Martino v R

1. [1]

   HARRISON CJ at CL: I agree with Chen J.

2. [2]

   WALTON J: I agree with Chen J.

3. [3]

   CHEN J: On 6 August 2018, Antonio Domenico Martino (‘the applicant’) was charged with two fraud offences – being:

   1. (1)

      that between 12 December 2016 and 5 June 2017, the applicant did by deception, that is, by pretending to be Giovanni Martino, dishonestly obtain a financial advantage, namely the amount of $50,000.00, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (count 1); and

   2. (2)

      that between 12 December 2016 and 5 June 2017, the applicant did by deception, that is, by pretending to be Giovanni Martino, dishonestly obtain a financial advantage, namely the amount of $8,005.37, contrary to s 192E(1)(b) of the Crimes Act (count 2).

4. [4]

   It appears that, following the applicant being charged with these offences, the police were unable to locate him, but he was eventually arrested on 7 August 2020 (SJ [20]).

5. [5]

   Initially, the applicant pleaded not guilty to the charges. On 31 August 2021, he was committed to stand trial in the District Court. Subsequently, on 6 June 2023, the applicant entered a plea of guilty to the first count with the second count to be taken into account on a Form 1 in accordance with ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’).

6. [6]

   The applicant was convicted and sentenced by Noman SC DCJ (or ‘the sentencing judge’) on 11 August 2023. Her Honour, after applying the sentencing discount for his guilty plea in accordance with s 25D(2)(b)(i) of the CSP Act, sentenced the applicant to 2 years and 9 months imprisonment, with a non-parole period of 1 year and 8 months, to date from 21 May 2023. The non-parole period expires on 20 January 2025 and the term expires on 20 February 2026 (SJ [40]).

7. [7]

   By amended notice of appeal filed on 4 March 2024, the applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed, raising eight grounds. The first ground involves a complaint that the sentence imposed was manifestly excessive and the remaining grounds involve complaints that the sentencing judge made various factual errors, each of which warrants this Court resentencing the applicant.

8. [8]

   On 24 March 2024, the applicant filed an application to be released on bail. The release application was stood over to the hearing of the appeal. At the hearing, however, the applicant indicated that he no longer pursued that application, and it was withdrawn (T4.36-4.43).

Background

1. [9]

   The applicant was sentenced in accordance with a Statement of Agreed Facts (the ‘agreed facts’). What follows is drawn from those agreed facts and the sentencing judgment. The references to the sentencing judgment are referred to as SJ [1] etc.

2. [10]

   The applicant committed the offences between 12 December 2016 and 5 June 2017. Perhaps surprisingly, for most of this period, the applicant was in custody serving a sentence of imprisonment following his convictions for sexual assault and aggravated sexual assault, contrary to ss 61I and 61J of the Crimes Act.

3. [11]

   By some unknown means, the applicant obtained documents to pass himself off as the victim, with whom he merely shared the same surname. Quite how he was able to engage in this offending whilst he was in custody was not the subject of evidence, or explanation, in the Court below. In any event, having obtained those identification documents, the applicant falsely represented himself to be the victim when dealing with CBUS – the entity that held the victim’s superannuation funds.

4. [12]

   The applicant provided identification documents to CBUS to rollover the victim’s superannuation into a self-managed superannuation fund (‘SMSF’) established and controlled by the applicant (SJ [7] and [10]; agreed facts at [5]). He used a driver’s licence, a Medicare card and a statutory declaration “purported to have been declared by the victim” and “not witnessed by the person purported to be the witness” (SJ [7]; agreed facts at [5]).

5. [13]

   The applicant telephoned CBUS to follow-up the rollover of the funds on 16 December 2016, and twice further on 19 December 2016 (agreed facts at [6]).

6. [14]

   On 29 December 2016, $50,000.00 was rolled over from the victim’s CBUS account into the applicant’s SMSF (SJ [8]).

7. [15]

   On 31 January 2017, $8,005.37 was rolled over from the victim’s CBUS account into the applicant’s SMSF (SJ [9]).

8. [16]

   The sentencing judge noted that in March and April 2018, the applicant used the victim’s identity to secure a second mortgage against the victim’s property “to post bail” and that, although there was a “loose factual connection” to the earlier offending, the sentencing judge made it plain that it did “not inform the seriousness of the index offending” (SJ [11]). It will be necessary to return to the steps the applicant took to secure conditional bail in 2018 later in these reasons because it resulted in him being charged with the offence of doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act. (This offending is described later in these reasons: see [53]-[56], below).

9. [17]

   On 5 June 2017, the victim contacted CBUS as he had not received a statement for his superannuation account for six months. At that time, the victim was advised by CBUS that his mailing address had been changed on the account to the applicant’s address (agreed facts at [12]). During that call, the victim was also advised by CBUS that his superannuation account had been closed, and the funds had been rolled over (agreed facts at [13]).

10. [18]

    In order to deal with the applicant’s grounds of appeal, it will be necessary to return to some of the detail of the sentencing judgment and, in particular, those parts of it that are challenged by him. It is sufficient, at the present time, to note the following overview.

11. [19]

    The applicant did not give evidence at the sentence hearing.

12. [20]

    The sentencing judge noted that the applicant entered a plea in the District Court and that in the circumstances he was “entitled to a reduction of 10% to his sentence to recognise the timing of the plea. The Crown case was undoubtedly strong, and this plea does not of itself denote remorse”: SJ [4].

13. [21]

    In terms of the objective seriousness of the offending, the sentencing judge made the following findings (SJ [12]):

14. [22]

    The sentencing judge determined the offence to be “a moderately serious offence”: SJ [13].

15. [23]

    The sentencing judge considered matters relevant to the applicant’s moral culpability, including the fact that he relied upon “childhood disadvantage occasioned by sexual abuse” and whilst the sentencing judge did “not downplay the role sexual abuse would have on any victim, and particularly a child” considered that it did “not of necessity explain all life choices and pathways”: SJ [14]-[15].

