Younan v R

BEAZLEY P: On 25 February 2014, the appellant was convicted by a jury of one count of dealing in the proceeds of crime, being money or property worth $100,000 or more, contrary to the Criminal Code (Cth), s 400.4(1). The maximum penalty for the offence is a term of imprisonment of 20 years and/or 1,200 penalty units.

On 1 May 2015, the trial judge, Knox SC DCJ, sentenced the appellant to a term of imprisonment of 6 years with a non-parole period of 4 years commencing on 25 February 2015 and expiring on 24 February 2019 upon his entering into a recognisance in the sum of $500 to be of good behaviour for the remainder of the term. The balance of the term will expire on 24 February 2021. A reparation order in the sum of $322,600 was also made.

The appellant appealed against his conviction and sought leave to appeal against sentence.

By his grounds of appeal the appellant contended:

The Crown case against the appellant was that at his request, Ms Ostermeyer, who was an accountant and with whom he was in an intimate relationship, fraudulently submitted business activity statements to the Australian Taxation Office (the ATO) in the names of non-existent entities, and claimed GST refunds in the names of those entities. The appellant provided details to Ms Ostermeyer to be included in the false applications for GST refunds.

Upon receipt of the refunds from the ATO, Ms Ostermeyer deposited the monies into her own accounts and later either paid the appellant cash or transferred funds into accounts in his name. In total, over the period 14 June 2006 to 4 September 2007, Ms Ostermeyer transferred $322,600 into the appellant’s accounts. The Crown characterised the evidence that it led from Ms Ostermeyer as being that she provided money to the appellant initially because she was charmed by him and subsequently because of threats made by him.

There was no dispute a trial that the appellant had received the funds from Ms Ostermeyer. The issue was whether the appellant believed the monies were the proceeds of crime. It was the Crown case that, regardless of why Ms Ostermeyer provided the money to the appellant, he at all times knew that it was sourced from fraudulent GST returns. The appellant’s case was that Ms Ostermeyer paid the monies into his accounts in the context of their relationship, as an informal loan for their common purposes, including social spending, as well as for his own personal expenditure, and that he had no knowledge that the monies had been fraudulently obtained.

Before dealing with the individual grounds of appeal, something needs to be said about the way the matter proceeded before this Court. The appellant originally raised one ground of appeal against conviction being the issue raised by ground 1 referred to above. Written submissions under the hand of senior counsel were filed in support of that ground of appeal. Subsequently, additional submissions were filed by counsel who appeared on the appeal which raised additional grounds 1A, 1B and 1C. This was not attended to by the filing of an amended notice of appeal. The Crown filed submissions in response to all submissions.

In oral submissions on the hearing of the appeal, the appellant’s counsel, after questioning from the Bench, withdrew ground 1 and the submissions filed in support of it and also withdrew portions of ground 1A.

Shortly after the conclusion of the hearing of the appeal, the appellant, who by this time was unrepresented, sought leave to re-open the case and to reinstate those grounds of appeal that had been withdrawn. That leave was granted and directions were made for the filing of any further submissions. The appellant personally filed further submissions on 16 June 2016 to which the Crown filed a response on 6 July 2016.

It must be said that the submissions of senior counsel, and of junior counsel who appeared on the initial hearing of the appeal, were unsatisfactory in many respects, particularly in the form in which they were presented to the Court, but also in respect of any analysis of the issues raised as a ground of appeal. Of 31 unnumbered pages of senior counsel’s submissions of 11 November 2015, only approximately 4-5 pages comprised any argument or analysis. The balance contained long extracts of his Honour’s summing up to the jury, extracts of judgments given during the course of the hearing and some extracts of transcript.

The oral submissions made by counsel at the hearing were also problematic in various respects. It is for these reasons the Court granted leave to the appellant to reinstate all grounds of appeal, notwithstanding substantial overlap, particularly as between ground 1 as originally advanced and ground 1A. These reasons accordingly deal with all grounds of appeal and all submissions filed by or on behalf of the appellant and the responses of the Crown. The consequence has been a delay in the delivery of reasons as the Court was required to deal with the detail of numerous sub-grounds of appeal. The written and oral submissions of senior and junior counsel were well below a reasonable standard that the Court is entitled to expect.

This ground was directed to the trial judge’s failure to discharge the jury after Ms Ostermeyer gave evidence which the appellant contended was both highly prejudicial and unresponsive to the questions asked of her.

The circumstances in which the evidence was given need to be recounted in a little detail.

In her evidence in chief, Ms Ostermeyer gave evidence that she continued to commit the frauds on the ATO so as to give money to the appellant notwithstanding that she was no longer in a relationship with him:

Ms Ostermeyer also gave the following evidence:

Some time later, trial counsel raised a concern about Ms Ostermeyer’s evidence of a threat to kill her on the basis that she had not previously made any such allegation. The trial judge requested that the Crown Prosecutor confer with Ms Ostermeyer before commencement of proceedings the next day.

The next day, 18 February 2015, before conferring with Ms Ostermeyer, the Crown acknowledged that she had not previously made a statement or given specific evidence of the use of the word “kill” or death threats. However, she had given evidence in the criminal proceedings against her that the appellant had said, “if I don’t help any more watch what’ll happen, what what’ll happen to your family”. After conferring with Ms Ostermeyer, the Crown informed the Court that she had confirmed that the appellant had threatened her with words to the effect of, “I will kill you and your family”.

Later in the proceedings on that day, the appellant’s counsel adverted to the evidence given the previous day, set out above at [15], and sought a discharge of the jury on the basis that that evidence was prejudicial to the appellant. The trial judge rejected the application on the basis that the evidence was “part of the context and there [was] no real prejudice to the [appellant]”. His Honour was of the view that the evidence that had precipitated the application could be dealt with in cross-examination. His Honour was also of the view that the defence had not been caught unaware by that evidence, as Ms Ostermeyer’s statements were replete with comments about the appellant being extremely violent.

There is no appeal against his Honour’s rejection of this application, although the appellant relies upon it contextually as indicating that there was a build up of prejudice over the course of Ms Ostermeyer’s evidence.

Later on the same day, in cross-examination by trial counsel, Ms Ostermeyer gave further evidence of which complaint was made. That evidence, and the circumstances in which it was given, was as follows:

On the basis of this evidence, and particularly the reference to a kidnapping, the appellant made another application for the discharge of the jury. By ground 1 of the appeal, the appellant contends that his Honour’s refusal of that application was in error.

The trial judge, in dealing with the application to discharge the jury, noted that two bases for discharge had been advanced. first, the specific comment relating to the kidnapping, read in the context of the cross-examination preceding and immediately following it; and secondly, the cumulative prejudicial effect on the jury of hearing that evidence, combined with evidence as to assaults that occurred during the course of the relationship, as well as that of other threats to kill her and her family.

