Anquetil v R

1. [1]

   PRICE AJA: I have had the benefit of reading the judgment of Campbell J and the additional remarks of Hamill J. I agree substantially with Campbell J’s reasons that Grounds 1 and 3 should be dismissed. However, I agree with Hamill J that, as to Ground 1, no additional requirement for leave arises in relation to a new argument raised for the first time on appeal from the decision in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460. In exercising the sentencing discretion afresh which arises from the Crown’s proper concession of error in Ground 2, I am of the view that no lesser sentence is warranted. Accordingly, I agree with the orders proposed by Campbell J that leave to appeal against sentence be granted and that the appeal be dismissed.

2. [2]

   CAMPBELL J: Simon Paul Anquetil (Mr Anquetil) seeks leave to appeal from the sentence imposed on him by his Honour Payne JA (the sentencing judge) on 31 July 2020 for two serious offences arising from his involvement in a tax-fraud and related conspiracies carried on from 2014 to 2017.

3. [3]

   By September 2016, Mr Anquetil and other persons involved including Adam Cranston, Lauren Cranston, Devyn Hammond, Joshua Kitson, Dev Menon, Jason Onley and Daniel Rostankovski (the co-conspirators or co-offenders) were under investigation by the Australian Federal Police (AFP) for dishonestly causing losses to the Australian Taxation Office (ATO).

4. [4]

   A total amount of $141,291,923.08 in tax monies were diverted into the hands of the co-conspirators during the conduct of their scheme. Only $30,883,342.47 of that sum was remitted to the ATO. An additional amount of $4,783,276.75 was garnisheed by the ATO. The total loss caused to the ATO was $105,625,304.36. The investigation of Mr Anquetil and the co-conspirators resulted in arrests on 17 and 18 May 2017. Mr Anquetil was arrested after the execution of a search warrant on 17 May 2017. He participated in an interview with police on 18 May 2017.

5. [5]

   Mr Anquetil pleaded guilty in the Local Court to, and was sentenced for, the following offences set out at [1] by the sentencing judge in the decision below (R v Anquetil [2020] NSWSC 995 (Reasons)):

   1. (1)

      Between 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with others, namely [Mr] Cranston, [Ms] Cranston, [Ms] Hammond, [Mr] Kitson, [Mr] Menon, [Mr] Onley, [Mr] Rostankovski, and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

   2. (2)

      Between 1 March 2014 and about 18 May 2017 at Sydney in the State of New South Wales and elsewhere, did deal with money that was, and that he believed to be, proceeds of crime and at the time of the dealing the value of the money was $1,000,000 or more.

6. [6]

   For the purposes of sentencing for the money laundering offence and pursuant to the procedure prescribed by s 16BA of the Crimes Act 1914 (Cth) (Crimes Act), Mr Anquetil admitted his guilt to other money laundering offending which was specified in a s 16BA schedule, and taken into account for the sentence on count 2 set out above. This offending related to the co-conspirators’ authorisation of payments totalling $24,244,760.64, which were themselves the sums of the proceeds of the tax fraud conspiracy, in response to two blackmail demands. This is set out in the s 16BA schedule as follows:

7. [7]

   After allowing a [redacted] discount of 50% [redacted], the sentencing judge passed the following sentences on him:

8. [8]

   The total effective sentence imposed on the applicant by his Honour was 7 years and 6 months imprisonment. Pursuant to s 19AB(1) of the Crimes Act, his Honour fixed a single non-parole period (NPP) of 5 years. The NPP expired on 30 July 2025. This is the first date of Mr Anquetil’s eligibility for release to parole.

Grounds of appeal: summarised

1. [9]

   Mr Anquetil seeks leave to appeal from the sentence imposed on him on the following grounds:

   1. (1)

      [redacted];

   2. (2)

      The sentencing judge erred in finding that the circumstances of hardship to [Mr Anquetil]’s family had to be exceptional before they could be taken into account as a matter of mitigation; and

   3. (3)

      [Mr Anquetil] has a justifiable sense of grievance when his sentence is compared to sentences imposed on Adam Cranston and Jason Onley, because of his more favourable subjective case.

2. [10]

   It is apposite to record here that the Crown properly conceded by dint of Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Totaan) (delivered after his Honour passed sentence) that ground 2 was unanswerable.

Leave to appeal under rule 3.5

1. [11]

   As a preliminary question, this Court must first determine whether to grant Mr Anquetil leave to appeal pursuant to r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [12]

   The applicant was sentenced on 31 July 2020. A notice of intention to appeal was not filed until 22 February 2024 and the notice of appeal on 16 December 2024. Accordingly, the appeal was filed well outside of the 28-day period stipulated under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW).

3. [13]

   In relation to delay, the affidavits of Christopher Cole, solicitor, affirmed on 11 December 2024 and 7 March 2025 (being the first of two affidavits filed on the same date) were read on behalf of Mr Anquetil’s application.

4. [14]

   Mr Fernandez SC (appearing with Ms Skinner of counsel) drew the Court’s attention to various relevant considerations including the facts that Mr Anquetil was sentenced on 31 July 2020, judgment in the Crown’s manifest inadequacy appeal was subsequently delivered on 9 April 2021, and the decision in Totaan was not handed down until 11 April 2022.

5. [15]

   The Crown argued that, at least upon the delivery of the Court of Criminal Appeal’s judgment in Totaan, Mr Anquetil should have lodged his application seeking leave to appeal but did not do so for a further period of nearly three years. Mr Fernandez submitted that Mr Anquetil was not represented at that time and accordingly, did not have the benefit of a solicitor examining the impact of Totaan on the appeal prospects in his case.

