PC v R

BATHURST CJ: I agree with Hoeben CJ at CL.

HOEBEN CJ at CL: Before the appeal commenced, the Court made a suppression order in the following terms: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), order that any information tending to reveal the identity of the applicant not be disclosed. The order was made on the grounds that the order was necessary to protect the safety of the applicant. The order was to extend throughout the Commonwealth.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Williams SC on 2 February 2018 in the District Court at Sydney.

The applicant pleaded guilty to 11 offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (the Act). A further ten offences of the same kind were taken into account on sentence by way of three Forms 1.

The maximum penalty for an offence contrary to the Act is imprisonment for 10 years.

The applicant was sentenced to an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years, commencing 28 November 2014 and expiring 27 November 2026. The earliest day on which the applicant will become eligible to be released on parole is 27 November 2022.

In summary, the applicant obtained large sums of money from 21 victims whom he had befriended by falsely representing that he was going to invest money on their behalf in sophisticated investment opportunities with promised high returns. The total amount of money obtained by the applicant was in the order of $4.6 million of which approximately $3.6 million remains unaccounted for.

Details of the offences including the indicative sentences are set out in a table marked Annexure “A” attached to this judgment.

The aggregate sentence was the product of his Honour allowing for a reduction of 25 per cent for the utilitarian value of the applicant’s early pleas of guilty and an additional 10 per cent for assistance that the applicant had provided to the authorities. The non-parole period represented 66.7 per cent of the head sentence, reflecting a finding of special circumstances.

The applicant seeks leave to appeal against the aggregate sentence on the following grounds:

The applicant had previously been convicted of a number of fraud offences and was sentenced on 8 July 2005 by his Honour Judge Bell to a term of imprisonment of 8 years with a non-parole period of 5 years and 6 months, commencing 12 May 2004. The applicant was released to parole on 11 November 2009 and his sentence expired on 11 May 2012.

This offending began in the last few months of the applicant’s parole period and continued after expiration. The applicant was arrested on 31 March 2014 and granted bail. He committed a further series of offences and his bail was revoked on 28 November 2014.

Four offences were committed during the parole period (victims Cole, Panagopoulos, Joseph and Smith). There were 12 offences committed after the expiration of the parole period but before his arrest (victims Kalouche, Langley, Gan, Makrakis, Zanella, Ware and Knox, Wen, Hewitt, Martin, Busuttil and Walsh). Five offences were committed while he was on bail after his arrest (victims Doble, Smith, Panigiris, Antonini and McRae).

The agreed facts were set out comprehensively in a 74 page document. His Honour dealt with those agreed facts as follows in the sentence judgment:

His Honour took into account the victim impact statements on the basis that they set out the type of consequences one would expect from offending of this kind. His Honour also took into account the applicant’s own description of the effects of his offending on the victims in his letter to the Court. On that issue, his Honour observed:

In addition to the letter to the Court, the evidence for the applicant comprised two psychological reports and an affidavit from his solicitor summarising some of his experiences in custody. The applicant did not give evidence. As a result, his Honour treated the history set out in those documents with some caution except where they contained admissions by the applicant. It was common ground that his letter to the court contradicted parts of the histories recorded by the psychiatrists.

His Honour found that the applicant had a privileged upbringing, having been born on the northern beaches and having attended Sydney Grammar School. As a result, he was given all the opportunities, contacts and family support required to fashion a comfortable life. His Honour noted that in his letter to the Court the applicant said:

His Honour specifically noted that the applicant did not blame drug or alcohol addiction for his offending (contrary to what he had told Mr Watson-Munro). His Honour accepted that the applicant was solely to blame for his actions and for the behaviour which caused such devastating and disastrous consequences for many of his victims.

His Honour gave little weight to the applicant’s assertion in the letter that he had made numerous attempts to raise capital to pay back the victims. His Honour found that:

Nevertheless, his Honour accepted that the letter did demonstrate some remorse and regret and that the applicant was genuinely sorry for having caused the pain and suffering which he had.

His Honour found:

His Honour rejected the Crown’s submission that the offending involved a significant breach of trust so as to give rise to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). His Honour also rejected the Crown submission that the substantial loss of money constituted an aggravating factor under s 21A. His Honour found that a substantial financial loss was an inherent feature of any offence under this type of legislation. His Honour rejected the Crown submission that these were multiple offences so as to constitute an aggravating factor under s 21A(2)(m) of the Sentencing Act. His Honour did so because he found:

There was no issue between the parties that the applicant was entitled to a discount of 25 per cent for the utilitarian value of his plea of guilty. In relation to whether a further discount should be allowed for providing assistance to the authorities pursuant to s 23 of the Sentencing Act, his Honour said:

His Honour found that there was little solid evidence to support the proposition that the applicant had favourable prospects of rehabilitation. His Honour noted that senior counsel for the applicant referred to his remorse and contrition, as demonstrated by his early pleas of guilty, and that he had placed himself at some risk by reason of the matters which were the subject of the s 23 application. In those circumstances, his Honour assessed the prospects of rehabilitation as “guarded”.

His Honour found special circumstances because of the applicant’s need for counselling, his relatively young age and the fact that there would be a degree of notional accumulation in the sentencing process.

His Honour took into account the principle of totality and in particular, the advisability of a sentencing court taking a last look at the total sentence to see whether it looked wrong. His Honour particularly noted the need to consider totality in fraud cases, given that most of them involved multiple offences, and that the application of the totality principle must not result in a blanket assessment for each offence.

