R v Henne
[2016] VCC 1413
•23 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00002
| THE QUEEN |
| v |
| MARINA HENNE |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2016 and 18, 23, 29 August 2016 | |
DATE OF SENTENCE: | 23 September 2016 | |
CASE MAY BE CITED AS: | R v Henne | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1413 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr M. Challen | CDPP |
| For the Accused | Dr M. Fitzgerald | Dr Martine Marich & Associates |
HER HONOUR:
1 Marina Henne, you have pleaded guilty to one charge of obtaining a financial advantage by deception, one of attempting to obtain a financial advantage by deception, and one of using a forged document. A measure of the seriousness of the charges can be gauged from the maximum penalty of 10 years' imprisonment for each charge.
2 Charge 1 relates to obtaining a GST credit of $63,132, as a result of lodging a business activity statement for the January to March 2009 quarter, which falsely reported the purchase of GST rebatable services totalling $672,245. When the ATO requested supporting documents, forged documents ostensibly supporting the claim were provided. The ATO treated the claim as genuine, and allowed a GST credit, initially of $61,131. A subsequent adjustment of the GST credit based on the false claim and forged documents allowed a further amount of $2,001, so bringing the total amount of GST credit to the amount identified in Charge 1, namely $63,132.
3 Of that amount, $52,896.23 was applied to offset an existing debt to the ATO, and the balance of $10,077.29, was paid into a bank account nominated by you.
4 The false claim was lodged on 10 August 2009. The forged documents were provided by you a month later, on the 8th and 9 October 2099, and the offset to the existing debt, and payment of the balance of $10,077.29 to the nominated bank account had occurred within a week of that. Payment of the final $2,001 had been made to you by 16 October 2009.
5 A year later, on 5 August 2010, you attempted to benefit from another false BAS, this one falsely claiming GST rebatable goods and services totalling $1,815,215 had been purchased, and asserting an entitlement to a rebate of $156,889.28. This BAS was for the April to June 2010 quarter.
6 The ATO initially allowed the claim, and adjusted the taxpayer’s running debt which at that stage stood at $481,656.92 by the amount of $156,889. However, that adjustment was later reversed, as a result of which it falls to be treated as a refund claimed which was never paid by the ATO. That gives rise to Charge 2, attempt to obtain by deception the GST rebate claimed of $156,889 under the false April to June 2010 quarter BAS.
7 Again, supporting documentation for the claim was sought by the ATO. Again, you produced a bundle of forged documents in support of the claim. The production of the bundle of forged documents on 21 December 2010 to support the false claim for the April to June 2010 quarter gives rise to Charge 3, using false documents.
8 An audit conducted by the ATO following the lodging of the April to June 2010 quarter BAS and provision of the forged supporting documents revealed the documents the subject of Charge 3 were forged. That led to the disallowing of the claim, and reversal of the offset credit of $156,889 to the running account. The audit also re-examined the documents lodged in support of the January to March 2009 quarter, and their falsity was also then revealed.
9
The audit examined all GST claims for the taxpayer for the period
1 January 2007 to 30 September 2010. Further claims were disallowed, and as a result the taxpayer became liable to pay a debt of $724,359, and administrative penalties of $543,269.25 for that period 1 January 2007 to
30 September 2010.
10 No repayment has been made to the ATO of any amounts paid, or now due as a result of the recalculation of tax and penalties attributable to the conduct the subject of these charges.
11 It is necessary to sketch in a little more background. The business activity statements filed were in the name of Peter Henne, who is registered as a sole trader with the ATO for GST purposes, and as a result had been assigned an ABN. You, Marina Henne are married to Peter Henne, and are nominated on the Australian Business Register as the Secretary of, and contact person, for Peter Henne’s business. A Westpac bank account in Peter Henne’s name is linked to his ABN, and again you, Marina Henne, are registered as an authorised user of the account.
12 The business activity statements were filed, signed and lodged by you as the person authorised to act on Peter Henne’s behalf in relation to his business activities related to that ABN. The balance of the moneys remaining from the January to March 2009 false claim after the existing debt was offset were paid by the ATO to the nominated Westpac account which you were authorised to access.
