Director of Public Prosecutions v Todorov

[2017] VCC 212

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01860

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIRIL TODOROV

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 March 2017
CASE MAY BE CITED AS:	DPP v Todorov
MEDIUM NEUTRAL CITATION:	[2017] VCC 212

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Linzner
For the Accused	Mr A. Murdoch

HIS HONOUR:

1Kiril Todorov, you have pleaded guilty to two charges of false documents relating to non-citizens, and two charges of conspiracy to cheat and defraud.

2The facts of the matter are set out in detail in the summary of the prosecution opening, which is Exhibit 1 on the plea.  They are not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentences in their full factual context.

3The brief outline of the offending is set out in paragraph 1 of the prosecution opening, and it recounts that you travelled to Australia on a United Kingdom passport, arriving on 13 February 2015 on a tourist visa.  You were born in Bulgaria in 1985.  You arrived with your partner Tania, your daughter, and a co-offender, Iva Kombakova, who at the time was described as a nanny.

4Yourself and other co-offenders were involved in the conspiracy to defraud various banking institutions by engaging in card-skimming and subsequent illegal ATM withdrawals.  Card-skimming involves the offenders using devices which attach to the outside of the ATM.  Typically, a device is placed surreptitiously over the normal card reader on the ATM, which then reads the information encrypted on the customer's card and records the details.

5At the same time, a small camera will be placed in a position to record the entry by the customer of a personal identification number.  This information is then used by those who have card-skimmed to create new cards, or the information is transmitted to others for that purpose.  The new or encrypted card then is used to make unauthorised withdrawals from the customer's account.  And that was your role in the prosecution here.  It is not alleged that you were involved in the actual card-skimming.

6Charge 3, the first conspiracy charge, is dated between 28 March and
21 May 2015, when you made a series of unauthorised withdrawals as set out in the prosecution opening.  On 25 May 2015, you departed Australia.  You returned with your co-offender, Tsenov, on 27 October 2015.  I have already sentenced Mr Tsenov. 

7The conspiracy period for Charge 4 is between 27 October and
19 November 2015.  On my addition of the facts set out in the summary, you made approximately ten unauthorised transactions using stolen data, as has been set out.

8The transactions that you made amounted to approximately $17,000.  Of course, Mr Tsenov made unauthorised transactions, as did others in the conspiracy.

9You have no criminal history in Australia, but as is set out in the facts of the charges in relation to false documents, the allegation is that the incoming passenger card documents contained information that was false or misleading, that is, that you had no criminal history.  In fact, you do have a criminal history from Bulgaria, which is recorded in the Plovdiv District Court. 

10The first criminal history charge is from 26 July 2005 - it does not actually say convicted, but I assume it means that.  The court approved an agreement to settle the criminal proceedings and to terminate them.  It was to do with destroying property, and you had legally taken possession of that property.  You were sentenced to six months' imprisonment, which again leads me to believe that you were convicted, and that was suspended for a period of three years.

11On 24 February 2012, you were in court for what would be known here as recklessly causing death by way of driving.  In that case the allegation was excessive speed, as I understand the particulars.  And on that charge, you pleaded guilty and agreed to the penalty imposed on you, it is, of two years' imprisonment.  That was suspended for a period of four years, and you were disqualified from driving for a period of two years.

12On the basis of the actual details of those convictions, I now note that the document says "has been previously convicted",  it is inconceivable for me to accept that, having received two suspended gaol terms, the last one in 2012, for two years, and you were on a suspended sentence for a period of four years, that you were unaware that these two matters constituted convictions.  Thus, when you made the false declaration, you knowingly realised they were convictions and concealed it, probably in the belief that if you revealed them, you might not get into the country, or might not get a tourist visa.

13You entered Australia as a member of the conspiracy on both times you came into the country.  Your role in the conspiracy was to withdraw funds from the ATMs using cards obtained as a result of card-skimming operations.  So I said you personally withdrew approximately $17,000.  This was a lesser role than those involved in the actual card-skimming by way of participation, but it was still an important and integral role in the conspiracy.  You obtained the visas to enter the country by way of false or misleading documents.