16. [24]

    The sentencing judge found the applicant to be “an unreliable historian. There are inconsistencies. He also has the disadvantage of coming before the court as a person with limited credibility, a person who lies and misrepresents to achieve a goal”: SJ [16]. Given that finding, the sentencing judge was “unable to determine the accuracy of any background reported. I am not satisfied that his background, even if accepted, serves to reduce his moral culpability”: SJ [17].

17. [25]

    The sentencing judge described the applicant as presenting “as a serial fraudster” and noted, in furtherance of this, that he had “assumed aliases”, had “a considerable number of entries on his criminal history” dating back to 1994, from both NSW and Victoria, that document “many fraud or dishonesty offences over the years” together “with an aberrant sexual assault upon his then partner in 2010”: SJ [18]. The sentencing judge found that the applicant’s “antecedents operate to disentitle him to leniency”: SJ [18].

18. [26]

    The applicant’s custodial history was considered by the sentencing judge, the detail of which will be covered in the summary of the applicant’s criminal and custodial history (see [38]ff, below) and in the course of addressing ground 1. For present purposes, it is sufficient to record the following. The sentencing judge noted that the applicant was arrested on 7 August 2020, and was required to serve the balance of parole from that date until 29 September 2021. Her Honour also noted that Sweeney DCJ (as her Honour then was), when sentencing the applicant for other fraud and dishonesty offending on 24 March 2022, “in acknowledging the balance of parole, commenced [the] sentence from 1 October 2020. The non-parole period expired 31 March 2022”: SJ [20]. The sentencing judge then noted that the applicant was rearrested on 22 October 2022 in connection with further fraud offences committed between January and March 2017 “thus overlapping the index offending. Those facts are before me. They reflect a remarkably similar scheme although there is considerably more information about his conduct detailed in those facts”: SJ [21]. As described later, that offending involved the applicant defrauding another victim of his superannuation funds that were held by CBUS. The applicant was sentenced for that offending on 10 August 2023 (see [63]-[64], below). The commencement of this sentence, and the fact that the applicant was rearrested on 22 October 2022, was also specifically taken into account by the sentencing judge, who noted that there was “a period between 22 October and 22 December 2022 during which the offender was on remand. I shall take this period of 2 months into account when determining sentence”: SJ [22].

19. [27]

    In relation to “remorse”, the sentencing judge noted that the applicant had “written to the Court expressing his insight and remorse. He has offered to make repatriation of the stolen funds”, an offer that was contained within two statutory declarations: SJ [23]. The sentencing judge noted, however, that he “has not made the payments”, albeit that he had “indicated from the dock that he had a legitimate source of money and could have made the payment”: SJ [23]. As such, the sentencing judge was not prepared to act upon the offer to repay the stolen money (SJ [23]):

20. [28]

    The sentencing judge accepted there to be “limited genuine remorse”: SJ [24]. Later, the sentencing judge observed that the applicant’s “letter of apology is detailed and it contains more than merely an apology”, and included “an acceptance of responsibility” and a “desire to obtain a moral compass”: SJ [29]. However, as explained later, the sentencing judge found that any “statement that he is desirous of change must be viewed with some cynicism”: SJ [33].

21. [29]

    A sentencing assessment report was tendered by the Crown. Amongst other matters referred to, the sentencing judge noted that the applicant’s “insight into his pattern of offending is considered therein to be superficial involving minimisation of the severity of the offending. His previous poor engagement with community-based orders is recorded”: SJ [25].

22. [30]

    In relation to the applicant’s submission that he was “not receiving adequate care in custody” in relation to his “many health problems of varying severity”, the sentencing judge found that although “the level of care required is significant …ultimately it presents as less than optimal”: SJ [30].

23. [31]

    [REDACTED]

24. [32]

    The sentencing judge found the applicant’s prospects of rehabilitation, and of not reoffending, were “poor” (SJ [33]):

25. [33]

    The sentencing judge considered that general deterrence and retribution “are of importance”: SJ [34]. She did not accept that the applicant’s “mental health issues” lessened the importance to be placed on personal or general deterrence in the sentencing exercise, nor that they made his conditions in custody more onerous: SJ [35].

26. [34]

    The sentencing judge rejected a submission made by the applicant that any sentence be served by way of intensive correction order (SJ [36]), making the following finding (SJ [37]):

27. [35]

    The sentencing judge made a finding of special circumstances “relying on the obvious need for extended supervision and the health issues experienced by the [applicant]” (SJ [39]), which the sentencing judge later noted was a “variation to the statutory ratio to 60%”: SJ [41].

28. [36]

    The sentence imposed upon the applicant was as follows (SJ [40]-[41]):

29. [37]

    The sentencing judge concluded that “[n]o lesser sentence would address the offending”: SJ [42].

30. [38]

    As has been noted above, the sentencing judge observed that the applicant had “a considerable number of entries on his criminal history” and had spent significant periods in custody. The applicant, by ground 1 of the amended notice of appeal, in substance, argues that the sentencing judge erred in failing to give him the benefit of pre-sentence custody and erred in failing to allow for greater concurrence with the previous sentence imposed upon him. Given the nature of that challenge, it is necessary to set out in some detail the applicant’s recent criminal and custodial history.

31. [39]

    On 17 June 2011, following pleas of guilty, the applicant was convicted and sentenced for three offences. They were:

    1. (1)

       Between 29 July 2009 and 10 August 2009, obtaining a valuable thing by deception, contrary to s 178BA(1) of the Crimes Act. For this offending (and other conduct placed on a Form 1), the applicant was sentenced to a fixed term of imprisonment for 18 months commencing on 13 August 2010 and expiring on 12 February 2012.

    2. (2)

       On 4 March 2010, having sexual intercourse without consent, knowing that the victim was not consenting, contrary to s 61I of the Crimes Act. For this offending, the applicant was sentenced to imprisonment comprising a non-parole period of 3 years, 4 months and 2 weeks, commencing on 13 August 2011 and expiring on 26 December 2014, with a balance of term of 1 year, 1 month and 2 weeks commencing on 27 December 2014 and expiring on 9 February 2016.

