it always will be.  I hope it will be, anyway.  Your counsel conceded that that outcome was inevitable here and he was right.

464ZF

51Now, there was an application for a forensic sample in this case and that application was consented to by Mr Monagle and I am prepared to make the order. I am satisfied it is appropriate to make a forensic sample order against you. I order, pursuant to s.464ZF of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from the mouth. That is what I am authorising, in accordance with Subdivision (30A) of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. 

52I believe it is appropriate to make this order, owing to the seriousness of the offending, the nature of your prior convictions, the fact that you are consenting to the order and that I judge it to be in the public interest. 

53Now what this involves is, the authorities will approach you to take a mouth swab.  It is not a particularly invasive procedure, it should not be too difficult. 
I am not authorising, at this stage, a blood sample.  I must tell you, they can use reasonable force to obtain that mouth scraping, but they should not need to use any force, it should be as simple as having it done very simply.  If it presents any sort of issues, no doubt, the authorities would be back before me, making application for a blood sample, which, to this point, I have not authorised.  My practice is to authorise the least invasive procedure, which is what I have done. 

Compensation

54There are also a series of compensation orders that are sought.  None of them is opposed, they are all consented to and they all relate to the amounts of the financial advantage obtained by you in these various charges.  I have signed those orders. 

55It follows then that I order that you pay compensation to the nominated party, in the amount spelt out in the order, which coincides with the amount on the indictment, so pursuant to s.86 of the Sentencing Act, I, having convicted you of the various individual charges of obtain financial advantage by deception,
I am satisfied it is appropriate to make the order in favour of Woolworths to the tune of $73,392.71; Coles to the tune of $49,194.46; Big W to the tune of $28,089.80; Kmart to the value of $856.40; Spotlight to the tune of $6,799.74; the Anaconda group to the value of $1,739.88; to Toys"R"Us to the tune of $2,002.26; and to Baby Bunting to the tune of $11,986.98. 

56I have signed those orders and have now pronounced each of them, the particulars, as in, the address of the victims are set out in the actual order themselves.      

Sentences

57I have here then before me, as you know, eight charges on the indictment.  There was some discussion early this morning about my view as to the appropriateness of an aggregate sentence.  Neither party suggests that I should do otherwise than to impose an aggregated.  There is, in my view, great unity as between these eight charges.  It is, in my judgment, a series of offences clearly of the same character, broken down purely by way of the identification of the particular victim.  It was, in the broadest of terms, a refund fraud scheme. The same modus operandi is in play with the only variant being the gift card conduct that is rolled-up into Charge 1.  The same maximum penalties apply to each of the charges.

58I had considered whether I should be passing an aggregate sentence and whether there were reasons not to do so.  As I have said, we had discussions first thing this morning about that and the parties took the view that it was well and truly open for me to do so and no one suggested that I should do otherwise. 

59Now, when sentencing a serious sexual offender, or a serious violent offender, or a serious drug offender, there is a prohibition upon imposing an aggregate sentence in that sort of setting.  That does not exist here.  Here it is true that the charges themselves involve a process of aggregation by rolling-up a number of individual transactions into those particular charges.  But that is not an impediment to my passing an aggregate sentence.  See s.9(4A).  That makes that very plain.  It would, of course, be open to me to pass eight individual sentences and then to make an order as to the base sentence and then pronounce levels of cumulation upon the base sentence, then pronounce a level of cumulation upon the existing sentence that you are serving and then to fix
a new single non-parole period.

60The discretion to pass an aggregate sentence is permissive.  See the case of Rivette [2017] VSCA 150. There can still be an error in passing an aggregate sentence, even where the offences are founded on the same facts or form, or are part of a series of offences of the same or similar nature. I have read both Rivette's case and also the case of Lade [2017] VSCA 264. I have considered whether there are matters which should cause me not to pass an aggregate sentence here. The fact is, one would wind up at the same destination, for it is plain that an aggregate term must not exceed the total effective sentence that would have been achieved, if there had been separate sentences imposed with appropriate orders for cumulation. See s.9(2) of the Sentencing Act.

61I am going to pass an aggregate sentence in the circumstances of this case. 
I believe it is both open and sensible and appropriate to do so, for the reasons that I have announced.

62If you would stand up please.

Sentence

63On the eight charges on this indictment, you are convicted and sentenced to an aggregate period of two years' and nine months' imprisonment.

Cumulation and s.16(3C)

64Two years of that sentence will be served cumulatively, that is, on top of  your existing sentence.  To that extent, I am otherwise directing a measure of concurrency under s.16(3C).  These offences occurred whilst you were on bail.

New single non-parole period , s.14

65I then have to fix a new single non-parole period, pursuant to s.14 of the Sentencing Act and that supersedes the previous non-parole period fixed by the magistrate in November.  I have to fix this new single non-parole period in light of the global total effective sentence as between Mr Kledstradt’s sentence and my orders for cumulation.  I order that you serve a period of two years and three months before becoming eligible for release on parole.

66Have a seat please.

67I am not declaring the pre-sentence detention, I do not need to, you are still getting the benefit of that pre-sentence detention declaration that the learned magistrate made back in November of this year.  I say that just so there is no doubt about this and because I have had issues emerge from time to time with this form of order in the past, where there has been a new single non-parole period fixed. 

Commencement date of new single non parole period

68That new non-parole period is effective from 17 November 2017, so that is the date of Mr Kledstadt, the magistrate, passing sentence.  It commences on that date.  It is not commencing today. 

