R v Rankin
[2006] NSWDC 183
•2 November 2006
CITATION: R v Rankin [2006] NSWDC 183 HEARING DATE(S): 27/09/06, 27/10/06
JUDGMENT DATE:
2 November 2006JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See para 44, 45, 48, 49 and 50. CATCHWORDS: Criminal Law - Sentence - fraud - make and use false instrument - cooperation - delay. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999\
Crimes Act 1900CASES CITED: Regina v Cartwright (1989) 17 NSWLR 243
Regina v Chu (unrep, 16/10/98 NSWCCA)
DPP v El Hani [2004] NSWCCA 162
Regina v A [2004] NSWCCA 292
Regina v Sukkar [2006] NSWCCA 92
Regina v Alcorn [2006] NSWCCA 209
Regina v Thomson and Houlton (2000) 49 NSWLR 383
Regina v Markarian (2005) 215 ALR 213
Regina v Todd (1982) NSWLR 517
Regina v Way [2004] NSWCCA 131
Regina v Pellow [2004] NSWCCA 434
Regina v Pearce (1998) 194 CLR 610
Regina v Croaker [2004] NSWCCA 470
Regina v Tolley [2004] NSWCCA 165
Regina v Zamagias [2002] NSWCCA 17
Regina v JCE (2002) 120 ACR 18PARTIES: Regina
Tanya RankinFILE NUMBER(S): 06/11/0269 COUNSEL: Mr Barr - Crown
Mr I Latham - OffenderSOLICITORS: Mr A Wong, DPP
SENTENCE
INTRODUCTION:
1 The prisoner, Tanya Rankin, appears today for sentence having pleaded guilty to thirteen charges of an indictment presented on 27 September 2006. Eleven of the counts on the indictment allege that she aided and abetted an offence of “make false instrument” with intent that another person would use it to induce another person to accept the instrument as genuine and to act to the prejudice of another.
2 These offences were committed between late November and 20 December 2001. They are brought pursuant to s 300(1) Crimes Act 1900 and carry a maximum penalty each of ten years imprisonment. The false instruments were made either by Michael English or Trevor Brown who are referred to below.
3 The remaining two charges allege the prisoner was an accessory before the fact to using false instruments in that the prisoner aided Neville Stumer to relevantly use the instruments described contrary to s 300(2) Crimes Act 1900 on 6 and 28 May 2002. The maximum penalty for these offences is ten years imprisonment. The charges set out in the indictment are annexure A to these remarks on sentence.
4 I am also required to take into account on a Form 1, two offences of aiding and abetting the making of a false instrument, the false instruments being Powers of Attorney created on 26 November 2001 and 3 December 2001. The relationship of these matters with the matters on the indictment is explained in the facts below.
5 The first matter on the Form 1 relates to Count 1. The second matter relates to Counts 2 and 3. All these matters relate to the one loan transaction. That is the matters on the Form 1. Given the range of matters the subject of plea and the context in which the From 1 matters are committed, the Form 1 matters do not significantly increase the level of criminality of the prisoner or the objective seriousness of the relevant principal offence, that is Count 1. Certainly not in the way for example that Trevor Brown’s 80 offences on a Form 1 to which I will refer later could properly be regarded as significantly enhancing the criminality reflected in the relevant principal offence to those matters. A number of co-accused persons have previously been sentenced in this Court or in the Court of Criminal Appeal.
6 The trial of the prisoner was listed to commence on 25 September 2006. She was to be tried with Gerd Ziehmer and Wayne Sultan. She pleaded guilty after a delay occasioned by a co-accused seeking an adjournment because he was unrepresented and/or to pursue his application for a separate trial. I accept that the matter involving this prisoner had been prepared for trial but it also had been prepared for trial for the co-accused whose matters were eventually adjourned for various reasons including the fact that this prisoner had indicated a willingness to cooperate with the authorities. I note the discussions regarding possible cooperation by the prisoner with the police and the prosecution were at relevant times in train. The prisoner had been charged on 22 March 2005, approximately two years after she had left Queensland to work in Western Australia where she now lives. There is no suggestion of flight, there is no claim for compensation.
OBJECTIVE CIRCUMSTANCES:
7 The fraudulent scheme, of which the prisoner’s conduct reflected in the charges form part, involved money lending on short term at high interest rates. The money advanced was secured on property. Neville Stumer was a Queensland mortgage broker and his wife Jacqueline Stumer, who both await trial, operated a scheme whereby investors would lend money to alleged borrowers using property as security for their investment. The security was falsely or fraudulently made available. Trevor Brown was a Queensland solicitor. Wayne Sultan was a de-registered solicitor from Queensland and Dean Alcorn was a Sydney solicitor who assisted in creating false documents and conducting transactions in New South Wales.
8 The Crown case was that Ziehmer, Rankin and Michael and Grace English also assisted the Stumers in the running of this scheme. There were twenty loans in all which involved fraudulent conduct of various types to obtain funds from investors. Tanya Rankin was employed as Trevor Brown’s secretary for a period of two and a half years from 1998 until 2000 in two Brisbane law firms. She continued working as a legal secretary at a firm of solicitors called “Martells” in Brisbane until November 2001 after Brown had left that firm in about 2000. She was highly regarded and efficient, propping Brown up as it would appear as he suffered from depression and alcohol related problems. Whilst working at Martells, the prisoner met Ziehmer and Stumer. She became aware that Stumer was starting up a loan business and was depositing funds into Martells’ Trust Account. In October 2001, Ziehmer asked Ms Rankin to leave Martells and work for him. She left that firm in late November 2001 and went to work for him and worked for him until approximately as I understand it from her statement to police, mid-2002, perhaps slightly later. During this time, Brown was recruited to provide professional assistance as was Alcorn. The criminal conduct alleged against this accused relates to four separate loan transactions. The first did not result in any loan being completed. Transactions 2, 3, and 4 involved loans which obtained the sum of 1.3 million dollars for the architects of the fraudulent scheme. The criminal conduct occurred between late November 2001 and May 2002.
9 The agreed facts in respect of the offences to which the prisoner pleaded guilty are:
1. Strike Force 'Whitney' was established to investigate allegations of a loan scheme involving the creation and registration of fraudulent Land Titles and Loan documents in respect of properties, on behalf of investors, in order to secure their apparent loans to various property owners.
