Dickson v R

1. [1]

   MACFARLAN JA: I agree with the orders proposed by Schmidt and Wilson JJ and their Honours' reasons.

2. [2]

   SCHMIDT AND WILSON JJ:

3. [3]

   After a trial before Beech-Jones J and a jury of 12 in the Supreme Court of New South Wales, between 21 August and 22 December 2014, Anthony Dickson, referred to for convenience throughout as the appellant (although he is also the respondent to a Crown appeal against sentence, as will be seen below), was convicted of two offences, being counts 1 and 6 of the indictment presented against him. As counts 2 – 5 were substantive charges brought in the alternative to count 1, no verdict was taken on those counts and they are not discussed further. Counts 1 and 6 were in the following terms:

4. [4]

   Count 1 involved a complex ‘tax fraud’ with net losses to the Commonwealth in excess of $100 million, whilst count 6 related to a money laundering offence wherein large sums of money were sent across the globe disguised as financial transactions, with funds later returned to Australia.

5. [5]

   The appellant was sentenced in relation to each offence on 20 March 2015. In relation to count 1, a sentence of imprisonment for 7 years and 6 months was imposed, to date from 22 December 2014 and expiring on 22 June 2022. For count 6, a sentence of 9 years imprisonment was imposed, to date from 22 December 2016 and expiring on 22 December 2025. A single non-parole period of 7 years expiring on 22 December 2021 was fixed, pursuant to s 19AB(1) of the Crimes Act 1914.

6. [6]

   The appellant appeals and, insofar as it is necessary to do so, seeks leave to appeal against his conviction for each of the offences, advancing six grounds:

   1. (1)

      The prosecution changed its case during the trial which occasioned a miscarriage of justice.

   2. (2)

      The trial miscarried because there was unreasonable evidence to convict Michael Issakidis.

   3. (3)

      The trial judge erred in deciding in R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 that count 6 ought not to have been stayed.

   4. (4)

      Count 1 is duplicitous.

   5. (5)

      His Honour failed to direct the jury in relation to count 1 that the Crown had to prove that there was a causal nexus between the element of dishonesty and the intention to cause a loss/ risk of loss.

   6. (6)

      The trial judge erred in failing to direct the jury that it was an indispensable intermediate fact to be proved beyond reasonable doubt before the jury could convict the appellant that they be satisfied that:

7. [7]

   The Crown appeals against the asserted inadequacy of the sentences imposed upon the appellant. That appeal is addressed below.

The Facts of the Offences

1. [8]

   The factual circumstances surrounding the offences are complex. It is necessary to set out the details of them prior to turning to consideration of the appeal proper. Both the appellant and the Crown agreed that the trial judge provided a comprehensive summary of the evidentiary basis upon which the jury had found the appellant guilty of the two charges in his Honour’s remarks on sentence (R v Anthony James Dickson (No 18) [2015] NSWSC 268). It is thus convenient to commence with that summary, which provides a succinct account of the complex arrangements which lay at the heart of the Crown’s case.

2. [9]

   After noting the charges found proven and that the appellant’s co-conspirator, Michael Issakidis, had been discharged during the trial (for the reasons given in R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595), his Honour turned to the background to the charges. He began by noting that Neumedix Health Australasia Pty Ltd (“Neumedix” or "NHA"), of which the appellant and Mr Issakidis were the two directors, was incorporated on 9 March 2006. His Honour described the essence of the Crown case as follows:

3. [10]

   His Honour then turned to the circumstances of the offences by reference to the facts which were either not in issue, those necessarily found by the jury, or matters of which he was satisfied beyond reasonable doubt, and which were consistent with the jury's verdict. He commenced with count 1, describing, at [12], the “…financial transactions that generated assessable income for NHA, NHA's dealings with the inventors of medical technologies, the events surrounding the lodgment of NHA's tax returns and the audit by the Australian Taxation Office ("ATO"), and aspects of the offender's case.” His Honour found:

4. [11]

   His Honour then turned to the appellant’s evidence that he was an employee of Rand Stone Private Equity Partnership ("Randstone"), a consultant to an entity known as the "HFAC Harmony Biotechnology Private Equity Partnership" ("HFAC"), with HFAC standing for "Health for all Children". The appellant said that HFAC was a Cayman Islands based private equity partnership, originally formed between two wealthy entrepreneurs, which invested in medical technology and similar initiatives designed to improve the health of all children worldwide. He acted as HFAC’s "steward" for various medical technologies.

