Regina (Commonwealth) v Virginia Jabreal

[2007] NSWDC 361

CITATION:	Regina (Commonwealth) v Virginia Jabreal [2007] NSWDC 361
JUDGMENT DATE:	25 October 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Overall sentence of 18 months periodic detention with a non-parole period of 6 months.
CATCHWORDS:	Criminal law - Sentence - Commonwealth offences - Social security fraud - Voluntary cessation of criminal activity - Need not greed - Payments used to support children - Late husband a compulsive gambler - Repayments voluntarily made - No prior convictions - First time in custody - Special circumstances - Periodic detention
LEGISLATION CITED:	s 29B Crimes Act 1914 (Cth) s135.1(5) Criminal Code (Cth)
CASES CITED:	Regina v Burns [2007] NSWCCA 228 Regina v Hayman [2003] NSWCCA 138 Regina v Janceski NSWCCA, unreported, 1 March 2006 Regina v Martinsen [2003] NSWCCA 144 Regina v Molesworth [1999] NSWCCA 43 Regina v Purdon NSWCCA, unreported, 27 March 1997
PARTIES:	Regina (Commonwealth) Virginia Jabreal
FILE NUMBER(S):	07/21/3075
COUNSEL:	Mr Nematalla for the offender
SOLICITORS:	Ms McKenzie for the Commonwealth DPP

SENTENCE
1. I am sentencing Virginia Jabreal. She has been charged with three offences under s29B of the Crimes Act 1914 of the Commonwealth. In addition, she has been charged with three offences under s135.1(5) of the Criminal Code 1995 of the Commonwealth. Each of the s29B offences carries a maximum penalty of two years imprisonment, and the s135.1 offences carry a maximum penalty of five years imprisonment.

2. The s29B offences are offences shortly known as imposition on the Commonwealth. The offence comprises imposing upon a Commonwealth authority by an untrue representation with a view to obtaining a benefit. These cases usually concern benefits from the Social Security system, and this case is no exception.

3. The offences under s135.1 are shortly known as dishonesty causing a loss to another person knowing that the loss would occur. Section 135 of the Criminal Code effectively replaced s29B of the Crimes Act .

4. Briefly this is what Mrs Jabreal’s criminal behaviour was. She was paid various sorts of social security payments by the Commonwealth Services Delivery Agency, formerly known as the Department of Social Security. At the time of receiving various kinds of benefits, she was also employed by the St Johns Park Bowling Club. There is an obligation understandably to declare paid employment to the Commonwealth agency responsible for paying a pension or a benefit. Briefly, Mrs Jabreal failed to declare her income from her employment. Had she declared her income from her employment, which was an annual salary of over $30,000.00, that would have reduced or eliminated the payments which she was receiving from the Commonwealth Services Delivery Agency.

5. She undertook this deception over a period of some seven years. Her offending behaviour has been made the subject, as I said, of the six charges. The three charges under s29B refer to three periods. The first charge refers to the period 9 July 1998 to 14 September 1999. The second charge refers to the period 14 March 2000 to 9 May 2000. The third s29B charge refers to the period 6 June 2000 until 22 May 2001.

6. The first s135.1 charge refers to the period 5 June 2001 to about 26 April 2002. The second s135.1 charge refers to the period 10 May 2002 until 26 March 2004. The third s135.1 charge refers to the period 9 April 2004 to 28 January 2005.

7. Over that period of time Mrs Jabreal filled in various forms which posed questions such as, “Did you do any work over the relevant period?”, and she answered, “No”. At other times she received letters of advice concerning the means of calculating her entitlement. The advice letters also informed her of her obligation to notify the authorities of her employment.

8. The way that this behaviour of Mrs Jabreal came to light is a significant feature of this case. On 9 February 2005, that is a week or so after the closing date of the last offence, she contacted the Commonwealth Services Delivery Agency by telephone. She admitted that she had been working since 2000, and that her average earnings were $450 to $500 a week. In fact, she had been working for longer than that, but she also provided them with full details of her employment and employer.

9. As a result of her failure to disclose her employment, as I said, she was paid at a higher rate than she ought to have been paid, or paid benefits which she ought not to have been paid at all. The overpayment has been calculated as $60,097.35. The overpayment, which is the subject of the s29B charges, is just over $19,000, and the overpayment, which is the subject of the s135.1 charges, is nearly $41,000.

10. Mr Nematalla, who appears for Mrs Jabreal, tendered some documents and called his client to give evidence. She gave an account of coming to Australia from Iraq in 1994. She left for various reasons, including political oppression. She arrived with her four sons and her husband followed her. However, after her husband arrived he did not undertake any paid employment. It was Mrs Jabreal who was the breadwinner in the family. Not only that but he was a gambler. He used to gamble away a good deal of the money which ought to have been expended on household items. As Mrs Jabreal said, she earned the money, he took the money, and he stayed at home.

11. As it happened, her husband died in September 1999. That, however, did not ease her financial pressures. She still had her four sons at home and they were, at that stage, all or mostly at school. She had to borrow something like $5000 for her husband’s funeral. She had already borrowed money from her sister in order to come to Australia.