2. ALCORN acted for investors and prepared the required documentation in NSW in accordance with instructions from Neville STUMER, BROWN, or SULTAN. ALCORN emailed the documentation initially to SULTAN at Whitehead Payne Solicitors, Burleigh Heads, Qld and in later transactions to Jacqueline STUMER in Joyner, QLD. Gerd ZIEHMER or Neville STUMER would then arrange for Michael and Grace ENGLISH to forge the signature of various persons on the loan documents. Trevor BROWN, a solicitor who was acting for the purported borrowers or Leanne ZIEHMER, a Commissioner for Declarations in Queensland, would witness the forged the signatures certifying that the documents were signed in their presence. After this process Neville STUMER and Wayne SULTAN would take the fraudulently executed documentation to settlement, which would take place in NSW.
3. For a property to be used as security in NSW, the Certificate of Title (CT) must be presented to the Land and Property and Information Office to enable the registration of the particular dealing. A common feature in this ‘scheme’ was the absence of Title Certificates in respect of the properties offered as security. The same explanation was given in respect of each matter, by way of a fraudulent statutory declaration, stating that the Certificates were destroyed in cyclone ‘Winifred’. It was further claimed that all the property owners were related and the Certificates were held together in premises located at 35 Mourilyan Road, Boogan. Investigations reveal there was no such address in existence and that not all property owners were related.
4. The scheme initially centred on properties owned in NSW by the FRIEL and MAHER families. Manus Michael Francis FRIEL, born 22/08/1922 (deceased 17.03.04) who prior to his death lived on and ran a sugar cane farm in Innisfail, QLD, his brother Kevin Patrick FRIEL, born 25/10/1930, who lives and works as a teacher in Sydney, and Christopher MAHER, 75 old, who is a brother in law of the above.
5. The Principle Company involved in the scheme was Direct Money Corporation Pty Limited (DMC). The company commenced operations in January 2002. The co-accused, Jacqueline STUMER, was the sole director. Her husband, Neville STUMER was the Chief Executive Officer. Trevor BROWN was employed as the in-house Solicitor from the 1 April 2002. The company was placed into Liquidation in January 2003. The Liquidators confirm the company did not conduct any legitimate business.
6. A comprehensive portfolio of the ENGLISH and FRIEL family’s property interests was prepared by Neville STUMER in the name of Direct Money Corporation to add credence and induce investors into the scheme. The family members of the English/Friel clan state they do not have any knowledge of and have no association with, ALCORN, STUMER, BROWN, SULTAN or the Direct Money Corporation.
7. The scheme commenced when Neville STUMER befriended Michael and Grace ENGLISH following a contact made in response to STUMER’S advertisement in a Brisbane Newspaper. Michael and Grace ENGLISH were seeking a loan to alleviate the financial problems they were experiencing at the time. Through this association STUMER discovered the extended family of Michael ENGLISH had substantial property holdings in the eastern suburbs of Sydney.
8. Some time after the initial meeting Grace ENGLISH contacted Neville STUMER and told him that Mary ENGLISH, her mother in law owned properties in Sydney that could be used as security to assist them to raise finance.
9. Neville STUMER told Grace ENGLISH that in order to use the properties as security it was first necessary to obtain council rate notices in relation to the properties. Grace ENGLISH contacted Mary ENGLISH, explained the situation to her and requested rate notices for the Sydney properties. Mary ENGLISH contacted her brother Kevin FRIEL who resides in Sydney and asked him to send her the relevant rate notices. After receiving some legal advice FRIEL contacted Mary ENGLISH and requested the rate notices be returned to him. The original notices were eventually returned to Kevin FRIEL.
10. STUMER contacted Gerd ZIEHMER and enquired if he knew a lawyer with a current practicing certificate who could assist with the loan documentation. ZIEHMER spoke to Tanya RANKIN. RANKIN contacted Trevor BROWN, who previously worked as a solicitor at Martells and was now attached to a firm of Lawyers named Irish Hughes and Bentley and asked him to sign a number of documents as a personal favour.
11. Tanya RANKIN worked as Trevor BROWN’s personal secretary from January 1998 through to September 2000. Rankin and BROWN’s working relationship commenced at Watling Roche Lawyers, Brisbane. In June 2000, BROWN moved to Martells Lawyers, at which time he made arrangements for RANKIN to be employed there as his private secretary. BROWN’s employment with Martells was terminated in September 2000 but RANKIN continued her employment with Martells until November 2001.
Loan 1
Counts 1-6 (a loan not completed)
12. In late November 2001 Tanya RANKIN contacted BROWN and spoke to him about having some legal documents witnessed. It was agreed RANKIN would attend BROWN’S office at Irish Hughes and Bentley, Solicitors to discuss the matter further. RANKIN attended the office and handed BROWN a number of documents in relation to a loan application. BROWN perused the documents and observed that they had already been signed by the proposed borrowers, of whom he had no knowledge of. BROWN spoke to RANKIN about the documents being pre-signed and informed her he could not witness the signatures as they had not been signed in his presence. BROWN states RANKIN was an experienced legal secretary and knew it was illegal for him to sign pre-signed documents. RANKIN informed BROWN the documents were for her new business and she would fetch her business partners so they could sign them in his presence.
13. About 15 minutes later RANKIN returned to BROWN’s office with Gerd ZIEHMER, Michael English, and Grace ENGLISH. RANKIN explained that ZIEHMER was her business partner and the ENGLISHS were the proposed borrowers. ZIEHMER told BROWN the ENGLISH family was looking to set up a private lending business. ZIEHMER further explained it was difficult getting all family members to attend a lawyer’s office to have their signatures witnessed and that was the reason RANKIN produced pre-signed documents. BROWN states he informed all persons he could not sign the documents unless he actually witnessed the documents being signed.
14. Later that day RANKIN again attended BROWN’s office. On this occasion she was with Gerd ZIEHMER, Michael ENGLISH, Grace ENGLISH and Neville STUMER. RANKIN informed BROWN that STUMER was a broker and an ENGLISH family friend who had previously assisted Michael and Grace ENGLISH in sorting out their financial problems. At this time the discussions within the group related to how they could get around having the documents witnessed without all the proposed signatories being present. At different stages the group broke into smaller groups and met in an interview room and spoke with Trevor BROWN. The whole group then reassembled and BROWN told the group he could prepare ‘Powers of Attorney’, which would resolve the difficulties with respect to the signing of the documents. The group agreed this would be a good idea in order to assist and expedite the process. Brown prepared two Powers of Attorney and gave them to Michael English in the presence Tanya Rankin, Gerd Ziehmer and Neville STUMER with specific instructions that they be signed by Kevin and Manus Friel. At some point during the meeting ZIEHMER told RANKIN that Mary English had Power of Attorney from Kevin and Manus Friel.
