Carnaby v R

1. [1]

   BUTTON J: I agree with R A Hulme AJ.

2. [2]

   FAGAN J: I agree with R A Hulme AJ, including that the Court should not receive the evidence referred to at [81] in his Honour’s judgment.

3. [3]

   R A HULME AJ: Mr Raymond Carnaby applies for leave to appeal in respect of an aggregate sentence imposed in the District Court at Sydney on 22 May 2020 by her Honour Judge O’Rourke SC.

4. [4]

   The sentence was one of imprisonment for 9 years with a non-parole period of 5 years 5 months and it was in respect of 19 offences for which the applicant had been found guilty by a jury.

5. [5]

   There were 15 offences of dishonestly obtaining a financial advantage by deception and four offences of recruiting another to assist in carrying out criminal activity. These are offences contrary to ss 192E(1)(b) and 351A(1) of the Crimes Act 1900 (NSW) for which there is a maximum penalty of imprisonment of 10 years and 7 years respectively.

6. [6]

   The applicant has already, and unsuccessfully, appealed against his conviction: Carnaby v R [2021] NSWCCA 275.

7. [7]

   The applicant was self-represented in the conviction appeal as he is in this application for leave to appeal against sentence.

8. [8]

   An extension of time is required. It is opposed by the Crown, primarily on the basis that the proposed appeal lacks merit. More will be said about this later.

The offences

1. [9]

   Adamson J, with whom McCallum JA and Davies J agreed, introduced the conviction appeal judgment with the following pithy summary of the case:

2. [10]

   A very detailed summary of the evidence followed in the conviction appeal judgment at [4]-[112].

3. [11]

   It is convenient to note also the following summary provided in the Crown’s written submissions in this Court:

4. [12]

   The judge reviewed the facts relating to each offence and then discussed her assessment of their objective seriousness. She considered that the motivation for the offending was “a combination of greed, gambling and for the maintaining of his perceived appearance, status, or self-promotion directed to those within the community and his own family”. [1] Her conclusion was as follows: [2]

5. [13]

   Counts 9, 11 and 20 were recruitment offences against s 351A(1) involving Ms Afaf Yassin, Mr Mohamed Younes and Ghada Nouh, the innocent third parties “duped” by the applicant into to being the purported applicants for credit.

6. [14]

   The following table provides a summary of each count with the finding of objective seriousness and the indicative sentence assessed by the primary judge. For brevity, the offences of obtaining a financial advantage by deception are indicated by s 192E(1)(b). The offences are grouped by the documents containing false financial information and the purported applicant for credit.

The applicant’s subjective case

1. [15]

   The learned judge reviewed the evidence concerning the applicant’s subjective case in some detail. She made findings on many aspects including the following.

2. [16]

   The applicant had a criminal record which included previous convictions for very similar offences of dishonesty although the judge noted they were committed some years ago. She said: “the record, whilst limiting the leniency to be applied, is not regarded for these purposes as an aggravating factor”. [3]

3. [17]

   There was evidence that the applicant gambled significantly but the judge noted that he disavowed any addiction and made no claim for any causal connection between that and his offending. [4]

4. [18]

   The applicant was aged 68 at the time of sentencing and the offences were committed when he was aged between 61 and 64. [5]

5. [19]

   The judge noted that “the offender clearly has physical health issues". They included chronic back pain and reported medical complications with his right groin, vocal cord, left shoulder, abdominal wall, and scrotum. She referred to and appeared to accept evidence to the effect that there was a capacity to treat the various issues in the custodial environment. [6]

6. [20]

   Her Honour also had regard to then recent outbreak of the COVID-19 pandemic and concluded that it had “made conditions in custody more onerous (at least for a time), for the offender because of measures introduced to control outbreaks which increase the offender’s anxiety and the level of stress in the light of his medical conditions and his comorbid vulnerability. … Notwithstanding the efficient and sustained effort (which has clearly proved successful so far) on the part of Corrective Services the risks are real and are likely to engender anxiety and fear in the offender”. [7]

7. [21]

   The judge noted that there was no evidence of any real genuine remorse. [8]

8. [22]

   As to hardship to others, she said: “it appears his wife is unwell and he cares for her. I also note, however, that they have two adult children that will need to assist. I do not consider this to be an exceptional circumstance.” [9]

9. [23]

   Her Honour said, “I am guarded about the offender’s prospects of rehabilitation. [10]

10. [24]

    Special circumstances were found for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). They were: “the offender’s advanced age, his ill-health and the COVID-19 pandemic, which will all make his time in custody more onerous”. [11]

Documents filed by the applicant

1. [25]

   The applicant filed the following material in support of his proposed appeal:

2. [26]

   The applicant did not formulate grounds of appeal, nor organise his submissions by subject-matter. It is necessary to make appropriate allowance for the applicant representing himself and being without any legal training. The Crown undertook the burden of organising the submissions in a logical way that allowed them to be grouped under suggested grounds of appeal. It will be convenient to discuss and consider them in that fashion.