14You first entered the country on a tourist visa, and it would seem your second entry, on 27 October, was also on a tourist visa, but you obtained a student visa on 4 December 2015 by way of showing that you were involved in study, and at the same time, you had taken steps to set up a business here.

15In the prosecution opening, there was an allegation that upon returning to England the first time, you withdrew funds from deposits made in Australia.  I am not in a position to make a finding as to where that money came from, or whether it is related to these charges here, thus I will ignore that allegation for the purposes of sentencing.

16In mitigation, I take into account the following matters:

17Your plea of guilty, which was an early plea.  It saves the court the time and expense of a jury trial, and it also is an acceptance of responsibility by you for your offending. 

18You have no relevant criminal history insofar as card-skimming operations are concerned.

19You have a wife and child.

20Upon your second entry, you started a business here and began studying with a desire to remain here.  As a result of the sentence I am about to impose, you will lose that desire, because the sentence will be more than 12 months, as I am informed, you will be deported.

21I take into account your age, 32.

22Your counsel described your involvement in this as "naïve and foolish".  I do not accept that. It was a deliberate behaviour, you were part of a conspiracy, and no real explanation was provided to me by way of instructions from you as to why you were involved in this, apart from being naïve and foolish.

23What is an aggravating feature is that you returned a second time and committed the same crime.  How that fits in with your desire to remain here is a mystery to me. 

24I accept that you are at the lower end of the conspiracy.

25You have already spent 24 days in immigration detention. 

26It is put by your counsel that I should consider a community corrections order, either by itself or in combination with a prison sentence.  I reject that course, because in my view your offending here is too serious for the imposition of a community corrections order.  I have considered the matters in the guideline judgment of Boulton in relation to community corrections orders, and in my assessment, the offending here is too serious to warrant the imposition of such.

27I can do no better than quote Gaynor J in a case referred to me of Camara & Ors at paragraph 72 of her sentencing reasons, when she says - this is a card-skimming case:

"These conspiracies comprise a serious, significant and sophisticated attack upon the integrity of an electronic banking system, patronised by virtually every member of the community.  It struck at the security and safety of the way in which the vast majority of people carry out their ordinary banking.  It exploited a financial system which has the capacity to affect the everyday lives of millions of people.

"In protection of it, a court's response must be one of particular sternness, with the imposition of sentences designed to deter others from like activity, to make the seriousness of this offending, and to punish those who engage in it."

28As I remarked during the plea, after dealing with your co-offender Mr Tsenov, I have now taken particular note of how I approach taking money from ATMs.

29Mr Camara from the case I just quoted appealed to the Court of Appeal and in paragraph 28 in relation to this type of behaviour, the Court of Appeal said:

"The appellant's behaviour invited particular attention to specific deterrence and community protection.  Whilst general deterrence, just punishment and curial denunciation at the same time are all significant."

30I adopt both Gaynor J's remarks, and also the remarks of the Court of Appeal at paragraph 28, and sentence accordingly.

31I take into account all of the mitigatory factors mentioned by your counsel, and in particular, the ones that I have just taken you through. 

32The question of parity arose with the role of Mr Tsenov.  He was involved in the second of the conspiracies that you have pleaded guilty to.  He had a different role to you, but in sentencing him there were other factors that had to be taken into account, so the issue of parity does not arise.

33Having considered all those matters, I sentence you as follows:

34Charge 1, the charge of false documents, I sentence you to a term of imprisonment of 12 months;

35Charge 2, charge of false documents, I sentence you to a term of imprisonment of 12 months;

36Charge 3, the conspiracy to cheat and defraud, I sentence you to a term of imprisonment of two years, and;

37Charge 4, charge to defraud, I sentence you to a term of imprisonment of two years.

38I declare Charge 3 to be the base count, and direct that three months of Charge 1, three months of Charge 2, and 12 months of Charge 4 be served cumulatively with each other, and also with the base count Charge 3, which makes a total effective sentence of three years and six months.

39I order a non-parole period of two years.  What is the PSD to today?