15. Some days later RANKIN, Gerd ZIEHMER, Neville STUMER and Michael and Grace ENGLISH returned to BROWN’s office at which time BROWN was given the two completed Powers of Attorney. One had a signature of K.P FRIEL and had been witnessed by a Commissioner for Declarations and dated 26 November 2001 and the other had a signature of M.M. FRIEL and had been witnessed by Leanne ZIEHMER and was also dated 26 November 2001.
16. Michael English forged the signature of Kevin and Manus Friel on these documents. Tanya Rankin aided, abetted and assisted Michael ENGLISH to make the said false instruments. Counts 1 on the Indictment and the first item on the Form 1
17. RANKIN, Gerd ZIEHMER, Neville STUMER and Michael and Grace ENGLISH continued to attend the office of BROWN on a regular basis to discuss the signing of the documents and the setting up of the ENGLISH family business. BROWN eventually agreed to witness the documents with full knowledge that Michael ENGLISH was fraudulently signing the documents in names of his family members. He contacted RANKIN and asked her to come to the office.
18. Shortly after, RANKIN attended BROWN’s office with Gerd ZIEHMER, Neville STUMER, Michael and Grace ENGLISH. STUMER handed BROWN the documents to be witnessed, he perused the documents and saw they were the same documents RANKIN had previously asked him to sign. On this occasion BROWN witnessed the following documents that relate to counts 2 and 3 on the Indictment and Form 1 Item 2 .
a. General Power of Attorney dated 3 December 2001 signed in the name of KP FRIEL and witnessed by BROWN. (Count 2)
b. General Power of Attorney dated 3 December 2001 signed in the name of KP FRIEL and witnessed by BROWN. (Form 1 Item 2)
c. Mortgage over property known as Folio Identifier 61/B/4247, dated 3 December 2001 signed in the name of MM FRIEL and witnessed by BROWN. (Count 3)
d. Mortgage over properties known as Folio Identifier’s 1/222551 and 2/33457, dated 3 December 2001 signed in the name of KP FRIEL and MM FRIEL and witnessed by BROWN.
19. BROWN prepared a further letter in the form of a disbursement authority stating funds were to be provided to J.U STUMER (Neville Stumer’s wife). Michael English states that he forged the names of the property owners on the above false instruments in the presence of Tanya Rankin, Neville Stumer and Gerd Ziehmer. It is the contention of the Crown that RANKIN was present aiding, abetting and assisting Michael English to make the above false instruments.
20. The evidence reveal Manus Friel, Kevin Friel and Mary English did not sign the above documents, did not apply for any finance, did not know STUMER or BROWN and did not authorise any monies to be paid to J.U. STUMER.
21. The above loan to be brokered through Clair SCARSELLA, a financial advisor on the Gold Coast. SCARSELLA told Grace and Michael ENGLISH she could obtain a loan of $400,000.00 using the two Sydney properties that the rate notices related to, as security. This loan did not proceed to settlement.
22. After BROWN witnessed the documents he told the group it would be necessary for the ENGLISH family to get the certificates of Title to enable the loan to proceed to settlement. Michael ENGLISH said it was not possible as the Deeds had been destroyed in a cyclone some years ago. BROWN advised the group the loan could not proceed without the Title certificate and it would be necessary to make an urgent application to gain fresh Title Certificates. BROWN then sought advice in regards to making an application for the fresh Title Deeds. Brown, in the presence of RANKIN, Gerd ZIEHMER, Michael and Grace ENGLISH, went into the New South Wales Land Titles office website and attempted to print out a blank application form for a New Certificate of Title, but found it was not possible to print a blank form unless the appropriate software was installed on the computer. BROWN sought instructions from another solicitor at Irish Hughes and Bentley and ended up handing the phone to RANKIN as she was more computer literate than him.
23. On the 5 December 2001 BROWN received information on a ‘Gold Ribbon Financial Services’ letter head about the names to be used in the lending scheme, the properties being used as security, information on the Titles and the relationship between the parties. The documents were signed by Gerd ZIEHMER.
24. On receipt of this information BROWN contacted Michael ENGLISH and requested that he attend Brown’s office to complete the loan applications. Michael English attended the offices of Irish Hughes and Bentley with Grace ENGLISH, Tanya RANKIN and Gerd ZIEHMER. When RANKIN arrived at the office she had in her possession a manila folder which contained approximately ten (10) printed property searches, for properties owned by Manus and Kevin FRIEL. BROWN spoke with Michael in the presence of Grace, RANKIN and ZIEHMER. Once BROWN had received instructions from Michael English, RANKIN handed BROWN two searches from the manila folder for properties referred to as Lot 2 DP33457 (2 Bennetts Grove Ave, Paddington) and Lot 1 DP 222551 (632 Old South Head Road, Rose Bay).
25. The brief of evidence contain both these searches and both have RANKIN’S writing on them. These searches had been done by RANKIN at the request of ZIEHMER. BROWN then instructed RANKIN to type two Statutory Declarations in relation to the applications for New Certificates of Title, one in the name of Mary ENGLISH and the other in the name of Manus FRIEL. When RANKIN finished typing the Statutory Declarations BROWN checked and edited them. BROWN then took Michael ENGLISH into an office where Michael ENGLISH signed the documents. Tanya RANKIN was aware that the documents she prepared were not in the name of Michael ENGLISH.
26. On the 6 December 2001 RANKIN, co-accused Gerd ZIEHMER, Neville STUMER and Michael and Grace ENGLISH attended BROWN’S office. They had in their possession a fresh set of pre-signed documents which needed witnessing. The fresh set of documents was required as the lenders demanded the loan proceed without guarantors. BROWN did not see a problem with the changes and witnessed the documents. He handed the documents to RANKIN and the group left the office.
27. Later that day BROWN received a telephone call from co-accused Gerd ZIEHMER. He requested BROWN to meet him and RANKIN at a service station midway between Brisbane and the Gold Coast. ZIEHMER informed him they required him to witness more documents to enable the loan to settle. BROWN met RANKIN and ZIEHMER at a service station. He then traveled to the Gold Coast with RANKIN and ZIEHMER to attend the settlement. However there were difficulties on the lenders side and the loan did not settle.
28. On the 11 December 2001, BROWN gave the accused RANKIN instructions to type:
a. A letter, on Irish Hughes & Bentley letterhead, to the Waverley Council requesting that he be provided rates notices relating to properties owned by Manus FRIEL. Attached to this letter was an ‘authority’ purportedly signed by Manus and Kevin FRIEL authorising the Council to release the said notices to the Lawyers purportedly acting for them. (Count 4)
b. Application for a New Certificate of Title for Volume 9771 folio 21 (Count 5)
c. Statutory Declaration dated 11 December 2001 (Count 6)
29. Michael ENGLISH has made an admission to signing the authority. Rankin was present aiding, abetting and assisting Michael English in making the said false instrument.