12. When she was asked about her behaviour, she described it as a mistake which is, to my mind, a somewhat mild description of her criminal behaviour. However, she also told me that she had, as I indicated, provided the authorities with all the details regarding her employer. On that issue, it has been submitted by Ms McKenzie, who appears for the prosecutor, that the disclosure by Mrs Jabreal has been somewhat qualified. I can see the force in that submission but, on balance, I do not accept it. I do not accept it for this reason. Although Mrs Jabreal’s disclosure was partial, and not complete, she provided the authorities with all the information that they would need in order to ascertain how much she had been paid by her employer over the relevant period, and how much, therefore, she had been overpaid by the Agency.

13. As Mrs Jabreal said, when her sons had grown older, she then contacted the agency. She said that most of the additional money was spent on routine day-to-day housekeeping expenses. She was asked whether there was any greed involved, and she denied that. As Hunt J said, speaking for the Court of Criminal Appeal, in Regina v Purdon NSWCCA, unreported, 27 March 1997, the principles of sentencing for these kinds of offences are “ not based upon the fact many of the frauds are perpetrated from motives of greed rather than need. Both types of fraud are widespread. They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected, except in very special circumstances. If the fraud is based on greed, the custodial sentence will be longer ”. I regard the circumstances of the offending, in this case, as fundamentally stemming from need rather than greed. Mrs Jabreal was in debt as a result of a couple of significant loans. She was trying to manage her household at the time that her husband was alive, when he was both not earning and spending a good deal of the money which she was earning on gambling.

14. I am aware of the fact - or I have not overlooked the fact - that it is only one of the offences, namely the first s29B offence, which was committed before her late husband died. The other five offences have been committed since then. Nevertheless, given the evidence about the loan, which she had to undertake for his funeral, and the fact that she was raising four children on a relatively modest income, I find that her criminal behaviour was driven by need rather than greed. I emphasise this makes no difference to the principle espoused by the Court of Criminal Appeal that these cases should be dealt with by a custodial sentence. But as Hunt J said, it is relevant to the length of that sentence.

15. Her sons are still at home. They are now aged twenty-five, twenty-three, twenty-two and twenty-one. A couple of them are working, and a couple of them are not working at present but expect to get some work relatively soon.

16. Mrs Jabreal gave evidence that she was prepared to pay back the amount which she owes to the agency. She has already paid back some $3000. She has a superannuation fund with about $32,000 in it. She is attempting to make arrangements to release those funds so that they can be paid. In those circumstances, she will have to rely upon her sons to support her instead of relying upon that fund in the future. She invites me to make an order for reparation.

17. In cross-examination she said that she had been working at the Bowling Club since 1997. She received in December last year a staff recognition certificate for ten years’ continuous service at the Club. Her income, she said, was barely enough to pay the rent, and when asked in cross-examination about what motivated her to effectively steal the money from the Commonwealth, she said words to the effect of, “When I needed it I took it, and I will pay it back when I can”. In re-examination she pointed out that when her husband was alive they were not able to save any funds because it all went into poker machines.

18. There is evidence in the form of a report from her General Practitioner who points out that she has some osteo-arthritis in her hands and associated pain in her neck and shoulder. The senior duty manager of her employer asserts that he has found her to be an honest and reliable member of staff. My understanding is that the author of that reference does not know about the current charges.

19. Mrs Jabreal was interviewed and assessed by officers of the Probation and Parole Service. They produced two reports, both this year, one quite recent. It confirms the history, which she gave, concerning her arrival in Australia and her marriage to her husband and her husband’s gambling habit.

20. The officer preparing the first report indicated that in the interview Mrs Jabreal tendered to place culpability for her offending behaviour on her husband’s gambling and lack of employment, and then she needed to continue claiming financial benefits to support her family. The officer noted that she tended to minimise her actions. He concluded that Mrs Jabreal’s insight into her offending behaviour is limited. He thought she was unlikely to benefit from or require supervision. She was unsuitable for a community service order but suitable for periodic detention. Those assessments were confirmed in the report prepared on 17 October 2007.

21. In the second report, the officer spoke to Mrs Jabreal’s sister who told him that Mrs Jabreal was constantly borrowing money from family to buy household necessities and to pay for school fees. This confirms my conclusion that the offending behaviour was driven by need rather than greed. The more recent report also confirmed her suitability for periodic detention but not for a community service order.

22. I have had the benefit of submissions by both legal representatives. I make the following observations and findings, where relevant, concerning the objective seriousness of the offending behaviour.

23. The overall amount involved was not insignificant. It was not a figure in the hundreds of thousands of dollars, or even millions, which some of these crimes might involve, but nor was it an amount of only $5000 or $10,000. It was, as I said, not insignificant.

24. The maximum penalty for the s29B offences is two years and the maximum penalty for the s315 offences is five years. Parliament obviously regarded it as important to mark the seriousness of these kinds of offences by taking the opportunity to significantly increase the penalty for the offences.