    3. (3)

       On 4 March 2010, having sexual intercourse without consent, knowing that the victim was not consenting, in circumstances of aggravation in that the applicant recklessly inflicted actual bodily harm to the victim, contrary to ss 61J(1) and (2)(a) of the Crimes Act. For this offending (and other conduct placed on a Form 1), the applicant was sentenced to imprisonment comprising a non-parole period of 4 years and 8 months, commencing on 13 August 2012 and expiring on 12 April 2017, with a balance of term of 2 years and 4 months, commencing on 13 April 2017 and expiring on 12 August 2019. The earliest date upon which the applicant was eligible for release on parole was 12 April 2017.

32. [40]

    The applicant was not released to parole for the sexual offending until 27 May 2017.

33. [41]

    This is the offending for which the applicant was convicted and sentenced by Noman SC DCJ on 11 August 2023.

34. [42]

    The applicant perpetrated another fraud in the period 1 February 2017 to 10 March 2017, referred to in the sentencing judgment as “a remarkably similar scheme”, that also involved CBUS.

35. [43]

    A short summary of this offending is as follows. The applicant obtained the personal details of, and information about the superannuation account held by, the victim who was an inmate with the applicant at the Junee Correctional Centre between April 2014 and February 2015. The applicant was able to secure these details because he had offered to assist the victim to obtain a hardship payment from the victim’s superannuation to assist with the payment of legal fees. The applicant, with another, fraudulently obtained or created documents, including a range of identity documents bearing the victim’s name, following which the victim’s superannuation that was held with CBUS was rolled over into a SMSF established and controlled by the applicant. The amount rolled over and deposited into the SMSF was $96,679.42.

36. [44]

    On 16 June 2022, the applicant was arrested and charged with dishonestly causing a financial disadvantage by deception, being an offence contrary to s 192E(1)(b) of the Crimes Act.

37. [45]

    On 1 June 2023, the applicant entered a plea of guilty in the Local Court. Following the making of that plea, the matter was listed for sentence on 10 August 2023. As the sentencing judge noted (SJ [21]), the applicant was convicted and sentenced in the Local Court to a term of imprisonment of 18 months to commence on 22 December 2022 and expiring on 21 June 2024 with a non-parole period of 9 months. The non-parole period expired on 21 September 2023. Thus, in connection with this further fraud, the applicant’s sentence is wholly concurrent with the sentence imposed by the sentencing judge.

38. [46]

    The applicant perpetrated further frauds in late 2017 and in January 2019. They were offences contrary to s 192E(1)(b) of the Crimes Act (counts 1 and 2) or s 192E(1)(a) of the Crimes Act (counts 3 and 5). Other offending, being offences contrary to s 192E(1) of the Crimes Act, were taken into account on a Form 1 in relation to counts 1, 2 and 5. On 24 March 2022, the applicant was convicted and sentenced for these offences by Sweeney DCJ.

39. [47]

    What follows is a short summary of this offending, excluding the Form 1 offending. In September 2017, the applicant engaged a demolition and civil construction company to undertake work, following which the company rendered invoices totalling $34,486.52. The applicant provided a number of cheques in payment of the invoices, each of which was dishonoured. After each cheque was dishonoured, the company contacted the applicant who then provided further cheques which were in turn also dishonoured. This offending was count 1. For this count, an offence on a Form 1 was taken into account when sentencing the applicant – namely, an offence of dishonestly obtaining a financial advantage by deception at Unanderra between 19 May 2020 and 26 June 2020.

40. [48]

    In December 2017, the applicant made a booking to stay at a hotel for one week. Payment of $3,548.00 was made in two instalments from the applicant’s bank account to pay for that booking. The applicant cancelled the booking, and sought a refund. The hotel provided a refund to the applicant shortly after he made the request. Subsequently, the hotel noticed that the funds originally transferred by the applicant had been retracted from the hotel’s bank account back to the applicant’s bank account. The hotel contacted the applicant, requesting that the amount of $3,548.00 be returned to it, and the applicant agreed. The applicant then deposited, from his bank account, that amount into the hotel’s account. Following this deposit, the applicant then reversed this amount out of the hotel’s account. The hotel requested a meeting and the return of the funds, and despite agreeing to both, the applicant did not attend the meeting or return the money. This offending was count 2. For this count, an offence on a Form 1 was taken into account when sentencing the applicant – namely, an offence of obtaining a financial advantage committed on 21 November 2017 at Mascot.

41. [49]

    In December 2017, the applicant purchased five mobile telephones from a retail outlet. He initially contacted that business by telephone, and advised them that he wished to purchase the telephones “by direct deposit” from an ATM. That same day, the applicant attended the outlet and produced an ATM receipt as evidence of payment. Subsequent enquiries showed that on that day a cheque for $7,700.00 drawn from the applicant’s SMSF (referred to earlier in relation to the frauds involving CBUS) had been deposited into the outlet’s bank account. That amount was reversed out of the outlet’s account. When the applicant was pursued by the retailer for payment, the applicant provided his credit card details, but the credit card payment was declined. The applicant admitted that he sold the mobile telephones on Gumtree to “put toward some bills”. This offending was count 3.

42. [50]

    In January 2019, the applicant agreed to purchase a boat that had been advertised online. When the applicant went to the seller’s residence to collect the boat, he showed the seller a screenshot of a bank transfer confirmation, recording the deposit of $3,500.00 into the seller’s account, on his mobile telephone. Having done this, the applicant then attached the boat and trailer to his vehicle, and left the seller’s address.

43. [51]

    The seller later checked his bank account and saw that no funds had been transferred. He then contacted his bank and was informed that there was no transfer pending, or any record of any transfer occurring. The seller made contact with the applicant who told the seller that he would transfer the funds soon, but never did so. This offending was count 5. For this count, an offence on a Form 1 was taken into account when sentencing the applicant – namely, an offence of dishonestly obtaining property by deception, occurring on 30 January 2018.

44. [52]

    The above offending had the charge numbers H68932785 (counts 1, 2 & 3) and H77058484 (count 5).