Ground 1 — error in finding that the offending was aggravated as it was “in company”. [13]

1. [27]

   The applicant contends that the judge erred in finding that the offending was aggravated because it was “in company”. No submission in writing was made as to why this might have been so except for the assertion that there were no grounds upon which the finding could be made. In oral submissions, the applicant argued that there could be no “in company” if the other person was an “innocent agent” or “innocent stooge”. [14]

2. [28]

   In the course of discussing the applicant’s subjective case in her remarks on sentence, her Honour diverted to discuss various aggravating and mitigating features, both objective and subjective. She referred to the Crown having submitted that “the offending is aggravated by being in company as a joint criminal enterprise (as for counts 1 to 5, 12 to 14, 15 and 16), or employing innocent agents (as counts 8, 10 and 17 to 19)”. [15] The latter were the offences involving Ms Yassin, Mr Younes and Ms Nouh.

3. [29]

   Her Honour proceeded to say that she was satisfied that counts 1 to 5, 12 to 14, 15 and 16 (none of which involved the three people just mentioned) were committed in company as part of a joint criminal enterprise. However, those that were committed with “a duped third party” were not so aggravated because her Honour was concerned about double counting with the fact that there were recruiting charges for which the applicant stood to be sentenced. [16] This is the answer to the point raised by the applicant at the hearing.

4. [30]

   There is nothing erroneous in her Honour’s reasoning. The offence of dishonestly obtaining a financial advantage can be committed by a single person. In other words, it is not an element of the offence, nor an inherent characteristic, that multiple persons are involved. In relation to counts 1 to 5, 12 to 14, 15 and 16 the offence was committed by more than one person. This was a feature that rendered the offence more serious. It added an aura of legitimacy to the transaction, thereby enhancing the degree to which the victims were deceived.

5. [31]

   No error is established.

6. [32]

   There is a related complaint. The applicant expressed concern about the fact he was not present at court during the sentencing hearing on 27 March 2020. He was on bail. It is to be recalled that this was during the initial lockdown period in the COVID-19 pandemic. Ms J Gallagher of counsel appeared for the applicant and the transcript for that day commenced as follows: [17]

7. [33]

   The applicant observed in his submissions to this Court that he “had no idea as to why would his counsel agree to the aggravation, seriousness and in company”. [18]

8. [34]

   I do not understand the point of this complaint. Counsel did not expressly make such a concession about the “in company” issue. Whilst it is true she did not challenge the Crown’s submission that “the offences are objectively very serious”, the seven reasons provided by the Crown for this submission did not include that the s 192E(1)(b) offences were committed “in company”. [19]

Ground 2 — error in the assessment of the objective seriousness of the offences. [20]

1. [35]

   The applicant submitted that the judge wrongly determined the objective seriousness of the offences. She made a global assessment of the seriousness of the offending without proper analysis of the objective seriousness of the individual offences. She did not consider or compare the very similar, if not identical, facts of each of the offences which were relevant to objective seriousness.

2. [36]

   Reference was made to R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [27] where Dunford J noted how seriously the courts treat white-collar crime, and offences under s 176A in particular, as it involves not only fraud but also the breach of the trust involved in being a company director. (Section 176A, since repealed, provided for an offence of company directors cheating or defrauding the company or anyone in their dealings with the company.)

3. [37]

   The applicant pointed to the fact that he was not a director or had any executive authority and so should not be treated as a person who has betrayed the trust of his office. However, whilst acknowledging his wrongdoing, he then set out reasons why blame should be cast upon the victim credit providers for failure to do their own due diligence.

4. [38]

   As the Crown has pointed out by reference to well-known authority (e.g. Mulato v R [2006] NSWCCA 282) there are difficulties involved in challenging findings by a sentencing judge as to the objective seriousness of an offence. It is necessary to establish error in the ways described in House v The King (1936) 55 CLR 499 at 505.