5. [12]

   The appellant also said that Athena had acquired intellectual property rights for the three technologies as the undisclosed agent for HFAC; that the recipient of funds from NHA, Dampier Finance Asia Pacific Ltd ("Dampier Finance"), was HFAC's nominated receiving agent for the payment of the amounts owing by NHA under the three assignment agreements with Athena; that NHA moved funds overseas in order to meet its obligations under those agreements; and that the subsequent routing of those funds, through Hong Kong and back to Australia, occurred as a result of HFAC directing him to transfer those funds, and "invest" them in Australia, by allegedly lending various amounts to Mr Issakidis and otherwise paying the appellant his remuneration, under his arrangements with Randstone.

6. [13]

   His Honour then dealt with various documents tendered by the appellant, said to evidence these arrangements, including executed versions of the Genvax assignment agreement and the Cologene assignment agreement provided to the ATO and which referred to HFAC as a party. His Honour observed, at [41], that none of the assignment agreements provided to the ATO referred to HFAC. His Honour noted:

7. [14]

   His Honour made further findings in relation to the assignment agreements, including noting that the jury had been given directions as to circumstantial evidence, in accordance with Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. The jury was also directed that they could not be satisfied beyond reasonable doubt of the existence of the agreement, the subject of count 1, unless they were first satisfied beyond reasonable doubt that NHA "did not incur any obligation to pay for the intellectual property assignment under at least one of the agreements ... which was the basis [for] the depreciation claimed in NHA's tax returns” (T246: 16/12/2014). His Honour also outlined the directions of law given to the jury in relation to the principles concerning sham agreements (at [44] – [46]).

8. [15]

   His Honour noted that the Crown case on sentence was that the Court should find that all three agreements were shams and that the appellant’s case was that the Court should find that only the CGS Assignment agreement was a sham. He concluded that having found that Athena was under the effective control of the appellant, the relevant subjective intentions to consider were those of the appellant and Mr Issakidis as they were on both sides of the transaction (at [48]).

9. [16]

   At [49], his Honour considered an “especially powerful part” of this aspect of the Crown case to be various handwritten and typed documents which had passed between the appellant and Mr Issakidis sometime in late 2006 and then in July and September 2007. The documents concerned the distribution of certain interest earned by NHA on amounts received from the trusts, with the underlying assumption that they had agreed to divide up the bulk of the funds received from the trusts between themselves, with a portion to be paid to a third person and to NHA, to pay its various expenses, but not the amounts allegedly required to be paid under the assignment agreements with Athena. At [50] his Honour found the significance of this material to be that:

10. [17]

    His Honour also observed:

11. [18]

    His Honour then noted that there were two relevant versions of the Genvax assignment agreement from Athena to NHA dated 15 January 2007. The first had been provided to the ATO and the version that included HFAC as a party had been tendered in the appellant’s case. Given his earlier findings, his Honour concluded that the second version could be ignored. The first agreement purported to record, at [52]:

12. [19]

    His Honour identified six matters about this agreement:

13. [20]

    His Honour then turned to the CGS assignment agreement which had been provided to the ATO, which was also unsigned, observing:

14. [21]

    His Honour then turned to the Cologene assignment agreement presented to the ATO, which was also unsigned and bore the date 30 November 2007, observing:

15. [22]

    His Honour then turned to the loss, or risk of loss, resulting from count 1. He considered that two distinct inquiries were required to be undertaken. The first concerned the extent of the loss or risk of loss which the appellant intended to be caused in giving effect to the agreement the subject of count 1. The second concerned the extent of the loss, if any, in fact caused by the appellant’s conduct the subject of this count.