13 The ATO audit revealed, not only that the documents submitted by you to support these two GST rebate claims were false, but that there was no entitlement to claim GST rebates at all for that period, as Peter Henne was not self-employed, or trading on his own account during these periods. He was in receipt of earnings, but as an employee, receiving wages for working as a site manager. He was not, at these relevant times, conducting his own business activities at all, or receiving any income from a business conducted on his own account. None of the goods and services claimed to have been purchased by him in the course of carrying out any business in these quarters had indeed been purchased by him for carrying out of business.
14 In the course of the ATO audit, a notice was sent to Mr Henne requiring him to attend an interview with the ATO and produce documents. He did not attend. You, Marina Henne attended on his behalf, telling the ATO officers you were doing so as his authorised representative. You asserted, falsely, he was operating a business as a sole trader at the relevant times. Documents later obtained by the ATO, including bank records showing the regular payment of wages by his employer, revealed that was a false claim, as he was in fact, as I have already noted, employed, and not conducting any business activities on his own account. You maintained in that ATO interview that the GST claims were for goods and services legitimately purchased for the operation of his business.
15 He has not been charged with being a party to these offences. He now has incurred a considerable tax debt as a result of the audit, which includes the imposition of the substantial administrative penalties to which I have referred.
16 Nothing was put before me as to whether he had any knowledge of your activities, whether he was a party to, was aware of, or was aware that he stood to benefit from the offsets sought to be generated by this scheme to what appeared to be a substantial, pre-existing ATO debt. I have been told nothing about how the moneys paid into the Westpac bank account were spent. The silence in respect of these matters is surprising, as I am told the marriage continues to this day. When I say "to this day", to the day that the plea was originally presented before me.
17 It was put on your behalf that this should be regarded as lower end of the scale offending. Mr Fitzgerald argued that the offending was amateurish in the extreme, and bound to be detected (in fact, so amateurish, he argued, that the claims should never have been allowed) that the financial gain was low, and that the motivation for the offending was need, not greed.
18 I disagree with each of these submissions. The forged documents must have taken considerable time and effort to prepare. An elaborate story of applying to rezone land, conduct major earthworks, and build a retirement village was in effect told in the description of the goods and services purportedly provided. Legitimate letterheads, invoices and disbursement statements from innocent third parties, including reputable firms of solicitors and surveyors, were cut and pasted, or scanned and doctored to give the appearance Mr Henne had retained lawyers and surveyors to act on his behalf in relation to an application to the shire of Whittlesea to rezone an identified parcel of land for the purposes of building a retirement village. Other invoices, for labour hire and the supply of earthmoving equipment and a helicopter were fabricated, some on the letterhead of a business that you, Ms Henne had registered in your name. True, there were some grammatical and typographical errors, but none so remarkable as to raise an alarm they may not be simply careless errors of a sort unfortunately sometimes seen on legitimate invoices. True also, on the face of it, a helicopter is not necessary for the development of a retirement village in the shire of Whittlesea, but it must be noted the claim for the helicopter was part of the 2010 claim, which was, once the documents evidencing that claim, amongst others, were provided by you, sufficient to prompt the audit and the subsequent disallowance of the claim.
19 Further evidence of the elaborate nature of the scam, and consistently maintained falsehoods was the account that you gave when interviewed by ATO offices at the compulsory examination to which I have referred.
20 The documents that were seized when a warrant was executed at your home are further evidence of the elaborate steps you went to, to create the false documents.
21 This was no spontaneous, single act. The first BAS was lodged in August 2009. The lies had had to have been constructed at the time the BAS was lodged. You had time and opportunity to reconsider whether you wished to persist with the fraud when requested to provide supporting documentation. You produced the forged documents, which were consistent with the amounts and sources identified in the BAS. You obtained, and took advantage of the benefits that flowed. And a year later you repeated the scam, on a larger scale. Again, you created a false set of figures and suppliers. Again, you then, on request, created a set of documents to support the figures and suppliers identified in the BAS. Again, you had time to think, when requested for supporting documentation, whether you wished to proceed, and elected to do so. You maintained the story when interviewed by the ATO six months after lodging the second set of forged documents. And, as I have said, the claims and documents told an elaborate story.
22 The amount obtained, or sought to be obtained, was not minor. It is not to the point, or an appropriate measure of the seriousness of the offending, to seek to limit the benefit obtained to the $10,000 paid into the bank account. The $52,896.23 credited to offset existing liabilities must be counted as part of the benefit actually obtained, for the period it stood to the taxpayer’s credit. That ATO action as a result of the audit later reinstated it is relevant to the calculation of actual loss sustained by the ATO after recoupment action, not to the amount of benefit obtained, or sought to be obtained. Similarly, although the second claim was not allowed, the amount sought to be obtained is clearly relevant to an assessment of the seriousness of the offending.