25. I find, as I have said, that the behaviour was motivated by need rather than greed. I note that the authorities, and once again I refer to Hunt Js judgment in Purdon , “ make it clear beyond any doubt that, in the case of a fraud upon the Social Security system, a custodial sentence is to be imposed unless their exists very special circumstances justifying some lesser order .” As his Honour said, the rationale for that rule “ is that the offence is easy to commit but difficult to detect. It is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payment of benefits and, therefore, hardship to those whose need is urgent. ” As his Honour said, an additional burden is placed upon all taxpayers who shoulder the heavy burden of providing the funds for the Social Security system to operate. The burden becomes even heavier because of widespread abuse to it by frauds.

26. One is tempted to regard Mrs Jabreal’s behaviour as understandable. She came from difficult personal circumstances in Iraq, she was supporting four children, her husband was contributing nothing to the household and, indeed, was draining the household of essential funds. But, on the other hand, it is important to appreciate that thousands of men and women in Australia who have jobs do not elect to behave as Mrs Jabreal did. They do not claim and receive Social Security benefits to which they are not entitled because they are already employed, and I add that sometimes it is a matter of being paid at a higher or lower rate. People like Mrs Jabreal who commit these sorts of frauds on the Commonwealth social security system bring about, as Hunt J said, the need for more checks upon applicants, which cause delays in the payment to applicants and, therefore, hardship upon those whose need is urgent. She has, on one view of things, stolen by deception $60,000 from the Commonwealth government. I appreciate that the offence is not one of theft, and I am using that expressing by way of a comparison or analogy.

27. On the subjective side, Mrs Jabreal’s voluntary cessation of her criminal behaviour and disclosure to the Department is, as I have said, significant. Mr Nematalla has drawn my attention to the Court of Criminal Appeal’s decision in Regina v Burns [2007] NSWCCA 228. The judgment of the court comprising the Chief Justice, and Simpson and Harrison JJ was delivered by Harrison J. His Honour referred to the principles relevant to the voluntary cessation of criminal activity. As his Honour said at [27], it is “ well recognised as a significant factor to take it into account by a sentencing tribunal. ” His Honour said at [29] that there were a number of reasons why it was a significant factor. His Honour listed four reasons which I will refer to and comment on so far as this case is concerned.

28. The first reason is that there is a public policy to be served in providing encouragement to offenders to cease their criminal activities. I regard this as relevant and applicable to this case. Mrs Jabreal has seen the error of her ways and voluntarily stopped her criminal behaviour. Not only that, she has disclosed that criminal behaviour to the authorities. That kind of activity is to be encouraged as a matter of public policy and I will take it into account, in her favour, in sentencing her.

29. The second factor mentioned by Harrison J is that specific deterrence is a matter to be given little or no weight. I will come back to comment on that shortly.
30. The third factor is that the voluntary cessation of criminal activity provides strong evidence of remorse, contrition and rehabilitation.

31. I comment on both those factors together so far as this case is concerned. I am not completely convinced about Mrs Jabreal’s remorse. I do regard her as somewhat remorseful. She has taken the steps to cease her criminal activity, but the impression that I get from her evidence is that she undertook the exercise over the period of time that she did because she simply needed the money. I get the impression that she made a fairly detached and calculated decision to apply for and obtain the money and that she would cease obtaining the money when she thought it was no longer needed. That is supported by her evidence that when her sons were older and had grown up she contacted the authorities. As she said in evidence in cross-examination, when she needed it she took it and she paid it back when she could.

32. Hence I do not regard the voluntary cessation of criminal activity, in this case, as providing strong evidence of remorse or contrition. I regard it as providing some evidence but I am not convinced, on the balance of probabilities, that her remorse is strong. I am convinced that she has some remorse. Hence also, so far as specific deterrence is concerned, I regard there still to be a place in this sentencing exercise for Mrs Jabreal to be reminded of the seriousness of what she has undertaken. My impression is that she may not have understood the seriousness of the criminal behaviour she was entering upon in embarking on the course which she did.

33. The final factor mentioned by Harrison J was that the voluntary cessation of criminal activity may support the proposition that the offence was committed as a result of need rather than greed. It does support that proposition in this case. As I have said, Mrs Jabreal not only ceased her criminal activity but voluntarily disclosed it, and in effect in a fulsome way, such that she provided the authorities with enough information for them to ascertain the full extent of her criminal behaviour.

34. Mrs Jabreal has pleaded guilty and, although not at the first opportunity and in face of an overwhelming Crown case, I do give her some credit for that plea. She has been co-operative in providing information by the means of which the authorities have been able to ascertain the extent of her criminal behaviour, as I said. She has commenced repaying the funds and undertaken to pay a substantial amount back which she owes.

35. I am obliged by s17A of the Crimes Act 1914 of the Commonwealth not to pass a sentence of imprisonment unless after having considered all other available sentences, I am satisfied that no other sentence is available in all the circumstances of the case. Other sentences not involving imprisonment would be a fine or a bond or a community service order. Mrs Jabreal is unsuitable for a community service order. A fine, in my opinion, would simply be inadequate to reflect the serious nature of her offending behaviour. Not only that, but it would effectively deprive her of the capacity to repay the debt. A bond, or some form of conditional release unattached to a custodial order, in my opinion, would be also too lenient. I have that opinion because of the authorities which I have referred to, Purdon being just one example. The Court of Criminal Appeal has made it clear that these kinds of offences must attract a custodial sentence. Hence for those reasons, I regard no other sentence than a custodial sentence as appropriate.