6. [16]

   In his affidavit of 7 March 2025, Mr Cole explained that Mr Anquetil’s co-offenders, specifically the closest comparators, Mr Cranston and Mr Onley, were not sentenced until 22 August 2023. It was in September 2023, as Mr Cole affirmed, that Mr Cole was contacted by Mr Anquetil seeking assistance with a potential appeal of his sentence. Mr Cole was instructed to file a Legal Aid application on the applicant’s behalf.

7. [17]

   Legal aid for the applicant was not granted until January 2024. But no Public Defender was available to provide an opinion on the merits of the contemplated appeal, and it was necessary to seek approval from the Legal Aid Commission to brief counsel at the private bar. Approval was forthcoming for Mr Fernandez to be briefed to prepare an opinion on the merits. Mr Fernandez submitted there was a need to deal with a very voluminous brief relating to the sentencing proceedings of not only Mr Anquetil but of his co-offenders, Mr Cranston and Mr Onley, including material which could only be inspected at the offices of the Commonwealth Director of Public Prosecutions. Senior counsel submitted that this inspection occurred sometime in August 2024. All of these steps increased the time necessary to bring a properly formulated application for leave to appeal against Mr Anquetil’s sentence.

8. [18]

   Ms Callan SC (appearing with Mr Tran and Mr McGinness of counsel), for the Crown, relied on the respondent’s written submissions with respect to the issue of delay. Senior counsel submitted that the interests of justice did not favour the grant of an extension of time, relying on the oft-cited judgment of the plurality (French CJ, Hayne, Bell and Keane JJ) in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32] (Kentwell). It was conceded that the Crown’s opposition to the grant of leave to appeal was fundamentally linked to its submission that the substantive grounds lack merit. It was put that that question could be appropriately heard and considered prior to any determination of the question of leave.

9. [19]

   In exercising the Court’s discretion to grant leave to appeal, regard should be had to the applicant’s prospects of success on the substantive issues, the length of the delay and the reasons for it. From the evidence read, I am of the view, without summarily deciding the appeal, that there is sufficient substance in the proposed grounds to justify leave being granted to make the appeal under r 3.5(5). I am also of the view, in the somewhat unusual circumstances of this case and its complex procedural history, that the factors relied upon adequately explain what, on the face of it, might otherwise seem to be an unduly long delay.

10. [20]

    I am also persuaded that the Crown’s proper concession that ground 2 is good, whereby a specific error requiring this Court to re-exercise the sentencing discretion (whether or not that is likely to lead to the imposition of a lesser sentence for Mr Anquetil) has been demonstrated. While this may not be determinative, the case is not one where Mr Anquetil’s prospects can fairly be said to be hopeless justifying the refusal of leave: Kentwell at [35] and [44].

11. [21]

    In my view, the guiding principle is that Mr Anquetil, like all other convicted offenders, is entitled to be sentenced according to law. I would grant leave under r 3.5(5) for the application for leave to appeal to be made.

The applicant’s part in the offending

1. [22]

   While it is always of first importance to have the objective nature of the offending firmly in mind before evaluating an applicant’s grounds of appeal, especially in a complex case like this, I am of the view that my summary of each count need not be extensive. This is given the degree of detail contained in the sentencing judge’s summary of the statement of agreed facts for the purposes of sentencing, and the factual background set out by Bathurst CJ in the first appeal proceedings: R v Anquetil [2021] NSWCCA 59.

2. [23]

   Neither party to the application for leave to appeal has taken issue with Payne JA’s findings of fact, other than perhaps as they pertain to some facts underpinning ground 1.

3. [24]

   Between about 1 March 2014 to about 18 May 2017, a period spanning over three years, Mr Anquetil along with his co-conspirators, notably Adam Cranston and Jason Onley, conducted a scheme which involved operating a business providing payroll tax services to genuine recruiting companies, employers and individual contractors (client companies) (Reasons [15]). While the client companies were seeking the provision of genuine services to enable them to comply with their taxation obligations, the scheme was devised for the dishonest purpose of diverting, withholding and misappropriating Pay As You Go Withholding (PAYGW) and Goods and Services Tax (GST) amounts due to the ATO, for the profit of the co-conspirators (Reasons [13]).

4. [25]

   Crucially, Mr Anquetil was fully involved at the highest level in the conception, inception and maintenance of the scheme. In concert with Mr Joshua Kitson, he set up a payroll company, Plutus Payroll Australia Pty Ltd (Plutus). Plutus was incorporated on 23 April 2014 and subsequently staffed with persons who were not aware of the true, dishonest nature of its undertaking and were deliberately misled by Mr Anquetil and the other conspirators about how, and for what purposes, Plutus operated.

5. [26]

   While it was agreed that Mr Kitson would assist with managing and operating the company, specifically in growing the client base for Plutus’ “front office”, the applicant was the sole officeholder and secretary for Plutus (Reasons [14]). The applicant intended to be in control of the flow of money between Plutus’ clients, Plutus and the second-tier companies (which I will return to below). The applicant arranged the opening of a bank account in the company’s name over which he had sole operating authority. He also applied for an Australian Business Number for Plutus (Reasons [24]).

6. [27]

   In furtherance of the scheme, Mr Anquetil set up the software tool “KeyPay” through which Plutus received from their client companies the gross salaries and wages of their respective employees and categorised allocations such as superannuation, other employee-related reductions, but most relevantly, PAYGW and other taxes which were properly to be remitted to the ATO (Reasons [27]). From approximately October 2014 onwards, Plutus hired staff to calculate and verify payroll data through KeyPay on the instruction and under the direction of Mr Anquetil and Mr Kitson. This became an automated process later.

