I am sentencing Michael John Hennessy for a series of offences involving dishonestly obtaining Centrelink payments from the Commonwealth and using a false passport.
Two of the important aspects of the sentencing which I have to take into account are Mr Hennessy's age and his health. But I need to balance these factors against the seriousness of the crimes which he committed.
Specifically, Mr Hennessy's behaviour has brought about eight charges. He is charged with three offences of defrauding the Commonwealth. They are offences under the former section 29D of the Crimes Act 1914 of the Commonwealth. In addition to that, he is charged with four offences of obtaining advantage by deception. That is offences against section 134.2(1) of the Criminal Code of the Commonwealth. Finally, he is charged with one offence of making a false statement which is a crime against section 10(1)(a) of the Australian Passports Act 1938.
Briefly, the dishonestly obtaining the Centrelink payments came about because Mr Hennessy received payments in two names. He received payments in his own name but he also received payments in the false name of Michael James Hanson. He was entitled to receive them only in his own name.
To enable him to obtain the false payments, he used false documents, including a false passport, which resulted in the last crime I have referred to. He also used a false birth certificate, tax file number, bank accounts, Medicare card and a heavy driver's vehicle licence in a false name as well as a boat licence and an extensive number of false documents of identity.
The total amount which remains outstanding to Centrelink is some $73,845.03.
I should record a little detail about each of the offences. I will deal first with the three crimes against section 29D of the Crimes Act . That offence involved obtaining a Job Search Allowance in the name of Michael James Hanson. He received it for the period 14 September 1991 to 28 August 1992. They were paid into a Commonwealth bank account in the name of Michael James Hanson.
The second offence involved him obtaining Newstart Allowance in the same false name. That was from 28 September 1992 until 18 June 1993. Once again, it was paid into a bank account in the false name of Michael James Hanson.
The third offence under section 29D was also obtaining Newstart Allowance in the name of Michael James Hanson from 17 July 1993 until
22 April 1993 and the payments were made into the same account.
Turning to the four offences against section 134.2(1) of the Criminal Code Act 1995, the first involved dishonestly obtaining Newstart Allowance by deception in the name of Michael James Hanson. The period was 24 December 2002 until 15 September 2003. He provided false documents to Centrelink in order to obtain that payment, including a false Australian passport in the name of Michael James Hanson. The money went into a St George Bank account in the name of Hanson.
The second offence under that legislation was again dishonestly obtaining Newstart Mature Age Allowance by deception in Hanson's name. The period was 16 September 2003 to 14 April 2004. Again, the application was supported by a large number of false documents.
The third in that series of offences was again dishonestly obtaining Newstart Allowance by deception in the name of Hanson. The period was
6 April 2005 to 14 July 2005. He again used false documents.
The fourth of the offences under that legislation was obtaining dishonestly an Aged Pension in the name of Hanson. The period was 15 July 2005 to 21 February 2008. It was then cancelled. In support of that claim he provided the false passport in the name of Hanson.
The passport offence arose from him obtaining a false passport in the name of Michael James Hanson. To get this Mr Hennessy used a false birth certificate. That led to the charge under the Australian Passports Act of making a false statement using a false birth certificate in the name of Michael James Hanson. He had formerly obtained a legitimate passport in his own name and obtained the false passport about five years afterwards.
Mr Hennessy still receives a legitimate Disability Support Pension from the Commonwealth.
He maintained bank accounts in his own name as well as in the name of Hanson.
As can be seen, the offending behaviour extended over a long period of time and was detected because the name Michael James Hanson was selected for investigation because it was not linked with any Medicare usage for some five years. When Centrelink's suspicions arose, they attended Mr Hennessy's place in Sussex Inlet with a search warrant and found no fewer than seventy-two documents at his place in the name of Michael James Hanson. They ranged in date from February 2002 to December 2007.