16. [23]

    His Honour concluded, at [68], as to the extent of the loss or risk of loss intended to be caused, that the appellant’s conviction evidenced that the jury was satisfied beyond reasonable doubt that he and Mr Issakidis intended to dishonestly cause a loss or a risk of loss to the Commonwealth pursuant to the agreement they had formed, and that each knew or believed that the loss would occur, or that there was a substantial risk of the loss occurring. His Honour considered that, in assessing the criminality involved in count 1, it was necessary to consider the scope of their agreement and an adoption of the hypothesis that their agreement was successfully implemented.

17. [24]

    As to the extent of the loss in fact caused by the appellant’s conduct, which arose to be considered on sentence pursuant to s 16A(2)(e) of the Crimes Act 1914 (Cth), his Honour said that this:

18. [25]

    After referring to the directions which the jury had been given in relation to the concepts of “loss”, which had reflected the applicable tax legislation and the evidence as to NHA’s tax returns, and “tax debts”, which he observed, at [72], was “…a form of property being a chose in action. If no such debt arose because of a false depreciation claim then the Commonwealth did not obtain property it might otherwise ‘get’.” His Honour went on to say that:

19. [26]

    His Honour then noted that under the agreement the subject of count 1, between $386 million and $402 million in false deductions was claimed and that the total amount payable for the first three to five years was approximately $450 million. For reasons there given, he did not take into account further provision made as to “fair market value”. His Honour, at [74], was, however, satisfied beyond reasonable doubt that the remainder of the instalments under the assignment agreements was intended to be claimed, other than the amounts said to be payable for fair market value.

20. [27]

    His Honour also observed that:

21. [28]

    His Honour then turned to the actual loss to the Commonwealth resulting from count 1, following the ATO’s issue of the amended tax assessments for NHA for the relevant financial years, which he noted NHA had objected to and could lead to a review application in the Administrative Appeals Tribunal or the Federal Court. He concluded, at [80], that:

22. [29]

    After dealing with a number of other arguments as to the quantification of the loss, which it is not necessary to outline at this point, his Honour observed, at [87], that a number of the submissions made by the appellant on this topic “…were either predicated on an acceptance of the offender's case or sought to reargue it even though it was emphatically rejected by the jury.”

23. [30]

    His Honour then turned to count 6.

24. [31]

    His Honour began, at [88], by explaining the evidence as to the fate of the funds totalling $63,715,000.00, which had been transferred by NHA in five tranches to accounts in the United Kingdom and then in Hong Kong, the bulk of which were then distributed back to Australia and New Zealand. His Honour found that the funds were used to pay amounts owing to the inventors by Athena and paying NHA’s expenses, but that the bulk were used for the personal enrichment of the appellant, Mr Issakidis, and another person who had some involvement in the scheme.

25. [32]

    His Honour noted that while the amount distributed from the trusts to NHA was in excess of $68 million, the Crown had only sought to prove that the conspiracy which was the subject of count 6 resulted in the dealing in proceeds of crime of $63 million, for reasons explained at [89]. His Honour also noted that the jury instructions (at [90]):

26. [33]

    At [91] his Honour explained why this aspect of the instructions were favorable to the appellant, opining that it was possible for the jury to conclude that he and Mr Issakidis had entered into the agreement, the subject of count 1, sometime after 12 January 2007 and from that point conspired to deal with a lesser amount as the proceeds of crime. His Honour said that it was not put to the jury that way principally in order to avoid an already complicated case being further complicated. He found that:

27. [34]

    At [92] his Honour noted that the appellant had admitted that it was he who had caused the transfer of this $63,715,000.00. His Honour explained this admission, observing:

28. [35]

    His Honour then discussed the significance of a falling out between the appellant and his brother in early 2010 after NHA had filed its first two tax returns, around the same time as the ATO's audit was commencing. His Honour found, at [94]:

29. [36]

    His Honour found, at [95], that the result of the scheme that he had described was that $19,616,966.37 had been distributed back to the appellant and entities associated with him, the jury having rejected the appellant’s evidence that these amounts represented sums invested on behalf of HFAC or his receipt of remuneration from Randstone. Some of that money had been used to make land purchases and for the purchase of a shopping centre.

30. [37]

    His Honour then turned to sentencing considerations, to which it will be necessary to return.

The Grounds of Appeal Against Conviction

1. [38]

   It is proposed to deal with each of the six grounds of appeal advanced by the appellant in turn.

