Gould v R; R v Gould

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Adamson J in draft. I gratefully adopt her summary of the facts giving rise to the conviction the subject of the appeal, her summary of the sentencing judgment and her summary of the parties’ submissions on the appeal.

The conviction appeal

1. [2]

   I agree with Adamson J that the conviction appeal should be dismissed and, subject to one relatively inconsequential matter, her Honour’s reasons.

2. [3]

   Contrary to the view taken by her Honour, I do not think that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies to ground 2(a). As her Honour pointed out at [120] below, r 4.15 does not apply to the first part of the ground. However, it seems to me that the amendment raising the second part of the ground is merely consequential on the first part. In these circumstances, I do not think that r 4.15 applies to ground 2(a).

3. [4]

   Nonetheless, for the reasons given by Adamson J, the ground has not been made out.

The sentence appeal

1. [5]

   I agree with Adamson J that leave to appeal should be granted and the appeal dismissed. I agree with her Honour’s reasons on ground 2, but would prefer to express my own views on ground 1.

2. [6]

   This ground really depends on two issues. First, was an extended unanimity direction required. Second, if such a direction was required, did the sentencing judge err in failing to sentence in accordance with the principles in Chiro v R (2017) 260 CLR 425; [2017] HCA 37 (“Chiro”).

3. [7]

   Both parties accepted that such direction was required. They were correct in doing so.

4. [8]

   The offence was charged under s 43(1) of the Crimes Act 1914 (Cth). The section is in the following terms:

5. [9]

   The physical element of the offence is the act which is said to constitute the attempt to obstruct, prevent, pervert or defeat the course of justice. The mental element is that the act was carried out with that purpose or intention.

6. [10]

   In the present case, four discrete acts, albeit carried out over the same period of time, were said to constitute the physical element. It was accepted that the jury had only to be satisfied that one act was carried out with the requisite intention to constitute the offence.

7. [11]

   The case thus is not one where the prosecution advanced two legal formulations of its case, the alternative formulations depending on the same facts. An example of such a case is the decision of this Court in R v Cramp (1999) 110 A Crim R 198; [1999] NSWCCA 324 (“Cramp”) where manslaughter was left to the jury on the basis of unlawful and dangerous acts, gross negligence or both. An appeal on the basis that the jury should have been instructed that they had to be unanimous on one or other of those bases was rejected. Justice Barr, with whom Sully and Ireland JJ agreed, distinguished between cases predicated on alternative legal foundations of liability based on the same facts (such as the one before his Honour), and liability based on alternative factual bases (see Cramp at [63]–[66]).

8. [12]

   In R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 (“Walsh”), the same distinction was drawn. Justices Phillips and Buchanan made the following remarks at [57]:

9. [13]

   In Lane v R (2018) 265 CLR 196; [2018] HCA 28 (“Lane”), alternative counts of murder and manslaughter were left to the jury on two factual bases. The accused and the deceased had been involved in an altercation during which the deceased twice fell to the ground and struck his head. The Crown contended that the accused had struck or punched the deceased before each of the falls, and that the accused’s action before each fall could found his liability for murder or manslaughter. The trial judge directed the jury that it was open to it to find that a deliberate act by the accused had caused the death of the deceased if it found that either fall was caused by the accused.

10. [14]

    The Court of Criminal Appeal held that the trial judge erred in failing to direct the jury that they were required to be unanimous as to the factual basis on which they might convict the accused of murder or manslaughter. However, the majority applied the proviso, reasoning that it was not open to the jury to have any reasonable doubt that the deceased’s second fall was caused by a punch thrown by the accused.

11. [15]

    The High Court agreed that an extended unanimity direction was necessary. In reaching that conclusion, the plurality cited the passage from Walsh to which I have referred at [12] above with approval. However, the High Court concluded that the majority of the Court of Criminal Appeal were in error in applying the proviso. In that context, their Honours made the following remarks at [42] and [50]:

12. [16]

    In the present case, the particulars furnished provide four alternative acts by which the jury could conclude that the applicant committed the offence, provided he had the requisite intention. It was appropriate to give the extended unanimity direction. However, the result was that it could not be discerned from the jury’s verdict which of the acts particularised they were satisfied beyond reasonable doubt that the applicant had carried out.

13. [17]

    Justice Adamson has set out at [217] below the relevant legislation under which the applicant in Chiro was charged. The offence was essentially duplicitous in that a finding of guilt involved proving that the applicant had committed more than one offence over a period of not less than three days. It was in that context where a number of offences were alleged to have been committed for the purpose of establishing the charged offence, that the Court concluded that for the purpose of sentencing and in the absence of any inquiry of the jury of what offences they had found proved, the applicant should be sentenced on the most favourable view of the facts found against the offender. In that context, the plurality made the following remarks at [44]–[45]:

14. [18]

    Importantly, the Court did not overrule either R v Isaacs (1997) 41 NSWLR 374 (“Isaacs”) or Cheung v R (2001) 209 CLR 1; [2001] HCA 67 (“Cheung”), although stating that the considerations which informed the conclusions in each of those cases did not apply to the particular offence in respect of which the applicant was charged (in relation to Isaacs, see the plurality in Chiro at [36]–[42] and Bell J at [64]; in relation to Cheung, see the plurality in Chiro at [52] and Bell J at [71]–[72], cited by Adamson J in her judgment at [226]–[227] below).

15. [19]

    It follows that the principles laid down in Isaacs and Cheung that, generally speaking, a judge is not required to sentence on a view of the facts most favourable to the offender and should make his or her own findings as to the aggravating and mitigating circumstances of the offence consistent with the verdict of the jury, remains good law. The question is whether the modification in Chiro to statutorily sanctioned duplicitous counts which, when sentencing could attract the principles in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (“De Simoni”), extends to cases where a single charge is presented in the terms of alternate acts and the jury verdict does not identify the particular act on which the conviction was based.

16. [20]

    There are matters which tend to point in that direction. First, in Isaacs, in the passage approved by Cheung at [14], the Court emphasised that the primary constraint upon the judge’s power of decision-making is that the view of the facts adopted by the judge must be consistent with the verdict of the jury (Isaacs at 377–378). That is difficult where there are a number of different acts which could constitute the physical element of the offence.

17. [21]

    Second, Cheung was decided on the basis that the jury’s verdict decided the issues presented by the plea to the indictment, and not all facts of possible relevance to sentencing (Cheung at [7]–[10]). In a case such as the present where there are a number of alternative factual pathways by which the jury could reach its verdict, the sentencing judge in forming his or her own view of the facts could potentially do so in a manner inconsistent with the manner in which the jury determined those issues.

18. [22]

    Third, there are suggestions in Chiro itself that the principle may extend beyond offences of the nature of that considered in that case (Chiro at [64]–[70] per Bell J).

19. [23]

    Fourth, in Lane, a case where an extended unanimity direction was required, the Court concluded that it was not appropriate to apply the proviso because to do so was to decide a matter essentially for the jury and to usurp its functions (see the plurality at [49]; Gageler J at [54]). It may be said that in concluding for the purpose of sentencing that one or more of a series of acts constitutes an offence, the sentencing judge similarly was usurping the function of the jury.

20. [24]

    Notwithstanding these considerations, I agree with Adamson J that the sentencing judge did not fall into error in sentencing in accordance with the approach in Cheung. First, the ratio of Chiro was confined to offences of the nature of those in question in that case. Second, in contrast to Chiro, there was in the present case no De Simoni problem in sentencing on the basis that one or more of the particularised acts occurred. Third, and most importantly, there was no inconsistency with the jury’s verdict in the sense of sentencing for a different or more serious offence than that which the jury found was committed. Fourth, the need for extended unanimity directions has been recognised in particular areas for a lengthy period of time and it has not been suggested that a different approach to sentencing is required in such cases. It is not appropriate for an intermediate appellate court to mandate a different approach.

21. [25]

    In these circumstances, ground 1 of the grounds of appeal has not been made out.

The Crown appeal

1. [26]

   I agree with Adamson J for the reasons given by her that the Crown appeal should be allowed, and the applicant be sentenced in the manner her Honour proposes.

2. [27]

   The sentencing judge was correct in concluding that the offending was well within the mid-range, if not in the high range of offences of this type. It is an offence which strikes at the heart of the administration of justice in this country.

3. [28]

   One of the objects of the Crown appeal is to lay down principles for the governance and guidance of courts having the task of sentencing convicted persons. Accordingly, this case will provide guidance to sentencing courts that offences of the present nature and seriousness warrant condign punishment.

Orders

1. [29]

   I would make the following orders:

2. [30]

   DAVIES J: I have had the considerable advantage of reading the reasons of Adamson J in draft. I agree with those reasons and the orders she proposes, and would add the following.

3. [31]

   The matter of significance resulting from legislation such as s 50 of the Criminal Law Consolidation Act 1935 is that an offence (the over-riding offence) is created which, in substance, consists of a number of individual offence, not all of which are the same as each other. As the plurality judgment in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 makes clear at [44], if the accused is convicted of the over-riding offence, the offender is sentenced by reference to each of the individual offences for which he or she would have been sentenced if those offences were separately tried.

4. [32]

   It is easy to understand why, when it is not known which of the individual offences have been found by the jury to have been committed, it is necessary to sentence on the most favourable view to the offender in order to avoid offending the De Simoni principle. It is that principle which the plurality said at [44] was instructive.

5. [33]

   The contrast with the present case is clear. There are no underlying offences. There are simply particulars providing various bases for the ways that the offence of attempting to pervert the course of justice has been committed. No particular is, in that sense, more serious than the other. Proof of any one of them is proof of the offence. Unlike in Chiro, there are no different offences or maximum penalties. Unlike in Chiro, each particular, if proved, contains the whole and not "an element" (Chiro at [42]) of the actus reus of the offence.

6. [34]

   The result is that the sentencing judge is only required to sentence consistently with the jury's verdict, and not on the view most favourable to the offender. In that way, the present matter does not differ in principle from a manslaughter verdict which was capable of being reached on more than one basis.

7. [35]

   ADAMSON J: Vanda Gould (the appellant) was tried on indictment of one count of attempt to pervert the course of justice pursuant to s 43 of the Crimes Act 1914 (Cth). The first trial ended in a hung jury. At the conclusion of the second trial, before Wilson SC DCJ, the jury returned a unanimous verdict of guilty. On 17 December 2020, Judge Wilson sentenced the appellant to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months to commence on 11 May 2020.

8. [36]

   The appellant seeks leave to appeal against his conviction and his sentence. The Crown appeals against the sentence on the single ground of manifest inadequacy. It is convenient to address the application for leave to appeal against conviction first.

Application for leave to appeal against conviction

1. [37]

   The appellant abandoned the first ground of appeal in his notice of appeal filed on 28 July 2020 and sought leave in the course of the hearing of the appeal to amend ground 2(a). Ultimately, the appellant sought leave to rely on the following grounds of appeal against his conviction:

2. [38]

   It is necessary to set out in some detail the background to, and the course of, the trial in so far as they bear on the grounds.

3. [39]

   The appellant, who was born in 1948, is a chartered accountant by training and qualification. He lived and worked in Australia. He was associated with several companies of which other people were directors and shareholders.

4. [40]

   Peter Borgas was a citizen of Belgium who qualified as a solicitor in England. He provided corporate services, including providing nominee directors and other corporate officers, from Neuchatel, Switzerland, where he lived with his wife, Winny, who also acted as a director of various companies to which Mr Borgas provided corporate services.