30. Sometime during the next two weeks BROWN gave instructions to RANKIN to type a further letter on letterhead of Irish Hughes & Bentley Solicitors, addressed to the New South Wales Lands Title Office enclosing several forged documents.
Loan 1
Counts 7 to 11
31. The details of this loan were as follows:
1. Amount - $500,000.00
2. Date of Loan - 21 December 2001
3. Investor - BM Developments P/L
32. On the 20 December 2001, the accused, Tanya RANKIN co-accused Neville STUMER, Gerd ZIEHMER, and Michael and Grace ENGLISH attended BROWN’S office at Everton Park. Their purpose in attending the office was to have Michael ENGLISH sign documents to enable the loan to settle in Sydney on the 21 December 2001. On their arrival BROWN states he was having difficulties with the internet connection so a decision was made for the group to travel to the Irish, Hughes & Bentley Offices at Kangaroo Point, Qld. They arrived at the Kangaroo Point office about 7.00pm.
33. Neville STUMER had been in contact with co-accused ALCORN throughout the day, advising him of their progress in the preparation of the loan documentation. STUMER contacted ALCORN and advised him they were moving to the Kangaroo Point office, at which time ALCORN told STUMER he was going home to have dinner. He said he would return to his office at Marsdens Lawyers, Campbelltown, once he had been advised that documents had been prepared and faxed to him.
34. BROWN states once they arrived at the Kangaroo Point office he and the accused, Tanya RANKIN prepared the Land Titles Documents for the loan. He states the accused was typing the documents on the office computer whilst he gave her the necessary instructions. (Rankin is unsure of which Irish Hughes and Bentley office they used.) Once the documents were complete they were faxed, unsigned to ALCORN for his perusal. STUMER contacted ALCORN by telephone and informed him the documents had been faxed. ALCORN told Neville Stumer that he would return to the office and call through when he had checked them.
35. ALCORN contacted BROWN some time later that evening and stated he wanted some changes made to the documents. BROWN agreed to the changes. The accused, RANKIN again prepared the documents on the office computer as instructed by BROWN. RANKIN then assisted in the process of gathering the documents from the printer and laying them out in piles on the reception area desk in preparation for Michael ENGLISH to sign the documents.
36. Tanya RANKIN prepared the documents on Trevor Brown’s instructions. Brown then instructed Michael English to forge the signature of Manus Friel on the documents. After ENGLISH signed the documents Trevor Brown falsely signed the document certifying that the true property owner had signed the documents in his presence. The signed documents were then faxed to ALCORN just prior to midnight on 20 December 2001 and the originals given to STUMER who attended the settlement the next day.
37. Tanya RANKIN was present aiding, abetting and assisting Trevor Brown to make the following false instruments.
38. The following false instruments form the substance of counts 7 to 11 of the indictment .
a. Property Transfer Document Reference Number 8231356R. (Count 7)
b. Deed of Option to Purchase Land dated 21/12/01. (Count 8)
c. Application for New Certificate of Title, Reference Number 8231354V (Count 9)
d. Application for New Certificate of Title, Reference Number 8231355T (Count 10)
e. Statutory Declaration in support of the issue of New Certificates of Titles dated 21/12/01. (Count 11)
39. Sometime towards the end of February 2002, STUMER informed BROWN that contrary to the original plan, RANKIN would not be employed as the secretary of Direct Money Corporation as Jacqueline STUMER did not get along with RANKIN. Gerd ZIEHMER informed BROWN that RANKIN was still going to be involved but would be working with him at Ziehmer Constructions. ZIEHMER told BROWN that RANKIN would do the necessary secretarial tasks required by Direct Money Corporation from his office and her wages would be equally shared by Ziehmer and STUMER.
40. RANKIN was involved in land title searches on the internet in names similar to the names of the core members of the English/Friel families.
Count 12
Loan 14
41. The details of this loan were as follows:
i. Amount - $400,000.00
ii. Term - 3 months
iii. Interest - $80,000.00
iv. Date of Loan - 3 May 2002
v. Investor - Narelle PINTO
42. Caveat reference number 8576655E, dated 6/05/02 and other false documents were used by Neville Stumer to obtain the loan. At the request of Gerd ZIEHMER and prior to the loan taking place on 27 April 2002 RANKIN arranged for a property search to be made to so that its details might be obtained for the purposes of preparing relevant loan documentation including a caveat. A further purpose of the search was to see if the property was encumbered or had been used by Stumer as security for other loans.
Count 13
Loan 17
43. The details of the loan were as follows:
i. Amount - $400,000.00
ii. Term - 3 months
iii. Interest - $60,000.00
iv. Date of Loan - 24 May 2002
v. Investor - Samia BASSAL and Athena SPIROGLOU.
44. On 23 May 2002, ALCORN received a fax from PRIMERANO in relation to the loan. In order to secure the loan a number of properties were used as security, including
45. Caveat reference number 8635424Y and other false documents were used by Neville Stumer to obtain the loan. At the request of Gerd ZIEHMER and prior to the loan taking place on 24 May 2002 RANKIN arranged for a property search to be made to so that its details might be obtained for the purposes of preparing relevant loan documentation including a caveat. A further purpose of the search was to see if the property was encumbered or had been used by Stumer as security for other loans.
i. ADDRESS - TITLE - OWNER
ii. 1/97 Drumalbyn Road - 1/SP628 - Vicky Ruth SHERMAN
iii. Bellevue Hill - Judy Anne PHILLIPS
10 In sentencing this offender it is important to point out some important matters relevant to assessing the prisoner’s criminality. The alleged involvement of Stumer, Brown, the English couple and Ziehmer in the fraudulent scheme commenced before the prisoner became involved. If the Stumers could be characterised as the architects and principals of the scheme, Ziehmer could be characterised as an executive of the enterprise. Alcorn and Brown as professional advisers and Mr and Mrs English as providing, because of their knowledge of the affairs of their family and their willingness to forge documents or otherwise pass themselves off as members of the family, the “means” by which many of the frauds could be perpetrated. The prisoner by comparison performed effectively secretarial functions to facilitate some of the frauds but only a small proportion of them. Whilst she was not a naïve participant, she was clearly a functionary at the direction of others performing tasks that she must have known were illegal for reasons which are difficult to fathom. The Crown conceded that the prisoner did not obtain any financial benefit other than wages paid to her by Ziehmer amounting to approximately $500 per week nett which would have been an average salary at that time for a legal secretary. There is no evidence that the prisoner received expensive presents or gifts, trips or holidays or any commission from her involvement in these schemes. Whilst she was friendly with Ziehmer, there is no evidence of any romantic involvement between the two so far as the Crown is concerned.