His Honour set out his conclusions as to totality as follows:

The applicant submitted that there were fundamental flaws in the sentencing process adopted by his Honour in that he:

In relation to (1) above, the applicant submitted that it was necessary for his Honour to summarise precisely and carefully the facts giving rise to each offence and set out his factual findings in respect of each offence. The applicant submitted that his Honour had failed to find facts relevant to the indicative sentences and to apply to the facts as found, the relevant law and sentencing principles.

The applicant submitted that his Honour’s failure to advert to the factual circumstances of each individual offence meant that he had, in effect, failed to provide adequate reasons for his decision. The applicant submitted that his Honour had erred when he found that it was “unnecessary to delve into the details of each particular date and amount of repayment” (sentence judgment [15]).

The applicant submitted that a proper assessment of objective seriousness of an offence required more than a bare recitation of the facts and a reference to the objective circumstances of the offending. The applicant was critical of the observation made by his Honour during the sentence proceedings when he said that he did not need to “ascribe a ... level of objective seriousness in terms of any scale of high, medium or low or whatever” because s 192E(1)(b) offences under the Act did not attract standard non-parole periods pursuant to Div 1A of Pt 4 of the Sentencing Act.

In support of that proposition, the applicant relied upon the following observations by Simpson J (as her Honour then was) in R v Campbell [2014] NSWCCA 102 (Hall J agreeing):

Relying upon that statement of principle, the applicant submitted that the sentencing judge erred in concluding that because s 192E offences did not attract standard non-parole periods his Honour did not have to consider and assess the objective gravity of the offences. The applicant submitted that his Honour’s remarks on sentence fell short of what was required, in part because his Honour thought it was appropriate to rely on “only a summary of the facts rather than a repetition of the facts” and that it was “unnecessary to delve into the detail” of each particular offence but most significantly because the sentencing judge neglected to consider and assess the objective seriousness of each individual offence.

The applicant submitted that objective seriousness was only fleetingly referred to in the sentence judgment in the context of discussing the manner in which his prior offending could be taken into account upon sentence (sentence judgment [24]). The applicant submitted that the failure of the sentencing judge to consider and assess the objective seriousness of each offence led to the imposition of an aggregate sentence that failed to apply the principle of proportionality stated in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 (at 486) viz “that a sentence should not exceed that which is appropriate to the gravity of the crime considered in light of its objective circumstances”.

The applicant submitted that the sentencing judge did not make any findings of fact in relation to the individual matters for which the applicant was being sentenced, which in turn prevented any meaningful consideration of the objective seriousness of the offending. The applicant submitted that because his Honour did not advert to any circumstance that increased the objective gravity of the offences, the basis upon which his Honour concluded that the offending was objectively serious was not revealed. The applicant submitted that the fact that his Honour did not disclose how his conclusion as to objective seriousness was reached meant that his Honour had given little, if any, consideration to the matter.

The applicant submitted that notwithstanding his Honour’s indication that he only took into account the applicant’s criminal history as a matter disentitling him to leniency, it was apparent that his Honour’s overriding concern was the applicant’s prior criminal history, the applicant’s weak subjective case and the absence of mitigating subjective features.

In oral submissions, the applicant submitted that it was necessary to provide an explanation of how the indicative sentences were arrived at and why some indicative sentences were higher than others. He submitted that no indication was given as to what specific matters his Honour had regard such as the amount of money involved, the attachment of Form 1 offences or a combination of both.

The applicant submitted that this failure to explain the basis upon which indicative sentences were formulated had led to actual error when it came to setting out the indicative sentences.

The applicant submitted that the sentences indicated for the offending against Richard Gan and Tiffany Doble involved actual error because their start point before the application of the 35 per cent discount would have been 10 years 9 months and 10 years respectively. The error arose because the maximum penalty for an offence against s 192E(1)(b) was 10 years.

The applicant submitted that this failure to explain how the indicative sentences were arrived at and the basis upon which they differed, one from the other, had led to identifiable error in the sentence judgment. The applicant submitted that in accordance with the decision in Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 (Kentwell) he would have to be resentenced. This was because two of the indicative sentences, which played a part in the formulation of the aggregate sentence, had been shown to be erroneous.

As his Honour appreciated, there is no standard non-parole period set for the offences contrary to s 192E(1)(b). The requirement to assess the objective seriousness of an offence does not place an obligation upon a sentencing judge to classify the objective seriousness of a particular offence by reference to some scale (Sharma v R [2017] NSWCCA 85 at [63]).

What is required is that a sentencing judge “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed” Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]. While some assessment of objective gravity is necessary as part of the sentencing process, this does not give rise to an obligation to provide elaborate reasoning in the circumstances of a particular case: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]; DV v R [2017] NSWCCA 276 at [220].

In Gal v R [2015] NSWCCA 242, Beech-Jones J (Bathurst CJ and Price J agreeing), having considered a contention that the sentencing judge failed to address the objective seriousness of the offences, said:

In Hurst v R [2017] NSWCCA 114 at [105], Hoeben CJ at CL (Price J and Lonergan J agreeing) said:

In R v Van Ryn [2016] NSWCCA 1, the issue addressed by this Court was that the sentencing judge gave no indication at all about the view he formed as to the objective seriousness of the offences, all but two of which attracted standard non-parole periods. This was in circumstances where the parties had made conflicting submissions to the sentencing judge about the objective seriousness of individual offences.