5. [41]

   Mr and Mrs Borgas were directors of various companies associated with the appellant, including Chemical Trustee Ltd (C), Derrin Brothers Properties Ltd (D) and Bywater Investments Ltd (B). C and D were incorporated in England and B was incorporated in the Bahamas. The shares in each of these companies were ultimately held by either or both of JA Investments Limited (JA) and MH Investments Limited (MH) (the parent companies) through three nominee companies: Guardheath Securities Ltd (G), Lordhall Securities Ltd (L) and Anglore SARL (A) (the nominee companies). Both of the parent companies were incorporated in the Cayman Islands.

6. [42]

   G and L were UK companies controlled by Lubbock Fine, a firm of chartered accountants in London, who provided accounting services to B, C and D. Hasmukh Vara was the principal point of contact. A was based in Switzerland and was operated by Mr and Mrs Borgas.

7. [43]

   The articles of association of the parent companies were materially the same. Article 1(b) defined “the Appointor” as the “person or persons nominated as such by instrument in writing signed by the members and deposited at the Registered Office of the Company”.

8. [44]

   Article 3 provided as follows:

9. [45]

   Article 81 provided that on a winding up of the company, each of the members would be entitled to US$100 but would have no further right to participate in the surplus assets of the company, which would be distributed in accordance with a written instrument signed by “the Appointor”.

10. [46]

    There were documents which the Australian Taxation Office (ATO) obtained from the Cayman Islands which indicated that the appellant was the appointor of both the parent companies.

11. [47]

    In 2009 the ATO commenced an audit into offshore entities connected with the appellant; clients of his accounting firm, Gould Ralph; and associated entities. The audit included five companies incorporated in foreign jurisdictions: C, D and B, as well as Hua Wang Bank Berhad (H) and Southgate Investment Funds Ltd (S).

12. [48]

    As a result of the audit the Deputy Commissioner of Taxation (the Commissioner) considered that B, C and D were residents of Australia within the meaning of s 6 of the Income Tax Assessment Act 1936 (Cth) because they were controlled by the appellant. On this basis, the Commissioner, in August 2010, issued assessments of income tax to B, C and D, as well as H and S, on the basis of profits derived from sales of shares in Australia (the ATO assessments). The total amount of tax assessed was in the order of $14.3m.

13. [49]

    On 16 May 2011, B, C and D commenced proceedings in the Federal Court to challenge the ATO assessments. They argued that Mr Borgas controlled them and that, as he was resident in Switzerland and was a citizen of Belgium, the ATO assessments ought be set aside. Although B, C and D accepted that the appellant provided advice and recommendations to their directors, including Mr Borgas, they contended that he did not exercise control over them.

14. [50]

    Mr Borgas swore an affidavit on 7 February 2012 in the Federal Court proceedings in which he deposed that he was the sole shareholder of JA and MH and was, and had always been, the beneficial owner of those companies since they were established in the 1990’s. He deposed that he did not hold the shares in either company as a nominee or fiduciary. He acknowledged that the appellant provided him with advice and recommendations but denied that the appellant controlled the companies or directed their operation.

15. [51]

    In about April 2013 (about a year after he had sworn his affidavit) it became apparent that Mr Borgas would have to come to Australia since his affidavit was to be relied upon by B, C and D and the Commissioner required him for cross-examination.

16. [52]

    From about April 2013, the appellant sent to Mr Borgas various iterations of a document which set out questions which he might be asked in cross-examination in the Federal Court proceedings, and the suggested answers to those questions (the Q & A document).

17. [53]

    The first iteration of the Q & A document in evidence bore the footer “PB - April 2013 – Grouped – 20 June 2013” (the June 2013 Q & A document). It contained 305 questions and answers, which included the following:

18. [54]

    The Australian Federal Police obtained a warrant to intercept the appellant’s telephone. Recordings of conversations were played to the jury and transcripts were marked for identification for use as an aide-memoire. As a consequence, the evidence of the conversations did not depend on Mr Borgas’s oral evidence.

19. [55]

    On 6 June 2013, the appellant phoned Mr Borgas and told him that he needed to go through “these questions” to “try to get some practise [sic] on them”. It was common ground that the questions were those in one of the Q & A documents provided to Mr Borgas. A transcript of the call was admitted in the Crown case in the District Court.

20. [56]

    On 9 July 2013, the appellant provided further questions and answers to Mr Borgas under cover of a letter which said:

21. [57]

    On 24 June 2013, the appellant phoned Mr Borgas, who told him that an envelope had arrived that morning but that he had not had an opportunity to look at it. The appellant said, “when you’re ready that’s just a further updated you know story you can throw out the other ones.” The appellant referred to Mr Borgas’s cross-examination in the Federal Court as an “exam”.

22. [58]

    On 1 August 2013, the appellant phoned Mr Borgas again to arrange a time to “give [Mr Borgas] some practice on the questions”. The appellant suggested that they have a “practice run” the following Thursday and asked Mr Borgas to “flick” through his “notes” in preparation.

23. [59]

    On 8 August 2013 (which was the following Thursday), the appellant phoned Mr Borgas on Skype to rehearse the questions and answers by reference to the Q & A document (which is relevantly extracted above). Mr Borgas recorded the call on his dictaphone to help him remember what the appellant had told him. The following exchange occurred between them concerning the answer to question 1(a) (see above extract from Q & A document):

24. [60]

    The following exchange occurred between them concerning the answer to question 5 (see above extract from Q & A document):

25. [61]

    In the discussion about question 6 (extracted above), the following exchange occurred:

26. [62]

    On 16 August 2013, the appellant rang Mr Borgas to tell him about an “updated sort of question list” which the appellant had sent to him.

27. [63]

    On 13 September 2013, the appellant rang Mr Borgas and referred to further questions which he had sent the previous day. The appellant explained to Mr Borgas that the Commissioner’s case was that he (Mr Borgas) was a “complete idiot”, to which Mr Borgas responded, “Well of course I am.” The appellant proposed that they “have another go at it” on Monday or leave it until later in the week.

28. [64]

    On 16 September 2013, the appellant rang Mr Borgas and told him that he had done a few more questions and answers for his consideration.

29. [65]

    On 8 October 2013, Mr Borgas rang the appellant. The call included the following exchange:

30. [66]

    The Federal Court proceedings were heard by Perram J in September, October and November 2013. Ms Seiden SC, who appeared with Mr Hyde-Page for B, C and D in the Federal Court, read Mr Borgas’s affidavit of 7 February 2012.

31. [67]

    On 10 October 2013, Mr Borgas gave brief oral evidence in chief and between 10 and 15 October 2013 was cross-examined about decisions made by him in his capacity as a director of B, C and D.

32. [68]

    On 10 October 2013, in his evidence in chief, Mr Borgas confirmed that he was the beneficial owner of JA and MH. He was asked about article 3 of the Articles of Association of JA and MH and, in particular, why there was an “Appointor” mentioned in article 3, to which he responded:

33. [69]

    Mr Borgas identified the appellant as the appointor for JA and MH. When he was cross-examined about the effect of article 3 (set out above), he asked for time “to consider and to consult”. Before the afternoon adjournment, Perram J directed Mr Borgas not to discuss his evidence as he remained under cross-examination. The transcript recorded that Mr Borgas “withdrew” at 4.20pm on 10 October 2013.

34. [70]

    At 4.32pm on 10 October 2013 the appellant rang an unknown male who said:

35. [71]

    Mr Borgas came on the line and told the appellant that “they’ve gone for the jugular … on the question of the appointor in relation to JA and MH … and they’ve raised a couple of questions which I think um we we really need to sit together and discuss.” The appellant arranged to meet Mr Borgas at his hotel.

36. [72]

    At 5.38pm, Mr Vara phoned the appellant, who reported that he was with “the young man” (Mr Borgas). Later, at 6.35pm, the appellant rang John Leaver, a stockbroker associated with B, C and D, to discuss what had occurred in court that day. The appellant told Mr Leaver that he had “worked through” the issue with “him” (Mr Borgas). Mr Leaver said to the appellant that he thought Mr Borgas’s “other answer in the sense of not remembering or not knowing it was quite a good answer as a stop gap sort of thing”, to which the appellant responded, “correct correct absolutely absolutely”.

37. [73]

    When the Federal Court resumed at 10.13am the following morning, 11 October 2013, Mr Fagan SC, who appeared for the Commissioner, asked Mr Borgas about article 3. Mr Borgas responded by referring to article 1(b).

38. [74]

    Mr Borgas purported to withdraw the concession he had made the previous day that the appellant was the appointor and said that he was not aware of any document which complied with article 1(b). Mr Borgas described the appellant’s role as a “protector”, rather than an appointor.

39. [75]

    At the conclusion of the Federal Court proceedings, Perram J reserved his decision, which was published on 19 December 2014: Hua Wang Bank Berhad v Federal Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244. His Honour did not believe Mr Borgas’s evidence and found that B, C and D were controlled by the appellant. The judgment was referred to in the sentence proceedings but was not before the jury, as the Crown did not need to prove that the evidence had actually perverted the course of justice.

40. [76]

    On 15 October 2013, Mr Borgas was arrested at Sydney airport. There was a version of the Q & A document in his possession, dated 3 October 2013, which was seized. It was the Crown case that this was the final version of the Q & A document and had been used by Mr Borgas in the proceedings.

41. [77]

    The appellant was also arrested on 15 October 2013. He was charged with tax evasion and money laundering offences. He was released on conditional bail on 17 October 2013.

42. [78]

    On 13 May 2014, the Commonwealth Director of Public Prosecutions (the DPP) withdrew the charges against the appellant. On 15 September 2016 the appellant was charged with conspiracy to pervert the course of justice contrary to s 42 of the Crimes Act. On 4 April 2017 he was committed for trial in the District Court, following waiver of the committal hearing.

43. [79]

    On 26 June 2017, the DPP filed and served an indictment charging the appellant with two offences: count 1, giving false testimony (s 35(1) of the Crimes Act); and count 2, attempt to pervert the course of justice (s 43 of the Crimes Act).

44. [80]

    The appellant’s first trial commenced before Norrish QC DCJ and a jury on 31 July 2018. Mr Dhanji SC appeared for the appellant. What occurred in the first trial is relevant only because the warning given in the second trial (which is the subject of ground 2(b)) derived from the warning sought on behalf of the appellant in the first trial.

45. [81]

    On 13 August 2018, in the absence of the jury, Mr Dhanji confirmed that the appellant would seek a warning pursuant to s 165 of the Evidence Act 1995 (NSW), which relevantly provides:

46. [82]

    Mr Dhanji identified various bases on which a warning was required: first, that Mr Borgas was a person who might reasonably be supposed to have been criminally concerned in the events giving rise to counts 1 and 2; that he was a person who admitted telling lies while on oath in other proceedings; and that he had obtained an undertaking from the DPP that he would not be charged. Judge Norrish proposed the following direction:

47. [83]

    Mr Dhanji also sought a direction that it would be dangerous to convict based on Mr Borgas’s evidence alone, which the trial judge refused to give because the evidence of Mr Borgas was supported by other evidence.

48. [84]

    Judge Norrish gave the following direction under s 165 of the Evidence Act:

49. [85]

    On 13 August 2018, Judge Norrish directed a verdict of not guilty in respect of count 1. On 23 August 2018, the jury was discharged as it was unable to reach a unanimous verdict on count 2.