45. [53]

    The applicant was also charged with doing an act intending to pervert the course of justice, an offence contrary to s 319 of the Crimes Act. This constituted count 4. The circumstances of that offending arose in connection with the applicant being granted conditional bail on 20 March 2018 for the offending with the charge number H68932785. A condition of his bail was the provision of security of $100,000.00. In order to raise this security, the applicant engaged in further dishonesty.

46. [54]

    The victim in this matter was the same victim involved in what has been described as the first CBUS fraud. He was the registered proprietor of a property at Strathfield. On 28 March 2018, the solicitor for the applicant asked Westpac bank to consent to a second mortgage over the property so that the applicant could provide surety to meet his bail conditions. On 3 April 2018, the solicitor sent to Westpac a statutory declaration sworn by the applicant declaring that he and the victim (who, as previously noted, shared the same surname) were the same person. As a result, Westpac consented to a mortgage over the victim’s property. Given that consent, on 5 April 2018, Westpac provided a letter addressed to the Prothonotary of the Court providing that consent to a subsequent mortgage over the victim’s property so as to fulfil the bail condition.

47. [55]

    On 7 April 2018, the applicant, having fulfilled the conditions for his release, was released on bail.

48. [56]

    At some time during April 2018, the victim became aware that, without his consent, his property had been used as security for the applicant’s bail. On 24 May 2018, the applicant agreed to attend Auburn police station, but subsequently failed to do so. An arrest warrant was issued.

49. [57]

    On 7 August 2020, the applicant was arrested. He was refused bail in connection with the offending with charge number H68932785 and the current matter, and his parole was also revoked.

50. [58]

    The applicant was, as I have noted above, sentenced by Sweeney DCJ on 24 March 2022. During the course of the sentence proceedings, the applicant, through his legal representative, tendered medical evidence that had been falsified by the applicant: some of the medical evidence tendered had been “reworded” so as to establish that he was gravely ill, and some of the medical evidence was simply fabricated. It is important to stress that there is no suggestion that the applicant’s legal representatives were aware of the falsity of those records. It is presently necessary simply to note two consequences of the applicant’s use of the fraudulent medical evidence. The first is that the material formed a critical part of the applicant’s subjective case on sentence, and significantly informed the aggregate sentence ultimately imposed. The second is that the material provided the foundation for the applicant’s successful release application. Conditional bail was granted from 31 March 2022, this date being the expiration of the non-parole period of the sentence imposed (see [62], below).

51. [59]

    In connection with ground 1 of the applicant’s amended notice of appeal, it is relevant to note the following. Before imposing the sentence upon him, Sweeney DCJ specifically addressed the commencement of the sentence. In this respect, her Honour observed the following:

    1. (1)

       The applicant’s pre-sentence custody, broken into periods, “totals one year eight months and 26 days as at the date of the sentencing hearing” on 10 March 2022. This is approximately 631 days.

    2. (2)

       The applicant’s parole was revoked a number of times. The first time was in March 2018 but, as the applicant secured conditional bail at that time, the revocation of parole order was rescinded.

    3. (3)

       Subsequently, although parole was again revoked in July 2018, because the applicant was not arrested and returned to custody until 7 August 2020, the revocation of parole made in 2018 commenced from that date. The applicant served the balance of his parole – which was 1 year, 1 month and 23 days – from 7 August 2020 until 29 September 2021.

52. [60]

    In determining when to commence the applicant’s sentence, Sweeney DCJ made the following finding:

53. [61]

    The aggregate sentence imposed by Sweeney DCJ was 3 years imprisonment, with a non-parole period of 18 months. The sentence was to commence on 1 October 2020, and the non-parole period to expire on 31 March 2022. It is, thus, apparent that the effect of the backdating by Sweeney DCJ was to give the applicant the benefit of the entire time he had spent in custody since his arrest on 7 August 2020 when his parole was revoked except for a period of slightly less than two months.

54. [62]

    The applicant made, following the sentencing hearing before Sweeney DCJ, a successful release application in connection with the charges for the first CBUS fraud. He was granted conditional bail from 31 March 2022, being the date of the expiration of the non-parole period. It is apparent from the bail judgment, and subsequent events, that the applicant secured the benefit of not only a lower aggregate sentence, but the grant of conditional bail, based upon the provision of the falsified medical evidence. That medical evidence was relied upon by Sweeney DCJ, in effect, to find that he had “end stage heart failure, for which he requires assessment for a transplant”; that he required treatment for the neurological effects of a stroke that he suffered in August 2020; and that he had been found to have a cancerous tumour on his kidney and adrenal gland requiring urgent medical treatment.

55. [63]

    On 22 October 2022, the applicant was “rearrested” for further fraud offences committed between January and March 2017 – earlier described as the second CBUS fraud (see [42], above). He was returned to custody at that time as bail was refused for that offending, the perverting the course of justice offence and the current matter. The applicant entered a plea of guilty to the second CBUS fraud offending on 1 June 2023, and the matter was fixed for sentence on 10 August 2023 (being the day before the applicant was sentenced by Noman SC DCJ for the first CBUS fraud).

56. [64]

    For the second CBUS fraud, the applicant was convicted and sentenced “to a term of 18 months with a non-parole period of 9 months to date from 22 December 2022. The non-parole period expires on 21 September 2023”: SJ [21].

57. [65]

    Additionally, on 20 October 2022, the applicant was charged with doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act. That charge arose out of the falsification of the medical evidence that was put before Sweeney DCJ during the sentencing hearing, as well as being relied upon in support of the application for conditional bail made on 24 March 2022.

58. [66]

    In relation to this offending, the applicant was convicted on 19 October 2023 in the Burwood Local Court and sentenced to 2 years imprisonment, commencing on 22 October 2022 and concluding on 21 October 2024. The applicant lodged a severity appeal to the District Court, which was heard on 8 February 2024. That appeal was successful, and the sentence was varied. The sentence remained that of 2 years imprisonment, however, a non-parole period of 18 months was introduced, which concluded on 21 April 2024.