11 In perpetration of the scheme devised by the Stumers, thirty-five properties were used in twenty loans. Twelve properties were used in the initial eleven loans and final two loans involved in the scheme with loans totalling 7.97 million dollars. A further twenty-three properties were used in the scheme allowing another seven loans to proceed totalling 4.2 million dollars. I am informed by the Officer-in-Charge of the Fraud Squad that over seven million dollars of the loan proceeds remain outstanding. There is no suggestion that this prisoner has access to or is directly responsible for the loss of these outstanding moneys. The prisoner was thus involved in three of the twenty loans that were completed and one proposed loan that did not proceed.
12 In relation to the first completed loan, the $500,000 advanced was repaid. In relation to the other two loans the sum of $800,000 was recovered from LawCover because the solicitor apparently was involved in the fraudulent scheme. Whilst the prisoner assisted in relation to those two loans, clearly the perpetration of the fraud was engineered and achieved by the involvement of the professional advisers at the direction of the principals and/or their executive Mr Ziehmer.
13 In assessing the culpability of the prisoner vis a vis other participants in the fraud, the offender performed secretarial functions as I said and was involved in various discussions. However, documents prepared by her were prepared at the direction of others and her role was not vital to the success of the frauds in which she was involved. Stumer and Ziehmer gave directions, Brown and Alcorn as legal practitioners truly facilitated the frauds. The involvement of Mr and Mrs English was vital given their role in purporting to be persons who owned property which was security for the loans or identifying themselves with properties. They were involved from the beginning with Mr Stumer.
14 I am mindful of what the Crown has said about how the English couple have suffered significant consequences for their conduct. But without them, the frauds in which this prisoner was involved would not have been able to take place in their final form. In terms of the importance of the prisoner in the perpetration of the various frauds and in terms of the number of frauds in which the prisoner was involved, it is clear on the information available to this Court that the prisoner was the least important of those being involved in my view, notwithstanding that others were charged with different and different numbers of offences. Further, on the evidence available to me, the prisoner was the youngest of those involved. She was born in September 1978 and on my calculation thus was twenty-three years of age at the relevant time. Many of the other participants were, of course, considerably older than her.
SUBJECTIVE MATTERS:
15 The accused has no criminal convictions either before her involvement in the scheme or subsequently. She is now twenty-eight years of age currently residing in the Karratha area of North Western Australia. She is employed as a contracts administrator by a firm engaged in arranging contracts for the Rio Tinto Mining Company. She has worked in this employment for three years with a contract to expire in October 2007 at which time she proposes to return to Brisbane. According to the Probation and Parole Service report she was born and raised in Brisbane and comes from a loving supportive family background. Her family is well regarded in Brisbane according to the enquiries of the Probation and Parole Service. Her mother is, or was, a school teacher, her father a data processing technician. Her parents provided evidence before the Court in affidavit form which is not challenged. The prisoner is the elder of two daughters and throughout her upbringing was an exemplary child, always using “her best endeavours in the performance of her employment duties so as to be considered to be a valuable member of any firm with which she was employed”.
16 Her mother indicated that in her employment “creating a good impression, meeting the demands of the job and completing her assigned tasks have always been paramount for Tanya”. Her parents believe that her involvement in these offences came from her “employment”, which on one view of the facts is correct. She did however become involved in these schemes immediately upon her employment commencing with Mr Ziehmer. On the other hand, given the evidence of her parents, there may be an element of truth that the prisoner became involved in this matter because of her “eagerness” to assist others to impress in her employment, or at least in part.
17 Certainly apart from wages, as I have said there was no financial motive for her to be involved or other motive as existed for all the others who were involved. Mr and Mrs English became involved because of their financial circumstances and their eagerness to get out of debt. the prisoner’s parents stated that in their observation, the prisoner has learnt a valuable lesson from her involvement and the conduct here is entirely uncharacteristic. The prisoner was an above average student who after undertaking TAFE studies in business studies, office administration and related disciplines obtained employment upon graduation and has been regularly employed since. She is currently in a relationship with an employee of Rio Tinto and plans to marry. She is in good health with no alcohol problems and no drug issues. She is not a gambler nor was in the past. Her family and partner remain supportive. She has expressed sincere regret to her parents and others for her involvement and acknowledges that she has made “a big mistake” by being persuaded to involve herself in these activities.
18 The picture of a person coming from a respectable family with a stable lifestyle is supported by the references produced by the prisoner from the family doctor of over twenty-five years and a family friend who like the offender’s mother is a school teacher of many years experience. The prisoner’s family doctor points to a period of treatment for depression in 1997 and 1998 expressing concern that a custodial sentence would be prejudicial to her mental health.
19 An employment associate involved in Occupational Health and Safety consultancy work for Rio Tinto speaks highly of the prisoner’s ethics, accountability and responsibility in her work. He noted her remorse for her involvement in these matters and her desire to avoid offending in the future. Her supervisor at work regards her as a valuable member of the supervisor’s team, stating that the offender has always displayed a strong work ethic and has proven to be reliable, competent and always trustworthy. The prisoner in her affidavit, filed without objection from the Crown, states that her involvement in this offending behaviour had had a huge impact on her life. However she was “sincerely sorry” for her involvement in this matter and has learnt a “valuable lesson”, confidently stating that she would never re-offend in the future.
20 The prisoner has spent approximately $40,000 of her savings in legal fees and travel costs with her family providing more funds for her legal fees. The stress of her involvement in this matter had significantly affected her health, her fiancé, and her family supportive of her. she has travelled from Western Australia on a number of occasions to appear in Court in New South Wales at considerable expense.
COOPERATION:
21 The prisoner has provided a statement of eighty-one paragraphs, or thirty-nine pages, to the New South Wales Police to assist in the prosecution of Gerd Ziehmer and others awaiting trial. Her assistance has been analysed by the Officer-in-Charge of the Fraud Squad and whilst the assistance was not timely, she has revealed information about the role of Ziehmer which was not clearly known to police and her information “defines the intricate knowledge that Ziehmer had of the fraudulent loan scheme, his involvement in it and the benefits he received”. Her evidence “strengthens and to a large degree corroborates” evidence already available. Mr Ziehmer’s trial is listed to start on 13 November 2006. She has also provided police with valuable evidence regarding Neville Stumer and evidence to implicate Mr Sultan. The assessment of the Superintendent is that the additional information provided by her has “substantially strengthened” the Crown case against Stumer.