His Honour noted that the evidence as to the kidnapping was not relevant, and that the substantial issue for his determination was whether, in the circumstances, there had been irrevocable or irreparable prejudice to the accused.

His Honour observed that the jury assessment of Ms Ostermeyer’s credit would be “the essential matter”. His Honour also considered it relevant to consider how the evidence arose. In this regard, his Honour considered that Ms Ostermeyer’s answer in which she referred to the appellant having kidnapped his ex-girlfriend was in response to an “open question”, viz, “what did he say?”.

His Honour acknowledged that the gravamen of the application to discharge the jury was the contention that “this answer manifested a deliberate intention to denigrate the accused”. His Honour considered, however, that defence counsel would have been aware of the likelihood of this matter being ventilated, although his Honour acknowledged that trial counsel was entitled to rely on Ms Ostermeyer complying with the instructions given to her by the Crown “not to open up these kinds of matters”.

His Honour did not consider that there had been any deliberate attempt by Ms Ostermeyer to derail the trial and concluded:

His Honour added that there were a number of essentially secondary considerations in coming to that decision, including that it was day 7 of the trial and there had already been substantial delays, which caused difficulties both for witness recollection and for the management of the court; and that there had been considerable expense to both the Crown and the defence, which was privately funded.

The appellant complains that his Honour erred in his determination of that application in the following respects. First, by taking into account the cost to the defence, in circumstances where the application was made by the appellant. Secondly, because the prejudicial effect of the evidence was irreparable. It was submitted in this regard that Ms Ostermeyer had displayed an emotional presentation of fear of the appellant such that the jury would have believed he had abused her both emotionally and physically. The appellant complained that abhorrence of such conduct by the community “would almost certainly have caused the jury to despise him regardless of the issues in the trial”.

The appellant complained that the evidence of the assaults were in fact irrelevant because they related to a time well after the occurrences of the subject offence. It was then contended that Ms Ostermeyer’s evidence as to the “kidnapping” had the effect of cementing an image of the appellant as “being an abuser of women … for his own gain”. It was submitted, therefore, that in the circumstances there was a “high degree of necessity” for the discharge of the jury. The appellant relied upon the principles stated in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22.

In his further submissions filed on 16 June 2016, the appellant submitted:

The principles that govern the exercise of a trial judge’s discretion in determining an application to discharge a jury were stated in Crofts where Toohey, Gaudron, Gummow and Kirby JJ observed, at 440, that:

As their Honours further stated, at 440:

Their Honours explained, at 441, that the duty of an appellate court, in reviewing a refusal to discharge a jury, was “not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind”. Rather, an appellate court “must also decide for itself whether, in [the] circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice”.

The circumstances giving rise to the application to discharge the jury in Crofts concerned the admission of inadmissible evidence. In that context, the plurality stated, at 441, that the appellate court must consider whether it can “say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable”.

Consistently with the principle stated in Croft this Court in the earlier decision of R v Marsland (NSWCCA, 17 July 1991, unreported) had stated:

In R v Bartle [2003] NSWCCA 329, Mason P and Barr J observed, at [80], citing Crofts, that “[t]he criterion for the exercise of the discretion [to discharge the jury] was the maintenance of the fairness of the trial” and that “[t]he test for the discharge of the jury was one of necessity”. In their Honours’ view, at [82], the trial judge in that case had been “correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out”, and they rejected the appellant’s argument that the jury would have been unable to comply with a direction to put certain prejudicial material out of their mind.

Likewise, in Qing An v R [2007] NSWCCA 53, I observed, at [51], that it is clear from the authorities “that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred” and that “appropriate directions may, in certain circumstances, be sufficient”.

These observations have been applied in subsequent decisions of the Court, with emphasis upon: the discretionary nature of the decision whether to discharge the jury; whether the Court is satisfied that any irregularity, the subject of the application for discharge, had not affected the verdict; and the adequacy of any direction given to the jury: see Santo v R [2009] NSWCCA 269 at [50]-[51]; R v Ahola (No 6) [2013] NSWSC 703 at [18]. In Ahola Button J also observed, at [17], that the authorities did not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material.

The applicable principles were again reviewed and summarised in Miller v R [2015] NSWCCA 206 by the Court (myself, Fullerton and Hamill JJ) at [126] as follows:

As was pointed out by the Crown, the question of wasted costs was raised by trial counsel in his submissions to the trial judge as to why the jury should be discharged. Counsel’s submission was to the effect that, although, if the jury was discharged, there would have been the expenditure of public monies, that did not include any expenditure on the appellant’s legal costs as he was privately represented and was not in receipt of legal aid. Counsel stated to the trial judge that the appellant, therefore, “loses far more in terms of any monies and the like”.

It was in that context that his Honour made reference to there having been considerable expense to both the Crown and the defence. His Honour’s comment was made towards the end of his judgment and it is apparent from his comment that he considered it to be a relevant matter. However, he referred to it as one of a number of considerations that were “secondary to the rights of the defence to have a fair trial”. There was no error in his Honour making reference to this matter in the manner that he did.

His Honour acknowledged that Ms Ostermeyer’s reference to the kidnapping was not relevant and recognised that a jury may react in a variety of ways to such evidence. However, his Honour observed that the essential matter was going to be the jury’s assessment of Ms Ostermeyer’s credit.

It was also relevant, as his Honour observed, that the Crown had not opened up this area of questioning and that the matter had been raised in cross-examination, in answer to an open question asked by the appellant’s trial counsel. Further, the transaction about which Ms Ostermeyer was being questioned and in respect of which she gave the impugned response, was not one in respect of monies which formed part of the proceeds with which the appellant was charged. His Honour considered that the matter could be appropriately be dealt with by removing this reference from the transcript. It appears that was done and the matter was not further raised by his Honour, by the Crown, or by trial counsel during the course of the trial.

His Honour was not prepared to find that trial counsel must have known of the response that Ms Ostermeyer would give to the question asked by the appellant’s trial counsel. However, in its submission on the appeal, the Crownpointed out that the assertion as to the kidnapping had been made by Ms Ostermeyer in her police record of interview, in her evidence in her sentence proceedings and in her police statement, all of which had been made available to the defence, such that it could not be said that this material was not known to the appellant’s legal representatives. This was the basis for the Crown submission on the appeal that the decision to ask the question must have been a tactical one. For my part, I do not consider that there is material before the Court that allows that inference to be drawn.

His Honour correctly directed himself as to the principles to apply in determining the application. Ms Ostermeyer gave an answer which was directly responsive to a question asked by the defence and which related to a matter of which the defence may be taken to have been aware. The factors considered by his Honour in respect of the difficulties which would be occasioned by a retrial were relevant. In those circumstances, I do not consider that his Honour erred in considering that the matter could be adequately dealt with by appropriate directions and the removal of the irrelevant evidence from the transcript.