59. [67]

    On 17 February 2023, the applicant secured conditional bail in connection with the first CBUS fraud, granted by Buscombe DCJ. Nevertheless, the applicant remained in custody in connection with the second CBUS fraud and the perverting the course of justice offence.

Ground 1: manifest excess

1. [68]

   Ordinarily, when grounds are raised in addition to one involving whether the sentence is manifestly excessive, it is appropriate to deal first with the grounds alleging patent error before dealing with whether there is a latent error in the sentence: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]; Taitoko v R [2020] NSWCCA 43 at [64]. The explanation for that approach lies in the fact that demonstration of error may serve to explain why the sentence is excessive. Here, although the ground is expressed as one directed to manifest excess, the substance of the complaint in fact rests upon the existence of a series of alleged errors that were said to have been made – errors that had the consequence of the applicant not receiving the benefit of pre-sentence custody or inadequate concurrence with the sentence imposed for the second CBUS offending. Given those circumstances, it is appropriate to deal with the grounds in order.

2. [69]

   The applicant’s essential submission is that although the sentencing judge backdated his sentence by two months to reflect his pre-sentence custody (SJ [40]), that backdating was erroneous. The applicant submitted that his “total time in custody to 14 March 2024 = 1111 days”, and that time should have been taken into account when he was sentenced (applicant’s submissions, p 3 par (k)).

3. [70]

   In aid of this ultimate submission, the applicant drew attention to remarks made by Buscombe DCJ when granting the applicant conditional bail on 17 February 2023, particularly the remark that his Honour was “concerned that he will ultimately end up spending longer in custody than he will receive by way of a sentence” (applicant’s submissions, p 3 par (j)). That submission can be put to one side as irrelevant. The remarks of Buscombe DCJ were directed to a particular factor that supported the applicant’s release on bail. They do not, relevantly, bear upon or inform the task of the sentencing judge in the present case, nor the ground of appeal with which this Court is concerned.

4. [71]

   I return to the applicant’s principal submission – namely, that he failed to receive, as at 14 March 2024, the benefit of backdating amounting to 1,111 days. The selection of the date 14 March 2024 is opaque. It does not coincide with the date the applicant filed (or prepared) the notice of appeal, the amended notice of appeal or his submissions in support. And, self-evidently, it post-dates when his sentence was imposed by a significant margin. The period for which backdating is sought by the applicant, from the date nominated by him, amounts to slightly over three years – to be precise, it dates back to 27 February 2021. During the course of the hearing, the applicant submitted that he had “served close to 1,180 days for the index offence in conjunction with other matters” (T6.36-6.38). The other “matters” referred to by the applicant were what has earlier been described as the second CBUS fraud (T6.10-6.47), offending that he submitted was “linked” and for that reason any sentence imposed by the sentencing judge should have been fully, or substantially, concurrent with that sentence (applicant’s submissions pp 3-4, pars (l) and (m)).

5. [72]

   The Crown contested that the sentencing judge committed any error, submitting that the only period in which the applicant was not serving any other sentences was between 22 October 2022 and 22 December 2022, and that the sentencing judge had correctly taken that into account by backdating the sentence by 2 months (Crown submissions at [72]-[73]). Given these matters, the Crown argued that no error in the exercise of the sentencing discretion can be demonstrated. That is particularly so because the applicant had accepted during the sentencing proceedings that this two-month period was the only portion of his pre-sentence custody solely referrable to the present offending (Crown submissions at [73]).

6. [73]

   As explained in what follows, the applicant's complaints should be rejected, largely for the reasons advanced by the Crown.

7. [74]

   Given the nature of the challenge by the applicant, the findings of the sentencing judge that deal with the backdating of the sentence warrant restatement.

8. [75]

   In terms of the time that the applicant had spent in custody, the sentencing judge made the following findings (SJ [19]-[22]):

9. [76]

   Subsequently, having made those findings, the sentencing judge then determined to backdate the applicant’s sentence (SJ [40]):

10. [77]

    The “current sentence” and the “current non-parole period” referred to by the sentencing judge are references to the sentence imposed for the second CBUS offending: on 10 August 2023, the applicant was sentenced to a term of 18 months, with a non-parole period of 9 months to date from 22 December 2022 and expiring on 21 September 2023: SJ [21].

11. [78]

    When sentencing an offender, “any time for which the offender has been held in custody in relation to the offence” must be taken into account by the sentencing court (s 24(a) of the CSP Act) and, when determining when that sentence is to commence, the sentencing court “must take into account any time for which the offender has been held in custody in relation to the offence”: s 47(3) of the CSP Act.

12. [79]

    In addition to these statutory provisions, the following two principles are also of present relevance. The first is that, whilst there is “no absolute rule as to how such pre-sentence custody is to be taken into account by a sentencing court”, it has also been acknowledged that “backdating the commencement of a sentence to directly reflect the period of pre-sentence custody is the usual course adopted”: Salafia v R [2015] NSWCCA 141 at [65]-[66] (‘Salafia’); Wiggins v R [2010] NSWCCA 30 at [3] (‘Wiggins’). The adoption of the usual and preferable course “avoids the possibility of an offender feeling that he or she has been unjustly dealt with on sentence by a perceived failure to reflect pre-sentence custody”: Salafia at [67]; Wiggins at [2]. The second is that, in situations where the offender’s time spent in custody is not solely or exclusively attributable to the offences for which the sentence is being passed, including in circumstances where the offender is serving the balance of parole for an earlier offence, then it is a matter of discretion for the sentencing judge to determine whether – and, if so, to what extent – there should be backdating of the sentence: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21]-[24]; Mattiussi v R [2023] NSWCCA 289 at [49].

13. [80]

    I turn now to address the applicant’s complaints about the manner in which the sentencing judge took into account pre-sentence custody.

14. [81]

    I do not accept the applicant’s submission that the sentencing judge committed any error in connection with the backdating of his sentence. That is for the following reasons.

15. [82]

    First, the applicant’s time spent in custody since his arrest on 7 August 2020 was specifically considered, initially when sentenced by Sweeney DCJ on 24 March 2022; and, again, when sentenced by Noman SC DCJ on 11 August 2023.