50. [86]

    On 18 February 2019, the DPP informed the appellant that she had determined to proceed to a retrial of the appellant on a single count (which had formerly been count 2) which charged that between 1 January 2012 and 20 November 2013 the appellant attempted to pervert the course of justice in relation to the Federal Court proceedings between H, C, D, B, S and the Commissioner, being a judicial power of the Commonwealth.

51. [87]

    The particulars of the charge were that between about April 2013 and 15 October 2013:

    1. (1)

       The appellant encouraged Mr Borgas to assert or confirm in evidence that he made decisions for C, D and B on the appellant’s advice but not at his direction.

    2. (2)

       The appellant encouraged Mr Borgas to say that he was the beneficial owner of C, D and B.

    3. (3)

       The appellant encouraged Mr Borgas to assert or confirm that he was the beneficial owner of JA and MH.

    4. (4)

       The appellant encouraged Mr Borgas to assert or confirm that he, not the appellant, controlled and managed the affairs of C, D and B.

    5. (5)

       The appellant offered Mr Borgas an unspecified inducement to give evidence.

52. [88]

    The Crown contended that proof of any one of the particulars would suffice for proof of the charge.

53. [89]

    The trial commenced before Wilson SC DCJ on 29 October 2019. The Crown case comprised documentary evidence, which included summaries pursuant to s 50 of the Evidence Act; business records; material obtained from the Cayman Islands, recordings of telephone intercepts; and oral evidence.

54. [90]

    Mr Borgas was the principal Crown witness and was called on 29 October 2019 immediately after opening addresses and the tender of agreed facts and a s 50 summary. He remained in the witness box until the eleventh day of the trial. His evidence in chief was completed on the seventh day (7 November 2019). He was cross-examined from 7 November 2019 until 13 November 2019. There was no re-examination. The only other witness in the Crown case was Phyllip Chapman, a Federal Agent, through whom documents associated with the investigation (such as s 50 summaries) were tendered.

55. [91]

    Mr Borgas was asked about documents in the Crown’s tender bundle (which was marked Exhibit C). The documents in Exhibit C included his affidavit in the Federal Court proceedings (referred to above). Mr Borgas gave evidence in chief that this affidavit “contain[ed] lies” which he told because the affidavit said what he believed the appellant wanted him to say. He said that it became apparent in about April 2013 (about a year after he had sworn his affidavit) that he would have to come to Australia (from Switzerland) to be cross-examined in the Federal Court proceedings. He gave evidence that he was prepared to allow himself to be induced to give false evidence.

56. [92]

    Mr Borgas’s understanding was that “it was decided” that the best way of preparing him to give evidence was to send him (by post) “a Q & A document which set out the evidence that [he] was to give … in the hope that that would defeat the … claim of the Tax Office”. His evidence was that he received no more than six or seven versions of the Q & A document between April and October 2013. His usual practice was to throw away the previous version when he received a subsequent version so that he was “only looking at one version at a time”.

57. [93]

    The documents in Exhibits C and D were tendered by the Crown to show the falsity of the matters in particulars (1) to (4). It is unnecessary, for present purposes, to set out all of the Crown’s evidence on each particular. It is sufficient to note that the documents relied on in support of particular (1) (that to the extent to which Mr Borgas purported to make decisions for C, D and B he did so at the appellant’s direction) included documents in the following categories:

    1. (1)

       Written communications from the appellant to Lubbock Fine instructing them as to investments by B, C, or D or informing them that they would shortly be receiving instructions from Mr Borgas to effect transactions on behalf of B, C or D;

    2. (2)

       Written communications from Mr Borgas or Mr Vara to the appellant when decisions needed to be made by B, C or D;

    3. (3)

       Written communications from Mr Borgas to the appellant forwarding transactional documents or informing him about transactions entered into by B, C and D (which, on the Crown case, were inconsistent with his purported role of advising on share purchases or Australian accounting matters);

    4. (4)

       Documents which evidenced the appellant’s involvement in routine matters concerning B, C and D, including consolidation of shareholdings and changes of address on company registers;

    5. (5)

       Minutes of meetings of B, C and D which were attended by Mr Borgas and his wife which lacked any detail about the transactions entered into by the companies;

    6. (6)

       Documents which showed that the audited accounts of C and D were not finalised until the appellant approved them;

    7. (7)

       The frequency with which documents concerning B, C or D contained the footer “Van.doc” or “v.doc”, which was associated with the appellant;

    8. (8)

       References in communications between the appellant and Mr Borgas to “the mutual client”, which, on the Crown case, was a reference to the appellant but was designed to obscure his involvement;

    9. (9)

       Intercepted telephone communications in which the appellant gave Mr Borgas directions about transactions to which B, C, and D were parties; and

    10. (10)

        The circumstance that A’s business was to provide nominee directors and shareholders.

58. [94]

    The evidence to establish particular (5) was Mr Borgas’s oral evidence as to statements made to him by the appellant, which was not supported by any documentary evidence.

59. [95]

    The Crown case closed on 13 November 2019. There was no case for the appellant.

60. [96]

    Madam Crown commenced her address on 15 November 2019. She told the jury that the Crown relied on the evidence of Mr Borgas as well as the documentary evidence and urged the jury to consider all of the evidence, as is evident from the following extract from its address:

61. [97]

    Madam Crown submitted to the jury that “[o]n paper, it does look like Mr Borgas was the person controlling the companies”, before proceeding to take the jury through the documentary evidence which indicated that it was the appellant and not Mr Borgas who controlled them. She told the jury that the documents in Exhibit C demonstrated that the appellant was intimately involved in the transactions of B, C, D, JA and MH and was giving instructions directly to Lubbock Fine over a period of years. She also relied on the Q & A documents and the dictaphone recording of the Skype conversation between the appellant and Mr Borgas in which they went through the questions and answers in preparation for Mr Borgas’s cross-examination in the Federal Court.

62. [98]

    Madam Crown returned to the topic of Mr Borgas’s evidence at the conclusion of her address and said:

63. [99]

    The appellant’s counsel at the second trial, Mr Smith SC, also emphasised the importance of the appellant’s belief and told the jury in closing address, “when you get down to the nitty-gritty what we’re really concerned with is the personal belief of Mr Gould.”

64. [100]

    The argument on proposed directions took place in the absence of the jury at appropriate junctures throughout addresses as well as after the close of addresses before the summing up.

65. [101]

    Before the Crown address, the appellant’s trial counsel sought a direction in the summing up that the jury would have to accept Mr Borgas’s evidence beyond reasonable doubt before it could convict on the sole count. As referred to above, such a direction had also been sought (and refused) at the first trial. In this trial this request was referred to as a Murray direction, so named because it derives from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19E:

66. [102]

    On 15 November 2019 the appellant’s trial counsel set out the directions sought in writing (MFI #31). He pressed the appellant’s request for a Murray direction:

67. [103]

    Also in MFI #31, the appellant’s trial counsel contended that the same direction under s 165 of the Evidence Act as had been given by Judge Norrish in the first trial ought be given and said:

68. [104]

    On 18 November 2019, the Crown responded in writing to MFI #31. It agreed that the direction under s 165 of the Evidence Act should follow the script in the Criminal Trial Courts Bench Book (the Bench Book), including as to Mr Borgas’s “motive to lie” (as set out in the Bench Book at [3-625] at [1]-[2]).

69. [105]

    His Honour circulated a draft summing up to the parties and also asked the parties to exchange summaries of their cases and provide the summary to the Court.

70. [106]

    The trial judge’s draft summing up contained the standard directions concerning s 165 of the Evidence Act. It also contained the following paragraph:

71. [107]

    In response to this draft the appellant’s trial counsel sought to substitute for the last sentence, the following:

72. [108]

    The appellant’s trial counsel reiterated his request for a Murray direction in accordance with [3-610] of the Bench Book and said:

73. [109]

    The Crown responded by identifying the several documents on which it relied, in addition to the evidence of Mr Borgas. It submitted:

74. [110]

    On 21 November 2019, when Mr Smith had finished his closing address, the trial judge, in the absence of the jury, returned to the question of the directions to be given in the summing up. Mr Smith confirmed that he was no longer pressing a Shepherd direction (arising from Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56) but was still pressing a Murray direction. His Honour expressed the tentative view that a “version of the Murray direction ought be given.” When the Crown asked what the trial judge had in mind, his Honour answered that he did not know. The Crown opposed such a direction on the basis that the Crown case did not substantially depend on the jury accepting Mr Borgas as a reliable witness.

75. [111]

    Before adjourning on 21 November 2019, his Honour indicated that a draft direction would be prepared and emailed to the parties. The following morning, in the absence of the jury, there was further discussion about the directions. His Honour marked the summaries of the cases prepared by the parties (to which there had been no objection by the other party). His Honour then provided the final version of the summing up and indicated that he would say, after giving the s 165 warnings in respect of Mr Borgas’s evidence:

76. [112]

    Mr Smith did not wish to be heard further. The Crown accepted that a Murray direction was appropriate with respect to particular (5) as this particular depended solely on Mr Borgas’s evidence.

77. [113]

    The trial judge provided the jury with a document which set out the elements of the offence (the elements document), which had been agreed between the parties in advance of the summing up. It relevantly set out the charge and the particulars relied on (set out above) and continued:

78. [114]

    The trial judge summarised the Crown case substantially in accordance with the draft provided by the Crown (to which the appellant’s trial counsel took no exception) and said:

79. [115]

    The trial judge summarised the defence case in accordance with the draft provided by the appellant’s trial counsel. His Honour identified documents on which the defence relied as relating to the appellant’s “personal belief at a time when he was acting as a litigation agent for the companies involved in the Federal Court proceedings.” His Honour also reminded them that the defence case was that Mr Borgas had lied to them about “fundamental matters”.

80. [116]

    The trial judge directed the jury that they needed to be unanimous about at least one of the particulars in the elements document.

81. [117]

    The trial judge gave the following warnings about the evidence of Mr Borgas, as had been canvassed in the discussion referred to above in the absence of the jury. It is necessary to set them out in full as they are the subject of appeal ground 2(b):

82. [118]

    The passage from the summing up which is alleged to constitute the error relied on in ground 2(a) appears in [77] of the summing up, which must be read in the context of the whole passage set out below:

83. [119]

    The jury returned a verdict of guilty on count 1 on 26 November 2019.

Ground 2(a): alleged corollary to the direction regarding particular (5)

1. [120]

   It was common ground that, as set out above, Mr Smith had sought a direction that, before the jury could convict the appellant, it would have to be satisfied beyond reasonable doubt of the evidence of Mr Borgas as to at least one of the particulars. Accordingly, rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (rule 4.15) does not apply to the first part of ground 2(a). However, it does apply to the second part of ground 2(a), which was added in the course of the oral hearing, which is highlighted above at [37].

2. [121]

   Mr Dhanji submitted that the effect of [77] of the summing up was to direct the jury about two matters:

   1. (1)

      as a consequence of there being no documentary evidence in support of particular (5), it was necessary for the jury to be satisfied beyond reasonable doubt of Mr Borgas’s evidence as to particular (5), before it could be satisfied of the appellant’s guilt on the basis of particular (5) (the particular (5) direction); and

   2. (2)

      there was sufficient evidence, apart from the evidence of Mr Borgas, to prove particulars (1), (2), (3) and (4) (the corollary).

3. [122]

   The particular (5) direction was accepted to be correct. Ground 2(a) depended on whether the corollary, which was accepted to be, at best, implicit, arose from the particular (5) direction. Mr Dhanji accepted that if the corollary did not arise, ground 2(a) must fail.