2. [39]

   By this ground the appellant argues that the case that the Crown left before the jury at the close of the evidence was materially different to that upon which it opened, having “shifted” in nature and emphasis during the course of the trial. It is contended that, in opening the case at the commencement of the trial, the Crown outlined a case wherein it was accepted that legal title or property in the medical technology patents was transferred from Athena to NHA, with the “sham” being the inflated purchase price. At the close of the Crown case, the appellant argues that the case against him had fundamentally changed, in that the Crown argued that it was the assignment of the technologies, rather than the price paid, which was the sham.

3. [40]

   It is submitted that, because of the late change to the Crown case, evidence was admitted which should not have been admitted or which should have been limited. Additionally, evidence which may have been relevant to the issue of sham acquisition was not placed before the jury.

4. [41]

   The appellant relies upon both a statement of particulars for count 1 provided to him by the Crown prior to the commencement of the trial, in which reference was made to the assignment of medical technologies by Athena to Neumedix at “…falsely inflated costs of acquisition”, and to the Crown Prosecutor’s opening address, and references therein to falsely inflated costs of acquisition. The appellant additionally points to exchanges between the trial judge and the Crown Prosecutor on days 32, 33, 42, 43 and 44 of the trial concerning the nature of the Crown case as indicative of confusion as to precisely what the Crown case was.

5. [42]

   The Crown contends that there was no change to its case at trial, its case always having been one of conspiracy to cause loss to the Commonwealth (via the Australian Taxation Office).

6. [43]

   Having considered the opening address by the Crown Prosecutor, and the evidence subsequently led, we do not agree that there was a fundamental change to the nature of the Crown’s case such as to lead to a miscarriage of justice.

7. [44]

   The Crown’s case, when pared back to the basic allegation, was that the appellant was part of a conspiracy to defraud the Commonwealth by falsifying expenses claimed in company taxation returns. The conspiracy was not alleged to rest solely in making claims based upon falsely inflated acquisition costs for the relevant medical technologies, but rather, that the assignments the subject of the claims more broadly, were a sham. The cost of the acquisitions was a particular of the conspiracy, but it was not the whole of the case alleged by the Crown.

8. [45]

   That conclusion is clear if regard is had to the whole of the Crown Prosecutor’s opening address – which occupied some days at the commencement of the trial – wherein there were repeated references to the overall acquisition of the technologies as an elaborate sham to dishonestly deprive the revenue of legitimate taxation through fraudulent deductions claimed against income. The Crown Prosecutor also made reference to falsely inflated acquisition prices, but this was in the context of the fraudulent nature of the assignments overall.

9. [46]

   The exchanges between the trial judge and the Crown Prosecutor extracted by the appellant do no more than evidence the sort of exchanges that might be expected in a trial of this nature, where the details of directions to the jury were discussed with counsel prior to being given to the jury. That such inquiries occurred does not indicate that the Crown’s case was in flux and confused, and a jury must also, therefore, have been confused. His Honour appears to have sought clarification of some points in the Crown case, clarification which was provided without any expression of concern by the appellant’s counsel at trial.

10. [47]

    Had there been such a fundamental shift, and consequent confusion as to the Crown case, it might be expected that trial counsel would have raised that issue before the trial judge and made some sort of complaint about it. Although the appellant was represented by experienced Queens Counsel at trial, no such complaint was made, a feature of the case to which this Court is entitled to have regard, since it suggests that trial counsel saw nothing in the conduct of the case, in this regard, to complain about.

11. [48]

    That the appellant’s counsel at trial did not raise any complaint about a “shift” in the Crown’s case of such significance as to affect the admissibility of evidence tendered or, conversely, not tendered, strongly suggests that counsel did not perceive there to be such a shift. It suggests that counsel understood that the Crown’s case was that it was the assignments that were asserted to be the sham, and not just the falsity of purchase prices for the medical technologies.