In the present case, the facts of the offences were set out in a document, entitled “Facts re [the applicant]”, which was tendered as part of the Crown Bundle (Exhibit A). The document was 74 pages long. The facts as set out in the document were not in dispute. While the sum of money defrauded from each victim was different for each offence, the modus operandi adopted by the applicant was similar. It was against that background that the following exchanges, between the sentencing Judge and Senior Counsel appearing for the applicant, took place:

The reference to the “outline of summary on pp 1-4” in the above exchange was a reference to an “outline” of the offending set out on pp 1 to 4 of the Crown’s written submissions on sentence dated 13 December 2017. The contents of the four pages were largely reproduced in his Honour’s sentence judgment at [11]-[12]. At [14] of his reasons, his Honour set out a table which included details of the names of the individual victims and the amounts of money defrauded from each.

As the applicant has accepted, his Honour made express reference to the objective seriousness of the offences in his sentence judgment. At [24] of that judgment his Honour said:

It is clear from the sentence judgment and from the sentence hearing on 2 February 2018 that his Honour undertook an assessment of the objective seriousness of the offences. This was done in circumstances where senior counsel, who appeared on behalf of the applicant, acknowledged that each offence was objectively serious. The manner in which his Honour summarised the facts in his sentence judgment was done with the express approval of senior counsel who said “I’m not requiring your Honour to go through in any detail the details in the statement of facts”. It can therefore be inferred from the indicative sentences that his Honour undertook an assessment of the seriousness of each individual offence. There was no issue that the offending conduct of the applicant was serious.

On this issue, the applicant is bound by the way in which his legal advisors conducted the sentence proceedings on his behalf. In particular, he is bound by their concession that there was no need to repeat the 74 pages of agreed facts in circumstances where an appropriate and unchallenged summary of the agreed facts was available.

The amount of detail of the offending which a sentencing judge has to include in his or her judgment depends very much upon the particular facts of the case. Here, the essential facts were identified by his Honour, i.e. the number of offences, the amounts involved and in general terms, methodology used by the applicant to defraud his victims. Nothing more was required. If his Honour had set out the facts of each individual offence, it would have added nothing to the judgment and may well have obscured his Honour’s analysis of the facts and principle.

Moreover, there is no general rule which requires a sentencing judge to comprehensively set out each and every fact associated with the offending. In many cases, this would be quite impractical. One only has to have regard to Social Security fraud matters, which often involve many hundreds of offences for the impracticality of such an approach to be clear. The same can be said of offences which comprise a number of rolled up charges, such as that which occurs in drug supply matters. The brief summary of the facts by Spigelman CJ in Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [1] and [2] is a good example. I am satisfied that the approach which his Honour adopted when reviewing the factual background to the offending was well open to him and did not in any way disadvantage the applicant. On the contrary, a detailed focus on the facts surrounding each individual offence would only have highlighted the objective seriousness of the offending.

The error in the sentence judgment is that although his Honour made findings as to the seriousness of the offending generally, he did not, in his consideration of the indicative sentences specify what matters he took into account to distinguish the more serious offending from the less serious. Although it was not necessary to go into considerable detail, it was necessary for his Honour to reveal the methodology which he used so as to allow an understanding of how his Honour arrived at the indicative sentences.

The necessity of carrying out that exercise in the context of imposing an aggregate sentence was made clear by R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) in JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]-[40]. There his Honour listed a number of settled propositions concerning the approach to be taken by a sentencing judge in setting an aggregate sentence.

By reference to pars 3, 4 and 6 above, it is clear that his Honour did not carry out the individual assessment of the indicative sentences as was required by the aggregate sentence regime. It follows that it was not possible to determine by reference to what criteria his Honour calculated the indicative sentence in respect of each offence. This led to error in the indicative sentences for the offending against Mr Gan and Ms Doble of the kind referred to in Kentwell. It follows that Ground of Appeal 1 has been made out in respect of the failure by his Honour to identify the criteria taken into account when calculating the indicative sentences. In reaching that conclusion, it is appreciated that this was not the way in which the matter was put in written submissions but the ground of appeal is broad enough to encompass the error which was identified in oral submissions.

Had the applicant amended his grounds of appeal, as was foreshadowed in the course of argument, a ground raising a failure to give adequate reasons might have been made out. In any event, Ground of Appeal 1 has been made out for the reasons set out above.

Section 23 of the Sentencing Act provides:

The applicant accepted that s 23(1) conferred a discretion, but not an obligation on a sentencing judge to proffer a discount when assistance has been provided: R v XX [2017] NSWCCA 90 at [31]. The applicant also accepted that the discount had to be applied to the starting point of each indicative sentence and that there should be no explicit discount applied to the aggregate sentence. PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [76] per Button and Adams JJ; TL v R [2017] NSWCCA 308 at [102]-[103] per Davies J (Hoeben CJ at CL and Adamson J agreeing).

The applicant accepted that the court’s ability to apply a discount for assistance, having regard to the 25 per cent discount allowed for the guilty plea, is limited by the requirement that the indicative penalties imposed for the offences are not unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). The applicant submitted that in the present case the application of a greater discount for his assistance would not result in unreasonably disproportionate indicative sentences.

The applicant submitted that discounts for assistance in the order of 10 per cent were applied to cases where assistance was assessed as of limited value. The applicant referred to the following cases to establish that proposition.

In R v El Hani [2004] NSWCCA 162, the applicant received a combined discount of 25 per cent for his plea and assistance. The sentencing judge’s discount of 12.5 per cent for assistance was found to be within his discretion on the basis that it involved “very limited intelligence provided to the police about the present and past criminality of his co-offenders”.

In R v Medd (a pseudonym) [2016] NSWCCA 216, a successful Crown appeal against sentence, the Court considered that a discount of 10 per cent for the “limited assistance” provided by the respondent would have been appropriate.