36. I turn now to consider two things. What is an appropriate sentence and, secondly, what form the sentence should take. I have been assisted by some references to other cases where courts have sentenced for these kinds of offences and where the Court of Criminal Appeal in this State has reviewed those sentences. Ms McKenzie, in particular, has referred to Regina v Martinsen [2003] NSWCCA 144, Regina v Hayman [2003] NSWCCA 138, Regina v Molesworth [1999] NSWCCA 43 and Regina v Janceski NSWCCA, unreported, 1 March 1996. Two of those cases involved s29B offences but none of them involved s135.1 offences. Nevertheless, I have taken them into account.

37. I would regard a sentence of the region of two years as an appropriate sentence overall for the kind of criminal behaviour which Mrs Jabreal has engaged in. I came to that view by reference to these precedents, so to speak, to which I have referred. But I also take into account, so far as the length of the sentence is concerned, that Mrs Jabreal’s behaviour was driven by need not greed, and I also give her significant benefit for the fact that she voluntarily ceased her criminal activity and disclosed it to the authorities. I also take into account her plea of guilty. For those reasons, I propose to fix a sentence of eighteen months.

38. The next question is what form that sentence should take. Because of Mrs Jabreal’s age and because of the fact that will be her first sentence of imprisonment and that she has a clean record, I propose to order that her sentence be served by way of periodic detention.

39. I regard, and I use this expression not technically but in general terms, an appropriate minimum period during which Mrs Jabreal should serve her periodic detention as six months. That is what I have in mind: a sentence of eighteen months, to be served by periodic detention, with a minimum component of six months.

HIS HONOUR: Now, I will just suspend my remarks on sentence, at this stage, to get your assistance as to - well, first to make sure I haven’t contravened any statute so far. You are probably more familiar with--

CROWN PROSECUTOR: The only thing that is left for your Honour to do, in my submission, is to fix a recognizance release order.

HIS HONOUR: Exactly. Now is that--

CROWN PROSECUTOR: Twenty - the recognizance provision is s21(a), that is what you default back to when you are actually fixing--

HIS HONOUR: Under three years so--

CROWN PROSECUTOR: Yes, yes.

HIS HONOUR: --it is 19, isn’t it?

NEMATALLA: It’s 19.

CROWN PROSECUTOR: I’m grateful to my friend for assistance.

HIS HONOUR: No, no, you haven’t got it because I have got it.

CROWN PROSECUTOR: I haven’t got it in front of me, your Honour.

NEMATALLA: Your Honour, if you just pardon me a moment?

HIS HONOUR: I found it at lunchtime.

CROWN PROSECUTOR: It’s 19(a)(b) or (a)(c), from memory, your Honour. Somewhere in that neighbourhood.

HIS HONOUR: Good, good I’ll find it.

NEMATALLA: 19(a)(c)(1)(b):

“The court imposes a sentence not exceeding three years.”


HIS HONOUR: That’s right, the court must make a recognizance release order.

NEMATALLA: Yes.

HIS HONOUR: And I don’t fix a non-parole period.

NEMATALLA: No.

HIS HONOUR: Okay.

CROWN PROSECUTOR: And then in terms of the recognizance release order, itself, your Honour has to go back to s20(1)(b) and (a). So if, in fact, it is your Honour’s intention that Mrs Jabreal be sentenced to imprisonment for eighteen months, to be served by way of period detention but directed that she be released after serving six months, upon entry into a recognizance in whatever amount your Honour specifies, to be of good behaviour for whatever period your Honour specifies, and your Honour has to go back to s21(b) and s21(a) for the construction, if you like.

HIS HONOUR: It’s (b), isn’t it?

CROWN PROSECUTOR: Yes, (b) that deals with fixing a term of imprisonment and then--

HIS HONOUR: (a) is releasing them without--

CROWN PROSECUTOR: And releasing them.

HIS HONOUR: But (b) is where I sentence the person to imprisonment.

CROWN PROSECUTOR: That is correct.

HIS HONOUR: And I direct by order that the person be released - by giving security - the kind referred to in (a).

CROWN PROSECUTOR: That’s correct, your Honour, yes, and unlike the State regime, your Honour is actually required to express an amount of security, although it is usually in terms of without having to pay that security.

HIS HONOUR: Let’s see how I go.

NEMATALLA: Your Honour, the only other thing that I would mention, if you don’t mind, is your Honour’s explicit indication that the sentences are run concurrent.

HIS HONOUR: Thanks, yes, yes. Thank you for that.

CROWN PROSECUTOR: That’s a matter for your Honour, of course.

HIS HONOUR: It is.

NEMATALLA: Only if that is what your Honour had in mind.