16. [83]

    The manner in which Sweeney DCJ gave consideration to the applicant’s pre-sentence custody from the time that the applicant’s parole was revoked is apparent from her Honour’s reasons (as earlier summarised: see [59]-[61], above), and reflected in the fact that the sentence imposed by her Honour on that day was ordered to commence on 1 October 2020. Put simply, the applicant’s custodial history to the date of sentence was fully considered by Sweeney DCJ when determining the commencement date for that sentence, and the applicant received the benefit of significant backdating to take account of it. This was acknowledged by the sentencing judge: SJ [20]. It is impermissible for the applicant to have the benefit of that pre-sentence custody a second time.

17. [84]

    In relation to the period following the applicant being sentenced by Sweeney DCJ, as earlier noted, the applicant was granted conditional bail by Sweeney DCJ from 31 March 2022, the date that coincided with the expiration of the non-parole period for the sentence her Honour imposed on 24 March 2022.

18. [85]

    The applicant, however, returned to custody on 22 October 2022 as a result of bail being refused for three different sets of offences: the current matter, the offence of perverting the course of justice and the second CBUS fraud.

19. [86]

    On 17 February 2023, the applicant was granted conditional bail by the District Court in connection with the current matter. He remained, however, bail refused in connection with the perverting the course of justice offence and the second CBUS fraud.

20. [87]

    On 10 August 2023, the applicant was sentenced for the second CBUS fraud. As the sentencing judge noted (SJ [21]), the applicant was sentenced to imprisonment for 18 months to commence on 22 December 2022 and expiring on 21 June 2024. A non-parole period of 9 months was imposed, which expired on 21 September 2023.

21. [88]

    The period between when the applicant returned to custody (on 22 October 2022) and the commencement of the sentence for the second CBUS fraud (on 22 December 2022) is the period in custody that the sentencing judge specifically took into account: SJ [22]. The sentencing judge backdated “the sentence by 2 months to reflect the time solely in custody” and also by “a further 2 months in applying totality” with the sentence for the second CBUS fraud (SJ [40]).

22. [89]

    Once the applicant’s pre-sentence custodial history is understood, it is apparent, in my view, that his complaint of error in connection with the backdating of his sentence is without substance. In my view, if anything, the finding of the sentencing judge was a generous one that was unquestionably favourable to the applicant, given that none of the pre-sentence custody was solely referable to the current matter.

23. [90]

    Furthermore, there is no substance to the applicant’s complaint there was any error in backdating the sentence “a further 2 months in applying totality” with the sentence for the second CBUS fraud. In my view, if anything, that finding was a generous one favourable to the applicant, given the distinct and separate nature of the offending. Contrary to the applicant’s suggestion, any greater degree of concurrence would fail to properly “reflect the totality of the criminality for which the offender was to be punished for the two acts of offending”: R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[13]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

24. [91]

    Secondly, there is no basis upon which it could possibly be suggested that the sentencing judge’s discretion miscarried, and the applicant did not advance any basis upon which such a conclusion could be reached, so as to permit the backdating issue to be revisited by this Court.

25. [92]

    Thirdly, the sentencing case the applicant now seeks to mount in this Court was not, however, advanced in the Court below. There, the applicant requested the sentencing judge take into account 302 days (T15.33-15.38):

26. [93]

    Given the applicant’s position before the sentencing judge, it is simply not open to adopt a different position and suggest that there should be some greater allowance when no such submission was put to the sentencing judge: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]. Nor, given that position, could it be said that the sentencing judge’s discretion miscarried in connection with this issue. In any event, each of those periods identified by the applicant during the course of submissions before the sentencing judge has been fully considered – for the first period (from 29 September 2021 to 31 March 2022), by Sweeney DCJ, by backdating the sentence to 1 October 2020; and for the second period (from 22 October 2022 to 17 February 2023), by the sentencing judge, by backdating the sentence initially “by 2 months” for the period between 22 October and 22 December 2022 and acknowledging that beyond that time he was serving his sentence for the second CBUS fraud (SJ [21]-[22], [40]).

27. [94]

    For those reasons, I would reject this ground of appeal.

Ground 2: error in rejecting evidence of the applicant’s remorse and willingness to compensate the victim

1. [95]

   By this ground of appeal, the applicant argued that the sentencing judge “erred in rejecting evidence of remorse and willingness to compensate the victim”. There are two overlapping parts to the applicant’s argument. First, the applicant submitted that the sentencing judge erred in finding that he had “limited genuine remorse”; his letter of apology dated 1 August 2023, it was submitted, “demonstrates extensive remorse” (applicant’s submissions, p 4 pars (a) and (b)). Secondly, the applicant submitted that the sentencing judge erred by failing to accept, and act upon, the applicant’s offer to make restitution to the victim (applicant’s submissions, p 5 par (g)).

2. [96]

   In my view, there is no substance to the applicant’s complaints. I explain, in what follows, why I consider this to be so.

3. [97]

   Before the sentencing judge, the applicant relied upon a letter of apology dated 1 August 2023, as well as an “undertaking” contained in a statutory declaration that he would repay the victim the amount the subject of the fraud, as demonstrating remorse.

4. [98]

   The sentencing judge did not accept the applicant’s submissions, concisely expressing her conclusions as follows (SJ [23]-[24]):

5. [99]

   I will next address the applicant’s submissions.

6. [100]

   In relation to the finding that there was only “limited genuine remorse”, the applicant’s challenge is self-evidently a challenge to a factual finding and, even then, directed only to the weight given to his remorse as reflected in his letter dated 1 August 2023.

7. [101]

   In my view, that finding was clearly open on the material before the sentencing judge: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131]; Ocek v R [2023] NSWCCA 308 at [116]. Furthermore, the weight to be attached to the expressions of “remorse” contained within the applicant’s letter is quintessentially a matter for the sentencing judge and not this Court. The sentencing judge was quite entitled to be sceptical of the extent to which the content of the letter was reflective of genuine remorse. That is particularly so where the sentencing judge had earlier found the applicant to be “an unreliable historian” and a person who had “the disadvantage of coming before the court as a person with limited credibility, a person who lies and misrepresents to achieve a goal” (SJ [16]) and that he was a “serial fraudster” (SJ [18]). Those findings, which are not challenged, amply justify the measured finding made by the sentencing judge in connection with remorse.