22 The appropriate discounts for cooperation with law enforcement authorities are discussed in a range of cases including Regina v Cartwright (1989) 17 NSWLR 243, Regina v Chu (NSWCCA - unreported - 16 October 1998), DPP v El Hani [2004] NSWCCA 162, Regina v A [2004] NSWCCA 292 amongst many other cases. In Regina v Sukkar [2006] NSWCCA 92, the matter of calculating appropriate discounts for cooperation was revisited by Howie J, particularly at paras [3] - [5]. Putting aside the issue of whether Regina v Sukkar signals a reduction of the appropriate range of discount for cooperation, it has long been recognised that in fact there is no fixed tariff for calculating the appropriate discount, although as was recognised in Regina v Sukkar, calculating appropriate discounts should not lead to a sentence which is inadequate or inappropriate. There are many competing considerations whenever the person to be sentenced is to be in custody because of the circumstances of custody. On the other hand even people who do not go into custody receive substantial benefits.
23 Noting the range of discounts and the circumstances in which those discounts should be applied as considered by the authorities, and of course noting the discounts which have been accorded in relation to co-accused to this offender, including that approved in Regina v Alcorn by the Court of Criminal Appeal, I am required, in my view, in this matter to calculate an appropriate discount for past assistance as well as a discount for future assistance. The observations of Howie J in Regina v Sukkar were made in the context of a case involving past assistance. Here the bulk of the benefit to law enforcement authorities will be for the future assistance the offender will provide in the prosecution of others. It is to be borne in mind here that ultimately conditions of custody do not, at least at this stage, arise for consideration. Because of the lack of timeliness of the cooperation I have assessed the past assistance of the accused as requiring a discount of ten percent. However the discount for future assistance, bearing in mind at this stage she will be required to give evidence in at least two separate trials and because her statement has greatly strengthened the Crown case, requires recognition by a discount of twenty percent upon the otherwise appropriate penalty. In fixing this discount I have regard to the terms of s 23 Crimes (Sentencing Procedure) Act 1999 and the relevant provisions therein.
DISCOUNT FOR THE PLEA OF GUILTY:
24 The plea of guilty was entered shortly after the date that the trial was fixed to commence. Whilst there is significant utilitarian value in the plea of guilty insofar that her plea means that substantial Court time and Crown and police resources will not be require to prove he guilt, the plea was entered late. On the other hand it would appear the meaningful discussions in relation to this matter did not commence until her current counsel fully apprised of instructions and the detail of the Crown brief had an opportunity to enter into discussions with the Crown.
25 In the circumstances of the matter, in my view the appropriate discount for the utilitarian benefit of the plea of guilty ought be ten percent in accordance with the range of discount available for this aspect of the matter set out in the guideline judgment of Regina v Thomson and Houlton (2000) 49 NSWLR 383. In Regina v A and other cases it was suggested that the fixing of discounts could be expressed, or may be better expressed as a combined discount (see paragraph 27) rather than compounding or accumulating them (see Regina v MP). Thus in respect of each sentence I calculate the appropriate discount all matters combined at an appropriate discount as forty percent upon the otherwise appropriate sentences.
RELEVANT COMPARATIVE SENTENCES:
26 Brown, Alcorn and Michael and Grace English have been sentenced. Trevor Brown pleaded guilty at the Local Court and was sentenced in the District Court to fifteen counts of making a false instrument with intent to induce another person, the Registrar-General to accept the instrument as genuine and to do something he or she would not have done ie register a relevant instrument or issue a new certificate of title. These offences were brought pursuant to s 300(1) Crimes Act 1900 and carry a maximum penalty of ten years imprisonment. There were eighty further offences on a Form 1 of making a false instrument. In sentencing this offender on 2 November 2005, Judge Hulme SC of this Court calculated a twenty percent reduction for the utilitarian benefit of the plea of guilty and a forty percent reduction for the prisoner’s cooperation with the authorities. The final sentence was in effect two years imprisonment with a non-parole period of eighteen months from a starting point of five years imprisonment in totality. As I understand the judgment, the offences to which the prisoner pleaded guilty related to four separate loans. Thirteen other loans were reflected in the matters on the Form 1. Brown’s involvement in fraudulent activity related therefore to seventeen loans compared to this prisoner’s involvement in three such loans and one attempted loan. Mr Brown suffered a bipolar disorder.
27 Dean Alcorn pleaded guilty before Black J at Lismore District Court on indictment to six counts, two of making a false instrument and four counts of obtaining a corrupt benefit or a secret commission. Likewise on a Form 1, there were six offences, two of making false instruments and four of corrupt commissions. He was sentenced on 6 September 2005. There were secret commissions paid to him of $175,000. On appeal his total sentence as I understood it, was reduced to a non-parole period of two years with a balance of sentence of ten months bearing in mind there were concurrent and partially cumulative sentences. The aggravating factors for him were that he was a solicitor and he sought to mislead Government Departments. There were significant personal financial loss from profits of the firm of which he was a partner and he was required to repay significant sums of money. The starting point for sentencing him, in totality, was five years imprisonment with a twenty-five percent discount for the utilitarian benefit for the plea of guilty and a thirty-three percent discount for his assistance. His appeal was heard on 30 May 2006, with judgment on 10 July 2006 (see Regina v Alcorn [2006] NSWCCA 209).
28 Michael English and Grace English were sentenced by Judge Black QC at Lismore on 18 November 2004. His remarks on sentence were relatively brief. There were no details in them as far as I can see as to the precise charges to which they pleaded, although I understood from the facts available in this matter in part that they were involved in forgery offences. Nor are there details of relevant calculations for discounts for assistance for their assistance to the prosecuting authorities or the utilitarian benefit of the pleas. Ultimately Mr English was sentenced to two years imprisonment suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. Mrs English was sentenced as I understood it, to twenty-one months imprisonment likewise suspended pursuant to s 12 of that Act. They pleaded guilty at the Local Court. The Crown informs me that they had suffered financial hardships as a consequence of their involvement in the offences. On the other hand as I understand, they sought to gain financially from their involvement in the commission of the offences, even if it was to overcome their debts. I have already made remarks about their role by comparison with this offender. Whilst they seem to be regarded as at the lower end of the range of criminality in the view of Black J, as represented by the various participants, their role was absolutely vital in a range of ways. Both in identifying property and being prepared to falsify documents. They were characterised by his Honour as “gullible” but he also noted that they were “attracted to making money with little or no effort”.