In Hughes v R [2013] NSWCCA 129, it was held that a discount of 10 per cent ought to have been given for the applicant’s “limited assistance”.

In Regina v Joseph Sukkar [2006] NSWCCA 92 (Sukkar) Howie J said at [5] (McClellan CJ at CL agreeing):

The applicant accepted in the present case that no evidence was led about the consequences flowing from the applicant’s provision of assistance to police, namely whether or not he would suffer harsher conditions in custody, or the extent of the personal risks involved. The applicant did not submit that the time in custody would be more onerous than the general prison population but submitted that providing assistance to authorities has the potential to put a person who is in the custodial system at risk.

The applicant submitted that in all of the circumstances of the assistance, the sentencing judge erred in failing to allow a sufficient discount for the assistance provided to the authorities.

As is usual in the such matters, it is not possible for the detailed nature of the assistance to be described or analysed. There was, however, before the Court two sets of documents – one from the State Police and one from the Federal Police. The contents of those documents was known to both parties. Some indication of the nature of the assistance was given in the transcript of the proceedings on sentence.

As the applicant accepted, a court’s power to reduce penalties for assistance provided to law enforcement authorities is governed by the provisions of s 23 of the Sentencing Act. The power is subject to the constraints stated in s 23(3) that “a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence”.

In a matter such as this, minds might well differ as to the value of assistance given. In this case, his Honour having considered the provisions of s 23 determined to allow a discount of 35 per cent, comprising 25 per cent for the utilitarian value of an early plea of guilty and 10 per cent for the assistance provided. That assessment was made in the exercise of a judicial discretion. In Hutchinson v R [2014] NSWCCA 317 at [32] Fullerton J (Hoeben CJ at CL and Adamson J agreeing) said:

This Court has observed that the combined discount for both a plea of guilty and assistance to authorities should not normally exceed 50 per cent. In Z v R [2014] NSWCCA 323 McCallum J said at [27]:

This Court has also stated on numerous occasions that discounts for pleas and assistance of more than 40 per cent should be granted very exceptionally, if at all, in a case where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions than the general prison population: Sukkar; R v Ehrlich [2012] NSWCCA 35; LB v R [2013] NSWCCA 70 at [62]; Haouchar v R [2014] NSWCCA 227 at [37]; Robinson v R [2017] NSWCCA 315 at [39].

In this case the sentencing judge indicated that having regard to the matters set out in s 23 of the Sentencing Act accepted that the applicant had provided some significant assistance as set out in the confidential affidavit. It was conceded on behalf of the applicant, there was no evidence regarding any consequences that would flow to the applicant by reason of the assistance. There was also a lack of timeliness as to the assistance.

As was recently observed by this Court in Hraiki v R [2019] NSWCCA 140 at [16] in a case where it was asserted that the discount for assistance did not properly reflect the value of the said assistance “the determination of the appropriate discount was one involving an evaluative judgment and a discretionary determination”. In the present case, the application of a 10 per cent discount on account of the applicant’s past assistance to authorities was within the proper exercise of his Honour’s discretion. The assistance provided was of a limited kind. It follows that there was no House v The King (1936) 55 CLR 499; [1936] HCA 40 error in his Honour allowing a 10 per cent discount for the applicant’s assistance.

This ground of appeal has not been made out.

The applicant noted that the offence of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Act was created by the Crimes Amendment (Fraud Identity and Forgery Offences) Act 2009 (NSW) which, inter alia, repealed and replaced the fraud provisions in the Crimes Act. The new fraud provisions were contained in Pt 4AA which came into effect on 22 February 2010. The applicant submitted that s 192E(1)(b) corresponded to certain of the repealed provisions, i.e. ss 178BA, 178C, 178A, 184 and 176A. The applicant noted that all offences under Pt 4AA were to be dealt with summarily unless the prosecutor or the accused elected otherwise.

The applicant submitted that in Baumer v The Queen [1988] HCA 67; 166 CLR 51 (Baumer), the High Court indicated that some adjustment would be required to the range of sentences formerly considered appropriate, where a new offence had a higher maximum term than that which was applicable to a similar offence in similar circumstances before the creation of the new offence.

The applicant submitted that it followed from that reasoning that the appropriate starting point for sentencing in cases of fraud under s 192E was a consideration of the offences committed before 22 February 2010.

The applicant relied on a number of cases, which were said to be comparable to the facts of this case, and which therefore provided an appropriate range against which the aggregate sentence in this matter could be assessed as to its appropriateness. Those cases were: Zhao v R [2016] NSWCCA 179 (Zhao); Matthews v R [2014] NSWCCA 185 (Matthews), Johnston v R [2017] NSWCCA 53 (Johnston), Woods v R [2018] NSWCCA 261 (Woods), Siwek v R [2017] NSWCCA 178 (Siwek).

The applicant submitted that an analysis of these cases showed that the aggregate sentence in this case was manifestly excessive.

The applicant also relied upon what was said to be comparable cases before the commencement of Pt 4AA. Those cases were: Subramaniam v R [2013] NSWCCA 159 (Subramaniam), Mitchell v Regina [2006] NSWCCA 72 (Mitchell), Power v Regina [2002] NSWCCA 244 (Power). The applicant relied upon the reasoning in those cases and the approach of this Court when making a finding of manifest excess.

The applicant submitted that while the indicative sentences themselves were not amenable to appeal, the indicative sentences in this case were patently erroneous and it was his contention that this error infected the aggregate sentence ultimately imposed.