7. [28]

   Unbeknownst to the client companies, Plutus subcontracted the payroll services to numerous separate companies incorporated by other co-conspirators. These were what was referred to as the “second tier companies”. I will not fulsomely repeat the factual findings pertaining to these second-tier companies within the tax fraud conspiracy as these have been well rehearsed in the Reasons, particularly at [16]-[22]. However, I will reiterate that the second-tier companies were set up and managed with the intent that they accrue the PAYGW and GST liabilities over time. Their intended liquidation in due course was an important part of the scheme, leaving the ATO debts unpaid and the primary liability for them falling upon persons other than the co-conspirators.

8. [29]

   It follows that the co-conspirators’ intent was that, in the event of any investigation or audit by the ATO, the persons that would be targeted would be the directors of the second-tier companies, being persons paid, duped, bribed and/or otherwise induced to sign the documents whereby they become liable as the relevant officeholders. The second-tier directors were told no more than they needed to know in order to perform their passive roles in the tax fraud conspiracy as the public faces of the second-tier companies. However, it was initially Mr McIntyre, and later Mr Rostankovski, whose direction of the second-tier companies provided a layer of concealment and created the appearance that the subcontracting arrangement was at an “arm’s length”.

9. [30]

   Mr Anquetil, on behalf of Plutus, signed the payroll services agreements with the second-tier companies. These agreements were important to maintaining the appearance of legitimate business practices, crucial to the success of the overall tax fraud conspiracy. This was mainly achieved by creating a “back office” to process the thousands of payroll payments and disburse the proceeds from the large number of client companies. Also, Mr Anquetil’s drafting of agreements between Plutus and the second-tier companies established a “paper trail” further contributing to the appearance of legitimacy. Besides these foundational contributions, it should be said, the other co-conspirators had comparatively greater involvement in the administration of the second-tier companies than Mr Anquetil.

10. [31]

    In June 2016, Mr Anquetil persuaded Mr Kitson it would be preferable for the applicant to be replaced as Chief Executive Officer with an executive team comprised of three general managers. A company incorporated by Mr Cranston and Mr Onley, Synep Limited (Synep) purported to ‘purchase’ Plutus, at which time, Mr Anquetil formally ceased to be a director or shareholder. However, Mr Anquetil maintained his access to Plutus’ accounting system as well as transactional access to Plutus’ bank accounts (Reasons [42]-[43]). After this change, when administrative staff enquired about the applicant’s ongoing role, they were advised he was “consulting” for Plutus at the request of Synep’s board members.

11. [32]

    It should also be briefly mentioned that Mr Anquetil was responsible for commissioning the development of software offshore that, from June 2016 onwards, automated the withholding of a percentage of the PAYGW and GST amounts within Plutus before the gross payroll was remitted to the second-tier companies (the Plutus cut). The applicant was the only person who knew the location of the Amazon Web Services server the software was hosted on and therefore had control of the software.

12. [33]

    In April 2014, Mr Anquetil incorporated Media and Marketing Group (Aust) Pty Ltd (MMG) as a means of receiving Plutus’ share of the proceeds of the conspiracy. Mr Anquetil was the sole director and company secretary of MMG. He was the authorised signatory of MMG’s bank account, and the director/addressee on bank statements for the company (Reasons [74]).

13. [34]

    From April 2014 to about July 2015, Mr Anquetil was issuing invoices, albeit for hyper inflated amounts on Mr Onley’s instructions, for the performance of bona fide services for clients. However, from around 1 July 2015 onwards, MMG was no longer performing legitimate services, but issuing false invoices to Uneek Consulting Services Pty Ltd and Sonar Consultants Pty Ltd; being second-tier companies incorporated by other co-conspirators for the purposes of processing payroll funds and remitting PAYGW and GST amounts on behalf of Plutus (Reasons [39]).

14. [35]

    In May 2016, Mr Anquetil attempted to create the appearance that he had distanced himself from MMG by removing himself from relevant officeholder positions and transferring his shares in the company to a Ms Ellem without her prior knowledge or consent. However, the applicant remained in “true control” of MMG even at this time (Reasons [79]).

The objective seriousness of the offending

1. [36]

   The sentencing judge made numerous findings as to the objective seriousness of each count against Mr Anquetil.

2. [37]

   With respect to the tax fraud conspiracy, his Honour said (Reasons [90]):

3. [38]

   With respect to the money laundering offence, the sentencing judge held this to be “well above the mid-range of objective seriousness for offences of this kind”, calling the applicant’s dealings with the proceeds of crime as “sophisticated, organised and diverse” (Reasons [93]). His Honour arrived at this determination with reference to the “duration, quantum and conduct engaged in” which constituted this offending (Reasons [92]).

4. [39]

   In dealing with the proceeds of crime, Mr Anquetil dealt with not less than $28,192,805.20, of which he ultimately was the personal beneficiary of at least $12,218,148.55 (Reasons [11]), by payment of a portion of the proceeds of the conspiracy through Mr Anquetil’s various personal accounts, the SPA Ventures Pty Ltd account and MMG account, and including his net salary from Plutus and the Tech Pilot Fund (Reasons [82]).

5. [40]

   The sentencing judge also highlighted that while the applicant claimed to have initially created MMG for the purpose of laundering monies at Mr Onley’s request, it was a significant source from which the applicant derived his own lucrative financial benefit. An amount of $2,054,289.08 of the $14,397,622.98 proceeds dealt with via MMG was for Mr Anquetil’s personal benefit (Reasons [76]).