They also found three diaries for 2006, 2007 and 2008. I should add that the search warrant was executed on 20 February 2008. The agreed facts, which were exhibit A, record the following:
" Each diary for each year contained a 'current planner' which concisely displays the dates of the year across two pages. The defendant has circled each date he was due to receive (or did receive) the Disability Support Pension with the letters 'DP'. The defendant has also circled each date the Age Pension was due to be paid (or had been paid) to Michael James Hanson with the letters 'P'.
The defendant regularly recorded the bank balance of his account with the National Australia Bank and the bank balance of St George Bank account held in the name of Michael James Hanson ."
There was tendered by Ms Buick, who appeared for the Commonwealth Director of Public Prosecutions, a criminal history for Mr Hennessy. There was recorded a low range PCA offence in 1998. That was dismissed under the then section 556A of the New South Wales Crimes Act 1900. I place no weight at all upon that entry in my sentencing. There was also an entry from Victoria of an offence of unlawful possession and obtaining property by deception committed in 1987 in Victoria, for which Mr Hennessy received a good behaviour bond. That offence occurred over twenty years ago and I propose to put a negligible amount of weight upon it.
There were also tendered by Ms Buick bank account statements in
Hanson's name which showed amounts of respectively over $80,000 and over $100,000.
Mr McCallum of counsel appeared for Mr Hennessy and tendered a series of medical reports concerning his client. There was a report from Mr Hennessy's GP, Dr Ibrahim, which recorded a history of heart problems -requiring an angiogram and a stent - and shoulder pain. Dr Ibrahim was of the view that gaol may affect the treatment of the health issues because it would be difficult for him to have reviews by the specialists. There is a problem with degenerative changes in his spine as well.
A consultant physician, Dr Innes, provided a report commenting on angina and conditions including diabetes, hypertension, ischaemic heart disease. Dr Innes thought that a custodial sentence would not interfere with his condition, provided he continued his medication.
There is a report from an orthopaedic surgeon, Dr Jarman, who was examining Mr Hennessy's shoulder and arm. There was a lesion shown on an MRI which he was not concerned about but also changes in the cervical spine at various levels. The doctor thought that Mr Hennessy's " dominant pathology is that of his neck. He does not require surgical intervention for his shoulder at this point in time. " Dr Jarman suggested a referral to a spinal surgeon.
There was also a report from a psychologist, Laura Durkin. Ms Durkin recorded a history of an uneventful childhood which featured some strict and occasionally violent discipline from Mr Hennessy's father. His boyhood was largely happy and he bonded well with his family. He left school at Intermediate and undertook work as a bricklayer and remained a bricklayer for the remainder of his working life.
He had a back injury in the 1970s which is noted. He has had three significant relationships and has two sons from those relationships. They are both adult. He is not currently in a relationship and remains in contact with his sons, who are supportive.
The psychologist recorded a " long history of medical complaints ". She noted current diagnoses of " gout, emphysema, stomach ulcers ... high blood pressure and cholesterol, heart issues, problems with his hips, diabetes, asthma and ... a tumour in his spine and he has suffered significant arthritis in this area which is causing nerve pressure and affecting his arms ." She noted a history of a heart attack which recurred and a long list of medications which he takes to deal with his various medical conditions.
27 Ms Durkin noted Mr Hennessy said that he was sorry that he engaged in the behaviour and that it was not the right thing to do and out of order. She thought that he had a low risk of re-offending and that " any intervention engaged in by Mr Hennessy should focus on building his insight with respect to his offending " and she recommended some programs.
Ms Durkin expressed the view that any sentence which maximises his ability to stay connected with those monitoring his conditions would be beneficial for his physical and psychological wellbeing.
In light of those medical problems, Ms Buick tendered a detailed report from Justice Health which listed the kinds of services which are available to people with medical problems who are in custody.