Ground 1 of the appeal should be dismissed.

The appellant submitted that there was a substantial miscarriage of justice in the respects enumerated in paras (i)-(viii) of the further submissions filed on the conviction appeal. Notwithstanding the abandonment of paras (i)-(v) of this ground by counsel during the hearing of the appeal, each call for consideration in circumstances where I have accepted that the grounds of appeal should be reinstated.

As will be apparent from the various sub-grounds, it is contended that there was a miscarriage of justice in the process of the trial such as either to deprive this Court of the ability to assess the strength of the Crown case against the appellant or alternatively that there was such a failure to observe the conditions essential to a satisfactory trial that it would be unjust or unsafe to allow the appellant’s conviction to stand.

In support of those propositions, counsel on the appeal referred the Court to the principles stated in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [6]. In that passage, in the context of a discussion of the proviso to s 6 of the Criminal Appeal Act 1912 (NSW), Gleeson CJ considered the nature of a miscarriage of justice:

The appellant contended that he did not have a fair trial in circumstances where the prosecution was conducted in a manner that was inconsistent with the proper conduct of a Crown prosecution. This included the failure of the Crown Prosecutor to properly or adequately confer with the key Crown witness, Ms Ostermeyer, before empanelling the jury, before giving an opening address to the jury, and before adducing evidence from that witness. The appellant submitted that, had there been adequate conferral, Ms Ostermeyer would not have made the inadmissible statements discussed above in respect of ground 1. Reliance was placed upon passages of the transcript of the trial from 17 and 18 February 2015. The context in which the discussion in those passages took place had commenced earlier when Ms Ostermeyer stated in her evidence in chief that, “towards the end he also threatened to kill me and my family”. The transcript upon which the appellant relied, taken with the transcript immediately before and after those nominated portions, is set out below:

The appellant’s submissions in respect of this ground omitted to refer to what happened following this last exchange. There was an adjournment shortly afterwards to enable the trial judge to read trial counsel’s written submissions in respect of an argument that related to certain telephone intercept material the Crown had sought to tender. As is apparent from the transcript, when the court resumed, the Crown had spoken with Ms Ostermeyer and informed the court as to the evidence that she would give. The Crown also informed the court that Ms Ostermeyer had been warned not to raise certain matters, such as making any reference to the appellant’s association with motorbike gangs. The following exchange then occurred:

Whilst it is apparent that the Crown would have preferred to have had more time to confer with Ms Ostermeyer, he was in fact able to confer with her and did so following the exchange upon which the appellant relied. Following that conference with Ms Ostermeyer, the Crown informed the Court of the evidence that she would give and what she had been directed not to say.

Subject to the matter dealt with below in respect of ground 1A(iii), the appellant’s submissions in support of this ground made no other complaint about any evidence Ms Ostermeyer gave subsequent to this. The appellant had, of course, under ground 1, made complaint about the kidnapping evidence, which was given after the evidence to which ground 1A(i) is directed. In my opinion, it is relevant to this ground that the Crown brief that had been served on the appellant included the evidence to which reference is made at [52] above, so that the appellant was well aware of the extent of the evidence that was to be led as to the abusive and violent nature of the relationship with the appellant.

It is also apparent from the exchange on 18 February 2015, extracted above at [51], in which his Honour determined not to examine Ms Ostermeyer on the voir dire, that he was satisfied that there had been an appropriate conference with her.

Finally, to the extent that this ground was directed to Ms Ostermeyer’s evidence being prejudicial to the appellant, this has been dealt with in relation to ground 1. For the reasons I gave there, I do not consider that the admission of the evidence of itself, in the circumstances, resulted in a miscarriage of justice.

The appellant also contended in support of this ground that the Crown had adduced evidence of numerous and complex transactions in a vague, generalised manner. This ground was not particularised or otherwise explained. It remained a mere assertion. Further, contrary to the assertion, the Crown pointed to Exhibits 8 and 10 being a Schedule of Banking evidence and Banking Transaction Flow Chart which, although detailed, provided an uncomplicated and uncontested summary of the transactions that underlay the charge.

Ground 1A(i) is rejected.

The appellant submitted that “there were serious concerns about the integrity of the evidence of Ms Ostermeyer, and to the propriety of her conduct during the time in which she gave evidence and whilst she was out of the witness box”. The particular matter of concern was that, as appeared from the trial transcript of 19 February 2015, there was a suggestion that Ms Ostermeyer had discussed or sought to discuss her evidence with a friend. The Crown indicated to the trial judge that any warning or direction might better come from him. His Honour addressed Ms Ostermeyer, who had come into the court room but was not in the witness box, as follows:

It is significant in this regard that when the Crown indicated to the trial judge that any admonition would be better coming from his Honour, the appellant’s trial counsel agreed with the course proposed and stated that he did not wish to be heard on the matter. Nor did trial counsel subsequently raise any issue or question as to the terms in which the admonition was delivered by his Honour.

None of the materials referred to by the appellant in respect of this ground give rise to any substantial concerns regarding Ms Ostermeyer’s evidence.

Ground 1A(ii) should be rejected.

This ground related to directions given in respect of what the appellant characterised as Ms Ostermeyer improperly “volunteering” evidence of violence by the appellant. The first such direction was given in the course of the directions given to Ms Ostermeyer outlined above in respect of ground 1A(ii). On that occasion, the trial judge told Ms Ostermeyer:

The appellant contended that, after that direction, Ms Ostermeyer had again improperly volunteered allegations of violence in another exchange later that day, requiring further admonition by his Honour, as follows:

Trial counsel continued with the cross-examination by asking questions about the assault that Ms Ostermeyer said occurred at Rydges. His source for those questions was her record of interview. In the same context, trial counsel also cross-examined Ms Ostermeyer to the effect that at that time, she was still in an intimate relationship with the appellant and that she had paid for the hotel on 26 January 2009 and on previous occasions.

In my opinion, the answer of which the appellant now complains did not lead to any miscarriage of justice. There was a concern with Ms Ostermeyer giving unsolicited evidence of matters that might have been subject to criminal charges, such as the reference to the kidnapping charge, or in respect of matters that were not part of the Crown brief and which would be prejudicial to the appellant. This evidence did not, in my opinion, fall into either of those categories.

Although Ms Ostermeyer gave evidence as to why she remembered this occasion of being at the hotel, it was evidence that was given to explain why she remembered the occasion. The fact that trial counsel immediately asked questions based upon her record of interview is indicative that he was anticipating that Ms Ostermeyer would give some such evidence. It is also apparent from the transcript that his intent in cross-examination was not only to establish that Ms Ostermeyer was still in an intimate relationship with the appellant, but also to establish that her denial, “was a lie”. In other words, it is apparent that trial counsel intended to and did use Ms Ostermeyer’s answer in her record of interview to attack her credibility.