4. [123]

   Mr Dhanji submitted:

5. [124]

   Mr Dhanji submitted that because the jury could not have been satisfied of particulars (1), (2), (3) or (4) based on the documentary evidence alone (a proposition of which he contended that this Court would need to be satisfied by examining the documentary evidence for itself), the conviction must be set aside as the jury had been fundamentally misled as to the capacity of the evidence to prove these particulars. He made detailed written submissions in which he sought to highlight the importance to the Crown case of Mr Borgas’s belief in the falsity of the evidence he gave in the Federal Court, which he contended could not be proved unless Mr Borgas’s evidence was accepted. He submitted that the corollary was misleading because, even if other matters could be proved through the documents, Mr Borgas’s belief in the falsity of his evidence could not be. He submitted that “appellations like a Murray direction and the like are quite beside the point.”

6. [125]

   I am not persuaded that Mr Borgas’s belief as to the truth or otherwise of the evidence he gave in the Federal Court proceedings warranted the importance which Mr Dhanji sought to give it. As is evident from the elements document (which was agreed and was not the subject of any ground of appeal), it is the appellant’s state of mind which is to be proved (namely, his intention to pervert the course of justice). While Mr Borgas’s state of mind as to the truth or otherwise of the evidence he gave in the Federal Court was not irrelevant to the Crown case, it was not determinative.

7. [126]

   The point can be illustrated by the following example (among the many that appear in the narrative above). Question 5 in the Q & A document comprises questions about Mr Borgas’s wealth at particular times. The exchanges in the recorded Skype call on 8 August 2013 demonstrated that not only did Mr Borgas need to be told the answer to the question but he needed to have the terminology of the draft answer explained to him: it is plain that he did not understand, or even know how to pronounce, the word “exponentially” (hence the transcription, “ex-pon-ent-ially”). The appellant had to teach him what it meant so that he could answer the question in accordance with the Q & A document. Mr Borgas may have believed the answer to be true; he may have believed it to be false; or he may have had no mental state other than that he wanted to pass the “exam” (being his cross-examination in the Federal Court proceedings) by reciting the answers given to him by the appellant in accordance with the Q & A document. Whatever Mr Borgas’s state of mind, there was an attempt to pervert the course of justice because Mr Borgas was not giving evidence from his own memory and knowledge, untainted by the appellant’s instruction and influence.

8. [127]

   Further, the extracts from the addresses set out above demonstrate that the trial was conducted by the parties in a way which acknowledged that it was the appellant’s state of mind that needed to be proved beyond reasonable doubt, not Mr Borgas’s. In these circumstances, it is not necessary to address the elements of the offence further.

9. [128]

   For the reasons which follow, I am not satisfied that the jury would, or could reasonably, have understood [77] of the summing up in the way for which Mr Dhanji contended. Fairly understood, his Honour directed the jury, correctly, that the Crown case in respect of particulars (1) to (4) comprised both documentary evidence and the evidence of Mr Borgas, and that the Crown case in respect of particular (5) comprised solely the evidence of Mr Borgas. Thus, the only way the jury could be satisfied beyond reasonable doubt of particular (5) was if it was satisfied of Mr Borgas’s evidence as to particular (5) beyond reasonable doubt.

10. [129]

    By distinguishing particular (5) (in respect of which there was no evidence other than that of Mr Borgas), from the other particulars, all his Honour did was to direct the jury that, in relation to the other particulars, they needed to take into account Mr Borgas’s evidence and the documentary evidence and consider it as a whole. This was an entirely orthodox and correct direction.

11. [130]

    The absence of objection from the appellant’s trial counsel, who was very experienced, is a powerful indication that he did not understand [77] of the summing up in the way sought to be challenged. I do not consider there to be any real prospect that the jury could have understood [77] of the summing up in the way for which Mr Dhanji contended, particularly having regard to the context in which it appeared in the summing up.

12. [131]

    For completeness I propose to address the question of a Murray direction since it appears to have underpinned ground 2(a), although not ultimately put on that basis following the amendment.

13. [132]

    Mr Borgas’s evidence was not, in respect of particulars (1) to (4), uncorroborated. Accordingly, there was no proper basis for a Murray direction and no need for the jury to consider either his evidence or the documentary evidence in isolation. The jury was obliged to consider the evidence as a whole, including Mr Borgas’s evidence and the documentary evidence, when deliberating on whether any of particulars (1) to (4) had been made out.

14. [133]

    A Murray direction, as explained by Simpson J in Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 (Ewen) at [104] (Basten JA and Davies J agreeing), “refer[s] to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care.” The Crown case in respect of particulars (1) to (4) did not depend solely on Mr Borgas’s evidence because it was also supported by substantial documentary evidence. Thus, the metaphor of strands in a cable (derived from Wigmore on Evidence, vol 9 (Chadbourn Rev. 1981) at pp 412-414, par 2497, approved in Shepherd v The Queen at 579 (Dawson, Toohey and Gaudron JJ agreeing)) which is commonly used when describing a circumstantial case is apt.

15. [134]

    The present case illustrates the importance of appreciating the rationale for a Murray direction, which derives from fundamental principles and can be reduced to the following propositions:

    1. (1)

       it is for the Crown to prove each element of an offence beyond reasonable doubt;

    2. (2)

       the jury is obliged to consider all of the evidence in determining whether each element has been proved beyond reasonable doubt;

    3. (3)

       if the commission of an offence (or at least one element of it) depends solely on the evidence of a single witness, the jury must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant element or elements (since there is no other evidence to weigh in the balance);

    4. (4)

       if there is evidence beyond that of the single witness which tends to prove the particular element, there is no basis for a Murray direction since the jury could be satisfied of the particular element beyond reasonable doubt even though, without more, they would not be prepared to accept the evidence of the witness as to that matter beyond reasonable doubt; and

    5. (5)

       the evidence beyond that of a single witness can derive either from the oral testimony of other witnesses; or from documents; or other corroboration (such as DNA testing, telephone intercepts, physical evidence etc).

16. [135]

    The point can be illustrated by reference to an offence of unlawful intercourse, which was not uncommonly (at least prior to the enactment of s 294AA of the Criminal Procedure Act 1986 (NSW)) the occasion for a Murray direction. If the accused put in issue that there was sexual intercourse at all, the complainant’s evidence that there had been would attract a Murray direction (disregarding for present purposes the effect of s 294AA of the Criminal Procedure Act, as considered in Ewen) if it was the only evidence on the question. However, the position would be otherwise if the complainant had gone straight to hospital after the alleged intercourse and undergone testing with a Sexual Assault Identification Kit (SAIK) which had identified semen in the complainant’s upper vagina, which on further testing matched the accused’s DNA. In that event, there would be no occasion for a Murray direction in respect of that element of the offence since proof of that element would not depend solely on the evidence of a single witness. Although the complainant would still be the principal witness, her account would be, at least in that respect, corroborated by other evidence. The jury would not need to be satisfied of her evidence beyond reasonable doubt on that element before it could convict.

17. [136]

    The need, or occasion, for a Murray direction derives not from there being one principal witness in the Crown case (as there was here, in Mr Borgas) but rather from the fact that the only evidence in support of a particular element derives solely from that one witness. In the present case, although Mr Borgas was the Crown’s principal witness (since Mr Chapman was merely the means by which documents were tendered), the Crown case on all particulars, apart from particular (5), was based not only on Mr Borgas’s evidence but also on substantial documentary evidence. In these circumstances, there was no warrant for a Murray direction in respect of any particular other than particular (5).

18. [137]

    Thus, in respect of any one of particulars (1), (2), (3) or (4), the jury needed only to be satisfied that Mr Borgas’s evidence, when taken together with the corroborative documentary evidence (which included the Skype sessions and the Q & A documents), was sufficient to prove the particular beyond reasonable doubt. It was a matter for each juror to determine what weight to attribute to which piece of evidence. Some jurors might have given more weight to Mr Borgas’s evidence than others and other jurors might have given more weight to the documents or only accepted Mr Borgas’s evidence to the extent to which it was corroborated by the documents. All that was required was that the sum total of all the evidence of any specified particular was sufficient to establish the particular beyond reasonable doubt to the satisfaction of each juror. If the jurors were unanimous in respect of at least one particular, they were obliged to convict the appellant.

19. [138]

    For these reasons, I reject Mr Dhanji’s analysis that, if the jury was satisfied of the whole of the evidence beyond reasonable doubt, it followed that the jury must have been satisfied of Mr Borgas’s evidence beyond reasonable doubt. This is a non sequitur. If the element to be proved was x and Mr Borgas gave evidence of x, but there was substantial corroborative evidence of x, a finding of guilt based on x (from which it could be inferred that the jury was satisfied of x beyond reasonable doubt) provides no information about what weight was given by each juror to Mr Borgas’s evidence of x.

20. [139]

    As Mr Dhanji accepted that the fate of ground 2(a) depended on whether this Court accepted the corollary of what his Honour said in [77] of the summing up, I consider that leave under rule 4.15 is required. I would refuse leave under rule 4.15 as the point was not taken. Further, for the reasons given above, I do not regard the corollary as reasonably arising from what his Honour said. There is therefore no need for this Court to determine whether it would have been open to convict the appellant of any of particulars (1), (2), (3) or (4) based on the documentary evidence alone.

Ground 2(b): alleged inadequacy of the warning with respect to Mr Borgas’s evidence

1. [140]

   I have set out in detail the narrative of the provenance of the warnings given by the trial judge at the second trial, which derive from the direction sought by Mr Dhanji, when he was trial counsel for the appellant at the first trial. As is evident from the narrative, his Honour gave the direction in the form which was sought by the appellant. Norrish QC DCJ in the first trial was provided with, and accepted, assistance from Mr Dhanji in formulating the warning. In the second trial, Wilson SC DCJ also conferred extensively with counsel before commencing the summing up and provided them with a draft for their comment. There was, accordingly, an exceptional degree of consultation in the formulation of the warnings to be given by Wilson SC DCJ to the jury about the evidence of Mr Borgas.

2. [141]

   The additional matter which Mr Dhanji contended ought to have been appreciated (that by saying that Mr Borgas could be said to have been involved in the commission of the alleged offence, the trial judge was implying that there had been an offence and that the appellant was guilty) was plainly not appreciated at the trial. While Mr Dhanji resisted the description that ground 2(b) was an “armchair appeal”, he accepted that it was “an appeal point that arises as a result of distance from the fray”. He contended that the warning in the terms it was given was unfair to the appellant because the witness (Mr Borgas) was, in effect, admitting to a crime and the appellant was denying that either of them committed a crime (since it was the appellant’s case that Mr Borgas had been lawfully engaged as a company director for each of B, C and D, in circumstances where the appellant was one of his expert advisers). I fail to see why the situation in the present case did not warrant the usual warning under s 165 of the Evidence Act given in respect of the evidence of alleged accomplices.

3. [142]

   Nor do I consider there to have been any oversight on the part of Mr Dhanji at the first trial, or Mr Smith at the second trial, or indeed of Judge Wilson or the Crown. Rather, it reflected their collective appreciation that the warnings given by Judge Norrish in the first trial and Judge Wilson in the second trial in the form which they were given were appropriate and necessary to ensure that the appellant’s trial was fair. There was no implication that the appellant was guilty, since the warning was cast in terms of an alleged crime, as was the case.

4. [143]

   I would refuse leave to appeal under rule 4.15 in respect of ground 2(b).