SUBMISSIONS OF THE PARTIES:
29 The bulk of the submissions came from the accused largely set out in very helpful written submissions prepared by her learned Counsel, Mr Latham, and supplemented by some oral submissions. Whilst the Crown does not seriously dispute Mr Latham’s analysis of the objective facts and whilst it agrees that a suspended term of imprisonment pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 it is within “legitimate sentencing discretion”, it submits that a full-time custodial sentence would also be appropriate in this matter. I regret to say with this latter submission, in the circumstances of this matter I do not agree, particularly having regard to the comparative roles of the various players who have been sentenced thus far, by regard to consideration of parity issue, and her subjective matters. Although I note the various offenders had different roles and were liable for different offences.
30 It is submitted, having regard to the facts relevant to this offender, that the prisoner is generally regarded as no greater in culpability than Michael and Grace English by her counsel. Of course the question of parity of sentencing so far as proper comparison can be made, will always be relevant in sentencing. However one must be particularly cautious when comparing sentences for co-offenders who are liable for different offences or greater or lesser numbers of offences. Differing roles may warrant some disparity and of course some particular offenders may attract considerations that may not necessarily have as much weight for the offender at bar. For example in this matter, the offender was a legal secretary. Trevor Brown was a solicitor as well as Alcorn. Not only did those two persons have greater capacity by their training to give effect to the “fraudulent scheme” but their dishonest conduct was a serious breach of their responsibilities as legal practitioners, including their responsibilities to clients, partners, or employers and particularly Government organisations and Departments, such as the Registrar-General’s Department of New South Wales, which is very dependent upon the honesty of such persons. Whilst legal secretaries have responsibilities too, they are not as great as those bestowed upon their employers.
31 It is not suggested in this matter that general deterrence has no role to play, but the sentencing of solicitors who conduct themselves dishonestly has always attracted a greater degree of regard to considerations of general deterrence for obvious reasons.
32 I have taken into account the relevant objective and subjective features articulated by Mr Latham, many of these matters have been dealt with above. I note the need for intuitive synthesis of all relevant factors in accordance with the decision of the Hight Court in Regina v Markarian (2005) 215 ALR 213, although discreet discounts may still be given for the utilitarian benefit of the plea of guilty and cooperation. I also note the decision of the New South Wales Court of Criminal Appeal in the guideline judgment relating to Form 1 offences, reported at (2002) 56 NSWLR 146, and the observations made in that judgment about the relevance of Form 1 matters to the sentencing process concerning the principal offence. The placing of these two matters on a Form 1 in this matter does not lead to the ”artificiality” of sentencing that sometimes occurs when many more like offences are on a Form 1 than requiring sentence from pleas of guilty. Here the two matters on the Form 1 relate to one transaction, in respect of which the prisoner has pleaded to six counts on the indictment in any event.
33 I note the submissions made about delay particularly the reference to Regina v Todd (1982) NSWLR 517 particularly at page 519. This was a matter of some significance in the appeal by Alcorn to the Court of Criminal Appeal. Here the delay has shown the capacity of the prisoner to proceed along the road to rehabilitation as evidenced by my findings in respect of her conduct since her arrest. The prisoner has been left in a state of uncertainty as well and the process has been very stressful for her and her family. There is no explanation for the two year delay in arresting and charging her, on the other hand much of the delay since has arisen out of committal proceedings and listing the matter for trial. Delay in this matter is not a mitigating factor per se but is relevant in several ways, particularly in assessing the prisoner’s rehabilitation and her ability to avoid offending in the future.
34 I have had regard to s 3A Crimes (Sentencing Procedure) Act and the various purposes of sentencing therein contained. This is a finely balanced matter when one takes into account all the relevant purposes particularly the need to punish the prisoner and to deter her and other from committing further offences as well as making her accountable for her conduct and denouncing that conduct. Yet at the same time promoting her rehabilitation will in the long term be for the benefit not only of her and her family but also the community. I have had regard to s 21A Crimes (Sentencing Procedure) Act 1999 and the general way in which that provision is to be approached as discussed in cases such as Regina v Way, Regina v Pellew and others.
35 Insofar as aggravating factors arise, noting that relevant aggravating and mitigating factors may not necessarily increase or otherwise affect the sentence, the matters that I properly regard as aggravating factors pursuant to s 21A(2), are as follows:
36 The loss, particularly in relation to matters set out in Counts 12 and 13 was substantial as I have already outlined. Each offence was committed as part of a series of criminal acts all related in various ways and each offence was part of planned criminal activity. However, in fairness, the bulk of the planning was undertaken by others for reasons that are apparent from above.
37 In relation to relevant mitigating factors, I accept the prisoner does not have any record of previous convictions, was a person of good character, is unlikely to re-offend, has excellent prospects of rehabilitation, by reason of her family support her recent progress, and a demonstrated capacity to avoid further offending, has pleaded guilty and has provided assistance to law enforcement officers as considered by s 23 Crimes (Sentencing Procedure) Act. Although these last two matters have been dealt with separately as I have indicated.
38 The offender is to be sentenced for a number of offences, thus each offence has to be dealt with in accordance with the principles laid down in Regina v Pearce (1998) 194 CLR 610 particularly at paragraph 45. In this particular matter, Counts 1 to 6 were grouped together in relation to one attempted loan, Counts 7 to 11 are in relation to a successful loan advanced which was repaid and Counts 12 and 13 relate to separate loans in circumstances which I have outlined above. Although the offences are close in time in reality (taking into account the matters on the Form 1) if one was imposing full-time custodial sentences there would have to be as occurred in Regina v Alcorn at least some partial accumulation. On the other hand, if each of the individual sentences I have to determine to impose is to be less than two years with the relevant discounts applied each sentence by itself is potentially capable of, in accordance with the proper approach in these matters, suspension pursuant to s 12 Crimes (Sentencing Procedure) Act 1999.
39 It seems before one can ultimately determine to suspend such sentences or consider that seriously is an option, one has to go through the exercise of determining what would otherwise be the appropriate sentence or sentences to be imposed if one properly applied Pearce principles, including considerations of accumulation, concurrency and of course totality. This must be done even if individual sentences to be imposed as here are less than two years imprisonment. As I suggested in the course of submissions and as the Crown has confirmed by its research, suspended sentences cannot be post-dated. Thus suspension of terms of imprisonment in reality, or least “notionally”, may not reflect the “totality” issues that arise (see Regina v Croaker [2004] NSWCCA 470 at para [22]. Regina v Tolley [2004] NSWCCA at para [26]). Ultimately in this matter I have determined that even with proper partial accumulation to give effect to “totality of the criminality” and the application of the relevant discounts the ultimate total sentence would not have exceeded two years imprisonment in any event.