In my opinion, ground 1A(iii) should be rejected.

The appellant further complained that the Crown case conflated the separate and distinct offences of the appellant and Ms Ostermeyer, or, in the alternative, the Crown case was presented in a manner and in circumstances where there was a real risk that the evidence would be misused by the jury unfairly, in that they would conflate the separate and distinct offences.

As I understand the appellant’s submissions on this ground, it was contended that the alleged conflation occurred because, although the appellant’s role in the fraud committed on the ATO was relevant only to the question of his knowledge as to the provenance of the monies which he received, the case was conducted with a “significant focus” on that role.

It is to be remembered that this was a case where there were Agreed Facts in which the different offending conduct of Ms Ostermeyer and the appellant were clearly stated. It is also apparent that the assertion now made was not a concern at trial, given trial counsel’s address to the jury, as follows:

The trial judge in his summing up specifically stated:

The appellant’s role in the fraud was clearly relevant to the main issue in the trial, being his knowledge of the provenance of the monies.

In my opinion, the appellant has not established that the Crown conflated the separate and distinct offences of Ms Ostermeyer and the appellant or presented the case in a way that evidence could be misused by the jury. Ground 1A(iv) should be rejected.

The appellant next contended that the Crown adduced a significant amount of evidence that was inadmissible, irrelevant, misleading, vague, or confusing, and that was unfairly prejudicial to him.

Again, the appellant did not particularise any specific evidence that was said to satisfy any of the descriptions of which complaint is made. Rather, the appellant’s counsel on the appeal submitted that, “it was misleading not in the individual question - this is the difficulty I face and I accept that there’s no schedule [of evidence]”. The appellant also complained that some of Ms Ostermeyer’s evidence, when she was being shown Exhibit 8, which related to payments made by the ATO to Ms Ostermeyer, was responsive to leading questions.

The appellant also submitted that there was no necessity for Ms Ostermeyer to be questioned about Exhibit 8, when the document was already in evidence. The Appellant further contended that many of Ms Ostermeyer’s answers were to the effect that she did not remember the transaction but that “if it was in the document it must be correct”. The appellant submitted that this had the effect of giving undue weight to the evidence as it would give the jury the impression that she was giving evidence from her own memory. The appellant further complained that examining Ms Ostermeyer on the document was unnecessary in circumstances where there was a Statement of Agreed Facts.

These submissions do not do justice to the evidence that was adduced with reference to the document Exhibit 8. The first portion of evidence of which the appellant complained was as follows:

The examination which followed was in respect of specific transactions that Ms Ostermeyer was asked to explain. The following are portions of the evidence that was adduced in this manner:

As this portion of the evidence demonstrates, the examination on Exhibit 8 did not bear the characterisation that the appellant sought to give it. I also do not accept the submission of the appellant’s counsel that, looked at as a whole, the evidence on this topic was misleading or otherwise gave rise to a miscarriage of justice. The transactions required explanation and the Crown proceeded through the material in an orderly way. Examination on documents is often laborious. That does not render it lacking in relevance, nor does it give the evidence undue emphasis.

I would reject ground 1A(v).

The appellant further submitted that there was extensive repetitive questioning by the Crown Prosecutor. There was no particularisation of this assertion, nor were any oral submissions directed to it. The ground should be rejected.

The appellant next contended that there was extensive and improper use of leading questions by the Crown Prosecutor. The appellant relied upon his submissions in respect of ground 1A(v) in support of this ground. For the reasons given in respect of that ground, this ground should be rejected. Except to the extent that it was necessary to draw Ms Ostermeyer’s attention to a particular portion of the document, the evidence involved an explanation of the transactions which underlay the offence with which the appellant was charged. Thus, notwithstanding that some leading questions were used, no miscarriage of justice was occasioned. As no objection was raised at trial, leave to raise this ground is required: see Criminal Appeal Rules, r 4.

The appellant submitted that the Crown adduced evidence, particularly from Ms Ostermeyer, that was irrelevant and/or in circumstances where there was a real risk that the evidence would be misused by the jury in some unfair way. In particular, it was submitted that Ms Ostermeyer’s evidence would provoke an irrational, emotional, or illogical response, and cause the jury to give the evidence more weight than it deserved. The focus of this complaint was evidence that Ms Ostermeyer had served a term of full-time imprisonment arising from her related but separate offences and that she repaid $75,000 that related to her own legitimate loans.

It was a central element of the Crown case that Ms Ostermeyer had committed fraud offences and that that was the source of the funds that she had channelled to the appellant.

The evidence in relation to the loans was in a different category. Ms Ostermeyer was asked, at the commencement of her examination in chief, whether she remembered the first time that the appellant asked her for money and why she gave it to her. She said that took out a number of loans and gave the money to him. Those loans were described as legitimate borrowings and Ms Ostermeyer said that she repaid the monies as she was responsible for them. She also withdrew money on her credit card. Ms Ostermeyer said that the appellant told her he would make the repayments, but that he did not do so.

That topic was linked to the evidence of the commencement of the fraud, and the appellant’s knowledge of it, as follows:

The evidence as to the loans was context evidence which was relevant to explain how it was that Ms Ostermeyer came to engage in illegal activities. It was directly relevant to proving the appellant’s role in, and knowledge of, those activities. There was no objection to the evidence given in chief and it was the subject of full cross-examination. I do not consider that there is substance in the appellant’s assertion of a risk that the evidence of the loans could be misused by the jury.

Evidence as to Ms Ostermeyer’s conviction and prison sentence was also given in examination in chief. The relevant exchanges were as follows:

As is clear from these exchanges, the evidence as to Ms Ostermeyer’s convictions were relevant to her credibility, as she made no allegations in respect of the appellant until after she was arrested, and she was given a discount in sentence in return for giving evidence against the appellant. The evidence was in no way misleading or unfair and it created no risk of misuse; in fact, it was to the appellant’s advantage. Again, the evidence was not objected to and was the subject of cross-examination, in which it was suggested that “the sad reality is you have to stick to your story otherwise you will go back to gaol”.

Ground 1A(viii) should be rejected.

In my opinion, the appellant has not established, in accordance with the principles stated in Nudd, that there has been a miscarriage of justice. None of the specific errors alleged have been established nor is there any sense in which the factors, taken in aggregate, constituted a miscarriage of justice.

Some of the specific errors alleged in ground 1A required the grant of leave pursuant to the Criminal Appeal Rules, r 4. In the normal course, I would have rejected the grant of leave in respect of those grounds in accordance with the principles recently stated in Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [15]-[16]. However, given the circumstances of the appellant’s legal representation in the case, to which reference has been made, I have considered it appropriate to grant leave to appeal where that is required. Having considered each paragraph of this ground as on appeal, I would reject ground 1A.