23 In determining the appropriate sentence, I am required to impose a sentence of a severity appropriate in all of the circumstances of the case. And to consider general deterrence, as well as the specific matters listed in s.16A(2) of the Crimes Act 1914 (Cth).
24 I have set out what I consider to be the matters relevant to an assessment of the nature and circumstances of the offences. The reasons I have just given, I consider this was barefaced, persistent and sustained conduct, designed to defraud the revenue, and to do so for gain. Although the amount obtained (by which I mean not only the $10,000 paid to the bank account, but the offset to your husband’s tax debt) was relatively modest, the amount sought to be obtained overall was substantial.
25 The injury loss and damage flowing from the offences is to be measured, not only by the amount obtained, or sought to be obtained, but by the very high amount sought to be gained, and the challenge offending such as this poses to efficacy and integrity of the Australian taxation system.
26 Nothing, apart from Bar table assertions, unsupported by evidence, was advanced to support the submission that this was motivated by need, not greed. In fact, I was specifically told you had no pressing financial needs at the time, apart from your husband’s tax debt. No explanation was provided by you for the offending. You told both Mr Healy and your counsel you could not remember anything about the offending. I find that implausible. That you intended to gain is an inescapable inference from the scheme. Apart from that, I can make no finding, adverse to you, or favourable to you, as to your motivation.
27
By s.16A(2)(m) of the Crimes Act (Cth), I must consider your age, antecedents, character means and physical and mental condition. It has been difficult to ascertain a clear picture of your circumstances. You are 57, married and the mother of three adult children. According the report of Bernard Healy, you are a poor historian, and he assessed you as being of borderline intelligence. That sits oddly with your educational and employment history, and the circumstances of the offending which I have recounted. You told Mr Healy you were born in Germany, and were 18 months old when your parents immigrated to Australia, that you completed your primary and secondary schooling here, trained and qualified as a nurse, and worked as a nurse for a short time, and then in a retirement home. You reported then working as a manager at Safeway for 12 years, and for a further three years at a smaller, independent supermarket. You apparently did the books and administration for a number of years for your husband when he was running his own business. That is, as I understand it, at a period before the offending for which I must sentence you. It would appear you have been in paid work, and holding responsible positions, for most of your adult life. There was also some material to suggest that you have run your own businesses, including the business Natural Therapies, invoices from which were produced as part of the fraudulent scheme. You have apparently also at times been responsible at times for agisting horses, cattle, and ostriches. Your most recent employment was in a nursery. Although Mr Healy says it was for three weeks, an Accident Compensation Act medical panel report tendered on the plea indicates it was for a considerably longer period, commencing some time in 2009 and continuing until you suffered a workplace injury on
24 October 2010. The period of employment in the nursery therefore covers roughly the same period as the offending for which I must sentence you.
28
All of this indicates that you are a person of at least average intelligence, capable of obtaining post-secondary qualifications, of holding down responsible jobs for extended periods of time, and of carrying out a fraud of this nature.
Mr Healy did not attempt to reconcile his findings with the evidence in relation to the manner in which you committed these offences, your educational attainments or your extensive employment history. Nothing in the extensive medical materials put before me indicates any post-offending diagnosis of recent onset cognitive impairment, which could reconcile the evidence of your educational and employment attainment, or conduct in committing these offences with his finding of borderline intellectual functioning. In those circumstances, I am not prepared to find that your intellectual functioning is borderline, as Mr Healy assessed it to be.
29 Until the age of 49, you had not come to the attention of the courts. That is consistent with the employment history I have recited. Between February and September 2009, you made a series of false claims for black Saturday bushfire compensation. That is, in the same time period that you submitted the first false BAS and the forged supporting documents. You were charged in respect of the fraudulent bushfire claims in March 2010, and lodged the second false BAS whilst awaiting sentencing for those charges. You were convicted and sentenced to a community correction order in September 2010, and committed the third offence for which I must deal with you, of lodging the forged documents in respect of the second BAS only 2 months into that CCO.
30 Although your good character to age 49 counts in your favour, this history makes it clear I cannot treat this offending as isolated, or out of character.