8. [102]

   In relation to the offer of restitution, the applicant’s argument was that the sentencing judge should have acted upon his offer to repay the victim, contained as it was in a statutory declaration. (The offer of restitution was, in fact, not to pay the victim, but to pay CBUS Superannuation Limited. Nothing turns on this).

9. [103]

   In my view, the fact that the sentencing judge was unwilling to act upon the offer of restitution was hardly surprising given the unfavourable credibility findings to which reference has been made above, and given the other unfavourable credibility findings made in the context of the applicant’s offer of restitution – namely, that the applicant has demonstrated a “preparedness to swear a false statutory declaration as evidenced in his perverting the course of justice to secure bail and the use a forged witness signature to a statutory declaration to commit the index offence” (SJ [23]). Again, as with the applicant’s argument in connection with his letter dated 1 August 2023, the sentencing judge was quite entitled to be sceptical of this offer of restitution, given the adverse view her Honour formed about his credibility. The sentencing judge was also quite entitled to be sceptical about whether there was a “legitimate source of money” in fact available to satisfy that offer (SJ [23]). It follows that, in my view, it was not only open for the sentencing judge to arrive at that conclusion, but entirely unsurprising that she did.

10. [104]

    For these reasons, this ground of appeal should be rejected.

Ground 3: [REDACTED]

1. [105]

   [REDACTED]

2. [106]

   [REDACTED]

3. [107]

   [REDACTED]

4. [108]

   [REDACTED]

5. [109]

   [REDACTED] Thus, the only submission that he made [REDACTED] was dealt with by the sentencing judge, and resolved favourably to the applicant. Contrary to what the applicant appears to argue, no error can possibly arise in those circumstances.

6. [110]

   [REDACTED]

7. [111]

   [REDACTED]

8. [112]

   [REDACTED]

9. [113]

   [REDACTED]

10. [114]

    [REDACTED] Generally speaking, although this Court can receive new evidence in order to avoid a miscarriage of justice (see Toller v R [2021] NSWCCA 204 at [22]-[25] (‘Toller’)), the review of a sentence in light of subsequent events is a matter for the Executive Government, and not this Court: Borg v R; Gray v R [2020] NSWCCA 67 at [46], citing Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [56]; Toller at [24]. No attempt was made by the applicant to argue that a miscarriage of justice has arisen and, given the finding that the sentencing judge made [REDACTED], it is difficult to accept there is any basis to argue one has.

11. [115]

    For these reasons, this ground of appeal should be rejected.

Ground 4: the error relating to the applicant’s mental health diagnosis

1. [116]

   By this ground of appeal, the applicant argues that the sentencing judge “erred by failing to proper[ly] consider evidence about my Mental Health from Dr Roberts a professional psychiatrist confirming the diagnosis…”.

2. [117]

   In furtherance of this ground, the applicant argued that the report from Dr Roberts, which was admitted without objection, diagnosed him as suffering from a range of mental health problems and that “no weight” was given to them and, further, the sentencing judge made adverse findings about his credibility in connection with the history contained in Dr Roberts’ report “without alerting me that she intended to do so” (applicant’s submissions, p 8 par (b) and p 9 pars (h), (i) and (m)).

3. [118]

   The first part of the argument involves a complaint about the weight given to the various mental health conditions diagnosed by Dr Roberts. As explained above when dealing with other grounds where a similar complaint is raised, the weight that is given to any evidence is quintessentially a matter for the sentencing judge, not this Court. A complaint such as this, confined merely to a contention involving the weight given to evidence, does not ground an appeal to this Court.

4. [119]

   There is no substance to this complaint, in any event. I will briefly explain why. From a review of the transcript of the proceedings before the sentencing judge, it appears that Dr Roberts’ report was relied upon by the applicant in the following ways: first, to demonstrate that he had not received treatment for his mental health conditions whilst in custody, a matter that may be taken to be reflected in the following submission made by him to the sentencing judge: “I haven’t seen mental health. I’ve got to wait to see mental health since 2021, since my last sentence” (T18.14-18.15); and, secondly, that he had been the subject of childhood abuse (T12.21-12.29).

5. [120]

   These matters were each considered by the sentencing judge, and dealt with in the sentencing judgment. Thus, in relation to the level of treatment the applicant is receiving in custody, the general finding was that the “level of care” the applicant is receiving “presents as less than optimal” (SJ [30]). But in relation to the mental health issues specifically, the sentencing judge did “not consider [that] they make his conditions in custody more onerous” (SJ [35]). That finding was not, at least directly, challenged and it is an unremarkable one given the limited nature of the submission that was put to the sentencing judge. The finding was plainly open and, in my view, no further “weight” was required to be given to this matter by the sentencing judge.

6. [121]

   In relation to the “childhood abuse”, the sentencing judge emphasised, without wishing to “downplay the role sexual abuse would have on any victim”, it did not “of necessity explain all life choices and pathways” (SJ [15]). Earlier, the sentencing judge noted that “Dr Roberts blandly noted the statistical association between childhood sexual assault and criminality and opined it would have disrupted his education and employment” (SJ [14]). Again, in my view, the way the sentencing judge dealt with this matter was unremarkable, and plainly open to her. There was no error in the approach taken and no further “weight” was required to be given to this matter by the sentencing judge.

7. [122]

   The second part of the applicant’s complaint is that he was not forewarned by the sentencing judge that she might not act upon the history contained in Dr Roberts’ report.