6. [41]

   Mr Anquetil also misdirected payments made from Plutus through entities other than MMG under the guide of payment for false invoices. These payments were then either further dealt with by Mr Anquetil either for the benefit of other co-conspirators, or retained for himself personally.

7. [42]

   The additional offending taken into account for the count 2 sentence is summarised above (at [6]).

The applicant’s subjective case

1. [43]

   The sentencing judge made his findings in relation to the applicant’s subjective case during his treatment of the mandatory considerations to be taken into account so far as they are relevant and known to the Court, as required by s 16A Crimes Act. A consideration of the grounds of appeal (summarised at [9] above) demonstrates that those subjective considerations underpin Mr Anquetil’s challenge to the sentences passed on him. It is convenient and appropriate therefore to deal with the relevant considerations when considering each ground of appeal separately.

2. [44]

   While the Crown’s proper concession in relation to ground 2 necessitates the re-exercise of the sentencing discretion by this Court, as I have already remarked, as ground 1 challenges the [redacted] discount allowed by his Honour, and ground 3 raises a parity point founded upon the respective subjective cases of each of Mr Anquetil, Mr Cranston and Mr Onley, it is necessary that each ground be dealt with separately.

3. [45]

   I propose to first deal with ground 1, then ground 3 and, finally, ground 2 when I turn my mind to the re-exercise of the sentencing discretion. Obviously, my conclusions about grounds 1 and 3 will likewise be incorporated into my reasons for the conclusions I reach on re-sentence.

4. [46]

   However, before turning to those questions, it should be said that the learned sentencing judge made very favourable findings about Mr Anquetil’s subjective case. Indeed, on the findings made by his Honour, it may be fairly said that Mr Anquetil had a powerful subjective case which the Crown submits was given full weight in the total effective sentence structured by the sentencing judge.

5. [47]

   At the time when Mr Anquetil was sentenced, he was nearly 37 years of age. He was married and the father of two children from different relationships. It may be said that he had formerly been a contributing member of the community, well regarded by those who knew him and of good reputation both professionally and personally.

6. [48]

   In the conventional terms of the law of sentencing, there was no question that he was a person of previous good character, having no criminal history. However, as his Honour observed (at Reasons [129]), given the nature of the white-collar offending:

7. [49]

   Mr Anquetil also enjoyed the advantages of a good and happy upbringing in a close-knit family. He was afforded, and took, the opportunity of a good education, and benefitted from the advantages that those circumstances allow.

8. [50]

   Although Mr Anquetil initially denied any involvement in the conspiracy when interviewed by officials of the ATO, and again when first interviewed by police after his arrest, to the extent that he blamed a co-conspirator, Mr Peter Larcombe (co-conspirator in the tax fraud conspiracy but who was, by that point, deceased), he repented of this deception, pleaded guilty at the first available opportunity in the Local Court, [redacted] such that his Honour allowed a [redacted] discount of 50% on the sentence that would otherwise have been imposed. [redacted].

9. [51]

   From these matters, and from the large body of character references that had been tendered on Mr Anquetil’s behalf (see Reasons [136]), his Honour was satisfied that Mr Anquetil had genuinely demonstrated his remorse and contrition. Notwithstanding this important and favourable finding, his Honour was initially hesitant to make a positive finding about the applicant’s likelihood of re-offending and prospects of rehabilitation. This was because, notwithstanding the impressive body of testimonial material, his Honour found that ‘on all of the evidence, the undoubted good works and community contribution made by Mr Anquetil started at a time where he was involved in a cynical and destructive fraud on a massive scale upon his fellow Australians’ (Reasons [138]). However, his Honour found, on all of the evidence, that Mr Anquetil had ‘adopted a different outlook in life’ (Reasons [138]). His Honour was “cautiously optimistic that [Mr Anquetil would] not re-offend” (Reasons [138]) and found him to have good prospects of rehabilitation.

10. [52]

    His Honour accepted, on the basis of expert psychological evidence that Mr Anquetil’s presentation to the expert witness was consistent with a person suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, but afforded these diagnoses little weight because there was no causal connection between the mental health issues and the offending behaviour. One might observe the mental health issues seem to have arisen as a consequence of his arrest and aspects of the effect of the criminal prosecution upon him. His Honour did not regard the expert evidence as warranting particular weight in mitigation of penalty (Reasons [133]), rather, the sentencing judge took it into account as a general aspect of Mr Anquetil’s subjective background and circumstances. His Honour took into account that Mr Anquetil had been seeking treatment in relation to his mental health issues during 2018 and 2019. His Honour did, however, accept that certain general medical conditions, recorded fulsomely at Reasons [135] and which need not be spelt out for present purposes, were likely to make Mr Anquetil’s time in custody more onerous.

11. [53]

    As I have said, I am uninstructed by the decision in Totaan, in the absence of evidence of exceptional circumstances, his Honour felt unable to substantially reduce the sentence otherwise appropriate because of hardship to Mr Anquetil’s family (s 16A(2)(p) Crimes Act). Once again, his Honour took it into account as part of the general mix of subjective factors.

12. [54]

    The consideration that it was Mr Anquetil’s first time in prison, and that he would be separated from his wife and children, in particular, his infant daughter, would make incarceration more onerous for him, particularly in the light of the then current COVID-19 pandemic restrictions in gaol.

13. [55]

    I think it is appropriate before moving on to fully record his Honour’s observation at Reasons [139]:

Ground 1 [redacted]

1. [56]

   [redacted].