The appellant submitted that a substantial miscarriage of justice occurred due to the incompetence of counsel, including by reason of the failure to appropriately object to the matters raised in relation to ground 1A, or to seek judicial directions or orders in respect of those matters.

The relevant principles were expressed by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, as follows:

In Tsiakas v R [2015] NSWCCA 187, this Court again examined the relevant principles that apply when an allegation of incompetence of counsel is raised, as follows:

In addition to the factors referred to in respect of ground 1A of the appeal, the appellant’s affidavit filed 4 May 2016 was also relevant to this ground of appeal. Initially, that affidavit was not read on the appeal. Having regard to the fact that the appellant, subsequent to judgment being reserved, became self-represented and seeks to have this material before the Court, it is appropriate to admit that evidence, which was, relevantly, as follows:

Trial counsel responded to those allegations as follows:

Annexures A and B to counsel’s affidavit were relevantly as follows:

The appellant also complained as to the manner in which trial counsel cross-examined Ms Ostermeyer, including counsel’s apparent loss of temper at one point, which, it was said, may have unfairly influenced the jury and which was the subject of judicial comment. It is sufficient to say that there is no indication in the section of the transcript to which the appellant referred, or in the exchanges immediately preceding it, of any improper questioning. If the appellant intended to refer to what might be read as a subsequent sharp exchange with the trial judge, that only reflected trial counsel making clear to his Honour the questions he wanted to put to Ms Ostermeyer, and it occurred in the absence of the jury and of Ms Ostermeyer.

The Crown, in its submissions, pointed to some nineteen sections of transcript in which trial counsel took objection to evidence and other matters occurring in the course of the trial. These objections and the applications for the discharge of the jury demonstrate that trial counsel in this case was both vigilant and careful in objecting to the evidence and in making applications as he considered appropriate. The affidavit evidence also demonstrates that he also followed instructions as and when required by the appellant. Another indicator of the vigilance with which trial counsel attended to the defence of the appellant was that his Honour delivered nine judgments in response to applications made by counsel during the course of the trial.

In further response to that aspect of this ground of appeal that relied upon trial counsel’s manner of questioning Ms Ostermeyer, the Crown referred the Court to the following statement of trial counsel in his closing address to the jury, which demonstrated that he had taken a tactical decision as to how to conduct the cross-examination:

It is apparent that trial counsel was alive to the issues in the trial and competently represented the appellant. This ground of appeal should be rejected.

The appellant contended that he was pressured into signing a statement of agreed facts tendered during the trial pursuant to the Evidence Act 1995 (NSW), s 191.

It is apparent that prior to the commencement of trial there had been discussions between the Crown and the appellant’s legal representatives as, in his opening address to the jury on 11 February 2015, the Crown referred to an expectation that agreed facts would be provided. The agreed statement of facts was signed by the appellant on 13 February 2015.

The agreed facts related, essentially, to the GST fraud offences and attempted fraud offences brought against Ms Ostermeyer to which she pleaded guilty and was sentenced to imprisonment (agreed facts 1, 2, 5 and 6). The agreed facts also stated that Ms Ostermeyer had created fictitious identities and bank accounts associated with the offences (agreed facts 3, 4, 7 and 8).

Relevantly, in respect of the agreed facts as they related to the charge against the appellant, the document stated that the monies Ms Ostermeyer received from the ATO from the GST fraud offences were proceeds of crime: agreed fact 9; and that from those monies, over $100,000 was deposited into the appellant’s bank account during the period between June 2006 and September 2007 (agreed fact 10). Agreed fact 11 stated that the schedule of transactions annexed to the statement (and which was separately tendered in the trial) accurately reflected monies received by Ms Ostermeyer as proceeds of crime from the GST fraud offences and transfers she made into the appellant’s bank accounts.

No complaint about the agreed facts was raised at trial, although this was understandable as the appellant’s trial counsel had signed the statement. In the circumstances, whilst leave pursuant to r 4 of the Criminal Appeal Rules is required to raise this ground leave should be granted.

In the supplementary written submissions on the appeal, no more was argued on this point than that regard should be had to the principles enunciated in Loury v R [2010] NSWCCA 158. As a result of the abandonment of ground 1C by counsel on the appeal, the appellant’s affidavit sworn 4 May 2016 was not read. As the ground has been reinstated, that affidavit should now be read on the appeal. Paragraph (7) of the affidavit stated:

The appellant’s trial counsel, Mr Klarica, responded to the assertion in para (7) of the appellant’s affidavit in an affidavit sworn 5 May 2016, as follows:

In Loury, this Court set aside the appellant’s pleas of guilty to three charges of using an offensive weapon with intent to commit an indictable offence in company, on the basis that there had been a miscarriage of justice in that the appellant’s pleas were not attributable to a genuine consciousness of guilt but rather to the imprudent and inappropriate advice given by his counsel and solicitor.

Whealy J, at [97], observed that an appeal will be allowed “where a miscarriage of justice may have occurred” and, at [98], that the ultimate question was not “the guilt or innocence of the accused person, but rather the integrity of the plea”. His Honour cited, at [99], the judgment of Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at [33] as authority for the proposition that:

His Honour, at [100], instanced a number of circumstances and factors which the courts have recognised as warranting the setting aside of a plea of guilty. These included circumstances such as an appellant having a lack of appreciation of the nature of the relevant charge, not being in possession of all the facts, not entertaining a genuine consciousness of guilt, having been induced to plead by threats or impropriety, or where there are questions about the quality and propriety of legal advice leading to the plea.

Turning to the circumstances of the plea in question, Whealy J noted, at [103], that the appellant had “[a]t all times … denied that he was in any way involved” in one aspect of the incident, viz, the holding of an individual while he was struck with a bat, and, at [104], that there was “a clear triable issue that the appellant had no involvement” in that aspect of the incident. His Honour, at [105], observed that “[t]he appellant came to the District Court … without any knowledge that he would be required on that day to plead to the new charges” and was satisfied that the appellant:

Whealy J also observed, at [107]-[108], that there were “important inconsistencies between the appellant’s statements to the police in the ERISP and the appellant’s position as reflected in the statement of facts”, and reached the view that the appellant had never been shown the agreed statement of facts. Accordingly, Whealy J, at [111], “was satisfied by the whole of the evidence that a serious miscarriage of justice had occurred” and that “it was imperative that the pleas entered by the appellant be set aside and that the convictions be quashed without delay”.

Hodgson JA agreed with Whealy J’s reasons and added, at [3], that there was no evidence that the agreed statement of facts had been explained to the appellant or that the differences between his ERISP and the agreed statement of facts had been pointed out to him. Kirby J agreed with Whealy J and the additional observations of Hodgson JA.

The Crown, in its written submissions, contended that Loury “is entirely distinguishable from this appeal”.