40MS LINZNER:  Forty-seven days, Your Honour, I have calculated.

41HIS HONOUR:  Forty-seven?

42MS LINZNER:  Yes sir, it was 45 days, and then Your Honour remanded the offender in custody on Tuesday for an additional two days.

43HIS HONOUR:  You agree with that?

44MR MURDOCH:  Excluding the time in detention, that is correct.

45HIS HONOUR:  So 47 days?

46MS LINZNER:  Yes sir.

47HIS HONOUR: I declare the term of 47 days that you have been in custody to be reckoned as part of the term of imprisonment that I have just announced, pursuant to s.18 of the Sentencing Act.

48I declare pursuant to s.6AAA of the Sentencing Act that if the matter had proceeded to a trial before a jury, and you were convicted, I am supposed to guess at what sort of sentence I would then impose.  Always a difficult task, but it would be in the order of seven years, with a non-parole period of five years.  Are there any other matters that I need to look at?

49COUNSEL:  No Your Honour.

50HIS HONOUR:  No?  Can you take Mr Todorov out, thank you.  I shall return briefly when the next matter is ready.

51(Short adjournment.)

52HIS HONOUR:  Thanks for coming back.  It did enter my mind at one stage, and then went completely out of the memory bank.  Of course, the first two are Commonwealth offences.

53MS LINZNER:  I apologise for not bringing that to Your Honour's attention.

54HIS HONOUR:  So I have to do starting dates.  And to achieve the desired result, tell me if this is correct.  The state offences start today.  Charge 1 will start two years and three months from today, and Charge 2 will start two years and six months from today.  Sorry - yes, Charge 2.  That should get to three and a half. 

55MR MURDOCH:  I am happy to be corrected, but should they not be those time periods less 45 days?

56HIS HONOUR:  I have already declared the 45 days.

57MR MURDOCH:  Certainly, but if it is not - if the sentences are not in addition to the 45, should the start dates for the Federal offences then be 45 days short of two years and three months and two years and six months consecutively?

58HIS HONOUR:  I have done this before, and let us face it this way.  Charge 1 will begin two years and three months at the expiration of the state sentences.  And Charge 2 will begin two years and six months at the expiration of the state sentences.

59MR MURDOCH:  As Your Honour pleases.

60HIS HONOUR:  I think that solves it, is my arithmetic correct?

61MS LINZNER:  Your Honour, I just wanted to double-check one matter.  Your Honour declared Charge 3 the base sentence, and then cumulated 12 months from Charge 4.

62HIS HONOUR:  That is right - no, six months.

63MS LINZNER:  Was it six months?  I ‑ ‑ ‑

64HIS HONOUR:  Three and a half years.

65MS LINZNER:  Sorry Your Honour.

66HIS HONOUR:  I said that did I not?

67MS LINZNER:  I had an incorrect notation.

68HIS HONOUR:  Yes. 

69MS LINZNER:  Apologies.

70HIS HONOUR:  Well I think that makes it wrong again.  The Commonwealth Sentencing Act has always mystified me.  Let us start again.  Three and a half years - so - no, that is right.  Three years will go to be served on the state sentences.  So Charge 1 is to commence at the expiration - within two years and three months upon the expiration of the state sentences.  And Charge 2 is to commence two years and six months at the expiration of the state sentences, which gets to three and a half.  Both go away and think about that, and come back and tell me, while I start my appeal, all right?

71MS LINZNER:  As Your Honour pleases.

72HIS HONOUR:  Usually I take the coward's way out if I have a Commonwealth prosecutor, make them do it all.  But there you go.  Well thanks for coming. 
Mr Todorov, I have just got to get the mechanics of the sentencing right, that is what I am trying to do, so you do not do any more than you have to.  All right, so we will bring you back when and if counsel agree with those figures.  But feel free to interrupt the plea at an appropriate stage - the appeal.

73MS LINZNER:  As Your Honour pleases.

74MR MURDOCH:  As Your Honour pleases.

75HIS HONOUR:  Thank you, call the appeal on, thanks

76(At this stage the court proceeded with another matter.)