31 I have also been provided with a large bundle of medical reports, evidencing a number of separate medical conditions. You have been diagnosed as suffering chronic pain disorder, and have had significant post-operative complications from two separate surgical procedures, a splenectomy resulting from being kicked by a horse, and a hysterectomy. You have just had the second of two operations over a period of seven years for gynaecological complications resulting from the hysterectomy. You also have been diagnosed as suffering from portal vein thrombosis, a painful condition which produces symptoms of abdominal pain, chest pain and dizziness. And, finally, you report continued disability as a result of the injuries to your left wrist, right elbow and right knee from the workplace accident in the nursery.
32 I am told you have been unable to work since that accident and are now in receipt of a disability support pension. I have been told nothing else about your financial circumstances, or those of your husband, including whether you own any assets, or where the funds for your legal representation have come from, or how you qualify for a disability support pension if your husband is, as I was told, in full-time employment in the building industry.
33 You clearly have a series of medical conditions which, combined, impose a burden of suffering on you a person without such conditions does not have to endure, and I accept that is relevant to considering the appropriate sentence for you.
34 You pleaded guilty to these offences after a number of committal mentions. You are entitled to a reduction in the sentence otherwise appropriate as a result of your guilty pleas. They facilitate the course of justice. They have saved the time and cost of a committal and trial. However, your conduct since being charged has caused considerable delay, and at one stage led to the need for the prosecution to prepare for trial, as you changed your pleas to not guilty when faced with the refusal of one of your many applications for adjournment. In total, as the chronology I am about to set out reveals, you have delayed the presentation of your plea, and the sentencing hearing, for 18 months since being committed to this court. Apart from the acknowledgement by the plea of an acceptance of the prosecution case, nothing has been put to me to indicate any remorse, in the sense that term is used in Barbaro and Zirilli, that is, which would demonstrate that the plea itself is evidence of remorse or contrition. Apart from your plea, you have not cooperated with the authorities. As I have already noted, in your interview with the ATO, you maintained the lies the false documents sought to tell. And, you maintained to Mr Healy and to your counsel that you could not recall or explain your offending behaviour. That explanation, as I have noted, is unable to be explained by reference to any evidence of impairment of cognitive function, apart from Mr Healy’s opinion, which I have rejected for the reasons I have already outlined.
35 As a result of this fraud, your husband now faces a considerable tax debt, with reassessed tax and penalties. There is no evidence of any repayment by you of the tax debt or penalties associated with your frauds. In the circumstances, although your bare plea of guilty entitles you to a reduction in the sentence otherwise appropriate, it is therefore not supportive of contrition or remorse, and I find no other evidence supportive of contrition or remorse.
36 There has been a considerable delay. I consider the delay before charge is a matter to be taken into account in your favour.
37 The second false BAS claim was lodged in August 2010. By 21 December, you provided the false substantiating documents therefore constituting Charge 3. Within six months, that is, by May 2011, you had attended the interview which your husband was directed to attend, and to which I have referred as part of the ATO audit. However, it was not until June 2014, three years later, that you were charged.
38 Between the filing hearing on 26 June 2014 and your committal seven months later on 5 January 2015, there were three separate committal mentions which were adjourned, due to your delay in arranging legal representation. You eventually applied for, and were granted, legal aid. You were ultimately committed on the hand-up brief without cross examination of witnesses, and at that stage on 5 January 2015, entered your pleas of guilty to these charges.
39
On that date, a plea date of 15 April 2015 was fixed. The day before the hearing, you applied for, and were granted, a six-week adjournment in order for psychological reports to be obtained. Of course, they should have been obtained in the period leading up to the plea. That was one of the reasons for the delay between the committal date and the plea date that was fixed. There was then a further six-week delay caused by the need to await the decision on the applicability of Boulton to Commonwealth matters. On the next day listed for the plea, 7 August, that is, four months after the original plea date was fixed, a further adjournment was granted, as you had been admitted to hospital, and your lawyers reported they were experiencing difficulty in obtaining instructions. As a result, a further three-month adjournment was granted, and the plea refixed for 4 November. That date in turn was vacated, as by then VLA had ceased to act, and a further one-month adjournment was granted to
1 December. On that day, you applied for a further adjournment. It was refused, you were arraigned, and you entered pleas of not guilty to the charges.