In my opinion, this ground of appeal should be rejected. As the transcript of the Crown’s opening address and trial counsel’s statement to the Court during that address reveal, it was anticipated from the outset that there would be agreed facts. In particular, trial counsel, at the end of the first day of trial, when he indicated that he had added additional facts, informed the trial judge:

Thus, trial counsel was not only well appraised of the facts upon which the Crown sought agreement, he considered it appropriate, in his representation of the appellant, to add facts to it. The appellant and trial counsel signed the agreed facts. That indicates that the appellant read the agreed facts, which are less than two pages long and are not complex, and Mr Klarica’s affidavit supports the proposition that it is probable that the facts were explained to the appellant. It is also relevant to note that, unlike in Loury, there has been no suggestion of inconsistencies between the agreed facts and any prior statement made by the appellant. Indeed, the appellant has pointed to no particular fact with which he now takes issue. The agreed facts set out in the statement were supported by documentary evidence and to that extent were not contentious.

However, for the reasons that follow, it is not necessary to make any findings as to whether the appellant in fact understood the agreed facts. To the extent that the agreed facts stated that the funds in respect of which the appellant had been charged had been obtained by Ms Ostermeyer fraudulently and were the proceeds of crime, that agreement did not impact upon the appellant’s defence that he did not know that the monies paid into his bank account had been fraudulently obtained by Ms Ostermeyer. As trial counsel emphasised to the jury in his closing address, there was no issue as to the facts: see above at [71].

Accordingly, ground 1C of the appeal should be rejected. It follows that I would dismiss the appeal against conviction.

The appellant was sentenced to a term of imprisonment of six years with a non-parole period of 4 years commencing on 25 February 2015 and expiring on 24 February 2019, subject to a recognisance to be of good behaviour: see above at [2]. The maximum penalty for the offence of which he was convicted was 20 years imprisonment.

By ground 2 of the appeal, the appellant sought leave to appeal against sentence on the basis that it was manifestly excessive. This ground was supported by thirteen specific errors alleged to have been made by his Honour. It will be convenient to deal with each challenge seriatim by reference to the relevant parts of his Honour’s remarks.

This challenge to his Honour’s reasoning must be rejected. Whilst it is correct that initially, at the commencement of the sentence hearing, the bail report was tendered as part of the Crown bundle on sentence, when objection was taken by trial counsel, it was removed from the tender bundle and all that was tendered was a statement of the appellant’s criminal history. The transcript of the sentence proceedings records that the removal of the bail report and the tender of the appellant’s criminal history was done with the consent of trial counsel.

His Honour, at [52], reviewed the psychological evidence that had been tendered on behalf of the appellant. The psychologist, Mr John Machlin, in a report dated 15 April 2015, assessed the appellant on 9 April 2015 for the purpose of preparing a report in anticipation of the sentence proceedings. In that report, under the heading “Other Activities”, Mr Machlin reported:

The reference to “evidence given to the court after trial” in the report would appear to be a reference to evidence that was adduced in the bail application. Given the reference in Mr Machlin’s report, it appears to be uncontentious that the appellant had had some such connection as stated in the report.

In his remarks dealing with “special circumstances”, his Honour stated, at [92]:

The Crown submitted that there is no indication as to the manner in which his Honour took this factor into account. It is difficult to know from his Honour’s remarks whether this is so. The fact that his Honour made reference to “recent associations” when dealing with the question of special circumstances would seem to indicate that he was concerned about that matter when assessing the appellant’s prospects of rehabilitation and whether a longer period under supervision post-incarceration was warranted. There is no indication in his Honour’s remarks that that factor was taken into account in any other way.

There is, however, a curiosity in his Honour’s reference to the bail/detention application. As I have discussed in relation to the previous ground, the bail report was not before his Honour. His Honour’s reference to the evidence given on that occasion presumably, therefore, was a reference to his own recollection of the evidence, although it should be said that that matter was not made clear in submissions to this Court and cannot be determined with certainty from the material available on appeal.

The only ‘evidence’ of this matter before his Honour on the sentence was the comment made by Mr Machlin in his report. As is apparent from that report, the appellant conceded some association with friends who were members of Hells Angels in 2012. There was some basis therefore for a concern as to the appellant’s associations, although on Mr Machlin’s report that had been some three years prior to the sentence proceedings

Nonetheless, I consider, as a matter of caution, that this Court should accept that his Honour made an observation on a matter that was not in evidence and appears to have attached some weight to it. That was done in the context of determining whether to make a finding of special circumstances, and it appears that his Honour used it as countervailing factor in determining how to adjust the ratio of the non-parole period to the head sentence. As I explain below, his Honour erred in any event in engaging in a consideration of special circumstances.

Thus, whilst in normal circumstances, the use of material not in evidence in the sentence material would constitute error, not only was this not the error alleged under this sub-ground, I consider that this matter is best dealt with as part of the challenge to his Honour’s finding in relation to special circumstances.

In his remarks on sentence, his Honour, at [40], stated that the appellant was “not a young offender in the way that term is traditionally understood”, but nonetheless noted that his age was 22 or 23 at the time that the offences were committed.

Contrary to the appellant’s submission, his Honour did not err in his approach to the offender’s age. The focus in sentencing young offenders is on rehabilitation, in circumstances where, as stated in KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51, at [23], “the immaturity of the offender is a significant factor in the commission of the offence”. In those circumstances, it is accepted that “the criminality involved will be less than if the same offence was committed by an adult”: see R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61].

However, this was not a case where it could be or was suggested that the appellant’s immaturity was a significant factor in the appellant’s offending conduct. Indeed, there was no suggestion at all in the psychological evidence, the medical evidence or in the references tendered on his behalf on the sentence hearing that he was immature or otherwise acted immaturely. Rather, the focus of that evidence was on the appellant’s mental health.

This alleged error should be rejected.

It is well established that the weight to be given to any relevant factor in sentencing process is a matter for the sentencing judge. As this Court stated in Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [112]-[113]:

His Honour, in his remarks on sentence referred to the appellant’s subjective circumstances including his family circumstances: at [43]; the state of his father’s health: at [45]; and the fact that there was evidence that the appellant had applied himself in jail to obtain qualifications: at [87]. It was also apparent from his Honour’s finding, at [93], albeit in the context of making a finding of special circumstances that he took into account the appellant’s age and family circumstances. Although, as explained below, the Commonwealth sentencing regime does not call for a finding of special circumstances, it is apparent that this Honour attached weight to these subjective factors.

Thus, having regard to the discretion exercised by trial judges in respect of the weight to be given to particular factors, no error has been demonstrated.

The appellant contended that this alleged erroneous finding was contrary to the evidence that at the time of the offending conduct the appellant was in full time employment. This submission does not accurately reflect the findings made by his Honour.