2. [57]

   [redacted].

3. [58]

   [redacted].

4. [59]

   [redacted].

5. [60]

   [redacted].

6. [61]

   [redacted].

7. [62]

   Mr Fernandez acknowledged that his third contention is contrary to the submissions made at first instance by both the applicant and the Crown and, by necessary implication, accepts that leave is required to raise it for the first time on appeal: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (Zreika) at [79]-[83] per Johnson J, McClellan CJ at CL and Rothman J agreeing; Tcp 12/03/25 p 12.5-15 (learned senior counsel referring to it as an “obstacle”).

8. [63]

   The Crown joined issue on each of these contentions.

9. [64]

   [redacted].

10. [65]

    [redacted].

11. [66]

    [redacted].

12. [67]

    [redacted].

13. [68]

    [redacted].

14. [69]

    [redacted].

15. [70]

    [redacted].

16. [71]

    [redacted].

17. [72]

    [redacted].

18. [73]

    [redacted].

19. [74]

    [redacted].

20. [75]

    [redacted].

21. [76]

    [redacted].

22. [77]

    [redacted].

23. [78]

    [redacted].

24. [79]

    [redacted]. As I have said, learned senior counsel for Mr Anquetil acknowledged in oral submissions that this point was not taken at first instance; indeed, both parties at first instance adopted a similar approach. Accordingly, leave is required for the matter to be raised for the first time on appeal having regard to the principle for which Zreika stands as authority.

25. [80]

    The relevant principle was stated by Johnson J in Zreika (at [81]-[82]) in the following terms:

26. [81]

    Mr Fernandez was correct to accept that this principle was engaged by the case at hand. Contention 3 involves Mr Anquetil seeking to put an argument which is “a contradiction of submissions previously made.” This is not a case where there was the “most compelling material available on the plea [at first instance] that was not used or understood” (Zreika at [81]) nor is it a case where a circumstance which may operate in mitigation of penalty was overlooked by defence counsel and the sentencing judge. While these examples may not be exhaustive, their common characteristic is that they are “clear and rare cases where the relevant matter has not been relied upon at first instance” (Zreika at [82]).

27. [82]

    I would be disinclined to grant leave for contention 3 to be raised. Even if it may be said to involve a question of law, I am still so disinclined as contention 3 is a subsidiary contention put in support of a broader ground of appeal. I fully appreciate that neither Johnson J in Zreika nor Warren CJ in Bayram v R [2012] VSCA 6 upon which his Honour relied, referred to the necessity of obtaining “leave” to raise a point for the first time on appeal. However, where either “exceptional circumstances”, the availability of the “most compelling material” which was not used or understood or a “miscarriage of justice” are required to be demonstrated, it seems to me obvious that leave or other permission of a court of criminal appeal must first be sought before the argument may be advanced. As Johnson J pointed out, “this approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance” (Zreika at [82]). Of course, the Court of Criminal Appeal should exercise its powers in sentence appeals by reference to the principle that every offender is entitled to be sentenced according to law.

28. [83]

    But in any event, I am not satisfied that contention 3 has been made good. [redacted].

29. [84]

    To my mind, it is important to point out that at no stage during his Honour’s analysis did he deploy the expression “parity”, and I would not infer that he took that approach. [redacted].

30. [85]

    [redacted].

31. [86]

    In circumstances where the point was not overlooked but, rather, appears to be addressed in a permissible manner at first instance, I am not satisfied that leave should be granted. Were I in the minority on the question of leave, for the reasons I have rehearsed, I am not persuaded that contention 3 has been made good.

32. [87]

    For these reasons, I would reject ground 1.

Ground 3 – parity

1. [88]

   I remind myself that ground 3 has been expressed in the following terms:

2. [89]

   Each of Mr Cranston, Mr Onley and Mr Anquetil were foundational members of the conspiracy. They each were intimately involved in the conception, inception and conduct of each of the PAYGW and GST frauds. While their roles were not identical in the conduct of the frauds, they were equally involved at similarly senior levels in the conspiracy.

3. [90]

   In its terms, of course, the ground of appeal does not seek to differentiate between these co-offenders by reference to the nature of each of their offending. The emphasis is upon what is said to be Mr Anquetil’s stronger subjective circumstances necessitating, so far as the argument goes, greater leniency. The case at hand does not call for any detailed consideration of the law relating to the principle of parity which, of course, is an aspect of the equal justice principle. As it was put by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green v The Queen) at [28]:

4. [91]

   By reference to the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65], their Honours continued (also at [28]):

5. [92]

   It is also important to understand that while the imposition of a markedly disparate sentence on a co-offender may involve appealable error for the purpose of the rules in House v The King which consequently may (not must), require the Court of Criminal Appeal to intervene and impose a lesser sentence, as explained by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46:

6. [93]

   Finally, so far as relevant matters of principle are concerned, the plurality in Green v The Queen pointed out, it is necessary for “a court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity [to] have regard to the qualitative and discretionary judgments required of [the sentencing judge] in drawing distinctions between co-offenders” (at [32]).

7. [94]

   It should be borne in mind that when Mr Anquetil was sentenced, Mr Cranston and Mr Onley, who maintained their innocence by pleading not guilty had yet to be tried, let alone convicted and sentenced. However, his Honour had sentenced Mr Kitson: R v Kitson [2019] NSWSC 1109.

8. [95]

   Mr Kitson had pleaded guilty to an indictment containing one count of contravention of s 135.4(3) Criminal Code; the tax fraud conspiracy involving the loss of $105,625,304.36 to which I have made reference already. Mr Kitson’s personal gain was approximately $1.3 million. He too received a [redacted] discount of 50% [redacted].