77MR MURDOCH:  Thank you for that, Your Honour, I apologise to interrupt.

78HIS HONOUR:  Well wait until your client comes in.

79MR MURDOCH:  I will wait until the prisoner arrives.

80HIS HONOUR:  Thanks, Mr Todorov.  Yes, counsel?

81MR MURDOCH:  If I could just quickly run through, we just wanted to start from the top with respect to how much you ordered for each charge.

82HIS HONOUR:  Yes.

83MR MURDOCH:  My understanding is - and feel free to jump in.  Charge 3 is two years.  Charge 4 effectively works out to be just ‑ ‑ ‑

84HIS HONOUR:  That is two years.

85MR MURDOCH:  Yes.

86HIS HONOUR:  And one year cumulative.

87MR MURDOCH:  So it works out to be ‑ ‑ ‑

88HIS HONOUR:  Three on the ‑ ‑ ‑

89MR MURDOCH:  The effect of it is three years on state charges.  So would it not be that the Federal charges start after three years from today?

90HIS HONOUR:  Well no, that ‑ ‑ ‑

91MR MURDOCH:  So that gets him three plus - because there is three months on each of the ‑ ‑ ‑

92HIS HONOUR:  Well, no, that means it is - well that gives you 12 months.

93MR MURDOCH:  So we are taking ‑ ‑ ‑

94HIS HONOUR:  If the Federal sentences start three years from today, there is no concurrency.

95MR MURDOCH:  Your Honour was correct in your original calculations.  We do not take any issues with them.

96HIS HONOUR:  All right, well if - someone has a better idea during the course of the day, just ring my associate.

97MR MURDOCH:  No, we have had a good - yes, it is all crystal clear now.

98HIS HONOUR:  All right, thank you.

99MR MURDOCH:  Thank you, as Your Honour pleases.

100HIS HONOUR:  Thank you Mr Todorov.

101MS LINZNER:  As Your Honour pleases.

102(At this stage the court proceeded with another matter.)

103(Short adjournment.)

104HIS HONOUR:  I was just talking to a colleague trying to seek advice, and he said recently it took him four or five goes before they finally arranged something. 

105MS LINZNER:  Yes Your Honour.

106HIS HONOUR:  What is the suggestion?

107MS LINZNER:  Your Honour, the Office of Public Prosecutions has been in quite ardent discussions with the Commonwealth directors to obtain some guidance on how best Your Honour might - - -

108HIS HONOUR:  I have been going to their book, but it did not make it any clearer for me.

109MS LINZNER:  Myself either Your Honour.  Their suggestion about the - perhaps the easiest way Your Honour could go about giving effect to what Your Honour intended was to deal with the Commonwealth offences first.

110HIS HONOUR:  Yes.

111MS LINZNER:  And have those matters commence first.  So for instance, Charge 1 commencing today, and then - - -

112HIS HONOUR:  So Charge 1, which is 12 months.

113MS LINZNER:  Months, yes Your Honour.

114HIS HONOUR:  Commencing today, yes.

115MS LINZNER:  Yes, and then Charge 2 to could commence in three months' time.

116HIS HONOUR:  Twelve months commence in three months' time, which means an additional three months?

117MS LINZNER:  Yes Your Honour.

118HIS HONOUR:  So that means the Commonwealth is up to - 12 and three is 15, is that right?

119MS LINZNER:  Your Honour, it was the Commonwealth's submission that it would be open - well, it is my submission Your Honour, but I am instructed that it would be open for Your Honour not to impose a total effective sentence in relation to those Commonwealth matters, or a recognisance release order.

120HIS HONOUR:  Just a straight sentence?

121MS LINZNER:  Yes, just a straight sentence of 12 - - -

122HIS HONOUR:  The difficulty is if one looks at it, I have got to work out how to impose two non-parole periods, which I find impossible.

123MS LINZNER:  And I understand in relation to Commonwealth matters, there would have to be a minimum, or there would have to be a total effective sentence of at least three years before Your Honour could impose a non-parole period in those matters.  Which it does not - - -

124HIS HONOUR:  Do I have to impose a recognisance order?