Ground 2(c): alleged failure to direct the jury about Mr Borgas’s credibility

1. [144]

   Mr Dhanji accepted that ground 2(c) depended largely, although not wholly, on ground 2(b) being made out. To the extent to which there is anything left of ground 2(c) once ground 2(b) has not been made out, it can be addressed briefly.

2. [145]

   The Crown case was put on the basis that Mr Borgas had lied on oath in the Federal Court. As the passages extracted above showed, the Crown made it very clear to the members of the jury that they had to choose between inconsistent statements made by Mr Borgas because he had said things that were mutually inconsistent. They were told of his immunity from prosecution and the fact that there would be repercussions if he failed to give evidence in support of the Crown case.

3. [146]

   It is well established that the trial judge is not to give the jury directions about matters relating to credibility except where the experience of the Court is thought to be superior to that of the jury: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [52] (French CJ, Bell, Keane and Nettle JJ). Mr Dhanji accepted that “the particular issues in this case: a demonstrated willingness to lie on oath; the provision of inconsistent accounts; and the existence of a powerful motive to lie, do not necessarily fit into this category”. However, he submitted that because the appellant’s case was that Mr Borgas had not been engaged in illegal activity, the warnings under s 165 of the Evidence Act (which are the subject of ground 2(b)) gave rise to a particular risk which could only be ameliorated by the giving of a further direction regarding Mr Borgas’s credibility. Mr Dhanji was also critical of the trial judge’s summary of the appellant’s case and noted that there was no reference there to the reasons for caution in relying on Mr Borgas. I regard this criticism as unwarranted. Judge Wilson summarised the parties’ cases in the terms each had sought (in versions provided to his Honour in advance) and to which the other had made no objection.

4. [147]

   As this Court said in RGM v R [2012] NSWCCA 89 at [97] (Fullerton J, McClellan CJ at CL and Johnson J agreeing): “it is important that a trial judge refrain from suggesting an approach to the assessment of a [witness’s] evidence in such a way that it has the appearance of a direction of law.” Exceptions (where the experience of the Court is thought to be superior) are to be found in the matters referred to in s 165 of the Evidence Act. Jurors are also required to be told that they can accept part of a witness’s evidence and reject other parts. The matters raised by the appellant in ground 2(c) are quintessentially matters which were within the province of the jury and required no direction. Nor was any such direction sought.

5. [148]

   I would refuse leave to appeal under rule 4.15 in respect of ground 2(c).

The appellant’s application for leave to appeal against sentence and the Crown appeal against sentence

1. [149]

   The appellant seeks leave to appeal against his sentence on the following grounds:

2. [150]

   By notice of appeal dated 23 December 2020, the Crown appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence was manifestly inadequate. An amended notice of appeal, which was filed on 28 February 2021, expressed the ground as follows:

3. [151]

   Before addressing the appellant’s application for leave, and Crown appeal, it is convenient to summarise the proceedings on sentence and the sentencing judgment.

4. [152]

   The sentence hearing began on 30 March 2020 before Judge Wilson (the sentencing judge).

5. [153]

   The Crown relied on written submissions and proposed “agreed” facts which were footnoted with evidentiary references alleged to support them. The Crown also read an affidavit of Jeremy Tucker, the director of NSW Corrective Services Strategy and Policy, who was said to be authorised by the Commissioner of Corrective Services NSW to swear the affidavit. Mr Tucker annexed to that affidavit a copy of the response by Corrective Services NSW to the COVID-19 pandemic.

6. [154]

   The Crown also tendered a sentencing assessment report in which it was noted that the appellant had no previous criminal history and that he was “adamant of his innocence” and that “his advice to the witness was ‘taken out of context’”. The author of the report noted that the appellant expressed a willingness to comply with community service work and was compliant throughout the assessment. It was also noted that the appellant told the assessor that his employees had continued to manage his businesses and that, upon his release, he would recommence work as a financial adviser. The author assessed the appellant to be at a low risk of re-offending and as suitable to undertake community service work.

7. [155]

   The Crown tendered a letter dated 10 January 2019 from the Tax Practitioners Board (the Board) which notified the appellant that the Board, on 13 December 2018, decided that, as he no longer met the requirements for registration that he be a fit and proper person, his registration as a tax agent was terminated from 7 February 2019 and his application for renewal of his registration was rejected. In the letter, the Board detailed its reliance on the findings of Perram J in Hua Wang Bank Berhad v Federal Commissioner of Taxation, as follows:

8. [156]

   The Crown also tendered the decision of the Administrative Appeals Tribunal made on 28 May 2019, which refused the appellant’s application for a stay of the Board’s decision. Perram J’s final judgment (Hua Wang Bank Berhad v Federal Commissioner of Taxation) was marked for identification.

9. [157]

   Mr Smith, who continued to appear for the appellant, tendered five affidavits. Barry Roots gave evidence that he met the appellant, who was then the Chair of the board of Penrith Anglican College, of which Mr Roots became the Foundation Headmaster. Mr Roots credited the appellant with the success of the College which grew from 132 students in 1998 to over 1,300 students in 2013 when the appellant resigned from the College Board. Mr Roots described the appellant as “hardworking, capable, knowledgeable … and trustworthy”. He attended several days of the first trial and one day of the second trial, and said that he was familiar with the “basic facts”. He deposed that the appellant’s conviction neither fitted with, nor negated, his view of him.

10. [158]

    Character evidence was also given by the following witnesses:

    1. (1)

       Darina Ryan, a home stylist, and former flight attendant, who met the appellant in 1980. She deposed that she attended most of the trial and had a good understanding of the facts of the case. She considered charitable works to be “[the appellant’s] ultimate purpose in creating wealth, to make a difference to as many people as he can”;

    2. (2)

       Royston Barrett, the brother of the appellant’s second wife, Debbie (who was divorced from the appellant in 2016), who described the appellant as having “always been motivated to help others”. He regarded the conduct underlying the verdict of guilty as “out of character”. The conviction does not affect their relationship;

    3. (3)

       James Gould, the youngest of the appellant’s children from his first marriage (to Narelle), and the only one of his four children from whom he is not estranged, who described his father as “extremely generous” and prepared to give “his time and financial resources to assist others who are in need”, as well as “honest and devoted to his local church community, his friends and his grandchildren [James’s children]”; and

    4. (4)

       Mark Ord, a solicitor who has acted for the appellant on occasions and who holds the appellant’s power of attorney, who deposed that the appellant is a practising Anglican who has often expressed his faith in the religion to Mr Ord. Mr Ord also annexed to his affidavit several articles published in the media, reporting adversely on the appellant as a result of the Federal Court proceedings (and subsequent unsuccessful appeals) and the criminal trials.

11. [159]

    Mr Smith also tendered a report of Dr Katie Seidler, dated 20 March 2020, in which, on the basis of what she was told by the appellant, she set out that his acne led him to believe that he would never have a successful career as an auditor at Ernst and Young (where he began his professional career). This led him to become involved in tax accountancy. He has dry eyes and a significant build-up of plaque on his teeth, which was said to require regular dental attention. He is medicated for hypertension and also takes medication to minimise the risk of glaucoma. Dr Seidler recorded that he had been married twice but that his second marriage, which had lasted 20 years, broke down when his offending came to light. The appellant told Dr Seidler that he is presently in a relationship with a woman whom he intends to marry when released from prison. He is in daily contact with this woman, who is a “strong support” to him.

12. [160]

    Dr Seidler reported that the appellant finds prison very difficult as it is his first time in custody and he does not like being surrounded by “these drug users”. She did not consider him to suffer any diagnosable psychological condition. She considered that his prognosis was “sound” as he is “an inherently prosocial individual, who will likely be compliant with any order or supervision”.

13. [161]

    Mr Smith also tendered a letter from Dr Francis, the appellant’s treating ophthalmologist, who said that the appellant had successful cataract surgery and sees well, although he has mild glaucoma which needs medication and regular review. He also suffers from “moderately severe dry eye syndrome”.

14. [162]

    Mr Smith also handed up submissions, material relating to COVID-19 in prisons, as well as the appellant’s response to the statement of agreed facts proposed by the Crown. His Honour made directions for the parties to provide any written submissions in response to the other’s submissions.

15. [163]

    Mr Smith indicated that he was instructed to make a release application pending sentence following the Crown’s oral submissions on sentence.

16. [164]

    The Crown submitted that the appellant’s conduct was “extremely serious”, even if the jury was satisfied of only one of the particulars. The Crown contended that the offending involved a serious level of dishonesty and a sophisticated degree of planning over a period of about six months in an attempt to pervert the course of justice in the Federal Court proceedings which, if successful, could have resulted in B, C and D successfully challenging the ATO assessments, thereby resulting in a substantial loss of revenue.

17. [165]

    The Crown submitted that the relevant authority on fact-finding was Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) and that it was for the trial judge to determine the facts consistently with the jury’s verdict, including which of the particulars had been made out beyond reasonable doubt (accepting that the jury’s verdict meant only that at least one had been made out). It submitted that Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 (Chiro) had no application to the present case as its application was confined to the particular offence (persistent sexual exploitation under s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLC Act), which required proof of two acts of sexual exploitation separated by three or more days).

18. [166]

    The Crown contended that the sentencing judge would be satisfied that each of the particulars had been proved beyond reasonable doubt. It submitted in the alternative, that the sentence would not be affected by which particular or particulars were found proved beyond reasonable doubt because each of particulars (1)-(4) were characterised by the appellant’s encouragement of Mr Borgas to lie in his evidence in the Federal Court proceedings in order to benefit the appellant and the companies which he owned or controlled. The Crown submitted that the appellant was motivated by greed and the desire to avoid a substantial tax liability.

19. [167]

    The Crown accepted that there was no quantifiable loss (since Perram J did not believe Mr Borgas in any event), but submitted that this was a neutral factor. The Crown noted that the appellant, who continued to deny guilt, had shown neither contrition nor remorse. The Crown accepted that while there had been a degree of cooperation in the conduct of the trial, there was no other cooperation. The Crown stressed the need for general and specific deterrence, as well as punishment. It submitted that less weight ought be given to the appellant’s prior good character because of the need for general deterrence. The Crown noted that the offending occurred when the appellant was 64 years old and submitted the appellant’s age did not mitigate the sentence. The Crown provided a table of comparative cases.

20. [168]

    The Crown accepted that the appellant had, as at 31 March 2020, spent 127 days in custody, having been taken into custody on 26 November 2019.

21. [169]

    Mr Smith responded to the Crown’s submissions by contending that Chiro applied, since the present case was one in which an extended unanimity direction was required, and that Cheung was distinguishable (and was distinguished in Chiro (by Kiefel CJ, Keane and Nettle JJ at [45] and Bell J at [70]-[71])). He submitted that the sentencing judge was obliged to sentence the appellant on the basis of the least serious particular (which he identified as being particular (3)), since the jury had not been asked to specify which one or more of the five particulars had been proved to its satisfaction beyond reasonable doubt.

22. [170]

    Mr Smith relied on the circumstance that Mr Borgas had already sworn the affidavit on 7 February 2012 and had therefore committed himself to giving evidence that he was the beneficial owner of JH and MA. Mr Smith argued that it ought be inferred that Mr Borgas needed “very little” encouragement to adhere to that version. Further, he submitted that the question of beneficial ownership was subordinate to more relevant issues of control. He also relied on the fact that the appellant was not a lawyer and therefore might have been significantly influenced by the content of the affidavit which Mr Borgas had already sworn (over a year before the appellant’s offending commenced). He submitted that the appellant’s intention was “to improve the prospects of a favourable outcome for the taxpayers that he believed on legal advice to be just”.