9. [96]

   Like Mr Anquetil, Mr Kitson had a strong subjective case. After the relevant discount, he was sentenced to imprisonment on the single count for 4 years and 6 months with a NPP of 3 years. As is obvious, the starting point was one of 9 years, which the sentencing judge described as “near the top of the range for offending of this kind” (Reasons [146]). His Honour decided that, as Mr Anquetil was slightly higher in the hierarchy to Mr Kitson, who himself was a senior operative, the starting point for Mr Anquetil, reflecting his seniority to Mr Kitson, should be 9 years and 4 months. Of course, Mr Kitson was not charged with the money laundering offence carrying a maximum penalty of 25 years imprisonment.

10. [97]

    It will be recalled that the sentencing judge sentenced Mr Anquetil to a term of imprisonment of 4 years and 8 months for the s 135.4(3) Criminal Code count, and a term of imprisonment of 6 years for the money laundering offence, contrary to s 400.3(1) Criminal Code. The starting point for count 1, as I have said, was one of 9 years and 4 months; for count 2, the starting point was 12 years. After partial accumulation, the total effective sentence passed onto Mr Anquetil, it will also be recalled, was 7 years and 6 months with a single NPP of 5 years.

11. [98]

    Upon conviction after trial, each of Mr Cranston and Mr Onley were sentenced to 9 years imprisonment for the count 1 offending and 12 years imprisonment for the count 2 offending. After partial accumulation, the total effective sentence imposed on each was one of 15 years imprisonment. A single NPP of 10 years was likewise passed on each of Mr Cranston and Mr Onley. As a starting point each of the three co-offenders with whom I am presently concerned were treated equally. The difference between them was Mr Anquetil’s plea [redacted], and what that said about his subjective case.

12. [99]

    While the emphasis upon this ground of appeal is on the asserted material differences in the subjective cases of each offender, as the Crown point out, there were some differences amongst them relevant to the objective nature of the offending. In the case of each of Mr Cranston and Mr Onley, his Honour found that the objective seriousness of both the count 1 and count 2 offending was toward the highest end.

13. [100]

    Concerning Mr Anquetil, his Honour had found that the nature of his offending on count 1 was “one of the most serious offences to come before a Court in this country” (Reasons [90]). With respect to count 2, his Honour found that the objective seriousness of Mr Anquetil’s offending as it was, to the sum of $28,192,805.20, dealt with by him directly rather than in respect of the whole of the loss suffered by the ATO, was “above, but not significantly above, the mid-range of objective seriousness” (Reasons [92]).

14. [101]

    However, it must be borne in mind that in sentencing Mr Anquetil for the count 2 offending, his Honour was asked to take into account the s 16BA scheduled offending in respect of which Mr Anquetil admitted his guilt. This additional uncharged offending was not an aspect of the sentencing task in respect of either Mr Cranston or Mr Onley. The scheduled offence was a matter tending toward the imposition of a higher sentence than might otherwise have been called for in respect of that count.

15. [102]

    Moreover, not insignificantly for the purposes of sentencing for fraud offences, the personal financial gain of each of these three offenders differed. As I have said, in Mr Anquetil’s case, the relevant sum is $12,218,148.55; for Mr Cranston, it was $6,861,782.17 and for Mr Onley it was $4,692,585.56. As I have said, the magnitude of the illicit profit is relevant for sentencing purposes. A larger amount tends toward a longer sentence.

16. [103]

    While I have already referred to these matters, it is worthwhile repeating them in the present context. The sentencing judge found Mr Anquetil was a person of prior good character, but as his Honour said, “the significance of this finding is, however, limited” and expanded upon this by observing the following (Reasons [129]):

17. [104]

    I think it also worthwhile repeating what I have previously set out from Reasons [138]:

18. [105]

    With respect, initially, Mr Fernandez sought to distinguish the strength of the respective subjective cases of each of Mr Anquetil, Mr Cranston and Mr Onley by submitting that, in the case of Mr Anquetil, the sentencing judge had made a positive finding of good character in contradistinction to the qualified findings of each of Mr Cranston and Mr Onley. However, when Hamill J drew learned senior counsel’s attention to the whole of Reasons [129], Mr Fernandez had to accept that the finding in relation to good character was essentially the same with respect to each of the co-offenders the subject of this submission. In fact, quite properly, senior counsel withdrew the previous submission (Tcp 12/03/25 p 7.15-23).

19. [106]

    It is not clear to me whether ground 3 was withdrawn or, rather, only somewhat diluted. There remained some differences. His Honour was not satisfied that the diagnoses of Adjustment Disorder, Mixed Anxiety and Depressed Mood were actually proved in Mr Anquetil’s case as opposed to him presenting consistently with those diagnoses. However that may be, Mr Anquetil accepts the correctness of his Honour’s finding that that matter did not warrant any particular weight as a subjective consideration. As I briefly alluded to at [52] above, Mr Onley also had established mitigatory health issues increasing the burden of his incarceration, including the manifestation of a pre-existing blood clotting issue requiring serial hospitalisation.

20. [107]

    In Mr Cranston’s case, mental health impairments were established by the evidence which his Honour accepted would make his time in custody more onerous.

21. [108]

    Neither Mr Cranston nor Mr Onley were able to establish genuine remorse and contrition having regard to each of them exercising his right to go to trial on a plea of not guilty. Mr Anquetil, of course, had positive findings in this regard, even if arrived at after a degree of hesitation. These findings were based in part upon the plea of guilty and [redacted] reflected in the [redacted] discount of 50%.