125MS LINZNER:  It would be open to Your Honour not to in this case.  I understand Your Honour would need to give reasons for not doing that.

126HIS HONOUR:  All right, so we get to 15 months.  The state sentence to start then?

127MS LINZNER:  Your Honour, the state sentence would start in six months' time.

128HIS HONOUR:  From today?

129MS LINZNER:  From today.  Then to give effect to Your Honour's sentence that the offender only served, in effect, two years, it would require Your Honour to reduce in favour of the offender the non-parole period that Your Honour has set in relation to the state offences to 18 months. 

130HIS HONOUR:  All right.

131MS LINZNER:  I hope that makes sense (indistinct).

132HIS HONOUR:  So the state sentence would start in six months?

133MS LINZNER:  Yes.

134HIS HONOUR:  Does that bring the total - the top sentence to three and a half?

135MS LINZNER:  I was just recalculating that again before Your Honour came on the Bench, and I then got to three years, I think - I always tell myself this is why I did law, Your Honour, and not maths, but - - -

136HIS HONOUR:  If we could do maths, we would all be doctors, not lawyers, let us face it.

137MS LINZNER:  Yes Your Honour, point taken. 

138HIS HONOUR:  Let me do my timeline.  Charge 1, 12 months.  Charge 2 starts three months from today?

139MS LINZNER:  Yes.

140HIS HONOUR:  Which means there is three plus nine - so that is 12, gets to 15 months.  Is that right?  Twelve plus three is 15, right?

141MS LINZNER:  Yes, it is.

142HIS HONOUR:  To get the state sentence to start six months from today, which is an effective sentence of three years, means that six months is concurrent.  And two and a half is not.  No - it has still got to go up to the 15 months.  So 15 months - 36 less 15 is 21, 21.  Except I gave him three and a half.

143MS LINZNER:  Yes Your Honour.  It is quite a difficult exercise.

144HIS HONOUR:  Does the defence have a solution?

145MR MURDOCH:  Your Honour, I think the starting point is to decide exactly how we interpret the part of the law that Your Honour has drawn our attention to.  The question is can - from what I have read, the law says you cannot impose a single non-parole period for a mixed sentence.

146HIS HONOUR:  No, I cannot.  If I start the Commonwealth sentence - or I start the state sentence, there cannot be a gap between the finish of the non-parole period and the start of the next sentence.  And I have looked at various examples, and none of them seem to come within what I am trying to do here.

147MR MURDOCH:  But I do not know whether that means that Your Honour cannot still run the state offences concurrently.  And I would say - the way I interpret it, it means you can still run the state offences concurrently with the Commonwealth offences.  Therefore, if Your Honour was to - - -

148HIS HONOUR:  So if I started everything today - - -

149MR MURDOCH:  That would be my submission.  Start everything today, and then give a non-parole period on the state offences only of two years.  Run the two Federal offences concurrently.

150HIS HONOUR:  Yes, but you are then going to do me in the Court of Appeal for not living up to what I originally said.

151MR MURDOCH:  I do not believe I could if I am making that submission, but that would be - - -

152HIS HONOUR:  Well someone else smarter than you and I will trawl through this if your client wants to, and both call us idiots, and the Court of Appeal might, and that is that.  See, I was, as a matter of sentencing principle, because - and I am all for aggregate sentences, and I have been criticised from the Court of Appeal for being such, is in fact to aggregate.  Whereas the - - -

153MS LINZNER:  Your Honour, the Commonwealth did suggest that as another alternative open to Your Honour, but - - -

154HIS HONOUR:  Did they?  Let us go to you first, as you might be more likely to appeal me on this point than the defence.  Not giving enough, I do not know.  So if I aggregate on the basis that - well the Commonwealth does not use aggregation.  They call it concurrency.  There is no Commonwealth aggregation section.  But the principles would be the same.  That is, on the basis that the false declarations are part of the aim to get in the country so he could do the crimes.

155MS LINZNER:  Yes.