69My intention then  and I will be very explicit again, so if there are any issues or any problems with the way my order is being interpreted, that you could come back to me, but my intention then is to add two years to your head sentence and one year and three months to your non-parole period.  What that leads to globally is a total effective custodial liability as between these two sentences of three and a half years with a non-parole period of two years and three months, with that new non parole period commencing on 17 November of this year.

70I had contemplated whether it was preferable to commence the new single
 non-parole period from today’s date.  That obviously would have required some alteration to the figures.  In fact, I have done that in the past and the reason
I have done it in the past, is that I have been following the suggestions of an experienced judge in this State, Brooking JA, as he described that practice in the case of  Rich.  However, having done that in the past, I have then had the order hopelessly misinterpreted by the authorities on more than one occasion and it has caused great angst for the prisoner in those circumstances.  What is critical, is that there be certainty as to the commencement date and I have provided that certainty in these, my reasons.  I have specified the commencement date. I have spelt out my intended effect.  There is no need for me to make any s.18 declaration, as your pre-sentence detention takes effect from the magistrate's order.  That remains effective. 

Section 6AAA

71I have taken into account your early guilty plea.  I have passed a lesser sentence because of that fact.  Had you been found guilty of these offences by a jury, I would have convicted and sentenced you and made orders producing  a global total effective sentence of five years, with a new single non-parole period of three and a half years, effective from the date of the Magistrates' Court order.  That statement, made under the provisions of s.6AAA, is to be entered in the records of the court.

72All right, are there any other matters that I need to deal with, or any matters that I have overlooked, or not? 

73MR MONAGLE:  Your Honour, just to make this clear, that she was taken into custody in March last year.

74HIS HONOUR:  Yes.

75MR MONAGLE:  Now the sentence that was given by the Magistrates' Court with the pre-sentence detention, allowed that that non-parole period would have started from the date in March last year. 

76HIS HONOUR:  Say all that again.

77MR MONAGLE:  Your Honour, I hope I've got this correct.  You are stating that the non-parole period, the start date for the non-parole period to - - -

78HIS HONOUR:  Yes.

79MR MONAGLE:  - - - start ticking, is 17 November, correct? 

80HIS HONOUR:  I am - yes, that is the date the sentence was pronounced. 

81MR MONAGLE:  The non-parole period, Your Honour, in regards to the Magistrates' Court matter, took into account the 267 - or 250 days - - -

82HIS HONOUR:  She still gets the benefit of the pre - - -

83MR MONAGLE:  Still gets the benefit?

84HIS HONOUR:  She still gets the benefit of the PSD, all right?

85MR MONAGLE:  Yes.

86HIS HONOUR:  And if there is any suggestion that she does not get - get back in front of me and we will deal with it, but see, when she left the magistrate on 17 November, she left with a sentence of 18 months, with a 12 month
non-parole period, correct?

87MR MONAGLE:  Correct.

88HIS HONOUR:  All right.  Well, the effect of my orders, I am cumulating two years.

89MR MONAGLE:  Yes.

90HIS HONOUR:  So, 18 months becomes - rises up to three and a half years. 

91MR MONAGLE:  Yes.

92HIS HONOUR:  All right?  And I am fixing, as I am required to, a new single non-parole period.  I am backdating it, so it is effective from the date of the magistrate's order of two years and three months.  She gets all the benefit of the PSD previously.

93MR MONAGLE:  Thank you, Your Honour.

94HIS HONOUR:  Are there any other issues in terms of it, or not?

95MR MONAGLE:  No, Your Honour, it was just that question.

96HIS HONOUR:  Yes.  And as I say, I have - it does not seem to matter which way I approach it, I can either backdate it, or I can start the new non-parole period today and I would need to make adjustments here, but when I have done that in the past, I have had serious issues being raised about the PSD declaration and the - because either way, I am not required and should not be making a pre-sentence detention declaration and that is why I have fixed - the main thing, there is certainty about the date.  I have provided the certainty, so she had 18 with a 12, she leaves with three and a half with two years and three months as a non-parole period. 

97MR MONAGLE:  I will check that - - -

98HIS HONOUR:  And she gets all the benefit of what she has done from March of this year, to this point. 

99MR MONAGLE:  I will check that with Corrections in about a months' time, Your Honour.

100HIS HONOUR:  Yes, all right. 

101MR MONAGLE:  I have seen complications with that before.  If there is, I I'll bring the matter back before you.

102HIS HONOUR:  Of course you can, yes. 

103MR MONAGLE:  Thank you, Your Honour.

104HIS HONOUR:  All right.  Mr Vella, do you have any issues at all in terms of that, or not?

105MR VELLA:  No, no issues with that, Your Honour. 

106HIS HONOUR:  All right.  So no other matters? 

107MR VELLA:  No, Your Honour.

108HIS HONOUR:  All right.  Will you go down and see your client downstairs?

109MR MONAGLE:  I am, Your Honour, yes. 

110HIS HONOUR:  All right, thanks very much then, Mr Monagle. 

111All right, so Ms Rowse, Mr Monagle will come down and see you downstairs. 

112So Ms Rouse can be removed, thank you.

113MR MONAGLE:  As it pleases Your Honour.

114MR VELLA:  If Your Honour pleases.

115HIS HONOUR:  Thank you. 

116MR MONAGLE:  May I be excused, Your Honour?

117HIS HONOUR:  Yes, of course you can.

118MR MONAGLE:  Thank you.

119HIS HONOUR:  I will leave the Bench in a moment.  I am just signing the order.  Yes, I have signed that order.  I might just leave the Bench.   

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