22. [109]

    His Honour found that the applicant had good prospects of rehabilitation and, on balance, made a “cautiously optimistic” assessment that he was unlikely to re-offend.

23. [110]

    The absence of remorse seemed to have made it difficult for his Honour to be sanguine about the prospects of rehabilitation of either Mr Cranston or Mr Onley.

24. [111]

    Obviously, the subjective cases of the three co-offenders the subject of the disparity argument were not identical. It would be surprising if they were. Mr Anquetil, of course, had a more compelling case on the important issues of remorse and contrition, given the early plea [redacted] exhibited by him. But Mr Cranston and Mr Onley’s election to proceed to trial, of course, cannot be, nor was it, held against them. Moreover, there were features, as the foregoing analysis demonstrates, of a subjective nature that called for mitigation in each of their cases, which were absent in Mr Anquetil’s case.

25. [112]

    It must be borne in mind that Mr Anquetil is arguing that the sentencing judge should have adopted a starting point in respect of each sentence more favourable to him than the sentences in fact passed upon each of Mr Cranston and Mr Onley. In making this argument, he puts to one side the [redacted] discount of 50% he received for his early guilty plea [redacted] which were central to the favourable findings made in respect of his remorse, the unlikelihood of him re-offending and prospects of rehabilitation. Clearly, care was called for not to reduce the sentence below a level which was proportionate to the seriousness of his findings which, by his plea, he was convicted.

26. [113]

    I am not satisfied that it has been established that there is a marked disparity between the sentences passed on each of Mr Anquetil on the one hand, and Mr Cranston and Mr Onley on the other, creating a justifiable sense of grievance calling for the intervention of this Court.

27. [114]

    Accordingly, I would reject ground 3.

Ground 2 – familial hardship

1. [115]

   I will only briefly note that ground 2 has properly been conceded by the Crown, as I have pointed out more than once already.

2. [116]

   Accordingly, this ground will be considered as part of the necessary process of re-sentencing Mr Anquetil.

Re-sentencing

1. [117]

   I turn now to the question of re-sentencing having regard to the consideration that ground 2 has been established.

2. [118]

   Given that I would reject grounds 1 and 3, and that there is no challenge otherwise to the findings of fact relevant to the sentence passed by the sentencing judge, the focus of the re-sentencing question is whether the probable effect of the sentence of imprisonment on any of Mr Anquetil’s family or dependents requires the quashing of the sentences passed and the substitution of a lesser sentence for each count.

3. [119]

   As a starting point, it should be firmly borne in mind that while in the absence of exceptional circumstances in accordance with the prevailing jurisprudence prior to Totaan, his Honour found that potential hardship to Mr Anquetil’s family does not warrant any substantial reduction in his sentence of imprisonment, and his Honour went on to say (Reasons [141]):

4. [120]

   At the time he was sentenced, the applicant’s wife and relatively newborn baby daughter were unable to maintain themselves independently in the community. The applicant’s wife was unemployed and living off diminishing savings. Her car was repossessed by the finance company and she and her daughter were in the position where they had to move in with Mr Anquetil’s parents.

5. [121]

   Of course, it was a source of concern to Mr Anquetil’s wife that their baby daughter would be deprived of early contact with her father, who was a dedicated parent assisting with all the demanding tasks required of a parent of a new baby, including all aspects of personal care.

6. [122]

   Both the applicant’s wife and the mother of his son were concerned about the effect of Mr Anquetil’s arrest and incarceration upon that young man. Previously, Mr Anquetil and his son, who I note was 18 years of age at the time of his sentencing, had a very close personal relationship. They were to be separated by Mr Anquetil’s incarceration at a critical time in a young adult’s life. Mr Anquetil’s arrest and the seriousness of the charges had already necessitated his son being referred for psychological treatment. I have no doubt that the separation would be hard on the young man as he transitioned into full adulthood.

7. [123]

   A number of points should be made about this. First, there can be no question, given the objective nature of Mr Anquetil’s offending, that only a sentence consisting of imprisonment was appropriate, and that a substantial sentence of full-time imprisonment was called for. Secondly, in these circumstances, a degree of hardship to Mr Anquetil’s immediate family was a necessary and unavoidable consequence of the only appropriate sentence for the offending and the offender. Thirdly, as the Crown point out, in Director of Public Prosecutions v Ip [2005] ACTCA 24, which anticipated the decision in Totaan by nearly two decades, notwithstanding the terms of s 16A(2)(p), “in many cases it will not be possible to give family suffering much or any weight”. Fourthly, his Honour said he would take the probable effect of the sentence upon the offender’s family and dependents into account as a relevant factor “as part of the general mix of subjective factors” (Reasons [141]). This was not challenged, and for the purposes of compliance with s 16A(2)(p), that was all that his Honour was required to do. Fifthly, while in some cases, the circumstances of the offending may allow, and the hardship to an offender’s family may compel, what the sentencing judge referred to as a “substantial reduction in a sentence of imprisonment” (Reasons [140]), I am not persuaded that this is such a case.