5. [39]

   The factors the judge considered in her assessment of the objective seriousness of the offending were most of those which had been identified in submissions by the Crown (which were not challenged) as to the overall offending: [21]

6. [40]

   The judge carefully considered the individual offences within their logical groups. [22] In the course of this exercise she referred to factors such as:

7. [41]

   There were similarities between the facts of the offences, for example in planning and modus operandi, which allowed the judge to avoid repetition in her recitation of the relevant factors for some of the groups of offences.

8. [42]

   The Crown submitted that there was no error and that the findings of the judge as to the objective seriousness of the offences were well open in light of the factors she considered. The Crown also noted the concession made in oral submissions by the applicant’s counsel, agreeing with the Crown’s submission that all of the offences were objectively “very serious”. [23]

9. [43]

   There is no merit in the applicant’s contention that she did not make a proper analysis or did not consider similarities of features.

Ground 3 — error in fixing a non-parole period “as few very serious factors were not taken into account”. [24]

1. [44]

   The applicant pointed out (correctly) that the non-parole period is 60% of the aggregate sentence and that the judge made an adjustment to the statutory ratio pursuant to s 44 of the Crimes (Sentencing Procedure) Act.

2. [45]

   The only submission made about this is that there was error because “few very serious factors were not taken into account”.

3. [46]

   As indicated above, the judge expressly made a finding of special circumstances based upon the applicant’s “advanced age, his ill-health and the COVID-19 pandemic, which will all make his time in custody more onerous”. [25]

4. [47]

   The applicant’s complaint is unclear. What is clear is that the judge made a finding in his favour. She said her “finding of special circumstances results in a variation of the statutory ratio reduced to 60%. This is intentional.”

5. [48]

   Her Honour also expressed her awareness of the requirement that “the non-parole period reflect the objective gravity of the crimes, taking into account the subjective features and ‘be the minimum period for which the offender must be kept in detention in relation to the offence’”.

6. [49]

   No error is established.

Ground 4 — “The judge did not take into account any of the real mitigating factors as she has predetermined that the maximum sentence should be applied to teach the appellant a lesson as to not challenge the authority of a judge and not to ever think of lodging a complaint against one.” [26]

1. [50]

   The Crown identified that this appeared to relate to a point during the trial when the applicant withdrew instructions from his counsel and made an application to vacate the trial, followed by a further application for the trial judge to recuse herself on the basis of apprehended bias. In the course of that application the applicant informed the judge that he had lodged a complaint against her with the Judicial Commission. [27]

2. [51]

   The applicant’s submissions provided nothing in substance beyond the complaint set out above. He did not nominate any of the “real mitigating factors” the judge failed to take into account.

3. [52]

   The applicant appears to be comparing the aggregate sentence for all 19 of the offences with the maximum penalty applying to one of them. As indicated earlier the indicative sentences for each offence against s 192E(1)(b) were between 2 years 8 months and 3 years 6 months, nowhere near the maximum penalty.

4. [53]

   There is no merit in this ground.

Ground 5 — the judge erred in her assessment of the applicant’s subjective case. [28]

1. [54]

   This “ground” is assumed to incorporate the applicant’s complaint under the previous ground. In addition, there is a complaint that the judge gave “wrong consideration to the subjective circumstances of the applicant” in which respect he nominated errors in her assessment of reliability, remorse and prospects of rehabilitation.

2. [55]

   The latter proposition was based upon the error the subject of complaint under the previous “ground”. The applicant submitted that while the judge did not reject all that was put forward on his behalf, “it did not auger [sic] well in terms of findings such as remorse and prospects of rehabilitation due to making up her mind to impose the maximum punitive sentence on the appellant, irrespective of any argument put on his behalf”.

3. [56]

   At the hearing of the application, it was submitted that the judge was “wrong in saying the prospects of my rehabilitation is weak because of my prior conviction” because it was 20 years in the past. [29] (He was convicted and sentenced for making a false statement to obtain money in the District Court at Campbelltown on 9 August 1999 and obtaining money by deception in the Local Court at Sutherland on 24 June 1999. [30] )

4. [57]

   A report by Mr Patrick Sheehan, forensic psychologist, dated 11 February 2020 was tendered on the applicant’s behalf in the sentence proceedings. The report included: [31]

5. [58]

   A Sentence Assessment Report included: [32]

6. [59]

   The Crown submitted to the judge: “[T]he court would not find that the offender is unlikely to reoffend …, nor that he has good prospects of rehabilitation …. The offender continues to deny the offences and has shown no remorse”. [33]

7. [60]

   Counsel for the applicant conceded that “he hasn’t shown any remorse. Obviously, he maintains his innocence.” [34] She made no submissions on the subject of rehabilitation.