HIS HONOUR: No, no, what I have - no, you’re quite right. What I had in mind - and I’ll perhaps invite submissions on this - three cumulative sentences of two years for the s29B offences, and three - two months - two months. Three cumulative sentences of two months in respect of the 29B offences and three cumulative sentences of four months for the 135 offences, which reflects the different maximums, and the fact that they are separate discrete offences, each of them, so that would be two plus two plus two is six, and then on top of that four plus four plus four is 12, which is 18 months in total. Is that going to work or not?

NEMATALLA: Your Honour, I hope I’m not appearing impertinent because--

HIS HONOUR: No, please.

MCKENZIE: Your Honour, I only heard you say I had in mind, words to the effect of an overall sentence of--

HIS HONOUR: Eighteen months.

NEMATALLA: Eighteen months. Now, that is the only reason I mention it. I think that there may be some difficulty in spacing them out. I can’t see immediately the legal problem within the legislation. Your Honour would have to effectively sentence her, specify the date of commencing, the date of release - the date of commence, the date of release- the date of commencing, the date of release - if that is what your Honour intended. So, there would have to be a distinct pronunciation of commencement ending and so forth.

HIS HONOUR: Yes.

NEMATALLA: At each of the six--

HIS HONOUR: I appreciate that. I’m just wondering what is the alternative to what sentence--

CROWN PROSECUTOR: Well, another approach, in my respectful--

HIS HONOUR: --concurrent six months and concurrent 12 months. Now what were you going to say, Ms McKenzie?

CROWN PROSECUTOR: Well, what I was going to submit to your Honour is that if your Honour were looking at imposing the penalty of 18 months to serve six months, your Honour could do that in respect of each of the individual six offences, and just direct that they all commence today.

HIS HONOUR: The difficulty with that is that the maximum for the 135 is five years. That’s a significant difference.

CROWN PROSECUTOR: That is certainly correct.

HIS HONOUR: My own view is that it is not appropriate to give the same sentence for the 135s as it is for the 29Bs.

NEMATALLA: Well, it - because your Honour would have to look at the maximum and then say to yourself, well, where does this sit in the objective seriousness. With respect, we’ve heard all of that but, in effect, it may be seen that your Honour, as a matter of convenience, is sentencing her that way. All that I am saying is that if your Honour’s intent is an overall sentence, then either your Honour make it clear that it is to be served concurrent or as the Crown and I have already indicated, each sentence has to be specified.

HIS HONOUR: One after the other. Why couldn’t I sentence three concurrent six months in respect of the 29Bs, and three concurrent 12 months in respect of the 135s cumulative on the first lot so, I’ve got two sets of concurrent sentences? I could do that. I am inviting submissions.

NEMATALLA: Yes, with the overall intention that - to use the phrase loosely - the minimum being six months.

HIS HONOUR: It is always that. The minimum is six - the intention is the sentence is 18 months, the minimum is six months, and it is periodic detention.

NEMATALLA: Yes, your Honour, I don’t see a difficulty with that.

HIS HONOUR: So we’re just talking about the form in which I sentence. To my mind the 135 offences have to carry a heavier sentence because of the significant difference in the maximum for the cumulative thing. That’s how I--

CROWN PROSECUTOR: Could I just clarify with your Honour? Would your Honour propose that in respect of each block of three offences, that your Honour’s maximum would be the same?

HIS HONOUR: Yes, yes.

CROWN PROSECUTOR: So 18 months, to be released after serving six months in respect of the 29B offences and--

HIS HONOUR: Sorry to interrupt you. What my associate has helpfully done, because I gave her an indication before I came on to the bench of what I was thinking and what I was likely to do, is she has set out with all the dates - so if I was to - but it will date from next Friday because it is periodic detention - next Saturday - and I’ll do them all cumulatively, and then I direct the sentence is served by periodic detention. I’m not giving these orders yet, I’m just giving you an idea. And then I direct that she be released to recognizance after six months on certain conditions, which I will come to. So does anyone see a problem if I do it that way?

NEMATALLA: I don’t your Honour, not from my perspective.

HIS HONOUR: Six cumulative sentences, release after six months.

CROWN PROSECUTOR: Could I just have a moment with my friend, your Honour?

HIS HONOUR: Yes.

NEMATALLA: Did your Honour use the word, cumulative, or, concurrent?

HIS HONOUR: Cumulative.

NEMATALLA: That means one adding to the other to the other?

HIS HONOUR: Yes, yes, or adding up to 18 months. Two plus two--

NEMATALLA: I see, but in terms of the minimums. See that’s the difficulty that the Crown and I--

HIS HONOUR: Yes, tell me?

NEMATALLA: If your Honour was to make the overall sentence cumulative, one on top of the other, they are 18 months times six.

HIS HONOUR: No, no, no.

NEMATALLA: Cumulative?

HIS HONOUR: Four months, plus four--

MCKENZIE: I see, four plus four.

HIS HONOUR: Plus four, plus two, plus two, plus two.

NEMATALLA: My mistake, your Honour I misunderstood it.