The relevant part of his Honour’s remarks relating to employment and motive were as follows:

While his Honour did not specify the appellant’s employment status at the time of the offending, he made no finding that the appellant was unemployed. Furthermore, the finding as to motive at [70] was open on the evidence.

There is no substance in this alleged error.

In their submissions on sentence both the Crown and Defence counsel raised issues of parity relative to the sentence imposed on Ms Ostermeyer. Knox DCJ was thus obliged to deal with the topic. In his remarks on sentence, his Honour, at [13], observed that one area of distinction between the circumstances of Ms Ostermeyer and those of the appellant was that Ms Ostermeyer obtained GST refunds exceeding $440,000 by virtue of the frauds that she committed, whereas the amount proved against the appellant as having been paid into his accounts was $322,600.

At [56], under the heading “Comparative sentences”, his Honour referred to the sentence that had been imposed upon Ms Ostermeyer and the difference between the maximum penalty for the offences committed by Ms Ostermeyer and the offence committed by the appellant. His Honour also noted that there were significant differences between the appellant and Ms Ostermeyer, including the appellant’s criminal history, which included offences for dishonesty; differences in the respective roles each played in the commission of the crimes; and that there was no discount to be applied in the sentencing of the appellant. In this regard, as his Honour recorded at [33] of his remarks on sentence, Ms Ostermeyer had received a 50 per cent discount for a guilty plea and past and future assistance.

His Honour’s findings, in relation to the appellant’s offending conduct as compared to that of Ms Ostermeyer, were set out at in the following paragraphs of his remarks on sentence:

In my opinion, these remarks clearly show that his Honour did not conflate the distinct and separate charges and acts alleged against the appellant and Ms Ostermeyer. In fact, contrary to the appellant’s submission, his Honour compared and contrasted all relevant aspects of the offending conduct by reference to the differences in the offences charged; the maximum penalties for each; the relevant sentencing factors taken into account in respect of Ms Ostermeyer and the objective and subjective circumstances of the appellant.

This alleged error should also be rejected.

The trial judge, at [91]-[93], under the heading “Special circumstances”, considered that a finding of special circumstances was warranted such that the ratio of the non-parole period imposed was two-thirds of the head sentence. In reaching that conclusion, his Honour expressed the view that he had “particular concerns” in respect of the appellant’s prospects of rehabilitation, having regard to his lack of remorse and his domestic circumstances.

In that context, his Honour referred to the evidence in respect of the appellant’s associations with motorcycle gangs outlined above at [127].

His Honour concluded, at [93], that:

It should be noted that the appellant’s trial counsel had sought a finding of special circumstances.

To the extent that his Honour’s remarks indicate that he understood that there was a statutory ratio to be observed and that the statutory ratio could be varied by a finding of special circumstances, it would appear that his Honour was in error in his understanding of the Commonwealth statutory sentencing regime. There is no comparative provision in the Crimes Act 1914 (Cth), to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, which specifies a statutory ratio as between the non-parole period and the parole period, and nor is there any statutory requirement in respect of a finding of special circumstances. Furthermore, the Judiciary Act 1903 (Cth), s 68 does not have the effect that s 44 applies when State courts sentence for Commonwealth offences: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [22].

Rather, as was pointed out in Hili, at [40], regard is to be had to the Crimes Act (Cth), s 16A which provides that a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: see subs (1); and further provides specified matters that the court must take into account: see subs(2).

In Hili the High Court, at [36] and [44], rejected the proposition that there was any ‘norm’ of 60-66 per cent of the head sentence for the period of imprisonment that an offender must serve or that such a figure would be “affected by special circumstances applicable to a particular offender”. Rather, the Court stated, at [44]:

In Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, the majority stated, at 536:

In determining this ground, I leave to one side whether it was appropriate for his Honour to have regard to the appellant’s recent “associations”, presumably being a reference to connections to “bikies”.

His Honour, in his sentencing remarks, had regard to the degree to which the appellant had shown contrition: s 16A(2)(f); the appellant’s character, antecedents and age, means and physical and mental condition: s 16A(2)(m); the appellant’s prospects of rehabilitation: s 16A(2)(n); and the probable effect of any sentence on the appellant’s family and dependents: s 16A(2)(p). Elsewhere in his reasons, his Honour had regard to such of the other factors that were relevant to the appellant’s case which he was bound to consider pursuant to s 16A(2).

Notwithstanding that his Honour appears to have complied with s 16A, the language used by his Honour was redolent of the terms in which s 44 is framed. Accordingly, I am of the opinion that having regard to the provisions of s 16A and the sentencing principles for Commonwealth offences, his Honour erred in making a finding of “special circumstances” such that the ratio of the non-parole period was adjusted to two-thirds of the head sentence. I deal with the consequences of this error below.

The appellant did not provide any particularisation of this alleged failure. To the extent that it raised the question of special circumstances, that matter has been dealt with above.

The appellant contended that his Honour erred in finding, at [13], that the amount not given to the offender, being $122,175, “does not appear to be a significant difference – particularly given the other amounts which need to be taken into account in assessing the total criminality”.

This alleged error relates to the difference, to which reference has already been made above at [144], between the total amount of the frauds proved against Ms Ostermeyer in the sum of $442,775, and the amount that was proved to have been paid to the appellant, in the sum of $322,600. The appellant’s submission in respect of the difference of approximately $120,000 was that this was a “lot of money”.

The Crown, in response to this alleged error, pointed out that there is an error in the formulation of the appellant’s contention in that it omitted any reference to “the context of the total amounts involved” as his Honour stated, at [13], and misquoted “other matters”, stating instead, “other amounts”. The complete observations of his Honour at that paragraph were as follows:

The Crown also submitted that in assessing the appellant’s criminality, it was relevant that the amount with which the appellant was charged was over three times the threshold of $100,000 specified in the charge, as his Honour noted at [68], and that Ms Ostermeyer was charged with different offences carrying lesser maximum penalties.

In my opinion, there is no merit in the appellant’s contention. His Honour, at the passage of his remarks in question, was dealing with differences between the objective seriousness of the offending by the appellant and that by Ms Ostermeyer. He observed that Ms Ostermeyer had received an amount of approximately $120,000 by virtue of her fraudulent conduct that had not been transferred to the appellant. The weight to be placed on that circumstance was an evaluative matter for his Honour in assessing the criminality involved. There was no error in his Honour determining that it was of minimal significance in the context of the appellant’s offending conduct.

This asserted error was not subject to any amplification in written submissions and very little was advanced in support of it in oral submissions on the appeal. It appears to relate to evidence given by Ms Ostermeyer in cross-examination as to whether she had paid back the bank loans or the credit card loans or both. It is apparent that his Honour referred to the matter at [14] as part of his recitation of the history of the matter. It is not apparent that it played any role in relation to the sentencing of the appellant. In the circumstances, the appellant has not demonstrated that, even assuming that it was an irrelevant fact in relation to his sentencing, it affected the sentence that his Honour imposed. I would not find error on this basis.