23. [171]

    Mr Smith denied that the appellant’s motive was greed and pointed to his charitable donations.

24. [172]

    Mr Smith relied substantially on delay and, in particular, that the conduct had occurred approximately six and a half to seven years previously. He cited R v Donald [2013] NSWCCA 238 at [49] in support of the proposition that “[d]elay by itself is not mitigatory but it may be in combination with other relevant sentencing factors favourable to the offender.”

25. [173]

    He referred to the chronology which I have set out above under the heading “The charging of Mr Borgas and the appellant” and relied on the following three periods of delay:

    1. (1)

       The arrest and charging of the appellant on 14 October 2013 [it appears that the date of arrest was in fact 15 October 2013] and the withdrawal of those charges on 13 May 2014;

    2. (2)

       commencement of the current prosecution on 15 September 2016; and

    3. (3)

       the delay of six months between the discharge of the jury in the first trial and the decision to proceed to retrial.

26. [174]

    Mr Smith also relied on the appellant’s age and medical condition, his good prospects of rehabilitation, the hardship of custody and extra-curial punishment (loss of reputation, termination of his registration as a tax agent, and loss of opportunity to be a director). He submitted that an Intensive Correction Order would be appropriate if the Court considered that no sentence other than a term of imprisonment was warranted. He also submitted that if a sentence of full-time custody was imposed, it would be appropriate that a significant portion of the time be served on parole due to the appellant’s age and prospects of rehabilitation.

27. [175]

    Mr Smith also made alternative submissions as to the findings of fact in the event that the sentencing judge accepted the Crown’s submission that Chiro was not applicable.

28. [176]

    The sentence hearing on 30 March 2020 was required to be adjourned, part-heard, to 7 April 2020 because of technical difficulties in conducting the matter remotely (as was required due to COVID-19). The proceedings did not go ahead on 7 April 2020. On 8 April 2020, the sentencing judge granted bail to the appellant on conditions which required him to reside and remain at a specified address, except when reporting to police (which he was required to do daily) or obtaining essential or urgent medical treatment. The order was made under s 11 of the Crimes (Sentencing Procedure) Act 1990 (NSW) that the sentence be deferred to a date to be fixed in October 2020. On 2 November 2020, the order under s 11 was revoked but bail was continued on the same conditions pending the imposition of sentence on 17 December 2020.

29. [177]

    At the resumed sentence hearing on 17 December 2020, further material was admitted into evidence. The Crown tendered a further sentencing assessment report and an affidavit of Mr Tucker as to COVID-19 in prisons, and the appellant tendered a report of Dr Holliday, a general practitioner, dated 9 November 2020, as to his present medical conditions. Following further submissions, his Honour delivered his sentencing judgment and imposed the sentence referred to above.

30. [178]

    His Honour’s findings about the background to the offence accord with the narrative set out above (as to B, C and D and the Federal Court proceedings) and, accordingly, does not need to be repeated here. The sentencing judge relevantly found:

31. [179]

    His Honour found, at [61], that it was “apparent that Mr Gould was indeed coaching Mr Borgas on how to answer questions”. His Honour addressed the evidence in support of each particular and found that each of particulars (1) to (4) had been made out beyond reasonable doubt. As to particular (5), his Honour said:

32. [180]

    His Honour’s reasons for distinguishing Chiro, were as follows:

33. [181]

    The sentencing judge accepted the Crown’s submission that the offending was “objectively very serious”. His Honour set out the Crown’s submissions as to the factors which led to this conclusion:

    1. (1)

       the extended period of time of the offending (six months), as demonstrated by the number of iterations of the Q & A document; the audio recording of the Skype call which “resembled a class between a tutor and his pupil”; the appellant’s use of Mr Borgas as a “puppet”; the appellant’s “perfect insight” into what he was asking Mr Borgas to do; the tutorials which the appellant conducted after Mr Borgas arrived in Australia on 4 October 2013; and the telephone contact between them in Australia which had been intercepted and recorded;

    2. (2)

       the sophistication of the offending; and

    3. (3)

       the steps taken by the appellant to avoid detection (by encouraging Mr Borgas not to reveal the coaching and to be careful about what he told Ms Seiden who was said to be scrupulous about ethical matters).

34. [182]

    His Honour accepted that the present case was a serious example of an offence which struck at the very heart of the administration of justice. He found that the appellant stood to benefit from avoiding the tax which was the subject of the ATO assessments challenged by B, C and D in the Federal Court. Honour concluded that:

35. [183]

    His Honour turned to the various factors in s 16A of the Crimes Act. He declined to find that the offence formed part of a course of conduct. The sentencing judge rejected Mr Smith’s submission that the absence of loss or damage reduced the objective seriousness. His Honour found that justice was achieved (Perram J’s rejection of Mr Borgas’s evidence) “notwithstanding the dishonest attempts by the [appellant] to deceive the Court so as to subvert the Court’s processes.” His Honour regarded the statement by the appellant that he was innocent and that “his advice to the witness was ‘taken out of context’” as demonstrating that he was “as delusional as he is dishonest”.

36. [184]

    His Honour found general deterrence to be of “paramount significance” but also found that there was also a need for specific deterrence, “moderated to some degree by the [appellant’s] changed circumstances”. In relation to good character his Honour found:

37. [185]

    The sentencing judge referred to Dr Seidler’s report and declined to find that the factors or antecedents referred to mitigated the sentence. His Honour concluded:

38. [186]

    His Honour noted that the appellant was born in 1948 and was, at the time of sentencing, 72 years old. The sentencing judge accepted Mr Smith’s submissions that, having regard to the appellant’s age, each year of a sentence may represent a substantial portion of his remaining life and there is hardship associated with the knowledge that a lengthy sentence will destroy any reasonable expectation of a useful life after release.

39. [187]

    As to the appellant’s physical condition, his Honour found that, without any evidence to the contrary, there was no reason to find that the appellant’s need for medical attention could not be appropriately managed by Justice Health. The sentencing judge found the appellant’s prospects of rehabilitation to be “guarded”. His Honour took into account that the appellant was in a form of protective custody known as the “Special Management Area Placement” (SMAP), having been moved there at his own request and not as a result of any identified risk. His Honour also took into account the risk of contracting COVID-19 although found that the risk was ameliorated by the relative isolation afforded by the SMAP.

40. [188]

    His Honour found that there had been a degree of extra-curial punishment but noted that the appellant had told the assessor in March 2020 that his employees had continued to manage his businesses and that, upon his release, he would recommence work as a financial adviser.

41. [189]

    It is necessary to address his Honour’s reasons concerning delay in some detail since they form the basis for ground 2 of the appellant’s application for leave to appeal. His Honour, under the heading “Delay”, extracted the three periods of delay which Mr Smith had identified in his written submissions (which are extracted above) and reproduced them in the sentencing judgment. His Honour noted that there was no evidence of rehabilitation during delay. His Honour inferred “uncertain suspense”. His Honour recounted the parties’ submissions before concluding:

42. [190]

    His Honour continued to address the delay in the portion of the sentencing judgment which immediately succeeded the portion on delay under the heading, “Commencement Date”. His Honour said, of present relevance:

43. [191]

    His Honour determined that the sentence ought be backdated to 11 May 2020 to allow for one third of the time spent on bail to be taken into account.

44. [192]

    His Honour concluded by finding that no sentence other than one of imprisonment was appropriate in the circumstances because any sentence other than imprisonment “would not reflect the serious criminality of the offending behaviour”. His Honour returned to the seriousness of the offending in the following findings at the conclusion of the judgment, immediately before imposing sentence:

45. [193]

    This ground depends on whether Chiro applies to the present case or whether the sentencing judge was entitled to sentence in accordance with Cheung.

46. [194]

    The submissions which were made to the sentencing judge were repeated in this Court. In substance, the appellant submitted that Chiro applies to the present case because of the need for an extended unanimity direction.

47. [195]

    The Crown submitted that Chiro was confined to the particular offence under consideration in that case (an omnibus offence which comprised a number of constituent offences) and did not apply to an offence such as the present. The Crown submitted that, unlike in Chiro, the particulars could not have been charged as four separate offences, since, had that course been taken, the charges would have been liable to be struck out, as there was a single offence constituted by one activity (attempting to pervert the course of justice in the Federal Court by encouraging Mr Borgas to give evidence which was false or misleading), albeit one with several aspects by reason of the different topics about which the evidence was concerned.

48. [196]

    Procedural fairness required the Crown to particularise the aspects of the evidence relied on. The Crown accepted, at trial and in this Court, that an extended unanimity direction was required. It is neither necessary nor appropriate for this Court to express a concluded view on this question, given the absence of any argument on the question, in light of the concession.

49. [197]

    The determination of whether the principles in Chiro apply to the present case requires an analysis of the relevant authorities, including Cheung and Chiro.

50. [198]

    The starting point in addressing the question of fact-finding for the purposes of sentencing is R v Isaacs (1997) 41 NSWLR 374 (Isaacs) where this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), at 379-380, overturned authorities which had sanctioned the questioning of juries as to the basis of their verdict. The appellant in Isaacs had submitted that the sentencing judge was in error in sentencing him on the basis of manslaughter resulting from provocation, rather than the alternative of manslaughter involving unlawful and dangerous act, and that the sentencing judge ought to have asked the jury to identify the basis, or bases, of its verdict was.

51. [199]

    This Court rejected the appellant’s argument and observed that it was “ordinarily better” not to ask a jury the basis for its verdict. Their Honours said, at 378, following Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29, that it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury’s verdict. The Court also said, at 378, that there was no general requirement that a sentencing judge must sentence the offender on the basis of the view of the facts which is most favourable to the offender. The judge was, however, required to be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt. The Court noted that these principles applied equally to manslaughter and other offences. The Court deprecated the practice (which had developed in relation to manslaughter) of questioning the jury as to the basis of its verdict.

52. [200]

    The Court, at 379-380, listed seven reasons why questioning the jury would usually be inappropriate:

53. [201]

    The Court in Isaacs held that the sentencing judge’s task was not to determine the basis on which the jury had found the appellant guilty of manslaughter, but rather to find the facts which were material to sentencing, consistent with the jury’s verdict of manslaughter.

54. [202]

    Underlying the Court’s decision in Isaacs was the well-established proposition that the jury need not be unanimous about the type of manslaughter, as long as the jury was unanimous that the accused was guilty of manslaughter. Thus, it is possible for four jurors to be satisfied that an accused is guilty of manslaughter by unlawful and dangerous act; four to find an accused guilty of manslaughter by reason of excessive self-defence; and the remainder to be satisfied that the accused is guilty of manslaughter by reason of provocation. The only need for an extended unanimity direction would arise if the Crown put its case on the basis of unlawful and dangerous act and there was more than one relevant act, in which event the jury would be directed that it would need to be unanimous as to the relevant act.

55. [203]

    The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. An accomplice gave evidence that the appellant had been involved in the planning, implementation and importation over a period of about nine months. However, if that evidence (and other evidence) had not been accepted, the appellant’s involvement would have been significantly more limited. The judge sentenced the appellant on the basis of the evidence of greater involvement given by the accomplice. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him.

56. [204]

    When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]:

57. [205]

    In KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 (KBT), the High Court considered s 229B of the Criminal Code (Qld), which is not dissimilar from s 50(1) of the CLC Act (set out below), which was considered in Chiro. Section 229B relevantly provided:

58. [206]

    The offences defined in s 210(1)(e) and (f) of the Criminal Code (Qld) related to the exposure of a child aged under 16 years to indecent material and the taking of indecent photographs or films of a child under 16 years.