8. [123]

   In my view, the applicant’s complaint is entirely without substance because, contrary to what was argued, the sentencing judge specifically forewarned the applicant that she might not act upon the history in that medical report. That is apparent from the exchange that took place following a submission by the applicant that, in effect, where a medical report tendered in support of an offender’s sentencing case “goes uncontested, essentially what is the history provided by the offender can be accepted” (T12.3-12.4; T13.2-13.19):

9. [124]

   Thus, contrary to what the applicant submitted, the sentencing judge squarely and appropriately raised his credibility (or lack thereof) in the context of the applicant addressing the sentencing judge on the content of Dr Roberts’ report. There is no basis to contend that the applicant was not forewarned of the possibility of the sentencing judge not acting upon the history contained in Dr Roberts’ report.

10. [125]

    For these reasons, this ground of appeal should be rejected.

Ground 5: the error relating to the applicant’s health

1. [126]

   By this ground of appeal, the applicant argues that the sentencing judge failed to properly consider evidence about what he described as his “Medical Comorbidities and Diagnosis”. The applicant, in his written submissions, argued that the medical evidence before the sentencing judge confirmed that he had “been diagnosed with a number of medical comorbidities and need treatment” and that there was evidence before the sentencing judge that the applicant was “not receiving… adequate treatment from Justice Health” (applicant’s submissions, p 9 par (a) and p 10 pars (b)-(d)).

2. [127]

   The sentencing judge dealt with the applicant’s health issues when considering the overall sentence to be imposed, but also in the context of assessing whether a finding of special circumstances should be made so as to justify a departure from the statutory ratio under s 44(2) of the CSP Act.

3. [128]

   The relevant passages of the sentencing judgment addressing these matters are at SJ [30] and SJ [39]:

4. [129]

   The sentencing judge varied the statutory ratio to 60% to give effect to the finding of special circumstances: SJ [41].

5. [130]

   In the course of his submissions in this Court, the applicant raised concerns about not receiving adequate treatment whilst in custody. In particular, some emphasis was placed upon the inadequacies of a CPAP machine that was provided to assist him with his sleep apnoea and the issues that he has (apparently) had in having them remedied by Justice Health.

6. [131]

   When asked to identify how those complaints informed his challenge to the sentence imposed upon him, the applicant indicated that he no longer pressed the ground of appeal (T14.38-15.6).

7. [132]

   Accordingly, this ground of appeal should be rejected.

Ground 6: the error relating to “how the crime was committed from a confined environment”

1. [133]

   By this ground of appeal, the applicant argues that the sentencing judge “failed to consider all the facts put before her with respects to how the crime was committed from a confined environment”.

2. [134]

   Although the ground of appeal is framed in this way, the applicant’s written submissions complained that the Crown failed to “put before the courts and fail[ed] to alert” the sentencing judge to the fact that there was a co-accused without whom “it would have been near impossible” for him to commit the offence (applicant’s submissions, p 11 pars (c)-(e)).

3. [135]

   The fact that the offending occurred largely whilst the applicant was in custody (see [10]-[15], above) was noted by the sentencing judge, who remarked that it remained “unclear how [the applicant] accessed documentation” and undertook other aspects of the fraud whilst incarcerated (SJ [12]). The fact that the agreed facts lacked some specificity as to how he undertook the offending is of no moment: he pleaded guilty to the offence (and acknowledged his guilt in regard to the matter on the Form 1) and signed the agreed facts, upon which he was sentenced.

4. [136]

   During the course of the applicant’s submissions in this Court directed to this ground, he was invited to identify the error allegedly made by the sentencing judge, given he had entered a plea of guilty to the offending.

5. [137]

   The applicant, by way of response, accepted that he did not raise this issue before the sentencing judge, and indicated that he no longer pressed the ground of appeal (T20.26-20.46).

6. [138]

   Accordingly, this ground of appeal should be rejected.

Ground 7: the sentencing judge “fail[ed] to proper[ly] consider an ICO or a Suspended sentence as [opposed] to full time in custody”

1. [139]

   By this ground of appeal, the applicant argues that he should be “given an opportunity to complete a ICO or Suspended sentence I would far more benefit from it as [opposed] to a full time custodial sentence” (applicant’s submissions, p 12 par (d)).

2. [140]

   The sentencing judge addressed the issue of whether it was appropriate for any sentence imposed to be served by way of intensive correction order (SJ [36]-[37]):

3. [141]

   As the Crown submitted, the last sentence of SJ [37] was a reference to s 68(1) of the CSP Act. By that section, an intensive correction order “must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years”. Here, as the sentence imposed was a sentence of imprisonment for 2 years and 9 months, it followed that an intensive correction order was not an available sentencing option.

4. [142]

   For these reasons, this ground of appeal must be rejected.

Ground 8: the sentencing judge failed “to consider all the facts” including that the applicant was not legally represented

1. [143]

   By this ground of appeal, the applicant argued that the sentencing judge “failed to consider all the facts put before her, specifically that I wasn’t legally represented, I was under the impression that, ‘if I made submissions I can’t be cross examined’”.

2. [144]

   The applicant, in his written submissions filed, argued that he was unaware of the distinction between making submissions, and giving evidence, and he was not aware of the “adverse impact” of not giving evidence (applicant’s submissions, p 12 par (b)). During the course of submissions in this Court directed to this ground, he maintained that he had “always been under the impression that if you’re represented, when you’re representing yourself, that should substitute for evidence” (T16.27-16.30).

3. [145]

   I do not accept any of the applicant’s complaints. Contrary to what was argued, it is, in my view, readily apparent that the sentencing judge made clear to the applicant the distinction between making submissions and giving evidence and, having had that explained, he acknowledged that he understood that distinction. That is evident from a number of exchanges that occurred during the course of the sentencing hearing. It is only necessary to refer to the following (T11.17- 11.49):

4. [146]

   This exchange demonstrates why there is no substance to the applicant’s complaint. In any event, it should also be noted that in this Court, when asked to identify in what way the sentencing judge made an error arising out of his decision not to give evidence, the applicant indicated that he did not press the ground (T17.22-17.24).

5. [147]

   For these reasons, I would reject this ground of appeal.

Orders

1. [148]

   For the above reasons, I propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal against the sentence imposed on 11 August 2023.

   2. (2)

      Dismiss the appeal against the sentence.