40 The court fixed a trial date of 5 September 2016, a date which has now passed, and a procedural timetable was set, which required you to appear at a mention on 27 January 2016. There were a further three mentions between that date and 9 March 2016, at which stage you were again arraigned, and changed your pleas back to pleas of guilty. A further plea date was fixed for 13 May 2016. Again you applied to adjourn that plea hearing, and an adjournment was again granted, again because your legal practitioner had ceased to act. A further plea date, of 15 July was fixed, and at a mention on 31 May the latest in your string of legal practitioners, Dr Fitzgerald, advised the court the matter would be ready to proceed on 15 July.
41 On 15 July, the plea commenced, and it was not until submissions were well underway was I advised you had surgery booked in two weeks' time, for what I was told was a procedure necessary to deal with a recurrence of the uro-gynaecological symptoms which had periodically afflicted you since your hysterectomy seven years earlier.
42 I had by then formed the view that a custodial sentence was a likely outcome. I decided not to proceed to sentence you on that day, or in the following days, as is my usual practice, so as to allow you to proceed with the surgery, and whilst at liberty in the community. After receiving advice from your counsel as to the likely period of post-operative recovery, I adjourned the sentencing for six weeks. It was unclear on the information provided by you as to whether you were aware of the date of the surgery at the time Dr Fitzgerald advised the court in May that the matter would be ready to proceed on 15 July, or as to how the date fixed for the surgery had been set.
43 After 5 pm on 17 August, the day before the matter was due to return for you to be sentenced, your counsel forwarded a handwritten letter to the court, from the Mercy Hospital, advising you had been admitted that day to the Mercy for pain management. Your counsel advised, although the doctor’s letter did not say so, that you expected to be hospitalized for four days.
44 The prosecution applied for a warrant, despite the letter from the doctor. Mr Challen for the Commonwealth advised that during the period of the last adjournment, that is, the post-operative recovery period, you had attended the offices of the Commonwealth DPP requesting their consent to a bail variation to allow you to go to Bali for a holiday, and to an adjournment of the sentencing until September. Not surprisingly they refused consent. Despite the deficient nature of the medical documentation produced to me on 18 August, Mr Fitzgerald advised that he had spoken to you, and to the Mercy, and could confirm that you had in fact been admitted. I therefore declined to issue a warrant, but fixed the matter for mention in four days, when it was anticipated you would have been discharged.
45 In fact, there were two further mentions, on the 23rd and 29 August. Each led to the disclosure of more, but sketchy reports in relation to your post-operative pain management. Suffice it to say, there was little beyond self-report to substantiate the need for further hospitalisation. Although the material was sketchy and delivered too late for appropriate verification by the prosecution (or your own legal practitioner, for that matter), at face value they revealed a need for further medical intervention, which I took the view should, at that stage, continue be managed by your treating doctors. I therefore granted a further months' adjournment, to 23 September.
46 This morning, when the matter was listed for sentence, you again had not appeared. Again, Mr Fitzgerald advised that he had received last-minute information that you had been admitted to the accident and emergency department of the hospital. I indicated I had run out of patience and run out of belief in the genuineness of your claims, and I acceded to the prosecution application to issue a warrant. During the adjournments whilst this was being sorted out, Dr Fitzgerald was able to communicate with you or somebody who was in contact with you, and ultimately you surrendered yourself to the court at 2 o'clock without the need for the warrant to be executed.
47 And so it is the matter is now before me, and you are before the court for sentence, 21 months after you were first committed to this court, 18 months after the first plea date, one month after the date fixed for trial last December when you thwarted the presentation of your plea by changing your plea to one of not guilty, three months after the date which your counsel assured the Court the matter would be ready to proceed, after the time you had asked for the Commonwealth DPP to agree to adjourn the trial to allow for you to take a holiday in Bali, and some hours after you were actually due in court today.
48 It is hard to avoid the conclusion that you have delayed, manipulated and exploited the court to suit your own ends. You may have pleaded guilty, but your conduct is such that you have done little apart from that to facilitate the course of justice. The circumstances of delay since you were charged, but for six-week adjournment caused by the Boulton issue, is all due to your conduct, and is not a matter to be taken into account in your favour.
49 In my view, the absence of remorse, the implausibility of your assertions that you do not recall the circumstances of the offences, coupled with the implausibility that your level of cognitive functioning is as low as Mr Healy assesses, all indicate that there is a need to impose a sentence in which specific deterrence, as well as general deterrence and just punishment, play a role.
