Police V Inthavong [2009] NSWLC 2

Johnson V The Queen [2004] 78 ALJR 616 Postiglione V THe Queen (1997) 189 CLR 295 R V Assi (2006) NSWCCA257 R V Cicekdag (2004) 150 A Crim R 299 R V Doan (2000) 50 NSWLR R V Douar (2005) 159 A Crim R 154 R V Mak [2006] NSWCCA 381 R V McNaughton [2006] NSWCCA 242 CASES CITED: R V Molesworth [1999] NSWCCA 43 R V Mungomery (2004) 151 A Crim R 376 R V Pantano (1990) 49 A Crim R 328 R V Pierce (1998) 194 CLR 610 R V Pont (2000) 121 A Crim R R V Taylor [2000] NSWCCA 442 R V Thomson & Houlten (2000) 49 NSWLR 383 R V Walker [2005] NSWCCA 109 R V Zamagias [2002] NSWCCA 17 Siganto V R (1998) 194 CLR 656

1. The offender is charged with 17 counts of dishonestly obtaining a benefit by deception. The charges were laid during August and September 2008 following reports of fraudulent behaviour from former employers of the offender to police. Each prosecution is brought pursuant to Section 178BA of the Crimes Act 1900. The maximum penalty for an offence contrary to the provisions of Section 178BA of the Crimes Act 1900 is five years imprisonment.

2. The law is well settled that Courts presiding within the jurisdiction of the Local Court of New South Wales must have regard to the statutory maximum penalty. The existence of a sentencing ceiling of two years for an individual offence within this jurisdiction is not an indication of the maximum penalty that is appropriate for the offending behaviour. As the Court said In R -v- Doan (2000) 50 NSWLR at [35]: "the result of true construction of the statutory provisions in New South Wales is that , what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case".

3. Expressed in another way, if this Court determines that for a single offence the appropriate penalty lies above the jurisdictional limit it must firstly say so and then have regard to the jurisdictional limit of two years. In the appropriate case the resulting sentence may require the exercise of discretion not to fix a non-parole period. Each case however must be determined on its respective merits.

4. The offences before the Court represent a course of conduct spanning three separate periods of episodic fraud perpetrated on three separate employer organisations. On each occasion the modus operandi of the offender involved him gaining employment within the payroll sections of the respective organisations and using the nature of his employment as a vehicle in which to perpetrate the fraudulent behaviour. The sum total of moneys defrauded from his employers by the offender is $59,066.90. The Court has been informed that $2,000 has been repaid. It has also been told that one victim refuses to accept any repayment pending the outcome of these proceedings. Given the outward lack of capacity on the part of the offender to make any substantial repayment such a situation counts neither in his favour, nor against him.
5. The offences fall within three specific periods. Seven of the offences involve fraudulent conduct between 7th May 2004 and 13th July 2004. Nine offences involved fraudulent conduct between 20th November 2005 and 26th March 2006. One offence involves fraudulent conduct on 9th February 2007. The timing of the offending behaviour is of particular relevance. It is in my view important to place them in context. For that purpose I turn to the offender's criminal antecedents.

6. On 27th August 2003 the offender was sentenced to perform 200 hours community service for a series of fraudulent acts involving $25,085.30. The conduct on that occasion involved 25 separate instances rolled up into one representative count. Twelve months was allowed for completion of the order for community service.

7. In the period 7th May 2004 to 13th July 2004, that is, within the supervisory period of the order for community service, the offender re-offended. He committed a further 7 offences of obtaining a benefit by deception. The amount of money involved is $34,939.00. These offences [H206275592], which are before me for sentence remained undetected and undisclosed until September 2008. The relevance of this latter observation is to be found in the fact that the offender was again arrested and charged on 6th August 2004 with 24 more counts of obtaining a benefit by deception. The inference to be drawn from the failure to disclose these 7 offences is that it is a manifestation of what the psychiatric report describes as a pathological tendency to be untruthful.

8. On 22nd June 2005 the offender was sentenced for 5 of the offences laid against him on 6th August 2004. The offender received a sentence of 18 months imprisonment and three sentences of 9 months imprisonment, each to be served concurrently and by way of Home Detention. The additional matter was dealt with by way of a fine. A further 19 counts of obtaining a benefit by deception were taken into consideration on a Form 1.

9. During this time the seven 2004 offences remained undetected and undisclosed. Despite the penalties imposed on him the offender continued to re-offend. It is pertinent to note that the series of 9 offences between 20th November 2005 and 26th March 2006 to be sentenced by this Court [H 35704516] were committed whilst the offender was serving the sentence of Home Detention. The final offence [H35251250] was committed within 8 weeks after the expiry of the offender's parole period in relation to this sentence. In each instance the moneys obtained were frittered away on gambling and the acquisition of prohibited drugs. There can be no question than that these offences were committed out of greed on the part of the offender.