The applicant submitted that it was inappropriate to indicate a sentence in excess of 5 years for an offence that would have been charged under s 178BA in the old regime and which did not feature a breach of trust (or abuse of a position of trust or authority) as a circumstance of aggravation. The applicant submitted that it was also relevant to take into account that only one of the undiscounted indicative sentences would have been less than 5 years.

The applicant accepted that while the indicative sentences were themselves manifestly excessive, it was still necessary to consider whether this error infected the aggregate sentence ultimately imposed. The applicant submitted that a consideration of the law on concurrence and accumulation demonstrated that this had occurred.

The applicant submitted that the approach to be applied in determining whether sentences should be served concurrently or cumulatively was set out by Simpson J in R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at 67:

The applicant submitted that it was held in Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41 that the critical issue was whether the sentence for one offence could comprehend and reflect the criminality of another. If it could, the sentences ought to be concurrent. If not, they should be cumulative. Conversely, the applicant submitted that where offences committed during the course of a single episode were of a completely different nature and each individually involved significant or extreme gravity it was likely that accumulation would be necessary to address the criminality.

The applicant submitted that the decision in Regina v XX [2009] NSWCCA 115 at [52] was helpful in deciding whether to impose a concurrent or cumulative sentence. The applicant submitted that in that case their Honours noted that there was no general rule that would determine this question but there were several considerations which should be taken into account.

The applicant submitted that the Court should accept his contention that fraud offences that are not aggravated by an abuse of a position of trust or authority, should seldom attract penalties in excess of 5 years. The applicant submitted that each of the indicative sentences was manifestly excessive and that the only way to prevent this from infecting the aggregate sentence would have been to make them wholly concurrent. The applicant further submitted that a significant degree of concurrency was justified because the offences represented a single episode of criminality and were connected in that they all formed part of the Ponzi scheme.

The applicant submitted that the offences which he committed did not approach the upper end of the range of objective seriousness, notwithstanding the fact that there were few subjectively mitigating factors.

The applicant submitted that that while his criminal record disentitled him to any leniency which might otherwise have been afforded to a person without his criminal history, good character generally assumes little significance in more serious cases of fraud. This was because such crimes were usually only able to be committed because of the previous good character of offenders who had been placed in a position of trust.

In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] (Markarian); Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [59] (Hili); Book v R [2018] NSWCCA 58 at [54]-[56].

Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34] (Barbaro). Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R [2017] NSWCCA 221 at [443]. There will be a range of possible sentences that could be imposed without error; AB v The Queen [1999] HCA 46;198 CLR 111 at [128].

In respect of the approach to be taken to a ground of appeal alleging manifest excess in the case of an aggregate sentence, Bathurst CJ said in Kerr v R [2016] NSWCCA 218 (at [114]):

It is submitted on behalf of the applicant that the appropriate starting point for sentencing in cases of fraud under s 192E is a consideration of sentences imposed for offending before 22 February 2010 when s 192E came into effect. The applicant relied upon the decision in Baumer. In Baumer the High Court (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ) considered the proper construction of s 154 of the Criminal Code (NT), describing the section (at [7]):

In the passage of the judgment relied upon by the applicant, the High Court observed at [13]:

Importantly, the High Court noted at [14]:

It is quite clear that nothing was said by the High Court in Baumer which would dictate that the appropriate starting point for sentencing in cases of fraud under s 192E was a consideration of the offences which existed before 22 February 2010. Moreover, the provisions in Pt 4AA have now been in force for over 10 years.

The increase in the maximum penalty for fraud offences from 5 years to 10 years reflected the seriousness with which the Parliament viewed this kind of offending. In the Second Reading Speech for the Bill to enact the amendments, the Attorney General said:

The applicant submitted that fraud offences should not approach the maximum penalty of 10 years imprisonment where they do not feature an abuse of a position of trust or authority as a circumstance of aggravation under s 21A(2)(k) of the Sentencing Act. There is no authority cited to support that proposition. Moreover, it is wrong to regard the presence or absence of an aggravating feature as a matter which must necessarily produce a particular outcome in the sentencing process: Thi Lan Nguyen v R [2009] NSWCCA 181 at [36].

The offending in this case involved very large sums of money and affected twenty one different individuals as victims. This was not fraud carried out against an institution but against individuals whom in many cases the applicant had befriended and by means of meticulous preparation and planning created a scenario where these persons believed they could make a safe investment. The callous way in which the applicant acted towards these people involved a fundamental betrayal of friendship. As was noted by his Honour, the effects of the fraudulent conduct on many of the individuals involved the destruction of their dreams and any plans for the future. When considering both the indicative sentences and the aggregate sentence, there was the fact that $3.6 million out of $4.6 million remained unaccounted for at the time of sentence.

The applicant relied on a number of previous decision of this Court. Before addressing each of the comparable cases, the utility of engaging in such an exercise should be considered. The High Court in Hili at [53]-[54] and Barbaro [40]-[41] observed that the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. What is important is the unifying principles which other sentences should reveal and reflect if those sentences are to be relevant.

This Court has stated on a number of occasions that in sentencing offenders for fraud offences, far greater assistance is gained from general sentencing principles than by reference to statistics or the sentences imposed in previous cases because of the enormous variation in objective and subjective circumstances involved: Johnston; R v Martin [2005] NSWCCA 190 at [56] (Martin), Regina v Swadling [2004] NSWCCA 421 at [29], [54]; R v Woodman [2001] NSWCCA 310 at [22]-[24]; R v Hawker [2001] NSWCCA 148 at [17]-[18].