40 If I had calculated that the appropriate sentences in totality would have exceeded two years imprisonment, albeit that the individual sentences themselves were less than two years imprisonment, I would not have thought it proper to consider suspension of the individual sentences. The issue that was debated at some length in submissions ultimately becomes one of theory perhaps to be addressed at a later time in relation to another case where the notional accumulation or partial accumulation of sentence to give effect to totality would lead to sentences in excess of two yours imprisonment after proper regard to issues of parity as they arrive in other appropriate matters.
CONCLUSION:
41 Noting s 5 Crimes (Sentencing Procedure) Act 1999, it is appropriate that terms of imprisonment be imposed for all but one of the offences to which the prisoner has pleaded guilty. Noting the various matters pointed out by Howie J in Regina v Zamagias [2002] NSWCCA 17 and by Fitzgerald J A in Regina v JCE (2000) 120 ACR 18, I have determined that as each of the sentences of imprisonment to be imposed is less than two years, they should all be suspended primarily to promote the rehabilitation of the prisoner.
42 In respect of Count 4, in order to allow the Court a longer time to monitor the prisoner’s progress than the terms of imprisonment suspended, I propose to convict her and place her on a bond to be of god behaviour for two years. I do not propose to fix non-parole periods. Although this matter is subject to the conclusion expressed in the decision of Regina v Tolley, I was advised yesterday by the Judicial Commission that a Bill read for the second time in the Legislative Assembly on 27 October 2006 proposes to abolish the practice of setting a non-parole period at the time of imposing sentences of imprisonment which are suspended. These orders will reflect the impending new legality. This case in any event with its potential for partial accumulation highlights the potential difficulty of fixing non-parole periods before revocation. Further, I must confess I have never understood how one could fix a non-parole period for a sentence at the time of suspension when the circumstances of potential revocation may impact upon whether a finding of special circumstances ought to be made pursuant to s 44(2) Crimes (Sentencing Procedure) Act 1999. In any event that aspect of the matter is now to become academic.
43 Just stand up please Ms Rankin.
44 In relation to Count 1, taking into account the two matters on the Form 1, you are convicted. You are sentenced to a term of imprisonment of one year four months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond are as follows:
1. You are to appear before Court if called to do so at any time.
2. You are to be of good behaviour.
3. You are to advise the Registrar of the Criminal Listing Directorate of the New South Wales District Court at the Downing Centre of any change of residential address. I do not propose in your case to fix a condition that you require supervision of the Probation and Parole Service. At this point I believe that would be an undue burden upon the Probation and Parole Service. I do not believe there are any matters that the Probation and Parole Service need to address in supervision of you.
45 In relation to Counts 2 and 3 and 5 and 6, you are convicted. You are sentenced to a term of imprisonment of twelve months in each matter. I order the execution of that sentence be suspended for the term of the sentence in each case. I direct that you be released from custody on condition that you enter into a god behaviour bond for the term of the sentence. Conditions applying during the term of the bond are of the same as I imposed in relation to Count 1.
46 HIS HONOUR: Mr Crown, did I fix the term of imprisonment for Count 1? One year four months?
47 BARR: One year four months your Honour.
48 HIS HONOUR: In relation to Count 4 you are convicted. In respect to that matter pursuant to s 9 Crimes (Sentencing Procedure) Act I order that you enter into a good behaviour bond for a period of two years from today. Conditions applying during the term of that bond will be the same as for the other bonds that I have ordered.
49 In relation to Counts 7 to 11, you are convicted. You are sentenced to fifteen months imprisonment in each case. I order that the execution of the sentence pursuant to s 12 Crimes (Sentencing Procedure) Act be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence on the conditions which I have already outlined.
50 In respect of Counts 12 and 13, you are convicted. You are sentenced in each case to eighteen months imprisonment. Pursuant to s 12 Crimes (Sentencing Procedure) Act I order the execution of the sentence be suspended for the term of the sentence. I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bond will be the same as I have ordered in respect of Count 1.
51 HIS HONOUR: Mr Crown , are there any technical matters from you?
52 BAR: No your Honour.
53 HIS HONOUR: Any technical or factual matters from you Mr Latham?
54 LATHAM: No your Honour.
55 HIS HONOUR: Ms Rankin, the effect of the sentences I’ve imposed are as follows. Firstly in respect of all bar one matter, you are in effect sentenced to terms of imprisonment but they will be suspended providing you are of good behaviour. In other words, you do not commit any other criminal offences. I have fixed a good behaviour bond for two years in relation to Count 4 which was from memory the making of a false instrument to wit an authority for two years just to give it a little bit of extra time for the Court to be able to monitor your progress. I’m not fixing any supervision from the Probation and Parole Service. Amongst other things it will be complicated because you’ll be in Western Australia and possibly moving back to Queensland but at any event you do not have any of the classic issues that the Probation and Parole service is well skilled to address. No drug or alcohol or gambling issues and I think in the circumstances the slender resources of the various probation organisations across the Commonwealth of Australia would be better spent elsewhere. But you must understand of course that inherent in the sentences that I have imposed is a calculation of a twenty percent discount in anticipation of your future cooperation on the statement that you have given, do you understand that?
56 OFFENDER: Yes your Honour.
57 HIS HONOUR: And if you fail to cooperate with the authorities, it would be open to the Crown if it so desired, to appeal the orders that I make it may appeal the orders that I have made in any event, I don’t doubt that, but specifically if you fail to live up to your undertaking as I understand it to cooperate with the authorities and make yourself available to give evidence when called upon, then you run the risk that the matter could be taken to the Court of Criminal Appeal, that the sentences that I have imposed would be increased to the extent that I’ve accorded you a discount for future assistance and of course if you fail to do that and if that appeal was to be undertaken, if that appeal was successful then the issue of appropriate sentencing for you would become a fresh matter for someone else to consider. Probably not me and it could involve you having to serve a term of imprisonment. Do you understand that?
58 OFFENDER: Yes your Honour.
59 HIS HONOUR: Should it come to pass that some future situation arose that required consideration of the revocation of your section 12 bonds or some re-sentencing exercise, notwithstanding the fact that the Probation and Parole Service has at this stage little work for you to do, in all the circumstances of the matter noting that that would be your first term of imprisonment and other features of the case, I would have been prepared to make a finding of special circumstances. As I’ve explained I don’t propose to give effect to that at this particular point of time. Mr Crown if it’s convenient with you and you Mr Latham, I’ll permit your client to leave the dock on condition that she goes to level 3 with your solicitor to enter into the various bonds and Ms Rankin you must understand that you can’t leave this building until you enter into the various bonds that have been ordered otherwise I can issue a warrant for your arrest. You can leave the dock thanks very much thank you.
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