8. [124]

   It may be said that care should be exercised in applying observations in state authorities preceding Totaan, however, I am of the view that the observations of Gleeson CJ in R v Edwards (1996) 90 A Crim R 510 (at 515) must still command respect. Many offenders including white collar offenders are likely to have assumed the usual obligations of family life toward a spouse, offspring and perhaps aging parents. The persons to whom those obligations are owed must necessarily suffer a degree of hardship if the offender is sentenced to a period of full-time imprisonment. In every case concerned with a Commonwealth offence, s 16A(2)(p) Crimes Act requires the consideration of the effect of the sentence on those persons to whom the offender owes those usual obligations of family life. It does not follow that the interests of justice will admit of a substantial reduction in an otherwise appropriate sentence beyond those considerations being factored into the instinctive synthesis in the usual way. Gleeson CJ said:

9. [125]

   In Commonwealth matters (and also in State matters: see Matthews v R; New v R [2018] NSWCCA 186 at [33] per Simpson J; Macfarlan and Gleeson JJA agreeing), the matter of familial hardship may be taken into account as part of the instinctive synthesis, but it does not follow that a particular measure of leniency must result. The conflicting considerations of the law of sentencing required to be accommodated by the instinctive synthesis may demand otherwise.

10. [126]

    I am satisfied that the sentencing judge took hardship to Mr Anquetil’s family into account in an albeit limited way, as his Honour said he would. But his Honour inadvertently fell into error by applying the prevailing jurisprudence of the time. Having regard to all of the matters relevant to sentencing known to the Court and having considered Mr Anquetil’s family hardship for myself as part of the instinctive synthesis in the light of Totaan and s 16A(2)(p) Crimes Act, I am not satisfied that any reduction in the sentence passed is appropriate on this ground and I am of the view that no lesser sentence than that passed at first instance is warranted by law.

11. [127]

    For these reasons, the orders I propose are:

    1. (1)

       Pursuant to r 3.5 Supreme Court (Criminal Appeal) Rules 2021 (NSW), grant leave to the applicant to make his application for leave to appeal from the sentence passed upon him in the Supreme Court on 31 July 2020;

    2. (2)

       Under s 5(1)(c) Criminal Appeal Act 1912 (NSW), grant leave to the applicant to appeal against the sentence passed on him;

    3. (3)

       Appeal dismissed.

12. [128]

    HAMILL J: I have had the benefit of reading the judgment of Campbell J. I agree with the orders his Honour proposes and, subject to what follows, with his Honour’s reasons.

13. [129]

    The first matter upon which I take a different approach to Campbell J is that, contrary to his Honour’s judgment at [62], [79], [82] and [86], the decision in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (“Zreika”) does not establish or create an additional leave requirement in an appeal against sentence. Senior Counsel did not accept that “leave” was required to argue part of ground 1 when he acknowledged the “obstacle” his client faced because the argument on appeal was different to the position taken by counsel at first instance. By the terms of s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), all appeals against sentence brought by an offender require a grant of leave. Further leave requirements are created by the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (for example, rules 3.5 and 4.15). This Court sitting in one particular case does not have the power to create rules or establish a requirement for leave. I do not understand Johnson J to have purported to create a requirement for leave in the circumstances prevailing in Zreika or those that exist in the present case. Furthermore, Rothman J (at [128]-[131]) did not agree with the passages of Zreika upon which Campbell J relies, and the concurrence of McClellan CJ at CL (at [1]) was in the most general terms. None of the Judges in Zreika referred to an additional layer of leave.

14. [130]

    Putting that matter to one side, I agree with Campbell J that no error is established under ground 1 which relates to the extent of the discount for the applicant’s plea [redacted].

15. [131]

    I also agree, for the reasons provided by Campbell J, that ground 3 (parity or proportionality between the applicant’s sentence and those imposed on some of his co-offenders) is not established.

16. [132]

    While noting that Payne JA applied the law about hardship to family members as it was understood before the Court published its judgment in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”), I agree with Campbell J that the respondent’s concession that error is established under ground 2 should be accepted.

17. [133]

    In accordance with the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”), I have exercised the sentencing discretion afresh.

18. [134]

    In undertaking that exercise, I have given some weight to the “probable effect” that the sentence would have on Mr Anquetil’s family in accordance with s 16A(2)(p) of the Crimes Act 1914 (Cth). I have applied the law as it was explained by Bell CJ in Totaan following his Honour’s thorough review of the authorities in this state and elsewhere. I have not applied the common law authorities decided before Totaan given the plain terms of s 16A(2)(p) and the Chief Justice’s conclusion that authorities such as The Queen v Wirth (1976) 14 SASR 291 (“Wirth”), R v Sinclair (1990) 51 A Crim R 418, R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286 (and many others) are plainly wrong and should not be followed: Totaan at [70], [77] and [82]-[85]. R v Edwards (1996) 90 A Crim R 510 (“Edwards”), a case to which Campbell J refers at [124], was a manslaughter case decided under the common law of New South Wales. Gleeson CJ appeared to follow Wirth, noting it has “been cited with approval, and followed, in the Courts of Criminal Appeal in other Australia States”: Edwards at 516-7; Totaan at [47]. To be clear, in exercising the sentencing discretion afresh, I have not followed the reasoning in those earlier cases. Section 16A(2) is in mandatory terms; the sentencing court “must take into account” the probable effect that the sentence would have on the applicant’s family.

19. [135]

    There was ample evidence of the effect of the sentence on the applicant’s wife and children including financial hardship, difficulties in caring for a newborn daughter, and the fact that the applicant’s 18-year-old son required trauma counselling.

20. [136]

    I have acted on the non-controversial findings of the sentencing Judge as to the objective circumstances of the offending and the applicant’s personal case. I would not depart from his Honour’s approach to the discount for the applicant’s plea of guilty [redacted].

21. [137]

    Having undertaken that exercise I agree with Campbell J that any sentence that this Court would impose is not less than that imposed by Payne JA. Accordingly, despite the established error, the appeal must be dismissed: Kentwell at [43].