In Zhao the applicant entered a late plea of guilty to one count of fraud contrary to s 192E(1)(b). She asked that a further charge be taken into account on a Form 1. The fraud was practised upon a company registered in California and was described as “a complex fraud conducted over a period of months which resulted in a benefit to the applicant of US$730,733.39 (count 1) and US$190,224.28 (Form 1)” (Zhao at [10]). The applicant was sentenced to a head sentence of 3 years with a non-parole period of 20 months. The applicant was a relatively young woman with a young child. She had no prior criminal convictions. The appeal was dismissed. It is difficult to see how that case is of any relevance to this case.

In Matthews the applicant pleaded guilty to two offences contrary to s 192E(1)(b) and asked that two further offences be taken into account on a Form 1. The facts involved the applicant using charge cards in other people’s names to purchase goods from stores in a shopping centre. The applicant was sentenced to a total effective sentence of 2 years and 7 months with a non-parole period of 2 years. The value of the goods obtained was just over $1,200 and the offending was described as “unsophisticated and involved very little planning”. The applicant’s criminal history included many offences of dishonesty and disentitled the applicant to leniency. The offences were committed when the applicant was on parole. However, this Court noted that while s 192E applied to offences involving millions of dollars the applicant’s offending involved a relatively small amount of money. The sentence imposed upon the applicant was disproportionate to the criminality and the appeal was allowed. Again, it is difficult to see any similarity between that case and the one presently under consideration.

In Johnston the applicant pleaded guilty to a single count contrary to s 192E(1)(b). The applicant was employed as a senior accountant by a mining company. Over a three year period the applicant prepared 156 false invoices which were paid by the company into accounts controlled by the applicant. The total amount defrauded was $1,257,847.25. The funds were dissipated in gambling. The applicant paid the company $250,000 in consideration of a release from further liability. The applicant was 40 years old at the time of sentence and had no prior criminal record. The applicant was sentenced to a head sentence of 6 years 6 months with a non-parole period of 4 years, after allowing a 25 per cent discount for the early guilty plea.

On appeal, Johnson J (Bathurst CJ and Fagan J agreeing) observed (Johnston at [67]):

When considering the question of manifest excess in that case, it was necessary to have regard to the fact that the plea was to a “rolled up count” involving 56 fictitious transactions and that the offence involved the systematic defrauding of the applicant’s employer in circumstances where he was in a position of trust. The previous good character of the applicant was not a matter of great significance as it was generally only persons of good character who were placed in positions of trust so as to enable such offences to be committed. The applicant had actively pursued courses towards rehabilitation since his arrest and there was a low risk of re-offending. In considering the question of manifest excess it was relevant that the sentencing judge had found special circumstances and adjusted the non-parole period to approximately 61 per cent of the head sentence. Johnson J noted (Johnston at [74]):

The appeal was dismissed.

In Woods the applicant pleaded guilty to a single count contrary to s 192E(1)(b). The applicant was in charge of payments to subcontractors and defrauded her employer of a total amount of $809,510.07. The offending involved 155 individual transactions carried out between April 2011 and August 2016. The sentencing judge accepted that the applicant was unlikely to re-offend. Apart from driving offences, the applicant had no criminal history. After allowing a 25 per cent discount for an early plea of guilty, the applicant was sentenced to a head sentence of 5 years with a non-parole period of 3 years. The applicant’s sole ground of appeal was that the sentencing judge “erred in failing to give effect to evidence of a mental condition when passing sentence”. The appeal was dismissed.

In Siwek the applicant pleaded guilty to four offences contrary to s 178BA(1) and five offences contrary to s 192E(1)(b). He asked that a further three similar offences be taken into account on a Form 1. The applicant worked for a multi-national corporation and utilised his trusted position to divert funds to his own interest. Each count involved a number of transactions. Over a period of nine years, the applicant defrauded his employer of a total amount of $1,716,016.69. He had repaid $450,000 in consideration of deed of settlement and release. The applicant was sentenced to a head sentence of 6 years with a non-parole period of 3 years and 8 months. On appeal, Bellew J (Hoeben CJ at CL and Adamson J agreeing) held:

The appeal was dismissed.

In Subramaniam the applicant pleaded guilty to twenty three offences contrary to s 178BA and three offences contrary to s 193B(2). The applicant was employed as a senior accountant for ING Holdings Australia Ltd. During the period from July 2004 to September 2009, the applicant transferred a total of $45,388,249 to her own accounts or the accounts of others. Funds were used for the purchase of luxury goods and real estate. Some of the funds were given gratuitously to third parties. Goods and property that had been located was seized by ING. In addition, property held by the applicant and her husband, not related to the fraud, was also transferred to ING. The net loss to ING was slightly less than half of the total sum. The applicant was sentenced to an aggregate head sentence of 15 years with a non-parole period of 7 years, after an “overall discount of 30 per cent in recognition of the applicant’s pleas and her extensive co-operation”.

On appeal, it was accepted by the Crown that the sentencing judge had erred in the application of s 53A. In re-sentencing the applicant, Latham J, (Emmett JA and Simpson J agreeing) noted:

The Court found that the applicant’s moral culpability was moderately reduced by reason of her personality disorder. The applicant was entitled to a discount of 25 per cent for her early pleas of guilty and her extensive co-operation with the authorities was found to be testimony to her remorse and contrition. The applicant’s prospects of rehabilitation were sound and there was no purpose to be served by the imposition of a sentence that reflected personal deterrence. General deterrence, retribution and denunciation were of less significance because of the applicant’s personality disorder, although there was still some scope for the sentence to reflect those principles. The applicant was re-sentenced to an aggregate term of 11 years with an aggregate non-parole period of 6 years.