10. Objectively the offender received a significant benefit at the time of his sentencing in 2005. Had a further 7 offences with an additional amount of fraud totalling almost $35,000 been before the sentencing court at that time there is an almost irrefutable conclusion to be drawn that he would have received a longer term of imprisonment.

11. Having outlined the context, nature of the offending behaviour and relevant background considerations on the issue of possible penalty I turn to the factors set out in Section 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A is divided into two areas of competing consideration - those factors that are to be taken into account by the court as circumstances of aggravation [Section 21A(2)] and those that are to be considered by the Court in mitigation of the penalty [Section 21A(3)].

12. Turning firstly to the aggravating circumstances I have already adverted to the offender's previous history in order to put this series of offences into a chronological context. Section 21A(2)(d) places a statutory requirement on the Court to take a prior record into account on sentence.

13. In R -v- McNaughton [2006] NSWCCA 242 the Court set out the principles applicable to Section 21A(2)(d). Those principles are set out in the Sentencing Bench Book at 5561 and need not be recounted in these remarks. I have considered them for the purpose of these proceedings.

14. In R-v- Walker [2005] NSWCCA 109 the court said that it is incumbent on the sentencing court to make clear the precise way in which an offender's record has been taken into account. Mere reference to the statutory provision is insufficient.

15. In these proceedings I have taken the offender's prior record into account [in addition to the requirements of Section 21A(2)(j)] as having a direct bearing on considerations set out in Section 21A(3) as mitigating factors. It is the view of the court that objectively by reason of his prior record and its context relevant to the matters before me the offender cannot establish section 21A(3)(g) or (h) as factors relevant to mitigating the penalty.

16. His record is also relevant inasmuch as the offender, in serving home detention at the time of the commission of some of the offences was for all intents and purposes on conditional liberty. The prior record establishes Section 21A(2)(j) as an aggravating circumstance. The combination of offending whilst serving a period of home detention and thereafter parole is particularly concerning. As the Court said in R -v- Cicekdag (2004) 150 A Crim R 299: "The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, that is parole has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances."

17. On this point I do not lose sight either of the reality that some of the offences before me for sentence were as indicated earlier in the offender's knowledge when he was sentenced in 2005 but were not disclosed by him. Whether he would have received a different outcome at that time remains problematic. I have already indicated that from my own perspective, objectively he would undoubtedly have received a lengthier sentence. Such a sentence would have excluded him from the possibility of home detention because of the limit on the duration of a sentence of imprisonment that may be served in that manner.

18. Had he been sentenced to full time imprisonment such an outcome may have had the effect of bringing home to the offender the need to cease this type of conduct and thus created a change in attitude that might have forestalled the commission of these offences exposing him, as they do, to the prospect of lengthy terms of imprisonment. Such an exercise in speculation is not relevant for the purpose of sentencing in this matter. It is relevant to bring home to the offender that seeking to avoid retribution by not disclosing conduct that would have been more appropriately taken into account in 2005 has a consequence.

19. Section 21A(2)(k) is of particular relevance. The offender was in a position of trust at the time he committed each of the offences. He abused that position. He did so in circumstances where as a previously convicted and sentenced offender his knowledge of the illegality and wrongfulness of his conduct was such that the degree of moral turpitude is high. The offender is not assisted by the conclusion that must be reached that his conduct is directly relevant when considering the provisions of Section 21A(2)(m)(n) and (o). I find that each of those provisions apply in these proceedings as matters that aggravate his conduct.

20. It was submitted to the court that the offender has a pathological addiction to gambling and was, for a time addicted to prohibited drugs. That is an explanation not a justification. As the court said in R -v- Assi [2006] NSWCCA257 at [27]: "….Although [the appellant's] gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological : R-v- Molesworth [1999] NSWCCA 43"