HIS HONOUR: So, there are six sentences, one for each offence. Each of the 29Bs is a two months sentence, each of the 135s is a four months sentence, and they are all cumulatively on each other. It just seems to me that that reflects (a) the maximum and (b) the--

NEMATALLA: Yes, and then so far as the minimum - or the period to be served is concerned, that is the difficulty that we have--

HIS HONOUR: Now, what is the difficulty?
NEMATALLA: The difficulty in how the minimum - and we’re using that terminology loosely - is then to be served.

HIS HONOUR: Yes, I was wondering that. Isn’t that the subject of a s19AC order?

NEMATALLA: It is, so then with respect, your Honour, your Honour would be saying, for example, with respect to the first offence under 29B, she is sentenced to a term of imprisonment of two months, to commence from such and such a date, expire on such and such a date, to be released on a recognizance on a particular date.

HIS HONOUR: Now, that’s right. I think I’m right here but tell me if I’m wrong. You both might look at 19AC says:

“Where a person is convicted of two or more Federal offences at the same sitting--“

Yes:

“--and the court imposes on the person Federal sentences that in the aggregate do not exceed three years--“

Yes:

“--and at the time the sentences are imposed, a person is not already subject to a Federal sentence--“

Yes:

“--the court must make a recognizance release order in respect of those sentences and must not fix a non-parole period.”


So what I think I can do is make one recognizance release order.

NEMATALLA: In fact, that’s what both the Crown and I would ask your Honour to do.

HIS HONOUR: In respect of all the sentences.

NEMATALLA: Yes.

HIS HONOUR: Did I state that right, Madam Crown?

CROWN PROSECUTOR: Yes, it is correct, as my friend points out. There must be a single non-release period, if I can put it that way.

HIS HONOUR: Yes, exactly, all right.

NEMATALLA: With a single recognizance order, if that is repeating what you are saying.

HIS HONOUR: Yes, all right, we might get underway. We will have another conference shortly.

NEMATALLA: Yes.

CROWN PROSECUTOR: Your Honour, I have just spoken to my friend. I still have a lingering concern as to what your Honour proposes is, in fact, possible in accordance with what the statute provides.

HIS HONOUR: I will hear you, that’s an important point.

CROWN PROSECUTOR: But what I’ve just pointed out to my friend, and my friend is happy for me to raise this with your Honour, is that your Honour has the capacity, should your Honour desire to do so, when your Honour has in mind that someone is to be directed to serve six months or less, your Honour is not required to fix a recognizance release order. That is provided for in s19AC(3).

HIS HONOUR: Right. What is the point - what’s your point?

CROWN PROSECUTOR: That might overcome - your Honour may well be able to achieve what your Honour has in mind to achieve in terms of this conglomeration of penalties.

HIS HONOUR: Yes.

CROWN PROSECUTOR: Without activating my concern that what your Honour proposes in terms of two, plus two, plus two, and then four, plus four, plus four. I’m just not convinced, your Honour, that that’s - I know that there is this requirement to have a single recognizance release period, but I’m not certain that the current means by which your Honour proposes to do that is not going to offend the legislation.

HIS HONOUR: And how would subsection (3) of s19AC help there because I’m imposing sentences exceeding six months.

CROWN PROSECUTOR: I wonder if your Honour would give me the opportunity to make an inquiry with my office before your Honour goes ahead and imposes judgment?

HIS HONOUR: Yes.

CROWN PROSECUTOR: Just so I could--

HIS HONOUR: Yes, we’ve got to get it right. That’s fine, Ms McKenzie. Look I appreciate your assistance, both of you in this, and look I’m not overlooking the fact that your client, Mr Nematella, is sitting there obviously quite distressed. Unfortunately this is - as I’m sure you’ve explained - an important part of sentencing. She knows what I have in mind, what the result is going to be, but these mechanical things unfortunately just - we have to get them right or she might find herself in the Court of Criminal Appeal wanting, you know, to correct it.

NEMATALLA: No, without pre-empting anything, I explained what the intent of your Honour’s overall punishment will be, but it’s a matter of doing it right in terms of what needs to be on paper, your Honour, and she understands that.

HIS HONOUR: But I just acknowledge that she’s obviously distressed by this - by (a) the sentence or the news and (b) the fact that we - the process. So should I adjourn for a couple of minutes?

CROWN PROSECUTOR: Would your Honour give me that indulgence?

HIS HONOUR: I will.

CROWN PROSECUTOR: Thank you, your Honour.

HIS HONOUR: I’d appreciate it.

SHORT ADJOURNMENT

HIS HONOUR: Well, how did we go?

CROWN PROSECUTOR: I thank your Honour for that time.

HIS HONOUR: Just say that again?

CROWN PROSECUTOR: I thank you Honour for that time.

HIS HONOUR: Yes, yes.

CROWN PROSECUTOR: I’ve checked with my office and what your Honour proposed is acceptable.

HIS HONOUR: Right, okay. It’s not going to breach the statute?

CROWN PROSECUTOR: But what would be required as part of that process, is that your Honour would be required, because of s19, to specify the start and end dates for each sentence.