In Mitchell the applicant pleaded guilty to 13 counts contrary to s 178BA. The applicant was the National Accountant for the Australian Teenage Cancer Patients Society. Between April 2000 and June 2003, he made 244 unauthorised transfers, totalling $302,099.34, from the accounts of the Society to his own account. The money was used for gambling and overseas trips. In the District Court the applicant was sentenced to an effective head sentence of 8 years with a non-parole period of 5 years. The applicant had no prior criminal convictions. He had a number of favourable subjective features and the sentencing judge accepted that he was remorseful. The applicant’s sole ground of appeal was that the sentence was manifestly excessive.

In this Court Latham J, (Sully J agreeing) noted that “the amount of money defrauded is but one factor …. which bears upon the assessment of the offender's criminality.” Other factors identified by the Court included “the length of time over which the offences are committed, whether or not the offender occupies a position of trust, and the sophistication of the method employed to defraud the victim” (Mitchell at [10]). This Court stated that it was preferable to approach the resolution of the appeal by reference to established principles rather than by a detailed comparison between the objective and subjective factors in each of the decisions relied upon by the applicant, and those of the respondent: (Mitchell at [12]). The Court found that the individual sentences were excessive by reference to the maximum penalty and taking into account that the applicant began offending at the age of 46 and that the sentencing judge placed too much emphasis upon personal deterrence: (Mitchell at [15]). The appeal was allowed and the applicant was re-sentenced to an effective head sentence of 5 years with a non-parole period of 3 years 2 months.

In Power the applicant pleaded guilty to 39 counts of making a false instrument. Each carried a maximum penalty of 10 years. The offences were committed over a four year period and resulted in the applicant’s employer, the National Bank of Australia Ltd, being defrauded of a total amount of approximately $5.81 million. The money was spent on luxury items. Approximately $1.8 million was recovered. In the District Court, the applicant was sentenced to an effective head sentence of 8 years with a non-parole period of 5 years. The applicant was 40 years old when she commenced offending. She had been employed by the bank for 26 years and was a trusted employee.

On appeal, Smart AJ (Greg James J agreeing) observed that the sentencing judge “rightly regarded the criminality as considerable and serious, pointing to the large amounts taken, and expended, the conduct lasting over four years, thirty-nine separate charges, and the offences committed in breach of trust”: (Power at [24]). The applicant was of exceptional prior good character. The sentencing judge accepted that there was little or no prospect of her re-offending so that rehabilitation was not a factor in the sentencing exercise. This Court agreed with the finding of the sentencing judge that some lesser weight should be placed on the principle of general deterrence in view of the applicant’s emotional and psychological state at the time of the offence. This Court held that the non-parole period of 5 years was manifestly excessive. The appeal was allowed and the applicant was re-sentenced to an effective non-parole period of 4 years.

The cases referred to by the applicant are illustrative of the enormous variation in objective and subjective circumstances involved in fraud offences. All but two of the cases involved frauds committed by an employee. One case involved credit card fraud. One case involved fraud committed against a single corporation. None of the cases involved frauds committed against a number of individual persons. The harm occasioned in the present case by the applicant’s conduct included financial and emotional harm to a large number of individual victims.

Further to what was said in Hili about the dangers of associating consistency in sentencing with numerical or mathematical equivalence, this Court has taken the position that a reference to sentencing statistics is particularly unhelpful in fraud cases because of the enormous variation in objective and subjective circumstances involved and the Court has expressed concern when an attempt is made to compare sentences for a specific offence of dishonesty with other cases involving dishonesty of a different kind (Martin at [56] per Johnson J). Any reference to orders made in previous cases that is not accompanied by a detailed examination of all the circumstances of those cases is likely to lead a sentencing court into error. While information about sentences that have been imposed in other cases can establish a range of sentences that have in fact been imposed, it does not necessarily follow that that range is the correct range. Sentencing courts confronted with fraud matters should examine the whole of the circumstances of previous cases in order to discern “unifying principles” which ought guide the exercise of the discretion.

Unlike the present case, only the case of Matthews which was a case of credit card fraud involves offences committed by an offender on conditional liberty. In that regard, it should be noted that a factor which substantially increases the applicant’s moral culpability is that nine of the offences committed by him occurred while he was either on parole or on bail.

It follows that the cases referred to by the applicant do not provide any unifying principle that dictates that the subject sentence was manifestly excessive.

It also follows that those cases relied upon by the applicant do not establish a range of sentences or a sentencing pattern so as to establish that the aggregate sentence in this case was manifestly excessive. It follows, subject to the reconsideration required by the applicant’s success in Ground of Appeal 1, that the applicant has failed to establish manifest excess, i.e. that the aggregate sentence is unreasonable or plainly unjust.

Because of the clear error in the indicative sentences set out in respect of the offending against Richard Gan and Tiffany Doble, it is necessary for this Court to take into account the facts relating to all of the offending. If error is revealed in the aggregate sentence, it will be necessary to re-sentence the applicant in accordance with the guidance in Kentwell.

As set out in the factual background, the aggregate sentence was imposed on the applicant in respect of 11 fraud offences to which were attached 10 offences on three Forms 1.

In the matter of Mark Cole, by means of the methodology described at [13] the applicant fraudulently acquired $500,000 from the victim. Two further offences were to be taken into account under the Form 1 procedure. One of those offences involved Sam Panagopoulos as the victim with the amount involved being $80,000. The second matter to be taken into account under the Form 1 was the offending against Natalie Joseph. The amount involved was $107,000. All three offences occurred while the applicant was subject to parole.