21. As a matter of principle, and being otherwise mindful of the purposes of sentencing set out in Section 3A of the Act the issue of general deterrence is a significant factor in matters involving a breach of trust by an employee. In R -v- Pont (2000) 121 A Crim R at [36]-[43] the Court said: "…. That where there are breaches of trust by employees, particularly involving large or substantial sums, involving systematic dishonesty attended by planning and some sophistication, general deterrence requires at least usually or in the absence of special features, that there be substantial sentences of imprisonment. "
22. In R -v- Pantano (1990) 49 A Crim R 328 the rationale behind an approach consistent with general deterrence is explained with great clarity. The Court stated: "… those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust no matter how young they may be to confirm to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved or the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame for lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences."
23. There is little argument that the courts in each instance were dealing with conduct that involved substantially greater amounts of money. Nonetheless the principles enunciated are of general application. So too are the observations of the Court of Criminal Appeal in R -v- Mungomery (2004) 151 A Crim R 376 wherein at [40]-[41] the court said: "… authority makes it clear that the amount of money involved in premeditated deception is important and the period of time over which offences are committed are relevant factors in determining the extent of the criminality… The cases in this area also stress the importance of general deterrence. Organisations, be they business or government cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect. Commonly offenders are able to continue their depredations for long periods. Often matters only come to light when the total amounts involved become too large to be overlooked. It seems to me an inevitable inference that there must be many cases where offending is never discovered - a factor also arguing for sentences which are substantial deterrents."

24. In the present proceedings the offender occupied a position of trust in three separate organisations. In a calculating and premeditated fashion, having given solemn undertakings to attend to his rehabilitation he took his predilection for dishonesty and greed from company to company over a period lasting almost 3 years. At any stage it was open to him to stop. The emphasis on rehabilitation within earlier sentencing manifested an expectation on behalf of the community that he would stop. That he did not may by explained by reason of his twin addiction to gambling and the distorting influence of illicit drug taking but as is stated in this does not mitigate his conduct.

25. In submissions on behalf of the offender counsel dwelt at some length on the offender's pathological addiction to gambling. The reports of Psychologist Borenstein and Doctor Westmore Psychiatrist and Doctor Lennings Psychologist point to an individual with a complex set of personal difficulties sympathetically described but tinged with guarded optimism regarding both his willingness to commit himself to rehabilitation and as to the capacity for success.
26. The opinions tendered must be regarded by this court with a measure of necessary caution. Of his own admission the offender is a compulsive liar, a trait also identified within the psychological reports as consisting of both a tendency to lie to other people and also to himself. Counsel made much of the assertion that his current relationship had brought about a change in his attitude to the law and to undertaking rehabilitation to address his addiction to gambling.

27. According to counsel "rehabilitation did not start with home detention because the offender was in denial but was now doing something about it." At best such an explanation is speculative. Objectively it is unconvincing. Nonetheless Courts ultimately remain repositories of calculated optimism and accept that to reject entirely the prospect of rehabilitation would create the sort of dystopian world in which neither the community or an offender could expect compassion in the moment or hope in the future.

28. This is not to say that the dominant focus of the court must be on rehabilitation. In an appropriate case this may come to pass, after all rehabilitation is an objective pursued in almost every sentencing process. However, it is not an objective to be pursued to the exclusion of well-settled principle. The purposes of sentencing set out in Section 3A are inclusive not exclusive. In the melange of often competing considerations that ultimately lead to sentence it is important to remember that a just sentence is not to be viewed through the distorted prism of an offender's self interest. It is an outcome to be viewed through the clear window of obligation on the part of a court to achieve an outcome that addresses the objective seriousness of the offending behaviour, weighs in the balance the aggravating and mitigating factors and applies settled principles within the ultimate realisation that the criminal justice process exists for the protection of the community not the offender.

29. What then may be said in favour of the offender? It is well settled law that a plea of guilty is a factor a court may take into account in mitigation of penalty. The importance of a plea of guilty was identified by the High Court in Siganto -v- R (1998) 194 CLR 656 at 663-4 wherein the Court said: "a plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender and second on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of each case."

30. That this is so is made clear from the legislative provisions of Section 22 of the Crimes (Sentencing Procedure) Act 1999. In New South Wales a guideline judgment exists informing Courts as to the approach to be taken in considering a plea of guilty. That guideline, R -v-Thomson & Houlten (2000) 49 NSWLR 383 speaks of the utilitarian value of a plea to the criminal justice system and identifies a range of discount varying from 10-25%. As the guideline states, inter alia: "(iii) ….. The primary consideration determining where in the range a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge."

31. The plea in these proceedings to each of the sets of charges was in my view, entered at the first available opportunity. The nature of the charges and the timing of the pleas are such that there is a significant utilitarian saving to the administration of justice. I assess the utilitarian value at 25%. The Sentence

32. In a display of realism counsel for the offender focussed his submissions on a sentence of periodic detention. In other words it was conceded the offender had little prospect of an outcome that did not contain a measure of condign punishment. From the perspective of the court however by reason of the combined effects of Section 3A and 5 of the Act do not entitle me to impose a term of imprisonment unless I come to the view that no other sentence is warranted.