Mr McCallum called his client to give evidence before me in Nowra on 6 April 2011. He confirmed that everything he had told the psychologist was correct. He had worked as a bricklayer until he was fifty-eight years old. He made it clear that some of the notes which the psychologist had recorded about the obtaining of false identity was related to a practice in the eighties when he was a truck driver and not a practice related specifically to his defrauding the Commonwealth. Since stopping bricklaying he has undertaken minor clerical work. His two boys are now aged respectively forty-eight and twenty-eight. He has a good relationship with them and stays in contact. He has an appointment with a neurologist to look at his spine on 23 June 2011. That neurologist will report back to the doctor who is managing that condition and a decision will be made about surgery.
Mr Hennessy has been in a wheelchair for the last few months for his back problems. Those problems have a significant impact on his day-to-day life. He requires a fulltime carer, twenty-four hours a day. That carer assists him in cooking and bathing and dressing, making his bed and in transport. His spine causes him considerable pain. If he was walking and when he goes to bed he needs to take pain killers.
He was a truck driver in the 1980s and obtained the false identity of Michael Hanson at that time. I am not recording that to commend that dishonest behaviour in the context of truck driving, but to make it clear that the identity was not taken out with a specific purpose of defrauding the Commonwealth. Mr Hennessy used the identity which he had obtained some years before when the defrauding of the Commonwealth opportunity arose.
He acknowledged the impact which his behaviour has had on Australian taxpayers and acknowledged that he had " done the wrong thing and was extremely sorry".
Mr Hennessy has weekly physiotherapy and is repaying the debt he owes to the Commonwealth at about $15 per fortnight. He has no capacity to repay otherwise and has effectively no asset or funds. He explained some of the balances in the bank accounts which were tendered by the Commonwealth relating to the sale of a boat and an investment which he had kept for some twenty years.
Cross-examined by Ms Buick, he confirmed that the false passport in the name of Hanson was obtained as extra identification, rather than for use. He acknowledged that he was careful in tracking the money which was received but said that he did not really need the money. He said that he was in no desperate need for extra money and thought that he would have eventually told Centrelink about the false payments.
He acknowledged that it was possible that his fraudulent behaviour went on for six years and seven months, which the Commonwealth - I accept accurately - asserts is the period. He said that he was likely to tell Centrelink when he decided to retire and then repay as best as he could.
Asked in re-examination by Mr McCallum why there were breaks in the periods that he received these false benefits, he said that if he was working then he did not claim the benefits.
I have been assisted by written submissions filed by Ms Buick and by oral submissions by her and by Mr McCallum. Ms Buick correctly emphasises the importance of a sentence which will make it clear to persons in the community who are thinking of behaving in a similar way that this sort of offending will be significantly punished. She referred to the well known decision of the NSW Court of Criminal Appeal in R v Purdon , unreported NSWCCA 27.3.97. The court in that case said (at [7]) that offences like this were easy to commit but difficult to detect and the " introduction of more checks upon applicants would cause delays and hardship to those in need, and it imposes an additional burden upon taxpayers who shoulder the heavy burden of providing funds for the operation of the social security system and the even heavier burden created by the abuse of the system by fraud."
Ms Buick submitted that there was no other choice but a fulltime custodial sentence. She reminded me that in Purdon the Court of Criminal Appeal had said that a custodial sentence should be expected, even if the fraudulent behaviour was based upon need but that if the " fraud is based on greed, the custodial sentence will be longer." She submitted that in this case the offence was motivated by greed and not need. I accept that submission.
Ms Buick referred to remarks by the Chief Judge of this Court in Loch Su Lee NSWDC, unreported, 18.3.03 concerning passport offences striking at " Australian sovereignty and the power of the Australian Government to control the country's affairs ." His Honour said that " people ought to know that if they are to engage in this sort of activity they will go to gaol ."
His Honour Judge Taylor said in R v Veljanovski NSWDC, unreported, 12.10.06, that the " integrity of the Australian passport system, Australian immigration controls, the banking system, the Social Security system, systems involving the licensing of drivers and other systems which rely on the integrity of identification documents has been challenged by the offender ."