50 Having had more time to reflect on the matter since the original plea hearing, I am convinced that my preliminary view, that a custodial sentence was likely, is correct. I am now satisfied that no sentence other than one involving a component of imprisonment immediately served is appropriate in the circumstances to mark the seriousness of the offending, the need to give appropriate weight to specific deterrence as well as general deterrence and just punishment, and even having a regard to the mitigatory matters in your favour, to which I have referred. Could you now please stand?
51 Marina Henne, on the three charges to which you have pleaded guilty, you are convicted.
52 On each charge, you are sentenced to be imprisoned for a period of 12 months. The sentence on Charge 1 is to commence today. The sentences on each of Charges 2 and 3 are to commence six months before the expiration of the sentence on Charge 1. That means, if I can lapse into State terminology for a moment, a total effective sentence of 18 months. I direct that you be released on a recognisance release order after a period of nine months, the recognisance to be in your own undertaking and fixed in the sum of $1,000 to be of good behaviour for a period of 18 months.
53 Could you take a seat please, Ms Henne, while the paperwork is completed. Mr Challen, have I pronounced the orders in a way that does not do violence to Commonwealth legislation?
54 MR CHALLEN: You have, Your Honour. I just ask if you would not mind reminding me of the amount of the recognisance?
55 HER HONOUR: $1,000. So 12 months on each charge. Sentence on Charge 1 to commence today, sentence on Charges 2 and 3 to commence six months before the expiration of the sentence on Charge 1. To be released after nine months on a recognisance release order.
56 MR CHALLEN: In the sum of $1,000?
57 HER HONOUR: Yes, to be of good behaviour for a period of 18 months.
58 MR CHALLEN: Yes, thank you Your Honour. I note that I provided your associate a draft form of order.
59 HER HONOUR: Yes.
60 MR CHALLEN: Do you require me to complete that, or - - -
61 HER HONOUR: My understanding is the Commonwealth usually does it, even when you give us the draft form.
62 MR CHALLEN: In that case, might I have a few moments while I do that?
63 HER HONOUR: You may indeed.
64 MR CHALLEN: Thank you.
65 HER HONOUR: Were there any other orders that were required to be made?
66 MR CHALLEN: No, I am instructed that I am not to seek a reparation order.
67 HER HONOUR: Thank you. And do you agree, Mr Fitzgerald, that the orders reflect Commonwealth - I am not asking you to agree with the sentence, but whether the way I pronounced it reflects what I intended to do and is in accordance with your understanding of what must be done for Commonwealth sentences.
68 MR FITZGERALD: Well, when Your Honour lapsed into the State language, it was crystal clear to me that it was expressed correctly, is my view.
69 HER HONOUR: Thank you. And have my reasons been sufficient, Mr Challen and Mr Fitzgerald, to explain, as I am required to do, the nature and effect of the sentence?
70 MR CHALLEN: Yes, I am satisfied, Your Honour.
71 MR FITZGERALD: Yes, Your Honour.
72 MR CHALLEN: I understand my learned friend is happy with the form of order that I have prepared, Your Honour.
73 HER HONOUR: Does it go to Ms Henne to be signed before it comes to me, or do - - -
74 MR CHALLEN: No, my understand is that Your Honour signs the form of order, and then the accused signs the recognisance, which is the second page, before your associate.
75 HER HONOUR: Thank you. All right, Mr Fitzgerald, can you accompany my associate down to the dock, and have Ms Henne sign the recognisance? I declare there is no pre-sentence detention, and I need to do a s.6AAA declaration, do I not?
76 MR CHALLEN: It is the Commonwealth's position that the answer that question is yes. But there is some debate still as to whether it does apply. So whether Your Honour does or does not, I submit it does not invalidate the sentence.
77 HER HONOUR: Even under State law it does not invalidate the sentence.
78 MR CHALLEN: No.
79
HER HONOUR: I declare, pursuant to s.6AAA that but for the pleas of guilty, I would have imposed a sentence of two years' imprisonment, and would have fixed the recognisance release period as 18 months. Could you remove
Ms Henne, please?
80 OFFICER: Yes, Your Honour.
81 HER HONOUR: This has had a long a torturous history. Can I thank all of those who have been present throughout and provided the assistance that they have, for their assistance and for their patience. I will adjourn.
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