33. As Howie J said in R -v- Zamagias [2002]NSWCCA 17 at [25]: "The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied having considered all possible alternatives that no other penalty other than imprisonment is appropriate…. Having determined that there is no other penalty appropriate other than a sentence of imprisonment the court is next to determine what the term of the sentence should be… the determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s.6 (periodic detention order), s 7 (home detention order) and s. 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R -v- Wegener [1999] NSWCCA405 , or by home detention : R -v- Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is available: R -v- T (NSWCCA 19 June 1995 )."
34. It does not follow as a matter of course that because an offender has re-offended after a term of imprisonment has been imposed for earlier offending that further offending will automatically result in the imposition of a term of imprisonment. The offending and the offender is to be judged on the basis of the conduct for which he is to be sentenced not for the conduct which has already been the subject of an earlier sentencing exercise.

35. That is not to say his conduct is to be viewed in isolation as if he was a first offender. It is to say that as was said by the High Court in Veen (No 2) (1988) 164 CLR -prior record is relevant to show that "where there is a continuing attitude of disobedience of the law, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

36. In these proceedings the offender could hardly have placed himself in a more difficult position on the issue of whether to apply condign punishment. Failure to disclose additional offending at a time when he was being sentenced for identical conduct together with failure to respect the inherent leniency granted to him in the form of conditional liberty by way of home detention intended to facilitate rehabilitation and failure to be of good behaviour during this period have the cumulative effect of persuading the court that there is no other alternative warranted for these episodes of offending than to impose a term of imprisonment.

37. Like many fraud prosecutions the offender is to be sentenced for multiple offending. In such circumstances the court is required to apply the principles of totality. Applying the principles set out in R -v- Pierce (1998) 194 CLR 610 at [45] the ultimate penalty imposed must be appropriate to the totality of the applicant's offending and his personal circumstances.

38. In Johnson -v- The Queen [2004] 78 ALJR 616 at [18] the High Court said in adopting the statement from Thomas Principles of Sentencing: "The effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in relation to the offence for which it is imposed…. To review the aggregate sentence and consider whether it is just and appropriate… It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

39. In taking this approach however, as the Court said in R -v- MAK [2006] NSWCCA 381 at [18] "A sentencing Court must however take care when applying the totality principle. Public confidence in the administration of justice requires the court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending."
40. These words do not suggest that Courts need err on the side of minimising the circumstances in which totality is the governing determinant. As the Court further said in MAK: "an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be for rehabilitation and reform."

41. The importance of this statement is demonstrated by the reality that having determined the appropriate sentence for each matter, accumulating each sentence would result in an outcome of over 10 years imprisonment, exceeding not only the jurisdictional limit of 5 years on accumulating sentences of imprisonment but exceeding what would otherwise be the appropriate aggregate sentence for a combined series of offending that netted the offender the amount of $59,060.90. This amount is not a small amount but neither is it an amount that would take the combined effect of his conduct beyond the middle range of objective seriousness were it to be a single offence rather than a series of offences.

42. In line with the authority of Postiglione -v- The Queen (1997) 189 CLR 295 at 308 I am of the view it is an appropriate exercise of discretion "to adjust the sentences downward to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." This may be achieved by a combination of concurrent and accumulated sentences.

43. It is appropriate that there be a measure of accumulation in the sentencing process. Firstly it accords with the principle set out in R -v- MAK, secondly it reflects the three separate and distinct victims of the offender's conduct and the hiatus between each set of offending. Viewed objectively, that is without applying the appropriate discount this would produce a combined result of 2 years and 4 months imprisonment with a minimum period of incarceration of 21 months. Having determined and set the total and proportional result of the combined effects of the offender's criminality I turn to the individual sentences.

44. For the series of 7 offences committed between 7th May and 13th July 2004 [H206275592] the appropriate sentence on each offence is one of 6 months. After applying the 25% discount referred to earlier I sentence the offender on each offence to a term of imprisonment of 4 months 15 days. The difference in money value between each offence within these series of offences does not in my view warrant a differentiation between the individual offences on the basis of sufficiently greater objective seriousness. The total sum of moneys obtained - $34,939 is however an appropriate circumstance to take into account when applying the principles of totality and proportionality. I am of the view that in order to reflect the overall objective seriousness of the conduct the sentences should be served as a mixture of concurrent and accumulated sentences.

45. On sequences 1-4 inclusive the offender is sentenced to imprisonment for a period of 4 months and 15 days commencing forthwith. Each of the sentences for each of these offences is to be served concurrently. Each sentence is to expire on 20th June 2009. On sequences 5-7 inclusive the offender is sentenced to imprisonment for a period of 4 months and 15 days. Each of these sentences is to be served concurrently with each other but cumulative on the sentences imposed on sequences 1-4. The combined effect will reflect a sentence of 9 months imprisonment.