12. [49]

    The absence of any complaint by trial counsel is consistent with a conclusion that there was no change in the Crown’s case. The full detail of both the particulars provided to the appellant by the Crown, and the Crown Prosecutor’s opening address read as a whole, make it clear that the Crown’s case was never, as the appellant contends, confined to an assertion of a conspiracy based upon falsely inflated purchase prices for the medical technologies assigned by Athena to NHA. It was always more widely cast than that, and that is the basis upon which the parties dealt with the evidence placed before the jury.

13. [50]

    On that basis, the appellant’s contention that evidence inadmissible to the “changed” Crown case was admitted, and evidence that could have been led was not, falls away, and is not further addressed.

14. [51]

    This proposed ground of appeal is without merit.

15. [52]

    Since this ground raises questions of fact as well as law, the leave of the Court is required to advance it: s 5(1)(b) Criminal Appeal Act 1912 (NSW). We would not grant leave.

16. [53]

    The framing of this ground appears to argue that, had the case against Mr Issakidis gone to the jury, it would not have been open to the jury to convict him, and any verdict of guilty would have been unreasonable. That being the case, the appellant’s trial miscarried, as this Court could not conclude that it was open to the jury to be satisfied, beyond reasonable doubt, as to the appellant’s guilt. It is submitted that there is a significant possibility that the alleged co-conspirator is innocent and the verdicts against the appellant must therefore be set aside since, in effect, he could not have conspired with an innocent person.

17. [54]

    The jury was discharged with respect to the trial against Mr Issakidis, the trial judge granting his application in that regard: R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595. The appellant did not join the application.

18. [55]

    It should be recalled that there is no longer a general principle of law to the effect that a conspirator’s conviction can only stand in circumstances where the co-conspirator is also convicted. Whilst such was historically the case, that was at a time when the grounds for challenging a conviction were limited to errors on the face of the record, and the apparent inconsistency of the record showing one conspirator found guilty, and the other acquitted, was regarded as a miscarriage of justice.

19. [56]

    This rule has been held to have:

20. [57]

    That position was considered and accepted as correct and to be applied in Australia by the High Court in R v Darby [1982] HCA 32; (1982) 148 CLR 668. At 678, Gibbs CJ, Aickin, Wilson and Brennan JJ held that:

21. [58]

    The question for this Court then, is not whether the alleged co-conspirator is, or may be innocent, but whether the appellant’s conviction is inconsistent with the asserted innocence of Mr Issakidis and whether, upon assessing the evidence, for itself, this Court considers that it was open to the jury to conclude, beyond reasonable doubt, that the appellant was guilty: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.

22. [59]

    To some extent, the Court is placed in a difficult position in conducting this assessment since the jury was discharged in relation to Mr Issakidis, and he is proceeding to re-trial. The reason for the discharge of the jury was the revelation very late in the trial of a quantity of further documentary evidence which may alter the case to be presented against the alleged co-conspirator at any further trial.

23. [60]

    At the joint trial, prior to the discharge of the jury relevant to Mr Issakidis, the Crown did not allege that Mr Issakidis’ role in the conspiracy was the same as the appellant’s asserted role and, consistent with the differing roles of each, the evidence led against each differed. It may further differ when Mr Issakidis again faces trial. It is a moot point as to whether this Court can properly assess the case against the alleged co-conspirator in those circumstances, in order to determine the validity of the appellant’s conviction.

24. [61]

    The evidence placed before the jury in the joint trial was, in our view, sufficient to establish that Mr Issakidis entered an agreement with the appellant to cause NHA to file income tax returns claiming depreciation expenses for the asserted cost of acquisition of medical technologies where no costs had in fact been incurred, to the loss of the Revenue.

25. [62]

    In R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460, which dealt with a no case to answer submission made by Mr Issakidis (and joined by the appellant) at the close of the Crown case, the trial judge, in refusing the application, summarised what the evidence against the alleged co-conspirator was capable of establishing. His Honour concluded that there was sufficient evidence to establish that:

    1. (1)

       Mr Issakidis knowingly provided documents to Walsh & Walsh that falsely asserted an obligation incurred by NHA to pay for the acquisition of medical technologies from Karkalla.

    2. (2)

       The documents were provided in the knowledge that they would be used to prepare financial accounts, and with full awareness of the financial accounts to be produced and their relevance to the preparation of tax returns for NHA.