By way of mitigation, $390,000 had been repaid to Mr Cole leaving him out of pocket by $110,000. The whole of the $107,000 defrauded from Natalie Joseph was repaid to her. None of the $80,000 which the applicant fraudulently took from Mr Panagopoulos was repaid to him.

Another victim was Shaun Smith. The applicant fraudulently deprived him of $200,000. The applicant was on parole at the time. By way of mitigation, the $200,000 was repaid to Mr Smith.

Another victim was Henri Kalouche. The applicant fraudulently acquired from him $305,000 of which only $81,420 was recovered.

Another victim was Simon Langley from whom the applicant fraudulently acquired the amount of $300,000. Of that amount $150,000 was repaid.

Another victim was Richard Gan from whom the applicant fraudulently acquired the amount of $500,000. Of that amount $82,500 was repaid leaving Mr Gan out of pocket by $417,500. As well as the applicant’s offending against Mr Gan, seven other offences were to be taken into account on a Form 1. Each offence involved a separate victim. In the case of Cassandra Makrakis, $70,000 was fraudulently acquired from her but was eventually repaid. In the case of Wade Zanella, the applicant fraudulently acquired $20,000 which in due course was fully repaid. In the case of Ashley Hewitt, the applicant fraudulently acquired $40,000 of which $30,000 was repaid. In the case of Wanwen Wen, $137,500 was fraudulently acquired by the applicant of which $32,500 was repaid, leaving Mr Wen out of pocket by $105,000. In the case of Barton Ware and Sarah Knox, the applicant fraudulently acquired $42,000 of which nothing was repaid. In the case of Russell Martin, the applicant fraudulently acquired $20,000 of which nothing was repaid. In the case of Russell Martin, the applicant fraudulently acquired $5,000 of which nothing was repaid.

Details of the remaining seven victims were as follows. In the case of Stephen Busutti, the applicant fraudulently acquired $308,912 of which $60,000 was returned, leaving him out of pocket by $248,912. In the case of Brett Walsh, the applicant fraudulently acquired $250,000 of which $20,000 was repaid leaving him out of pocket by $230,000.

In the case of Tiffany Doble, the applicant fraudulently acquired $855,000 of which nothing was repaid. There was also a matter on a Form 1 to be taken into account when sentencing for this offence. The Form 1 concerned Danielle Smith from whom the applicant fraudulently acquired $80,000 of which nothing was repaid. The applicant was on bail when he committed this offence.

In the case of Madeleine McRae, the applicant fraudulently acquired $163,000 of which $11,400 was repaid, leaving her out of pocket by $151,600. The applicant was on bail when he committed this offence. In the case of Vivian Panigiris, the applicant fraudulently acquired $352,000 of which nothing was repaid. The applicant was on bail at the time. In the case of Andreas Antonini, the applicant fraudulently acquired $281,007 of which nothing was repaid. The applicant was on bail at the time.

The facts surrounding all of the offences show that the applicant used a number of different ruses to acquire money and that his deceitful behaviour had the effect of stealing the hopes and dreams of his victims. A particularly unfortunate case is that of Tiffany Doble. She was a young woman from whom the applicant acquired all her savings and caused her to take out a personal loan for $80,000. She then persuaded her parents, who were struggling financially, to advance further moneys which she paid to the applicant. This was in the expectation of receiving an allocation of shares in one of his companies from which regular dividends would be received. As indicated above, none of that money was repaid leading to catastrophic financial consequences for the family.

It is against that background that it is necessary to indicate the sentences which would have been imposed. I have taken as relevant criteria the amount of money initially defrauded, the financial impact of the loss, the extent of any repayment and the attachment of matters on a Form 1. I have taken into account as a matter of aggravation those offences which were committed while the applicant was at conditional liberty.

The two most serious matters are the offences against Richard Gan and Tiffany Doble. In the case of Richard Gan, apart from the loss being substantial it is also necessary to have regard to the seven serious matters set out on a Form 1. In the case of Tiffany Doble, the defrauded amount was the largest by far. The offence was committed while the applicant was on bail and a further offence was to be taken into account on a Form 1. The financial consequences for her family as a result of the loss have been dire. Accordingly, I have indicated sentences for each of them of 5 years.

Applying the above criteria, I find the offending against Mark Cole, Vivian Panigiris and Andreas Antonini to be the next most serious and I indicate sentences of 4 years for each of them.

In the case of the offending against Shaun Smith, Henri Kalouche, Simon Langley, Stephen Busuttil, Brett Walsh and Madeleine McRae to be of similar seriousness and I set an indicative sentence of 3 years and 4 months for each of them.

When one has regard to those indicative sentences and the aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years, it is clear that the aggregate sentence is not out of proportion to the indicative sentences. This is so even though the longest indicative sentences are 5 years. Given the nature of the offending and the number of victims, there was always going to be a need for some accumulation of the indicative sentences even if notionally. As can also be seen, the aggregate sentence also involves a considerable amount of notional concurrency.

While an indicative sentence is not itself amenable to appeal, an “erroneous approach in the indication of the sentence that would have been imposed for the offence may well reveal error in the aggregate sentence reached” (R v Brown [2012] NSWCCA 199 at [17]). However, that is not necessarily so in every case where that occurs. Despite the errors in two of the indicative sentences, the objective seriousness of the offending remains substantial and required an aggregate sentence which adequately takes into account the need for appropriate punishment and denunciation. In all the circumstances, I find that on re-assessment of the indicative sentences and the aggregate sentence that no lesser aggregate sentence is warranted.

In reaching the conclusion, that no lesser sentence is warranted, I have also had regard to:

Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.