All of those remarks are applicable to this case.
Ms Buick submitted that the behaviour in this case " involved a deliberate, well planned and highly organised course of conduct aimed to defraud the Commonwealth. " She referred to the length of time of six years and seven months, which I accept as correct and argued that the offences " involved positive acts of dishonesty requiring the offender to maintain the false identity with Centrelink ... for the purposes of obtaining monies to which he was not entitled ." She said that the offending involved a " sophisticated and elaborate scheme to deceive Centrelink about the existence of the fictitious identity ", although Mr McCallum argued that classifying the scheme as sophisticated and elaborate or meticulous was putting it too high.
I do accept the description given to it by Ms Buick. Mr Hennessy was very careful about keeping a record of the payments and his false identity was supported by a large number of documents. The fraud was only stopped because of the systems in place by those who administer social security payments and the passport system.
I can take into account, Ms Buick acknowledged, Mr Hennessy's guilty plea, which indicates a willingness to facilitate the course of justice, but, as she points out, it was a strong prosecution case.
Ms Buick argued that there was some lack of contrition; I do not accept that argument. Mr Hennessy has given evidence and I accept that he is remorseful for the offences which he has committed.
Ms Buick drew my attention to a number of authorities concerning offenders' age and medical conditions and submitted that there was " no material before the court as to any physical or psychological condition requiring such treatment as to disqualify the offender from an immediate custodial term ." She submitted that any reliance on prior good character should have less impact because of the nature of the offence and submitted that there should be some degree of accumulation.
Mr McCallum did not take issue with the statement of facts or with the general principles referred to by Ms Buick. He reminded me that the fraud was limited to Centrelink and was not more extensive than that. He argued that a trial would have been lengthy and difficult and complex. That may be right but it seems to me that the prosecution case would have been overwhelming, given the documents which were found and the payments which were made.
I accept that his client has expressed his remorse and contrition.
Mr McCallum pointed out that his client's health was a critical issue and reminded me of the various conditions which his client has. He argued that prison would be significantly more burdensome for his client than for a person who is healthier and younger. His treatment with his usual doctors would be interrupted and the monitoring of his condition is also likely to suffer. He has mobility problems which would render him vulnerable in custody.
Mr McCallum argued for a degree of concurrence but acknowledged that there might be some accumulation so far as the passport offences are concerned.
In reply, Ms Buick took me to the Justice Health report and the various services which were referred to over pages 4 to 5 concerning aged care and rehabilitation and a twenty-four hour nursing facility being available.
Ms Buick referred me to a number of authorities. Two of those I have found particularly helpful so far as the sentencing of Mr Hennessy is concerned. One is R v Grenfell [2009] NSWCCA 162; (2009) 196 A Crim R 145 and the other is R v Leighton [2010] NSWCCA 280.
Grenfell was a case where the offender was charged with one offence under section 29B of the Crimes Act of the Commonwealth and four offences under section 29D and two offences against section 135.1(5) of the same act. The section 29D offences carried a maximum of ten years imprisonment.
I should note that the offences that Mr Hennessy is charged with against the Crimes Act and the Criminal Code also carry a maximum ten years imprisonment and the passport offence carries a maximum of two years imprisonment.
The offender in Grenfell had received an overall sentence of four and a half years with a non-parole period of two years and eight months. The total amount stolen was $200,000 over a period of twenty-eight years.
Harrison J, with whom Latham J and relevantly Campbell JA agreed, said the following (at [19])-
" At the date of sentencing the applicant was aged seventy-five and he was in ill health. Evidence before the court demonstrated that he was suffering from progressive optic atrophy, hypertensive nephrosclerosis and degenerative changes in his lumbo-sacral spine ."
Harrison J referred to medical opinion that a period of fulltime imprisonment " would have a grave effect upon the applicant's health and wellbeing ." Another medical opinion expressed the view that the offender in that case would be " at risk in prison due to his severe renal problems ."