    3. (3)

       Mr Issakidis was aware that NHA would claim depreciation against the costs of the acquisitions in the context of assessment of tax payable by NHA.

26. [63]

    The trial judge made these findings on the basis of a considerable volume of largely documentary evidence that is clearly capable of establishing the participation of the alleged co-conspirator in the conspiracy with the appellant. The documentary evidence was capable of establishing Mr Issakidis’ knowledge of matters connected with the aims of the conspiracy, and acts done in furtherance of it, including:

    1. (1)

       Knowledge that it was Athena which had acquired the intellectual property for Genvax and CG Surgical, and the terms on which the acquisitions were made;

    2. (2)

       Acting to settle relevant correspondence in furtherance of the acquisition by Athena of CG Surgical;

    3. (3)

       Knowledge that Genvax and CG Surgical were to be purportedly assigned to NHA through a Cayman Islands company;

    4. (4)

       Involvement in the negotiations with the inventors for the acquisition of Genvax and Cologene;

    5. (5)

       Involvement in due diligence inquiries by the ANZ relevant to the structured finance;

    6. (6)

       Knowledge that the amount NHA was to pay Karkalla for the technologies did not represent a true value;

    7. (7)

       Executing an assignment agreement between NHA and Athena in relation to the Genvax technology that was not consistent with the Karkalla assignment agreement;

    8. (8)

       Involvement in the creation of a false assignment agreement of Genvax from Athena to NHA to satisfy inquiries by Barclays Bank;

    9. (9)

       Knowledge that NHA was claiming high depreciation expenses arising from the asserted acquisition of the medical technologies;

    10. (10)

        Knowledge that NHA was to receive substantial cash distributions in accordance with the terms of the structured finance transactions;

    11. (11)

        Knowledge that Athena, Karkalla and KIH were all controlled by the appellant;

    12. (12)

        Acted to sign the 2007 financial report claiming a loss of over $97 million, and later (in 2009) signed another version of the report claiming losses at in excess of $82 million, with knowledge of the connection between the reports and taxation returns to be prepared by the appellant and filed with the ATO;

    13. (13)

        Undertook a number of the international financial transactions, moving money between NHA bank accounts in Australia, and overseas accounts;

    14. (14)

        Participated in building correspondence about communicating with Peggy Wong and Jay Corbett, knowing each was the appellant; and

    15. (15)

        Was aware that his participation in the scheme would provide substantial financial benefits to him, receiving monies in excess of $12 million.

27. [64]

    Although the Crown’s case against Mr Issakidis is a circumstantial one, there is a significant body of highly probative evidence which was (and will be) available to any jury in determining his alleged participation in the conspiracy. In our view, it is well open to a jury, acting reasonably and in accordance with proper direction, to accept the guilt of Mr Issakidis beyond reasonable doubt.

28. [65]

    In his written submissions the appellant referred to the late disclosure of documents by the Crown to him and the alleged co-conspirator, and referred to error by the trial judge in allowing cross-examination of the appellant with reference to some of that material. Since there is no ground of appeal that raises the issue of late disclosure by the Crown, and the use subsequently made of the documents, it has no apparent relevance to ground 2 as framed. It is not further considered.

29. [66]

    Leave is required to argue this ground, as it raises questions of fact and law. We would not grant leave.

30. [67]

    Prior to the empanelment of a jury to hear his trial, the appellant filed a notice of motion seeking to have count 6 of the indictment permanently stayed. It was argued that count 6 was an abuse of process because it did not raise any different allegations of criminality to those which were essential elements of count 1. Having heard the relevant evidence and submissions, the trial judge refused to stay count 6: R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068. The appellant contends that his Honour was in error in refusing a stay on that count.

31. [68]

    Citing Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 395 as authority for the argument, the appellant submits that the issue goes beyond one of whether the appellant had available to him a plea in bar, also encompassing a situation where the court’s processes and procedures are used as instruments of injustice or unfairness.

32. [69]

    In his judgment on the stay application, the trial judge concluded that, although there was one overarching scheme, each conspiracy dealt with a separate aspect of that scheme, and involved separate criminality. The first conspiracy was identified as the series of steps preparatory to the filing of the tax returns, and the second as the receipt and dissipation of income, including by concealing it in various transactions.