8. [61]

   The judge’s findings in relation to remorse and prospects of rehabilitation were: [35]

9. [62]

   Remorse can only be taken into account as a mitigating factor if “the offender has provided evidence that he or she has accepted responsibility for his or her actions, and … has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”: s 21A(3), Crimes (Sentencing Procedure) Act. There was no evidence before the judge that was capable of satisfying this requirement. The finding made by her Honour was well open to be made.

10. [63]

    The applicant bore the onus of persuading the judge that he had good prospects of rehabilitation (and was unlikely to reoffend). She was not asked to make such findings. That was realistic in the circumstances.

11. [64]

    There is no substance in the assertion of error in the judge taking into account his prior convictions for fraud. The judge had previously noted that the prior offences “were committed some years ago”. [36] It might be different if the prior convictions were the only factor her Honour considered but that was clearly not the case. The applicant’s lack of insight into his offending and lack of remorse were the more significant considerations and were clearly relevant to the assessment her Honour made.

12. [65]

    There is no merit in any relation to these issues.

Ground 6 — error in failing to take into account, whether generally or by way of allowing a discount, the applicant’s facilitation of the administration of justice. [37]

1. [66]

   The applicant referred to statements made at the beginning of the trial by the Crown Prosecutor to the judge to the effect that the original estimate was five weeks but there were hopes of reducing this considerably because of proposed agreed facts and agreements as to documents that could be tendered to save the calling of some witnesses. [38]

2. [67]

   Reference was also made to a discussion sometime after the applicant had discharged his legal representatives about the prosecution assisting Mr Carnaby by having police serve subpoenas, once issued, upon 26 persons he wanted to call as witnesses. The Crown Prosecutor indicated that they were not in a position to give evidence of relevance from the Crown’s perspective. The judge inquired whether as an alternative the evidence sought from the witnesses could be obtained by questioning of the police officer in charge of the case. The Crown Prosecutor indicated that the officer had included such material in a statement previously served on the defence as a matter of disclosure. [39]

3. [68]

   The applicant now contends he should have received some benefit for having facilitated the administration of justice by agreeing to a course which obviated the need to call 26 witnesses. [40]

4. [69]

   The Crown responded by referring to the power provided by s 22A of the Crimes (Sentencing Procedure) Act to impose a lesser penalty than otherwise would have been imposed if the defence had facilitated the administration of justice, whether by disclosures made pre-trial or during the trial or otherwise. Whether this is a matter of “disclosure” need not be analysed. The applicant’s argument is that he should have been given “some discount as it should be treated as though a cooperation with the court by the appellant”.

5. [70]

   The Crown pointed out, [41] however that no submission was made that the judge should impose a lesser penalty on this account. Thus, the Crown submitted, this complaint should be rejected as an attempt to reformulate the case presented at first instance. This is not a “rare circumstance” in which something has been overlooked and it would work a “serious injustice” if the Court did not allow it to be corrected: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [82].

6. [71]

   The more fundamental hurdle for the applicant in relation to this issue is that even if he had been asked, there was a very good reason why the judge would not have allowed for any reduction of sentence. The trial estimate was five weeks. The applicant withdrew his instructions from his counsel on the seventh day which led to delays. In the end, the trial ran for five weeks.

7. [72]

   As for the applicant’s acquiescence with a proposal that would obviate the calling of 26 witnesses, the fact is that these were proposed defence witnesses. Facilitating the administration of justice or cooperating with the court does not involve abandoning an inefficient method of presentation of the defence case by accepting an alternative and better method.

8. [73]

   There is no merit in relation to this complaint.

Ground 7 — a miscarriage of justice has occurred as a result of events subsequent to sentencing. [42]

1. [74]

   With reliance upon a variety of medical reports and records the applicant submitted that his medical condition has deteriorated from what it was at the time of sentencing. He also argued that it was an agony for him to have his wife visit him as her medical and psychological condition has worsened as well. Another post-sentencing issue concerned an incident in respect of which a statement, a certificate and some photographs were provided.

2. [75]

   This material was contained within or referred to in paragraphs 1 to 7 of the applicant’s affidavit of 6 September 2022 and his affidavits of 18 and 25 October 2022. The Crown objected to the Court receiving any of it on the basis that it did not qualify as either fresh or new evidence.