46. The sentences to be served by way of accumulation are to date from 20th June 2009 and expire on 4th November 2009.

47. For the series of offences committed between 20th November 2005 and 26th March 2006 [H35704516] the appropriate sentence on each offence is one of 12 months. Applying the 25% discount on each count the offender is sentenced to imprisonment for a period of 9 months. These offences were committed at a later point in time and involve a different victim. The total amount of money obtained by the commission of these offences is $23,167.00. This amount is less than the total obtained for the offences earlier in time however the court does not lose sight of the fact that the circumstances of aggravation affecting these offences are significant. I have referred to them earlier particularly by the fact that they were committed at a time the offender was serving a sentence of imprisonment by way of home detention. In my view the appropriate manner in which such sentences should apply is by way of accumulation on the sentences already imposed.

48. The offender is sentenced on each of the 9 offences to imprisonment for 9 months. Again, for reasons associated with the principles of overall totality and proportionality relevant to all of the offending behaviour in the exercise of my discretion each sentence is to be served concurrently with the other but date from the expiry of the term in relation to the sentences earlier imposed.

49. In accordance with Section 45 of the Crimes (Sentencing Procedure) Act 1999 and for reasons to do with the decision to accumulate these sentences on earlier offences and ensure, when the final sentence for a further matter is imposed that the sentences in combination reflect the overall criminality of the offender I decline to fix a non parole period. Each sentence of 9 months is to be served as a fixed term and is to date from the expiry of sentences already imposed thus far, that is, from 4th November 2009 and to expire on 3rd August 2010.

50. The final offence committed by the offender [H 35251250] involves a relatively small amount of money but took place at a later time and involves a separate victim. In light of my previous comments it remains an offence for which a sentence of imprisonment is warranted. It is also in my view an outcome that ought be accumulated on the immediately existing sentence. The appropriate sentence is one of 4 months imprisonment. Applying the 25% discount the offender is sentenced to imprisonment for a period of three months. The sentence is to be served cumulatively upon other sentences imposed this date and to date from 3rd August 2010.

51. It is at this point that I am required [see Zamagias supra] to consider the thrust submissions from counsel that any sentence of imprisonment is served by way of Periodic Detention. The offender is ineligible for home detention by reason of the combined length of the sentences imposed. I have carefully considered counsel's submissions. In particular I have had regard to his personal circumstances, the formation of a new relationship and the possibility so the court was told that the offender might at long last have found a basis for change that has hitherto been absent.

52. Periodic detention is of course an outcome recognized as having a significant component of inbuilt leniency. Permitting this offender to serve his sentence in this fashion would in my view be an outcome that failed to reflect the objective seriousness of the offence and would be unlikely, as was said in R -v- Douar (2005) 159 A Crim R 154 at [69]-[72] " to fulfil(s) the manifold purpose of punishment. The court cannot lose sight of the fact that the more lenient the sentence, the less likely it is to fulfil all the purposes of punishment: Zamagias at [28]. I come to the view that periodic detention would not accurately reflect the appropriate punishment of the offender.

53. One might speculate that this time as opposed to previous times, the offender will positively engage in rehabilitation and not re-offend. A conclusively positive determination on this point can only be the most generous of speculative assessments. I am afraid the offender has burned his bridges insofar as the lesser alternatives to full time imprisonment are concerned. There have been too many opportunities afforded to him which have been repaid by crimes committed against yet more victims and as an affront to sentencing options chosen in the past. I decline to order that the terms of imprisonment be served by way of periodic detention.

54. Similarly I decline to exercise my discretion pursuant to Section 12 of the Act to suspend the sentences. Not only is the court unconvinced that rehabilitation is imminent, the nature of the offending behaviour and its prevalence within the community warrants a determination that general deterrence is of particular importance. In line with the observations of the Court in R -v- Taylor [2000] NSWCCA 442 that where general deterrence is of particular importance a suspended sentence is not an appropriate penalty I decline to exercise my discretion to suspend the sentence.

55. Finally I turn to the issue of compensation for the victims of his crimes. The offender is further ordered to pay compensation in respect of each matter in which a request for compensation remains on foot. I accept he has already re-paid $2,000 to John Fairfax Limited. The balance outstanding is $57,066.90. The offender is ordered to repay the relevant amounts totalling this figure to the organisations aggrieved by his offending conduct. He is formally allowed 28 days to pay or such longer period as may be arranged with the Court.

Graeme Henson Chief Magistrate 6th February 2009

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