33. [70]

    The appellant submits that his Honour was in error.

34. [71]

    The Crown argues that there was no plea in bar available to the appellant in relation to count 6, as the elements of the two offences were different. Neither was there an artificial division of the conduct alleged against the appellant, as the two offences involved separate and distinct criminality.

35. [72]

    In determining whether a plea in bar exists, consideration must be given to those matters raised in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (“Pearce”), and to whether the evidence necessary to establish count 6 would have been sufficient to sustain a guilty verdict for count 1: Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649; Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125. This necessarily means considering the elements of each offence to see if there is complete correspondence between them.

36. [73]

    To prove count 1, an offence contrary to s 135.4(5) of the Criminal Code 1995 (Cth) (“the Code”) the Crown had to prove, beyond reasonable doubt that:

    1. (1)

       The appellant conspired (that is, entered into an agreement) with Michael Issakidis to intentionally and dishonestly cause a loss or risk of loss to a third person;

    2. (2)

       The appellant knew or believed that the loss would occur or that there was a substantial risk of loss occurring;

    3. (3)

       The third person is the Commonwealth; and

    4. (4)

       The appellant or Mr Issakidis committed an overt act in furtherance of the agreement.

37. [74]

    To prove count 6, an offence contrary to ss 11.5 and 400.3 of the Code, the Crown had to prove beyond reasonable doubt that:

    1. (1)

       The appellant conspired with Michael Issakidis to “deal with” money or other property which is the proceeds of crime;

    2. (2)

       The appellant believed the money or property to be the proceeds of crime, or he believed it would become an instrument of crime; and

    3. (3)

       The money or other property was valued at or in excess of one million dollars.

38. [75]

    “Deal with” means receiving, possessing, concealing or disposing of money or property; importing money or other property to, or exporting it from, Australia; or engaging in a banking transaction relating to money or other property.

39. [76]

    As that outline of the elements of each of the two offences makes clear, the elements required to be proved are different, and quite separate.

40. [77]

    A plea in bar is not available to prevent a person being prosecuted for different offences arising out of the same set of facts. Its availability is confined to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other: Pearce at [24] per McHugh, Hayne and Callinan JJ.

41. [78]

    No plea in bar could arise here based upon the sameness or commonality of the elements of the offences since each of the offences with which the appellant was charged required proof of a fact which the other did not.

42. [79]

    The appellant’s broader argument is that the division by the Crown of the charged conduct into two offences was an abuse of process which should have led to count 6 being stayed. That argument, however, is no more meritorious than is the argument for the availability of a plea in bar.

43. [80]

    It is open to a trial judge to stay the prosecution of a particular charge where a separate charge on the indictment arising from the same conduct readily encompasses the criminality of that charge: Thorn v R [2009] NSWCCA 294. In such circumstances there is a basis to conclude that the addition of a separate charge is oppressive.

44. [81]

    However, that is not the situation that arises in the present matter.

45. [82]

    In R v Dickson (No 1) the trial judge correctly concluded that there was an overall scheme put in place by the appellant, being an agreement to obtain a finance deal to derive income which would not be subject to taxation because it would be offset by false tax deductions. That conduct was reflected by count 1. Count 6 reflected the steps taken by the appellant, acting in agreement with Mr Issakidis, to conceal and “launder” the proceeds derived from the conduct the subject of count 1, by a series of involved international banking transactions.

46. [83]

    The criminality of count 6 was quite separate to that of count 1, and the criminality of the latter did not reflect the former.

47. [84]

    It is a matter for the prosecuting authority to frame charges against an accused person that adequately reflect all relevant criminal conduct, thus enabling a sentencing court to impose a punishment that fits the crime. That may involve charging separate offences carrying differing maximum penalties, albeit that each charge arises from the same set of facts.