3. [76]

   The applicant did not identify how he contended this evidence was admissible in the appeal and not merely in the event the Court upheld any of the grounds and moved to resentence.

4. [77]

   If any of the applicant’s assertions of error in the sentencing process are made out it could be open to this Court to have regard to this evidence if tendered for use in that event (i.e. “on the usual basis”): Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. As to whether the Court may take this evidence into account in more broadly considering whether there has been a miscarriage of justice in the sentencing process, the High Court said in that case (at [10]):

5. [78]

   The principles relating to this issue were succinctly summarised by Wright J in GAR v R [2021] NSWCCA 265:

6. [79]

   The sentencing judge took into account the applicant’s ill-health in a manner favourable to him. This included it being a factor in the finding of “special circumstances” that moved her Honour to reduce the proportion of the sentence represented by the non-parole period. She also had regard to evidence concerning the applicant’s wife; that she had a mental condition and that the applicant cared for her. [43] There is no principled basis for this Court to take into account further material on these subjects relating to events post-sentencing. There is nothing in the material that relates to some condition that existed at the time of sentencing, but which was unknown, or its seriousness not fully appreciated at the time.

7. [80]

   The incident the subject of a statement, certificate and photographs occurred after sentencing and had no bearing at all upon the sentencing process or the issues there considered. Evidence pertaining to it is clearly not “fresh” or “new” in the sense described in the authorities (for example, Khoury v R [2011] NSWCCA 118 at [107]) and no basis has otherwise been demonstrated for its admission.

8. [81]

   I propose that the Court refuse to receive the evidence referred to above, namely paragraphs 1 to 7 of the applicant’s affidavit of 6 September 2022 and the entirety, including annexures, of his affidavits of 18 and 25 October 2022.

Ground 8 – the sentence is manifestly excessive

1. [82]

   This ground may be regarded as residual in the sense that the entirety of the matters that are legitimately raised by the applicant may be considered in determining the question of whether the sentence is manifestly excessive.

2. [83]

   The principles relating to the determination of this issue were summarised in Obeid v R (2018) 96 NSWLR 155 at [443] (citation of authority omitted):

3. [84]

   The disparate points raised by the applicant and not already mentioned will be discussed in turn.

4. [85]

   The applicant submitted (in effect) that there should have been more (notional) concurrency and less accumulation of the indicative sentences in the determination of the aggregate sentence because of the identical features of all of the offences.

5. [86]

   It was necessary for the judge to determine the aggregate sentence so that it was proportionate to the objective seriousness of the entirety of the offending.

6. [87]

   The relevant sentencing principle is encapsulated in the following from the judgment of Gageler, Nettle and Gordon JJ in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17:

7. [88]

   Howie J said in Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 4 (and this was partially quoted in the applicant’s written submissions at [72]):

8. [89]

   Having regard to the applicable maximum penalties (10 years for s 192E(1)(b) and 7 years for s 351A(1)) and the assessments of the objective seriousness of the individual sentences (see the table above at [14], the indicative sentences were relatively modest. This leaves no room to infer the judge did not make an appropriate allowance for such mitigating factors as there were.

9. [90]

   A complete accumulation of the indicative sentences would have resulted in an aggregate in excess of 50 years. The fact the judge imposed an aggregate of 9 years indicates that there was a substantial degree of (notional) concurrency.

10. [91]

    The applicant submitted at the hearing that the criminality involved in the recruitment offences overlapped with that in the fraud offences so that there should not have been any additional component of punishment for the former. That is, they should (notionally) have been entirely concurrent. [45]

11. [92]

    An advantage of aggregate sentencing is that it is not necessary for a judge to specify starting dates for the sentences for each offence. As a result, however, it is difficult and sometimes impossible to know whether the judge determined (notionally) to wholly or partially accumulate one indicative sentence upon another: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39](1) and [40](13). So, even if the applicant’s point is correct (which I do not accept) it is not possible to say there was any erroneous (notional) accumulation.

12. [93]

    Confining attention to the 15 fraud offences, I am of the view that it is not the case that the sentence for only one, or a few, could comprehend the criminality of the whole of them. There were common features of the offending, but they were distinct instances perpetrated upon multiple victims over a three-year period. Significant (notional) accumulation was required in order for the aggregate sentence to be an appropriate reflection of the totality of criminality for those 15 offences by themselves.