This alleged error, which relates to a finding made by his Honour at [27], was withdrawn by counsel on the hearing of the appeal. Accordingly, there were no written or oral submissions advanced in support of it. Counsel’s decision not to rely upon this alleged error was understandable. His Honour had presided over a trial lasting 11 days, in which Ms Ostermeyer and the appellant both gave evidence. This finding was well open to his Honour having regard to the whole of the evidence.

This alleged error was also withdrawn by counsel on the hearing of the appeal. This finding was open on the evidence and was a relevant finding in determining the objective seriousness of the offence.

His Honour, in sentencing the appellant, made a reparation order in the amount of $322,600 in favour of the Commonwealth. His Honour ordered that this amount be reduced by any amount paid or forfeited to the New South Wales Crime Commission and any amount paid by Ms Ostermeyer with respect to the reparation order made against her in the sum of $442,775 in the New South District Court by Judge Williams on 13 July 2012.

Although this alleged error was also withdrawn by counsel appearing on the appeal, it should be noted that there was no error in his Honour making the reparation order, as he was entitled to do pursuant to the Crimes Act (Cth) s 21B. That section provides, relevantly, that a person has been convicted of a federal offence, the court may, in addition to the penalty imposed, order that the offender make reparation to the Commonwealth.

It is also relevant to note, as the Crown pointed out in its submissions, that as there was a concern as to double punishment by reason of the Crime Commission’s interest in the appellant’s property arising from this offence, the reparation order that was sought and that was made by his Honour expressly provided that the amount of reparation to be made was to be reduced by the amount that had been forfeited to the Crime Commission.

It follows from the above consideration of each of the particular errors alleged that the only possible error that has been demonstrated in his Honour’s remarks on sentence relates to his reference to special circumstances and the ratio of the non-parole period to the head sentence and, to that extent, his failure to properly apply the correct sentencing principles when dealing with a Commonwealth offence. It is also arguable that, in that regard, his Honour erroneously placed weight on the appellant’s motorcycle gang connection.

In the circumstances, I consider that it should be accepted that error has been demonstrated. That being so, it is necessary to exercise the sentencing discretion afresh: see the Criminal Appeal Act 1912 (NSW), s 6(3), which applies by force of the Judiciary Act, s 68; R v Simpson (2001) 53 NSWLR 702; [2001] NSWCCA 534 at [79] and [99]-[100]; and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

The appellant did not rely upon any comparable sentences to enable a comparison to be made to sentences imposed for similar offending conduct. The Crown, for its part, relied upon the decision in this Court in R v Ly [2014] NSWCCA 78.

In that case, the offender was charged with an offence under s 400.4(1) of the Criminal Code (Cth), being the same offence with which the appellant was charged. The offending took place over a period of 10 months. The trial judge imposed a term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 4 months. A reparation order in the sum of $331,862 was also made.

On the Crown appeal against the inadequacy of sentence in Ly, this Court imposed a sentence of 8 years with a non-parole period of 4 years 6 months. In imposing it that sentence the court stated that the offence was “a very serious one”. The Court based this conclusion on the amount involved, the period of time over which the offending took place, the deliberate pattern of offending, the significant financial benefit derived by the respondent, and the lack of any significant mitigating factors. The Court considered that the respondent’s conduct was somewhat above the mid-range of objective seriousness.

In my opinion, the observations made by the Court in Ly apply in this case. The appellant engaged in a prolonged period of activity of criminal behaviour in circumstances where there were no mitigating circumstances, no demonstration of remorse and where the circumstances of the offending included threatening conduct directed to the other offender.

It is correct, that as the trial judge in this matter noted, at [80], some distinction may be drawn between the two cases on the basis that, in Ly, the offender was slightly more involved in the actual commission of the fraud. Notwithstanding the correctness of that observation, I consider that the offending here was objectively serious.

I am of the opinion that when regard is had to the objective seriousness of the appellant’s offending conduct, the paucity of subjective matters in his favour, including his lack of remorse and the factors that must be taken into account pursuant to s 16A(2),and in particular the factors in paras (a); (e); (f); (m); (n); and (p) as those factors have been referred to in these reasons, I would not, in the independent exercise of the sentencing discretion, impose any different sentence than was imposed by the trial judge. In reaching that conclusion, I have not taken into account any evidence as to the appellant’s motorcycle gang connection.

Accordingly, I would grant leave to appeal against sentence but dismiss the appeal.

I raise one final matter. Since preparing these reasons, the appellant has forwarded to the Court a letter annexing three documents. The letter raises the difficulties that the appellant’s family is experiencing as a result of his imprisonment. The annexures are from chaplains working in the Correctional Centre and a Certificate of Participation in the “Seasons for Growth” program.

The documents were sent to the Court without leave and it is not proposed to take them into account. The appellant has already been given considerable leeway in the presentation of his appeal. However, it is appropriate to point out for the appellant’s benefit that the matters to which the letter referred had already been made known to the Court as part of his appeal and of which the Court has taken into account.

I propose the following orders:

R A HULME J: I agree with Beazley P.

R S HULME AJ: In this matter I have had the advantage of reading the reasons for judgment of the President. I agree with the orders her Honour proposes and, subject to what follows, generally with her Honour’s reasons.

In the case of two grounds, I prefer to express my own reasons.

In my view the most probable inference to be drawn from the repeated references to “assaulted” in the evidence of Ms Ostermeyer quoted by the President at [67] is that Ms Ostermeyer deliberately sought to place the Appellant in a bad light and did so in defiance of his Honour’s instruction that she should limit her responses and “just answer the question”.

However, whether considered on its own or together with other evidence tending to place the Appellant in a bad light, it is impossible to regard the evidence that the Appellant had assaulted Ms Ostermeyer as so prejudicial that it rendered the trial unfair. A fortiori is this so when regard is had to the admissible evidence that the Appellant had threatened to kill Ms Ostermeyer.

The evidence adduced by the Appellant in support of this ground was as follows:-

The “Agreed Facts” document signed by counsel and the Appellant contains eleven paragraphs typed over two pages together with a five page table divided into 4 columns bearing headings “Entity”, “ABN”, “Business Address” and “SON (Service of Notice Address)” Illustrative terminology of the document includes the following:-

The Appellant was asked a few questions concerning the document. The questions and answers included the following:-

Counsel who appeared for the Appellant before Knox DCJ responded to the Appellant’s claim in this connection:-

The Agreed Facts document contains nothing that could be described as legal jargon, certainly none that would not be readily understandable by any man in the street. The onus lies on the Appellant to establish the facts on which he relies and even without the response by counsel I would not regard the Appellant’s statements in support of this ground as credible.

Thus I would not uphold this ground.