His Honour referred to the well known South Australian authority of R v Smith ( 1984) 44 SASR 587 regarding the state of health of an offender being relevant but courts needing to be cautious about the extent to which an offender's health might influence the sentencing process. As King CJ said at 589-
" Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the conditions of their health ."
King CJ referred to the "responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners ." His Honour said that, generally speaking, " ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse impact on the offender's health ."
Harrison J reviewed the sentence which had been imposed upon the offender in Grenfell and found that no error had been indicated. His Honour thought that the conditions of the offender in Grenfell were not such as to " make that experience so difficult as to attract the principles to which King CJ had referred."
Leighton was also a decision of the New South Wales Court of Criminal Appeal. The principal judgment was delivered by Price J, with whom Simpson J and Howie AJ agreed. Mr Leighton had been convicted of three offences. One of them was under section 29D of the Crimes Act , the second was under section 134.2(1) of the Criminal Code and the third was under the same section. They are the sections which are relevant in Mr Hennessy's case.
The amount involved in that case was over $100,000. Mr Leighton was given an overall sentence of six years with a non-parole period of four years imprisonment.
In that case Mr Leighton was seventy-two years old. He suffered from a number of medical conditions which included " asbestosis, herpes, zoster, ophthalmicus, chronic back and neck pain, chronic asthma and bronchitis, pernicious anaemia, chronic sinusitis, osteoarthritis affecting knees and shoulders, chronic osteoarthritis generalised, musculoskeletal injuries, hypotension and depression. "
Mr Leighton had difficulty dressing himself and his walking was confined to short distances with the aid of a walker or walking stick. There was, in that case, a report tendered from Justice Health as well.
Significantly in that case, Mr Leighton had a criminal history which revealed " many offences of dishonesty ". They included false pretences, stealing and passing valueless cheques.
Mr Leighton contended in the Court of Criminal Appeal that the primary judge had erred in failing to conclude that custody would be more onerous for him. Price J agreed with that submission, finding that there was (at [38]) " an abundance of evidence, which demonstrates that the applicant's ill health will make his time in gaol significantly harder ." His Honour said that "some weight should have been given to the applicant's ill health in determining the sentences. This was not a case such as Grenfell v R ... upon which the Crown placed some reliance in oral argument where the contention was that the sentencing judge erred in failing to give 'sufficient weight' to the applicant's disabilities. When balanced against the seriousness of the offences, I consider that the extent of the mitigation should have been modest. I would uphold this ground of appeal."
His Honour referred to the authorities which support the proposition that the " customary ratio for Federal offences is 60 per cent to 66 per cent." His Honour referred in that case to Mr Leighton's " lack of real prospects of rehabilitation, his extensive prior record of dishonesty, offences and need for specific and general deterrence ."
His Honour also observed that that case involved " a fraud with no sophistication and little planning. No breach of trust was involved, nor did the amount of money dishonestly obtained warrant such a long sentence ." His Honour reached the view that the sentence was outside the legitimate range.
His Honour observed that there " may be a considerable difference between what is said to be the ability of Justice Health to provide treatment and the reality of treatment being provided. "
His Honour imposed an overall sentence of five years imprisonment with a single non-parole period of three years imprisonment.
I take into account Mr Hennessy's plea of guilty as an indication of a willingness to facilitate the course of justice but, as I have said, it was a very strong Crown case. I take into account the other submissions which I have already referred to. There is a lot in common, as Ms Buick fairly acknowledged, in the fraud offences but some degree of accumulation was needed, as well as concerning the passport offences.
Sentences which are available other than fulltime custody, to my mind, are not appropriate in this case. I am of the view that no other sentence is appropriate in all the circumstances than a fulltime custodial sentence. The reasons I am of that view are that the offences were organised, well planned and sophisticated. That is clearly the case from the extent of the false documentation which was in Mr Hennessy's possession and the detailed records which he kept. He is also being sentenced for a series of offences, seven of which carry a maximum of ten years imprisonment.