59. [207]

    The appellant, KBT, was charged with an offence under s 229B(1) on the basis of various incidents involving the complainant, M, which fell into the following six categories:

    1. (1)

       M rode as a pillion passenger on KBT’s motorcycle, in the course of which KBT stroked her breasts and pubic area and put his hands inside her pants;

    2. (2)

       KBT would have an afternoon rest with M, during which he would stroke her pubic area under her clothing, and, on occasions, penetrate her vagina with his finger;

    3. (3)

       KBT would grab M’s bottom or breast when they were fruit-picking;

    4. (4)

       KBT would put M on his lap and stroke her breasts and pubic area under her clothing and, on occasions, penetrate her vagina with his finger;

    5. (5)

       KBT would come into M’s bedroom and perform the acts referred to above; and

    6. (6)

       KBT would get M to sit on his lap while watching television and would perform the acts referred to above under a blanket while KBT’s wife was present.

60. [208]

    The High Court held that a person could not be convicted under s 229B(1) of the Criminal Code (Qld) unless the jury was unanimous as to the commission of the same three or more acts constituting offences of a sexual nature.

61. [209]

    The plurality (Brennan CJ, Toohey, Gaudron and Gummow JJ) said, at 422, that although the offence would appear to be one involving a course of conduct (and therefore analogous to trafficking in drugs), s 229B(1) made it plain that the actus reus of that offence is the doing of an act which itself constitutes an offence of a sexual nature on three or more occasions. Thus, it followed that the jury had to be unanimous as to the commission of the same three or more illegal acts.

62. [210]

    The High Court allowed the appeal from the Queensland Court of Appeal (which had dismissed the appeal on the ground that there was no miscarriage of justice). The plurality said, at 424:

63. [211]

    In R v D (1997) 69 SASR 413, the South Australian Court of Criminal Appeal allowed an appeal against the sentence imposed on D who had pleaded guilty to the offence of persistent sexual abuse of a child contrary to s 74(1) of the CLC Act (the statutory predecessor to s 50(1), which was considered in Chiro).

64. [212]

    Section 74 of the CLC Act then provided:

65. [213]

    One of the issues in R v D was whether the stipulation of a maximum penalty of life imprisonment meant that conviction for an offence under s 74 (on the basis of three underlying offences) would give rise to a heavier sentence than conviction for the three underlying offences, had they been charged separately. The Court held that, when sentencing for an offence under s 74, the court would have to take into account the maximum penalties for the underlying offences.

66. [214]

    Doyle CJ said, at 420:

67. [215]

    Bleby J, to similar effect, said, at 430:

68. [216]

    These passages were cited with approval by the High Court (Kiefel CJ, Keane and Nettle JJ) in Chiro at [44] (see below).

69. [217]

    Chiro (C), a former high school teacher, was charged with one count of persistent sexual exploitation of a child under the prescribed age under s 50(1) of the CLC Act. Because of the importance of the wording of the provision to the decision, it is necessary to address it in some detail. Section 50 provided (at the relevant time):

70. [218]

    The period to which the charge against C related was 1 July 2008 to 19 November 2011. C was initially charged with four separate offences under the CLC Act: unlawful sexual intercourse (s 49(5)); aggravated indecent assault (s 56); and procuring an act of gross indecency (s 58(1)(c)). On appeal, his conviction on one count of aggravated indecent assault was quashed. At his retrial, the indictment charged him with a single offence contrary to s 50(1) of the CLC Act, of which the particulars of the acts of sexual exploitation comprising the offence were:

71. [219]

    In the course of the summing up, the trial judge gave an extended unanimity direction: that is, her Honour (applying KBT) directed the jury that it needed to be satisfied that two or more of the acts particularised took place over a period of not less than three days. Her Honour, in this context, directed the jury that it would be sufficient to prove the offence if they were satisfied that C had kissed the complainant on more than one occasion during the relevant period in circumstances of indecency. The jury asked whether they would be asked for a verdict in respect of indecent assault (particulars 1, 2, 3 and 5) and a verdict on unlawful sexual intercourse (particulars 4 and 6). C’s counsel’s request for a special verdict was declined on the basis of R v N, SH [2010] SASCFC 74, in which the South Australian Court of Criminal Appeal had said that special verdicts should not be taken in respect of charges under s 50 of the CLC Act (R v N, SH was disapproved by the High Court in Chiro). The jury returned a verdict of guilty.

72. [220]

    The trial judge rejected C’s counsel’s submission that he should be convicted on the basis that the offence was made out by the two least serious acts (the acts of kissing in particular 1). Her Honour proceeded to find the facts in accordance with Cheung and found, beyond reasonable doubt, on the basis of the complainant’s evidence, that C had committed each of the acts in the particulars. The Court of Criminal Appeal dismissed the appeal on the basis of Isaacs and Cheung.

73. [221]

    By majority (Kiefel CJ, Keane and Nettle JJ; and Bell J in a separate judgment), the High Court allowed the appeal. The plurality said that s 50(1) of the CLC Act was akin to s 229B of the Criminal Code (Qld) (considered in KBT) and that, accordingly, the jury could not convict unless they reached unanimous agreement that the Crown had proved to the requisite standard the same two or more underlying acts of sexual exploitation separated by no less than three days.

74. [222]

    Their Honours drew the distinction between offences such as s 50(1) of the CLC Act and s 229B of the Criminal Code (Qld), on the one hand, and “course of conduct” offences, on the other. The plurality said, at [22]:

75. [223]

    The plurality, citing Kingswell v The Queen (1985) 159 CLR 264; [1985] HCA 72, said, at [42]:

76. [224]

    The significant distinction was drawn by the plurality at [44]:

77. [225]

    The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) is that an offender is to be punished only for the offence of which he or she has been convicted and not for other acts which are not the subject of the verdict which could have constituted a more serious offence: at 389 and 392 (Gibbs CJ, Mason and Murphy JJ agreeing).

78. [226]

    It was the peculiarity of an offence such as the one under s 50(1) of the CLC Act, which produced this result, as is evident from [52], where the plurality distinguished such an offence from the offence in Cheung:

79. [227]

    Bell J, who wrote separately, described Cheung, at [70], as “an illustration of a common category of case in which the jury’s verdict does not imply a finding on an issue which is nonetheless highly material in sentencing.” In Cheung, as her Honour explained at [70], “[t]here was one importation of heroin and issue was joined on Cheung’s knowing involvement in it.” When addressing C’s conviction under s 50(1) of the CLC Act, her Honour said:

80. [228]

    Her Honour also took into account the circumstance that the jury had been directed that they could find C guilty if they were satisfied that he kissed the complainant in circumstances of indecency on more than one occasion during the relevant period (no less than three days) and concluded that, since the jury was not asked which acts had been found proved (and it was too late to do so, the jury having been discharged), the trial judge was obliged to sentence on the basis of the acts of indecent kissing (they being the least serious of the underlying offences).

81. [229]

    Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (Hamra) was heard and decided at the same time as Chiro. In Hamra, there had been a trial by judge alone. The trial judge had found that it was not possible, from the generalised evidence of the complainant, to identify two or more acts of sexual exploitation by the accused (H). Accordingly, at the close of the Crown case, the trial judge directed a verdict of acquittal on the basis that there was no case to answer. The South Australian Court of Criminal Appeal allowed the appeal. The High Court unanimously (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) dismissed H’s appeal. It held that s 50(4) of the CLC Act did not require the occasions to be particularised other than as to the period and the conduct. The complainant’s evidence, taken at its highest, demonstrated that there was a case to answer in respect of the alleged acts of sexual exploitation during the period when the complainant was under 17 years of age. The Court accepted that, while a lack of specificity might make it difficult for a jury to agree on two or more of the same acts, there was a possibility that the jury might agree that all of the alleged acts occurred, which would be sufficient for a conviction. Thus, there was a case to answer.

82. [230]

    In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, the High Court considered whether a conviction following a trial by judge alone could stand when the trial judge’s reasons failed to identify two or more acts of sexual exploitation upon which the conviction was based. The majority construed the trial judge’s reasons as amounting to an acceptance of the complainant’s evidence and therefore a finding that all of the alleged acts had been committed. The finding of guilt was therefore supported on the basis postulated by the High Court in Hamra.

83. [231]

    Chiro was decided on 13 September 2017. It is noteworthy that it has been cited almost exclusively in the context of offences such as s 50(1) of the CLC Act or like provisions. It was referred to in H’s application for special leave to appeal (which led to the appeal being heard together with C’s appeal). It was also referred to in the special leave application in DL v The Queen (referred to above).

84. [232]

    Chiro was cited by the High Court in KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6 (KMC) where it was noted by the Court (Kiefel CJ, Bell, Gageler, Nettle, Gordon and Edelman JJ) at [9] that, shortly after Chiro was handed down, the South Australian Parliament had purported to amend s 50 of the CLC Act with retrospective effect: s 9 of the Statutes Amendment (Attorney-General’s Portfolio No 2) Act 2017 (SA) (the Amending Act). The Full Court of the Supreme Court of South Australia held that s 9 of the Amending Act was invalid as contrary to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 61; [1996] HCA 24: Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400; see, for a helpful discussion of the legislative history of these provisions and the relevant decisions, including Chiro, Marie Shaw SC and Ben Doyle, “The Age of Statutes and its intersection with Fundamental Principles: an Illustration” (2019) 40 Adelaide Law Review 353.

85. [233]

    The High Court decided that the trial judge had neither asked the jury in KMC’s trial what acts it had found to be proved nor sentenced him on the basis of the most favourable version of the facts (that the two least serious underlying offences had been made out). However, the Court found that s 9 of the Amending Act did not apply in terms because the sentencing judge had not in fact made findings of the underlying offences beyond reasonable doubt (as required by the terms of s 9). Thus, the Court found that s 9(1) of the Amending Act was not engaged. Accordingly, the appeal was allowed and the matter was remitted to the trial judge so that KMC could be sentenced according to law.

86. [234]

    Chiro has, so far as my research has indicated, not been cited in other any applications for special leave to appeal to the High Court.

87. [235]

    Chiro has been cited by Nettle J, extra-judicially, in a paper entitled, “The Jurisprudence of the High Court of Australia on Sentencing” for the National Judicial College of Australia Conference, “Sentencing: New Challenges”. Nettle J summarised the facts and ratio of Chiro and concluded, at page 38:

88. [236]

    The footnote to this statement said:

89. [237]

    It was common ground in this Court that Kalbasi v Western Australia did not bear on the operation of Chiro. Extra-judicial statements have no authoritative effect.

90. [238]

    At [1-445] of the Sentencing Bench Book (NSW), the authors said:

91. [239]

    Chiro has been cited in passing by this Court in Kaddour v R [2017] NSWCCA 294 at [4] (Leeming JA); Hassan v R [2018] NSWCCA 213 at [251] (Bathurst CJ, Johnson and Price JJ agreeing) and Ewan v R [2020] NSWCCA 85 at [38] (Macfarlan JA, R A Hulme and Button JJ agreeing) and by the Land and Environment Court of New South Wales: Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [152] (Pepper J). It has been applied in the District Court to sentencing for an offence of persistent sex abuse: R v Ocek [2018] NSWDC 349 at [72] (Tupman DCJ) and considered by this Court in the same context: Burr v R [2020] NSWCCA 282 at [102]-[103] (Johnson J, Leeming JA and Rothman J agreeing).