13. [94]

    These totality issues do not assist the applicant in establishing manifest excess in the sentence.

14. [95]

    The case cited is of no relevance. Mr Osman pleaded guilty and was sentenced for two drug supply offences, with a drug possession offence taken into account, and received a sentence of 2 years 8 months. The fact that he was sentenced by her Honour Judge O’Rourke SC makes no difference.

15. [96]

    The applicant referred to the requirement in s 5(1) of the Crimes (Sentencing Procedure) Act that a sentence of imprisonment cannot be imposed unless the court has considered all possible alternatives and is satisfied that no other penalty is appropriate.

16. [97]

    To summarise, there were 15 fraud offences each assessed as being in the mid-range of objective seriousness involving a total value of credit fraudulently obtained of about $2.5 million where each offence carried a maximum penalty of imprisonment for 10 years. There were also the four offences involving the recruitment of others to assist in this criminal activity. There could be no contemplation of imposing any sentence other than imprisonment.

17. [98]

    The applicant appreciated there are limitations in the utility of referring to other cases (and statistics) and in doing so cited (appropriately) [49] Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520.

18. [99]

    At a very superficial level, the cases selected by the applicant for contrast with his own case may appear to support his contention of erroneous severity in the sentence he received but on closer analysis they do not. Differences between the applicant’s case and those in the table include that quite a number of other offenders were able to rely upon their pleas of guilty [50] , remorse [51] and prior good character (or at least no prior convictions) [52] .

19. [100]

    Of the 16 cases, only eight involved sentencing for an offence of obtaining a financial advantage by deception. [53] Significantly, they were all contrary to s 178BA(1), the predecessor of the present s 192E(1) offence. The repeal and replacement occurred when the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW) took effect on 22 February 2010, as part of a broad overhaul of fraud and related offences in the principal Act. For this particular offence there was an increase in the maximum penalty of imprisonment from 5 years to 10 years. The effect is that the applicant invited comparison of his sentence with sentences imposed in cases at a time when the maximum penalty for the offence was half of that which applied in his case. Aside from other different features, this on its own substantially limited the utility of the exercise.

20. [101]

    The other eight cases relied upon by the applicant concerned sentencing for offences with maximum penalties of either 5, 7 or 10 years. Some of them involved frauds in breach of a significant element of trust. [54] One involved defrauding the Commonwealth by way of tax fraud (failing to remit PAYE tax to the ATO). [55]

21. [102]

    There are too many differences between the facts and the offences in the cases relied upon by the applicant to make a comparison worthwhile.

22. [103]

    The applicant provided a table of the indicative sentences assessed for each of the 19 offences which were said to demonstrate “disparities in the sentences imposed on the amounts involved and the durations that were not taken into consideration”.

23. [104]

    The fault with this analysis is that there is an underlying assumption that the amount of credit fraudulently obtained, and the period over which each of the offences occurred, provided the sole or dominant parameters which dictated the severity of the sentence. Sentencing is rather more complex than that.

24. [105]

    Within this segment of the submissions, the applicant repeated the claim that the highest maximum penalty for his offences (10 years) was reserved for the worst case and yet the judge imposed a sentence of 9 years. This point has been considered under Ground 4 but to repeat: 9 years was the aggregate sentence for 19 offences. The highest sentence assessed as an indicative sentence for any individual offence with a maximum penalty of 10 years was a third of that (3 years and 4 months for each of counts 17 to 19).

25. [106]

    The applicant raised a number of issues at the hearing of the application and, although having been encouraged a number of times to focus upon issues relating to sentence, strayed into arguments about the propriety of his convictions. [57] When he did make submissions pertinent to sentence they tended to be repetitious of matters already raised in written submissions. [58]

Conclusion

1. [107]

   The applicant requires an extension of time. He has provided an explanation for the delay in an annexure to his notice of appeal and in his affidavit of 27 June 2022 which were each filed on 5 July 2022. As a self-represented party, and with the complication of having previously pursued an application for leave to appeal against conviction only, the delay is explained. The extension should be granted.

2. [108]

   Leave to appeal should be allowed but as no merit has been found in any of the complaints raised the appeal should be dismissed.

Orders

1. [109]

   I propose the following orders:

   1. (1)

      Time for filing notice of application for leave to appeal against sentence extended to 5 July 2022.

   2. (2)

      Leave to appeal against sentence granted.

   3. (3)

      Appeal dismissed.