In fixing these sentences I have taken into account his plea of guilty.
The individual sentences which I propose to impose are these. In respect of the three counts of defraud the Commonwealth contrary to section 29D of the Crimes Act 1914, I impose concurrent sentences of three years imprisonment to date from today, 21 April 2011 and to expire on 20 April 2014. In respect of the four counts of obtain financial advantage by deception contrary to section 134.2(1) of the Criminal Code , I also impose concurrent terms of three years imprisonment to commence on 21 April 2012 and to expire on 20 April 2015. In respect of the offence against the Australian Passports Act , I impose a sentence of one year imprisonment to commence on 21 April 2015 and to expire on 20 April 2016.
I can indicate that I propose to fix either a non-parole period or to make a recognisance release order after a period of two and a half years from today. The relevant period will be from 21 April 2011 until 20 October 2013.
HIS HONOUR: Now, Ms Drever, Mr McCallum, section 19AB provides for either a single non-parole period or a recognisance release order. What's relevant to my discretion there?
DREVER: The length of the--
HIS HONOUR: I know that, I am over three years in aggregate so
section 19AB seems to give me the choice. Am I right about that?
DREVER: It does.
HIS HONOUR: What do you say I should do, a non-parole period or a recognisance release order? I am not sure--
DREVER: That would depend on whether or not your Honour wished him to be supervised by the Parole Board or whether or not your Honour wished him to be subject to a recognisance, by which he could be subject to supervision by the Parole Board or there could be other conditions.
HIS HONOUR: And I fix them?
DREVER: Yes, your Honour.
HIS HONOUR: Whereas I note with a non-parole period, it's the
Attorney-General who fixes.
DREVER: That's correct.
HIS HONOUR: Let's see what Mr McCallum says. I mean, I'm not sure that your client's going to need a supervision.
MCCALLUM: I'd agree with that, your Honour.
HIS HONOUR: He's seeing doctors. If I didn't say so, I will record it in a moment, I don't think he's going to re-offend. I am inclined to make a recognisance release order after two and a half years. Anything to say on that?
MCCALLUM: No, your Honour.
HIS HONOUR: Ms Drever, do you want to add anything?
DREVER: No, your Honour.
Returning briefly to my remarks on sentence, I find that it is unlikely that Mr Hennessy will re-offend and that his prospects of rehabilitation are good.
Another reason for imposing a sentence of fulltime custody is the need to ensure that he is adequately punished for his offences and I take into account the significant loss to the Commonwealth as a result of his offending behaviour.
In accordance with section 19AB(1)(e) of the Crimes Act 1914, I make a recognisance release order.
HIS HONOUR: Now, Ms Drever, is there a section which--
DREVER: Yes, section 20, subsection 1(b).
HIS HONOUR: Just let me read that.
The terms of the recognisance release order I fix under section 20(1)(b) of the Crimes Act 1914 are these. I direct by this order that Mr Hennessy be released on 20 October 2013 upon giving security in the sum of $50 without surety by recognisance. The order is that he be released after he has served two years and six months, namely on 20 October 2013.
HIS HONOUR: Now, do I fix any conditions? I do not think so.
DREVER: A good behaviour condition.
HIS HONOUR: All right.
DREVER: And that can be for a period of up to five years.
It will be a condition of his recognisance release order that he be of good behaviour for the balance of the sentence, until 20 April 2016.
HIS HONOUR: Now, you have asked for a couple of things: fingerprints and reparation.
DREVER: That's correct, your Honour. The reparation order is under
section 21B.
HIS HONOUR: Is that an order or is that--
DREVER: It's an order, your Honour.
HIS HONOUR: Do you mean 21, the number 21?
DREVER: Twenty-one, yes.
HIS HONOUR: Yes, not 20, subsection 1.
DREVER: No, your Honour, 21B.