92. [240]

    The only occasion, as far as research has revealed, on which Chiro has been applied in support of the broader proposition for which the appellant contended was in R v Gregg, in which Lakatos SC DCJ imposed a sentence for two counts of falsification of books. The first count had two particulars. At [86], his Honour said that the principle in Chiro applied “given the way the case was left to the jury”. However, his Honour also found that the differences between the two particulars were not material to the objective gravity, having regard to the size of the company (Leighton Holdings). Although there was an appeal to this Court against Gregg’s conviction (Gregg v R [2020] NSWCCA 245; (2020) 355 FLR 348), there was no appeal against sentence. For the reasons which follow, I regard the approach taken by the sentencing judge in R v Gregg as anomalous and wrong.

93. [241]

    What Chiro established is that, for offences such as s 50(1) of the CLC Act, where an omnibus offence depends on the proof of underlying particulars which themselves constitute single offences of different types, with different maximum penalties, the sentencing judge must sentence the offender on the basis of the most favourable version of the facts (that is proof of the least serious underlying offences) unless the jury has identified the particulars (referable to underlying offences) of which it was satisfied beyond reasonable doubt (the Chiro principle). The reasons for this are that the underlying offences constitute the actus reus of the omnibus offence and the offender is to be sentenced by reference to the gravity and maximum penalty of the underlying offences, albeit that the conviction is for the omnibus offence. To do otherwise would risk breaching the De Simoni principle.

94. [242]

    What Chiro did not establish (and which did not arise) is that, in all circumstances where an extended unanimity direction is required and the jury has not been asked as to the basis of its verdict, the offender is to be sentenced on the basis of the most favourable view of the facts.

95. [243]

    If the appellant’s argument in the present case is accepted, it would extend the Chiro principle to all offences where an extended unanimity direction is required, including the following:

    1. (1)

       where there is more than one act relied upon by the Crown as constituting an unlawful and dangerous act for the purposes of manslaughter: R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [77] (Maxwell P, Vincent JA agreeing), approved in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [34] (Kiefel CJ, Bell, Keane and Edelman JJ);

    2. (2)

       where the Crown case on manslaughter has gone to the jury on the basis of gross negligence and unlawful and dangerous act: R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198;

    3. (3)

       where the offence is culpable driving causing death and the factual alternatives are gross negligence or intoxication: R v Beach (1994) 75 A Crim R 447; and

    4. (4)

       where the offence requires the Crown to prove that the financial advantage was obtained by intentional deception, which is said to be constituted by the deliberate non-disclosure of assessable income for a particular year, the jury must be directed that they need to be unanimous as to at least one of the misrepresentations and that it resulted in the obtaining of the financial advantage (by reason of the income not being assessed): Pratten v R [2014] NSWCCA 117 at [53]-[54] (Meagher JA, Fullerton and Hamill JJ).

96. [244]

    There are statements by the High Court in Chiro which could be read as applying to cases where an extended unanimity direction is required, whether or not the subject of that direction is an underlying offence in the context of an omnibus offence. However, the ratio of the decision appears from [44] of the plurality’s reasons. Their Honours were careful to say that it was for the reason that the sentence to be imposed was to be determined by reference to the underlying offences, that it was for the jury at trial, and not the judge on sentence, to determine what the underlying offences were. If the jury did not do so, then the principle in De Simoni applied, as explained in Chiro (by the plurality at [44] and Bell J at [72]) that is, the offender would have to be sentenced on the most favourable basis (the two least serious offences) to guard against the possibility that the offender would be sentenced for a crime which was more serious than that for which he had been convicted by the jury.

97. [245]

    To extend the Chiro principle beyond offences such as those in s 50 of the CLC Act, would be a significant extension of the law as it is presently understood and is not authorised by the ratio in Chiro or by any of the few subsequent decisions of the High Court where it has been cited. In these circumstances, it is for the High Court and not an intermediate appeal court to extend the principle: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134]-[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

98. [246]

    By sentencing the appellant on the basis that particulars (1)-(4) had been made out, the sentencing judge was not in breach of the De Simoni principle (which formed the basis for the decision in Chiro). His Honour was sentencing the appellant for a single offence, that of attempt to pervert the course of justice.

99. [247]

    For these reasons, although I would grant leave to appeal to the appellant to rely on ground 1 of his application, the ground has not been made out.

100. [248]

     The appellant’s argument that the sentencing judge had failed to take into account delay was based on the proposition that his Honour had failed to take into account the period of delay from 23 August 2018. Mr Dhanji submitted that it was not sufficient that his Honour had addressed this period under the heading “Commencement date” because it ought to have been under the heading “Delay”. He submitted that its absence from the reasons under the appropriate heading, indicated that it had not been taken into account on the question of delay and that therefore there had been a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the exercise of the sentencing discretion.

101. [249]

     The reasons of sentencing judges are to be read fairly as a whole. In Kaddour v R, an application for leave against sentence was based on the proposition that a factor unrelated to objective seriousness of an offence was in the same paragraph as the factors which were germane to the assessment of objective seriousness. The ground was rejected by this Court on the basis that the words used by the sentencing judge had to be read and understood in context: at [10]-[11] (Leeming JA, Fullerton J agreeing) and [24] (myself, Fullerton J agreeing): see also Attwater v R; Maris v R [2021] NSWCCA 17 at [454]-[460] (Bathurst CJ, Davies and Wilson JJ). The question is whether there is error in the discretion, not whether the reasons of the sentencing judge could have been expressed differently.

102. [250]

     In the present case, the sentencing judge was plainly alive to the passage of time from 23 August 2018 until the sentence was imposed on 17 December 2020. The three periods set out under the heading of “delay” in the reasons were taken directly from Mr Smith’s written submissions. The matters referred to under the heading, “Commencement date” covered the balance of the period. The total delay was considerable, as his Honour found. The Crown accepted that there was no specific reference in his Honour’s reasons to the six-month period between the end of the first trial and the decision to proceed with the second trial. I am not persuaded that this concession was properly made since his Honour extracted from Mr Smith’s written submissions the three periods which are set out above, the third of which relates to that six-month period.

103. [251]

     I discern no error in his Honour’s reasons or in the exercise of the discretion. I am not persuaded that anything less than the full period of delay was taken into account by his Honour. The latter period of delay was taken into account generally in the fixing of the sentence as well as specifically in relation to the commencement date. There was no evidence of the effects of delay although the Crown accepted that some stress could be inferred from delay of itself. The sentencing discretion does not miscarry simply because the sentencing judge does not refer to every piece of evidence or every detail, as long as relevant factors were taken into account. The sentencing judge took into account delay. The structure of his Honour’s judgment was influenced by the way in which submissions were put on behalf of Mr Gould but the substance of the judgment made it clear that his Honour was cognisant of the total length of delay which was, in any event, apparent from the material before his Honour.

104. [252]

     Although I would grant leave for this ground, I am not persuaded that it has been made out. Accordingly, I would propose that the application for leave to appeal against sentence be granted but that the appeal be dismissed.

105. [253]

     The Crown submitted that the sentence imposed was manifestly inadequate and that the residual discretion ought not be exercised. The Crown contended that the sentence was so lenient as to be “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In substance, the Crown submitted that there was a lack of correspondence between the finding of the sentencing judge and his Honour’s assessment of the objective seriousness of the offending (that it was very serious and that, because of its seriousness, there was no comparable case) on the one hand and the sentence imposed on the other.

106. [254]

     The Crown catalogued his Honour’s findings as to the subjective matters in the respondent’s favour (prior good character, age, delay, hardship in prison, extra-curial punishment) and noted that his Honour had indicated qualitatively the weight given to such factors. The Crown also listed the factors that were not in the respondent’s favour, such as lack of contrition or remorse and that his health issues could be treated in gaol.

107. [255]

     The Crown submitted that, having regard to the relatively few ameliorating matters affecting the respondent’s subjective case, the findings about objective seriousness and the need for general and specific deterrence, the sentence was plainly too lenient and indicated that there had been an error of principle. The Crown submitted that the findings were incongruous with the sentence actually imposed.

108. [256]

     Mr Dhanji submitted that the factors of delay and age were more than sufficient to ameliorate the objective seriousness of the offending and there was no basis on which the sentence could be regarded as manifestly inadequate in all the circumstances.

109. [257]

     I am persuaded that the respondent’s conduct, as found by the sentencing judge and as demonstrated by the incontrovertible evidence before this Court, warranted a much more severe sentence than the one imposed. His Honour’s assessment of objective seriousness (based in part on the sustained, sophisticated, deliberate acts of the respondent), the lack of comparable cases (because the present case was so serious, see [215] of the sentencing judgment extracted above), the need for general and specific deterrence and the relative paucity of factors in the respondent’s favour (age and delay) was not reflected in the sentence imposed, which I regard as manifestly inadequate. I accept the Crown’s submission that the findings were incongruous with the sentence imposed and that a more significant penalty was required in order to maintain confidence in the criminal justice system.

110. [258]

     I am persuaded that the residual discretion not to intervene ought not be exercised in favour of Mr Gould. The Crown appeal was filed expeditiously. The purposes of general deterrence will not be served by non-intervention.

111. [259]

     In my view the Crown appeal ought be allowed and Mr Gould re-sentenced. It is necessary to consider the further material adduced on his behalf on re-sentence, if it became relevant. I note that the Crown did not seek to rely on its further affidavit evidence on the Crown appeal.

112. [260]

     The additional evidence is contained in an affidavit of Bronwen Peberdy of 24 March 2021, who deposed as to the conditions of the respondent’s custody. He spent two weeks in isolation at Parklea from 18 December 2020 (which was, in effect, quarantine as a consequence of the COVID-19 pandemic). Subsequently he was housed in a protection area within maximum security at Parklea Gaol. On 7 January 2021, he was classified as a C2 inmate and, on 14 January 2021 he was transferred to Long Bay Correctional Centre (Long Bay) when he was held in maximum security as there were no vacancies in minimum security. The respondent was thought by younger inmates to be a paedophile because of his position in the gaol. There were plumbing problems in the wing which led to putrid conditions. His conditions of custody improved when, on 2 February 2021, he was transferred to the minimum security area at Long Bay. He works in the prison print shop between 6am and 1.30pm. He shares a cell which is said to be infested with cockroaches. He has weekly access to a library.

113. [261]

     After some delay, the respondent has been able to access medication for high blood pressure and dry eyes. His family brought a CPAP (continuous positive airway pressure) machine for him to use to ensure continuous supply of oxygen when he is asleep. However, he does not use this as the cell is small and his cellmate is deaf and untroubled by snoring. There is some delay obtaining dental treatment for the build-up of plaque as the waiting period is of the order of four months.

114. [262]

     As his Honour’s only error was in fixing the sentence, I respectfully adopt the findings and reasons of the sentencing judge who, in my view, appropriately assessed objective seriousness and all other relevant factors associated with the sentencing discretion. His Honour was correct to appreciate the substantial need for general deterrence for offending conduct as egregious as the present. I have taken into account the respondent’s conditions in custody, including the medical treatment available, as referred to above, as established by Ms Peberdy’s affidavit.

115. [263]

     In my view, the appropriate sentence is a term of imprisonment for a period of 6 years with a non-parole period of 3 years and 6 months.

Proposed orders

1. [264]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

   3. (1)

      Allow the Crown appeal.

   4. (2)

      Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months.

   5. (3)

      The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.