HIS HONOUR: I’ve got that.

CROWN PROSECUTOR: Thank you.

HIS HONOUR: My associate anticipated that. So are we ready to go?

NEMATALLA: Yes, your Honour.

HIS HONOUR: You’d better ask your - no, leave her there, leave here there. Mrs Jabreal, it’s all right.

40. I sentence you in respect of the offence of dishonestly causing a loss to a Commonwealth entity, contrary to s135.1 of the Criminal Code1995 , to four months imprisonment, to date from 3 November 2007 and to expire on 2 March 2008. In respect of the second offence of dishonestly causing a loss to a Commonwealth entity, contrary to the same section, I sentence you to four months imprisonment to date from 3 March 2008 and to expire on 2 July 2008. That period is to be cumulative on the first period. In respect of the third offence of dishonestly causing a loss to a Commonwealth entity, contrary to the same section, I sentence you to a further term of four months imprisonment, to date from 3 July 2008 and to expire on 2 November 2008. That is to be cumulative on the previous two sentences.

41. In respect of the offence of imposition on the Commonwealth, contrary to s29B of the Crimes Act 1914 , I sentence you to two months imprisonment to date from 3 November 2008 and to expire on 2 January 2009. That is to be cumulative on all the previous sentences. In respect of the second offence of imposition on the Commonwealth contrary to the same section, I sentence you to two months imprisonment to date from 3 January 2009 and to expire on 2 March 2009. That sentence is to be cumulative on all the other sentences. In respect of the third offence of imposition on the Commonwealth, contrary to the same section, I sentence you to two months imprisonment to date from 3 March 2009 and to expire on 2 May 2009. That is to be cumulative on all the other sentences.

HIS HONOUR: Now, what is the section about periodic detention, because I will make a direction? 20AB, is it?

42. In respect of all of the sentences which I have just imposed, I make a periodic detention order directing that those sentences be served by way of periodic detention. I fix the date of commencement of the sentence as 3 November 2007. I direct that you attend the Norma Parker Periodic Detention Centre at 1 Fleet Street, Parramatta, on Saturday, 3 November 2007, at 8.30am, and at 7pm each Friday thereafter.

HIS HONOUR: Now I go to what was it 19AC?

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: Now the recognizance release order is a conditional one, is that right?

CROWN PROSECUTOR: Well, one of the automatic conditions, your Honour, I think is to be of good behaviour. It is in your Honour’s hands as to whether your Honour wishes to express any other conditions of that release.

HIS HONOUR: Yes. Is there any provision about - it’s a s19AC. Is that subsection (1)?

NEMATALLA: For the recognizance, your Honour, I think it is (2) - AC(2). Sorry, it is A(1), your Honour.

HIS HONOUR: Yes, A(1).

NEMATALLA: AC(1).

HIS HONOUR: AC(1), yes.

CROWN PROSECUTOR: And then your Honour goes to s20(1)(b).

HIS HONOUR: That’s right, that’s what I couldn’t remember, thanks.

NEMATALLA: For the conditions, yes.

HIS HONOUR: 21(b)?

CROWN PROSECUTOR: 20(1)(b), your Honour.

HIS HONOUR: 21 doesn’t exist.

CROWN PROSECUTOR: 20(1)(b), your Honour.
43. Pursuant to s19AC of the Crimes Act 1914 , I make a recognizance release order in respect of the sentences which I have just imposed.

HIS HONOUR: And do I specify the order?

NEMATELLA: To commence and the conditions, yes, your Honour.

CROWN PROSECUTOR: Yes, yes, your Honour. Your Honour would indicate the period at the conclusion of which the offender is to be released upon entering into that recognizance, self, in a nominated sum. That’s at your Honour’s discretion. To be of good behaviour for the period that your Honour nominates.

44. Pursuant to s20(1)(b) I direct by order that Mrs Jabreal be released after she has served a period of six months imprisonment in respect of those offences. She is to be released upon giving security without surety by recognizance that she will comply with the following conditions: One, that she will be of good behaviour for a period of eighteen months from 3 November 2007.

HIS HONOUR: Now, any other conditions that either of you recommend.
CROWN PROSECUTOR: Did your Honour express the end date of that six month period?

45. So the specified period of imprisonment after which she is to be released, commences on 3 November 2007 and expires on 2 May 2008, at which time she is to be released by my order.

NEMATELLA: Your Honour, just with the order of good behaviour for the total period, did your Honour intend that, or did you intend that she be of good behaviour for the balance, because if it commences today--

HIS HONOUR: That makes more sense, doesn’t it?
NEMATELLA: So that, in my respectful submission, it would commence on the date of her release for a period of--

HIS HONOUR: Twelve months.

NEMATELLA: Yes.

46. The good behaviour period is for twelve months to commence on 3 May 2008 and to conclude 2 May 2009.

CROWN PROSECUTOR: There was also the need for your Honour to express a monetary amount for the recognizance.

HIS HONOUR: Is that usual?

CROWN PROSECUTOR: It is required under the Commonwealth legislation, your Honour.

HIS HONOUR: Is it?