HIS HONOUR: And what are you asking for?
DREVER: The outstanding amount as of today.
HIS HONOUR: An order for reparation in that amount?
DREVER: Yes, your Honour.
HIS HONOUR: Just give it to me again.
DREVER: It's $73,830.03.
HIS HONOUR: Any objection to that, Mr McCallum?
MCCALLUM: No, your Honour.
Under section 21B of the Crimes Act 1914, I order Mr Hennessy to make reparation to the Commonwealth by way of money payment in the sum of $73,830.03.
DREVER: The fingerprint order, your Honour, section 3 of the Commonwealth Crimes Act.
HIS HONOUR: And what's the terms of that?
DREVER: It's 3ZL. Your Honour can make an order for the identification by way of a fingerprint and a photograph of Mr Hennessy within one month after the conviction.
HIS HONOUR: Okay, are you asking for that?
DREVER: Yes, your Honour.
HIS HONOUR: Mr McCallum?
MCCALLUM: Nothing to say, your Honour.
I order under the Commonwealth Crimes Act, section 3ZL, that Mr Hennessy provide fingerprint and photograph identification within one month of today and that also reminds me, I convict him of all eight offences which I have referred to.
HIS HONOUR: I know I have to explain the sentence to Mr Hennessy in accordance with section 16F and Ms Drever, what I am going to ask you for help with is what is the consequence of him not complying with his recognisance release order? It's one of the things I have to explain.
DREVER: Section 20A(5)(c), in the case of a person who has been released by an order made under paragraph 20(1)(b), the court may impose upon the person a monetary penalty of not more than $1,000.
HIS HONOUR: I'm just reading through that now.
DREVER: Sorry, your Honour.
HIS HONOUR: No, no, I'm assisted.
DREVER: Or extend the period for which the person is required to give security to be of good behaviour.
HIS HONOUR: And I can send him to prison again?
DREVER: Yes, your Honour under--
HIS HONOUR: Little Roman (i).
DREVER: That's right, revoke the order and deal with the person again.
HIS HONOUR: Now, before I explain to Mr Hennessy, are there any other orders that I need to make Ms Drever or Mr McCallum?
DREVER: No, your Honour.
MCCALLUM: No.
Mr Hennessy, I have had to send you to gaol. If I did not, the Court of Criminal Appeal would. That is not an excuse for me doing what I have had to do but it just states what the law is. You have committed some very serious offences over a long period of time and I am responsible for punishing you.
For the three older offences I have given you three years. They all run together. They start today and finish on 20 April 2014. For the four newer offences, so to speak, against the Commonwealth Criminal Code , I have given you three years to run together. I have started them next year. There is an accumulation, so you are serving some time for those only. They start 21 April next year, they expire 20 April 2015.
For the one passport offence you have got one year right at the end which starts 21 April 2015 and expires 20 April 2016.
Your overall sentence is five years imprisonment, starting today, finishing on 20 April 2016. I fixed a non-parole period of two and a half years. The normal non-parole period that would be expected in a case such as this is around 60 per cent or so, which would be in the order of three years. I have reduced it because of your health and because of your limited mobility and vulnerability. I have reduced it to 50 per cent.
You cannot be released, starting today when you go into custody, and I have made a what is called a recognisance release order. I have ordered your release after two and a half years. You will be released on 20 October 2013.
You are then subject to a good behaviour order called a recognisance release order and if you breach that order by committing another offence when you are out for the two and a half years, for the second half of the sentence, I can fine you, I can extend the period of the bond, I can do various things but most significantly I can send you back to gaol. So, it is obviously important that you stay out of trouble once you are released. I do not expect that you will be involved in any more trouble at all but it is important for me to explain that to you.
HIS HONOUR: Ms Drever, is there anything more I need to attend to?
DREVER: No, your Honour.
HIS HONOUR: Mr McCallum?
MCCALLUM: No, your Honour.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 August 2011