156HIS HONOUR:  So it is part of the same series of offences.  That is the reasoning.  Now, on the submission that is - he has formed a view to come into the country to commit the crime.  That is what your counsel put.  The conspiracy as on foot before he came.

157MR MURDOCH:  The first time, yes.

158HIS HONOUR:  Yes, well, it was the second time too.  The conspiracy was still on foot.

159MR MURDOCH:  It was, sorry yes, it was on foot at that stage, yes.

160HIS HONOUR:  And I have found, or rejected, his innocent, forgetting, not understanding he was convicted explanation, because of the seriousness - particularly the second conviction.

161MR MURDOCH:  I hear that, Your Honour.

162HIS HONOUR:  And found that the reason he did not do so was to get a visa so he could come in and commit the offences.  That is a factual finding I have made, and make again.  So do you then agree that I would be able to begin all sentences on the one day on that basis.

163MR MURDOCH:  Absolutely.  That was the essence of my submission before, and it would achieve - the law that says you cannot impose a single non-parole period on a mixed - sorry - - -

164HIS HONOUR:  That is all right.

165MR MURDOCH:  - - - for both sentences in both jurisdictions on a mixed sentence.  I do not believe that means that you cannot run everything concurrently.

166HIS HONOUR:  I am sure that is right.

167MR MURDOCH:  Yes, in which case, why would it matter if we started all offences on the one - - -

168HIS HONOUR:  It is just the way - as I said, I am sensitive to being criticised for aggregating, because I have been criticised before.  Not on this type of case.

169MR MURDOCH:  I am not familiar with that, Your Honour.  So - but yes.

170HIS HONOUR:  No, well I - when you are in the names on the Court of Appeal thing, you read every vowel, consonant, every full stop, and get very precious about it all.  Yes.  Well, I am happy to do that if the Commonwealth and the state are.

171MR MURDOCH:  No opposition there.  It makes sense.

172MS LINZNER:  Can I just clarify - is Your Honour considering imposing an aggregate sentence in relation to all four charges?  Is that what Your Honour - - -

173HIS HONOUR:  No, starting them all today.

174MS LINZNER:  Yes, but imposing an aggregate sentence in relation to - - -

175HIS HONOUR:  No, I start them all today, at the end of it the Commonwealth offences finish 12 months from today.

176MS LINZNER:  (Indistinct words).  Yes.

177HIS HONOUR:  He has still got two years if he does get parole on the state offences.  He does not get parole - three and a half years.  If he does get parole, he is out in two years' time.

178MS LINZNER:  Yes Your Honour.  As Your Honour pleases.

179HIS HONOUR:  All right.  And of course, considering the Commonwealth matters, I took into account all the factors as set out in s.16 of the Commonwealth Crimes Act, which I have explained without actually mentioning it in the reasons why I have imposed the sentence I have.  So I amend the original charge to read 12 months on Charge 1, 12 months on Charge 2, two years on Charge 3, two years on Charge 4, one year of which will be served cumulatively upon itself and all the other charges.

180MR MURDOCH:  Would that not be half a year served cumulatively sorry Your Honour?

181HIS HONOUR:  Sorry, six months.

182MR MURDDET:  Six months.  Happy for it to be one year, but I am just - - -

183HIS HONOUR:  No, no, no.

184MR MURDOCH:  It reduces the total effective - - -

185HIS HONOUR:  I will start again.  Charge 1 twelve months, Charge 2 twelve months, Charge 3 two years, Charge 4 two years.  I direct that one year of the sentence imposed on Charge 4 is served cumulatively upon the sentence imposed on Charge 3, but that still gets me to three years, which is where I want to be, and I direct on the state sentences that he be eligible for parole after two years.  I have imposed a sentence in that way for the reasons that I have just discussed.  I have not imposed a non-parole order, because it is not enough, and I have not imposed a recognisance for the reason that it would be ineffective.

186MR MURDOCH:  I apologise to interrupt again Your Honour.  You did say one year concurrency on Charge 4.

187HIS HONOUR:  Cumulative.

188MS LINZNER:  Cumulative. 