CROWN PROSECUTOR: Yes, it is, under section 20(1)(a). It can be any amount, your Honour, there is no magic to the figure.

HIS HONOUR: Where is the requirement? I’ve got your practice.

CROWN PROSECUTOR: I might have to - if I could speak to my friend, your Honour?

HIS HONOUR: Yes.

CROWN PROSECUTOR: Upon giving security, your Honour. It’s expressed in the terms of section 20(1)(a) and it goes on to say with or without sureties--

HIS HONOUR: But the security is the money?

CROWN PROSECUTOR: That is correct, your Honour.

HIS HONOUR: Well, what is a usual amount?

CROWN PROSECUTOR: It could be anything. It could be $100, it could be $1000. It’s completely in your Honour’s discretion as to the monetary amount.

HIS HONOUR: But she doesn’t have to pay it.

CROWN PROSECUTOR: She doesn’t have to pay it.

47. I fix that as $500, the security.

CROWN PROSECUTOR: Yes.

HIS HONOUR: Now some supplementary orders you have sought?

CROWN PROSECUTOR: Firstly, your Honour, as to reparation under section 21B in favour of the Commonwealth.

48. In addition to the penalties, which I have imposed, pursuant to s21B of the Crimes Act 1914 , I order Mrs Jabreal to make reparation to the Commonwealth by way of money payment in respect of the balance unpaid, representing the loss suffered by the Commonwealth by reason of the offence. That reparation should be in the amount of $56,991.29.

CROWN PROSECUTOR: And the final remaining order, your Honour, that the Crown sought was for fingerprints to be taken pursuant to section 3ZL of the Commonwealth Crimes Act .

HIS HONOUR: This Commonwealth Crimes Act needs a bit of tidying up, doesn’t it?

CROWN PROSECUTOR: I wouldn’t disagree with your Honour in that regard.

HIS HONOUR: What should she do, attend the police station to do it?

CROWN PROSECUTOR: Yes, your Honour, within - I think it is a seven day period provided for by the section. Any police station but in terms of the convenience of Mrs Jabreal, perhaps the one closest to where she resides might--

49. Pursuant to s3ZL of the Crimes Act , I order that Mrs Jabreal attend any police station in New South Wales within one month of today to allow impressions of her fingerprints to be taken in accordance with this order. Anything else?

CROWN PROSECUTOR: No, thank you, your Honour, that completes the orders sought by the Crown.

HIS HONOUR: Mr Nematella?

NEMATELLA: Nothing on behalf of the offender, your Honour.

HIS HONOUR: Thanks, Mr Nematella. Now, I think I have to explain to your client that periodic detention - what happens if you breach a periodic detention order?

NEMATELLA: Your Honour, that’s an administrative process undertaken by--

CROWN PROSECUTOR: No, it’s not actually.

NEMATELLA: It’s not?

CROWN PROSECUTOR: It’s not in the Commonwealth domain. What happens, your Honour, is--

HIS HONOUR: I know it’s not in the Commonwealth domain. I’m just looking through Crimes (Sentencing Procedure) Act of New South Wales.

CROWN PROSECUTOR: No, it’s provided for under section 20AC, as I recall it, of the Commonwealth Crimes Act .

HIS HONOUR: Yes, I remember that, that’s my power to--

CROWN PROSECUTOR: If there is a breach then a Court Attendance Notice will be issued.

HIS HONOUR: Okay.

CROWN PROSECUTOR: And the matter would be brought before the court and then the Judge or the Magistrate, depending on what jurisdiction you’re in, then has a number of options as enumerated by the section, one of which could be re-sentencing, one of which is to do nothing and, as I recall it, there is also a provision there for fining the offender as well.

HIS HONOUR: So basically she could be re-sentenced?

CROWN PROSECUTOR: That’s correct, your Honour.

HIS HONOUR: Including full-time obviously?

CROWN PROSECUTOR: Correct, your Honour.

HIS HONOUR: Yes, okay. Ms Manna would you explain this to Ms Jabreal, and you can both remain seated? Mrs Jabreal, I have sentenced you to eighteen months because of the crimes which you committed. You are to serve that by way of weekend gaol, but the weekend gaol finishes after six months. After six months there will be no weekend gaol but you must be of good behaviour for the last twelve months.

You must attend every weekend for weekend gaol from next Saturday, 3 November. If you fail to comply with the order, you will be brought back to the court and what might happen is you could be re-sentenced and you could get a worse sentence. So, it is very important that you go to your weekend gaol. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: Okay, all right. I will just return your Crimes Act, thanks, Ms McKenzie. So nothing else?

CROWN PROSECUTOR: Not from the Commonwealth’s point of view, thank you, your Honour.

HIS HONOUR: All right, I notice it is a quarter to 5. So can I just - the court officer is still here and the monitor. Can I thank them both very much? It has been important to me to resolve this, and these Commonwealth matters are not straight forward, and I also am grateful for your assistance, Ms McKenzie and your assistance, Mr Nematella. It has been not easy, so thank you both very much, and my associate as well, so thank you. I will now adjourn.

oOo