The Government secretary who stole nearly $28,000 earmarked for the care of foster children has had the remaining $7,000 of her compensation payments written off by a judge.

Puisne Justice Norma Wade Miller on Tuesday struck down on appeal the order by an un-named magistrate that Selena Gardiner pay $14,403 back to Government, calling it "manifestly excessive" and that the chances she would be able to pay the money was "very slim".

Gardiner was not in court lawyer Charles Richardson said, because he had not been able to contact her as she had changed jobs and that he understood she was living "out the back of a car".

Gardiner had one conviction for dishonesty before she admitted to 99 counts of using purchase orders for her personal use.

The deception was discovered after a colleauge had reason to question items on an order which would not normally be required by orphans and foster parents.

Crown counsel Graveney Bannister had argued that Gardiner should be imprisoned under section 32 of the Summary Jurisdiction Act which says for a person in default of paying a fine or costs over $500, a six month prison sentence can be imposed.

In 2002 Gardiner was given a nine month prison sentence for the 99 counts of obtaining $27,769.27 of Government money by false pretences but it was suspended for two years ? a term which expired on February 20.

The magistrate's order was changed despite a pre-sentencing social inquiry report by probation officers that Gardiner had shown no remorse and would not pay the money back.

Mrs. Justice Miller said a prison sentence would have been expected for these crimes and noted it was found the only money available to Gardiner was her Government Pension entitlement of $13,366.22 ? which was forfeited to the Crown.

She appeared before the magistrate 15 times between December 2003 and June of last year for reviews of her compliance with the order.

In June last year, prosecutors had sought to imprison her on the grounds of a purported breach of the original order and Gardiner launched her appeal, in which lawyer Craig Attrige called the compensation order "manifestly wrong and/or wrong in principle". By January 17, 2006, $7,197 remained unpaid.

Mrs. Justice Wade Miller found that as Gardner had paid half of the money, she had shown her intention to pay.

The magistrate ? who Mrs. Justice Wade Miller did not name but is understood to be Juan Wolffe ? did not "take into consideration matters which he ought properly to have taken into account" and "gave no reasons for taking the course which he did".

"Looking at the facts the chances of the Appellant raising the balance of $7,197 are very slim," she wrote, adding it had taken Gardiner four years to pay just half of the money she owed.

"(Gardiner) did not have the means to satisfy the order of $14,403.05 as she was an unemployed single mother of two who had no immediate prospects of employment," she said. "She has clearly struggled to reduce the sum of $14,403.05 to its current balance of $7,197."

In light of Gardiner's circumstances, Mrs. Justice Wade Miller wrote the order was "wrong in principle and ought not to have been made".

Gardiner's lawyer Craig Attridge said before the order was made the Magistrate should have regarded, her financial situation, her existing financial obligations and the maximum amount she was likely to pay.

"Mr. Attridge stressed that at the time of sentencing the Learned Magistrate knew from the Social Inquiry Report that the Appellant was unemployed, responsible for the welfare of her two children and had limited financial assistance from the children's father and the Financial Assistance Department," it said.