189HIS HONOUR:  I meant to say cumulative.

190MR MURDOCH:  Cumulative, sorry.

191HIS HONOUR:  So let us go through it again.  Twelve, twelve, two, two, one of Charge 4 to be served cumulatively upon everything else.  Making a total effective sentence of three years of both Commonwealth and state.  And direct on the state sentences that he be eligible for parole after two years.  And all sentences are to commence today.  And that also clears up any - I have always worried about your point about the PSD.  But I have always done it the way that you suggested.

192MR MURDOCH:  And I have made enquiries - - -

193HIS HONOUR:  But this takes care of that.

194MR MURDOCH:  It does.  Not only does that take care of it, but also Corrections do.

195HIS HONOUR:  Yes.

196MS LINZNER:  So Your Honour, just if I can clarify that finally.  Your Honour initially imposed a total effective sentence of three years six months, and now the - - -

197HIS HONOUR:  Sorry, I am reading - my associate has got it wrong just like me.

198MS LINZNER:  The new total effective sentence is three years, is that what - - -

199HIS HONOUR:  What did I say?  You got three years.

200ASSOCIATE:  That is the earlier draft.

201HIS HONOUR:  Hang on, I will go back to my documents.  I wanted to get to three and a half, sorry.

202HIS HONOUR:  Yes.  So it will have to be 18 months of Charge 4 to be served cumulatively with everything else, which gets to three and a half.  Now, I justify that increase because he is not doing any cumulation on the Commonwealth matters.  So it is amended in that way.

203MR MURDOCH:  So to be 100 per cent clear, you were aiming for three and a half years, Your Honour, because I have heard three and - - -

204HIS HONOUR:  Yes.  Sorry I was misled by - - -

205MR MURDOCH:  No, no, I am just - I mean, if Your Honour does think three years is more appropriate, you are entitled to amend under the Slip Rule of course, but - - -

206HIS HONOUR:  Yes, well - I think I am bound by the figures I initially stated.

207MR MURDOCH:  If they were in error, Your Honour, it is - - -

208HIS HONOUR:  They were.  The figures were not in error, it was the way of getting there.

209MR MURDOCH:  We are merely making an enquiry, Your Honour.

210HIS HONOUR:  I know, and this is really going to read fabulously well for myself in the Court of Appeal, I understand that.  But I am trying to reach a just result and coping with difficult legislation.  So we will go through it again.  Twelve months Charge 1, 12 months Charge 2, 12 months Charge 3, 12 months Charge 4, all sentences to commence today.  Charge 3 is two years, sorry.  Charge 4 two years.  Eighteen months of Charge 4 to be served cumulatively with every other charge.  And that makes a total of three and a half.  And there is a non-parole period on the state charges of two years.  And all sentences to commence today. 

211MR MURDOCH:  As Your Honour pleases.

212HIS HONOUR:  Which should mean that if he - he achieves parole, he would get out in two years' time.

213MS LINZNER:  Yes Your Honour.

214HIS HONOUR:  We all agree with that?  You have got to say yes into the microphone.

215MR MURDOCH:  I agree with the way that it has all been laid out (indistinct words).  I am never going to agree obviously with the entire sentence, Your Honour, but that is a matter for the - - -

216HIS HONOUR:  I understand that. 

217MR MURDOCH:  Said respectfully obviously.  (Indistinct.)

218HIS HONOUR:  Yes of course.  If I have got the end result wrong, not because of these mechanics, that is fine.

219MR MURDOCH:  I am not saying that either.

220HIS HONOUR:  I do not quibble with that.  All right, sorry Mr Todorov, again I am trying to make sure you do not do any more time than you should.  And hopefully that achieves it.  And if you want to take it further, of course you may.  It is entirely a matter for you.  All right.  Have you got all that?  Anything else?

221MR MURDOCH:  No Your Honour.  As you please.

222HIS HONOUR:  You two will not try - you were here at the thing of it.  You should have all sorted this out on the first day really.  Although I might be responsible, counsel could have pointed out my error to me.  Adjourn until 10 o'clock tomorrow.

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