48. [85]

    In Pearce, where an indictment charging offences contrary to s 33 and s 110 of the Crimes Act 1900 (NSW), both arising from one incident, was under consideration, it was held at [31] that:

49. [86]

    The appellant relies upon the authority of Nahlous v R [2010] NSWCCA 58; (2010) 201 A Crim R 150 (“Nahlous”) in support of his contention that it was oppressive to charge both counts against him, but the facts in that case are very different to those pertaining here. In Nahlous the charges were brought pursuant to the Copyright Act 1968 (Cth) and related to the sale of unauthorized decoder machines. Having sold a number of machines, the applicant was arrested with the cash received from the sale in his possession. He was additionally charged with a Code money laundering offence relating to that cash.

50. [87]

    Factually, the offender in that case had done nothing with the proceeds of his crime other than receive the monies in exchange for the unauthorised machines. He had not taken steps to conceal the funds, or to deal with them in any way. Of that situation, the Court said (at [17]):

51. [88]

    Of some significance in the present case, the Court went on, at [18]:

52. [89]

    On the evidence, the appellant was dealing with the proceeds to “hide their source or change the nature of the proceeds.”

53. [90]

    The conduct charged by counts 1 and 6, whilst arising from a course of conduct with a single overriding dishonest purpose, was different in terms of both the overt acts undertaken and the criminality of those acts. Count 1 is directed towards the criminality involved in the agreement to cause a loss or risk of loss of tax revenue to the Commonwealth while count 6 is directed towards the criminality involved in agreeing to conceal the property derived from count 1, and involved considerably more than simply receiving the monies obtained from count 1. Elaborate and complicated financial transactions were effected involving numerous banking and other transactions offshore, the use of persons, companies and accounts in overseas jurisdictions to hide the appellant’s role, and the creation of numerous false documents such as false loan documents and false bills of sale to disguise the true origins of the funds, and the connection of the appellant to them.

54. [91]

    The criminality involved in count 6 was considerably different to that involved in count 1, and it could not have been addressed by count 1, particularly by any sentencing court.

55. [92]

    The appellant has not established this ground.

56. [93]

    The appellant’s argument is that, although he was charged with one count of conspiring to dishonestly cause a loss, or dishonestly cause a risk of a loss to the Commonwealth, it is open to conclude that there were up to three separate agreements alleged by the Crown, and thus that the charge was bad for duplicity, as any one of the three agreements could have constituted the charged offence. The separate agreements are said to be those relating to the purchase of separate medical technologies, each of which, it is argued, must have required an agreement to claim false depreciation expenses.

57. [94]

    Although the trial judge gave the jury a unanimity direction, the appellant contends that the direction was incapable of curing the latent duplicity in the charge, and the prejudice to him that arose as a result.

58. [95]

    The Crown argues that the charge was not bad for duplicity, and distinguishes between the nature of the conspiratorial agreement and the acts done to achieve the agreement.

59. [96]

    Having considered the evidence, we do not consider there to be any duplicity in the charge. The appellant’s argument confuses the conspiracy, being the agreement to lodge tax returns claiming false deductions, in the form of false depreciation expenses to offset large amounts of income being received under the ANZ transactions, with the acts done in furtherance of the conspiracy, including the purchase of the individual technologies.

60. [97]

    The Crown alleged a continuing offence, which involved entry into a number of individual transactions, that is, a single continuing criminal enterprise: R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373, Calleija v Regina [2012] NSWCCA 37; (2012) 223 A Crim R 391, at [55].

61. [98]

    The Crown case was that the conspiratorial agreement relevant to count 1 was reached prior to 12 January 2007. The individual technologies were acquired after that date, as a means of implementing the agreement. There followed a course of conduct over a period of years with many individual acts done in furtherance of the agreement.

62. [99]

    This ground is without substance.

63. [100]

    By this ground the appellant challenges the correctness of the directions given to the jury concerning the elements of count 1.

64. [101]

    His Honour gave the jury relevant directions during the course of his summing up, supplementing the oral directions with written directions. After the directions had been given, the appellant sought a further direction, arguing that the jury should be directed that, to prove the charge, it was necessary for the Crown to establish a causal connection between the agreement the subject of the conspiracy, and its achievement. His Honour declined to give the direction as sought: R v Dickson (No 15) [2014] NSWSC 1861.

65. [102]

    At [2] – [3] of the ex tempore judgment, the trial judge said:

66. [103]

    In submitting that his Honour was in error in refusing to give the jury a causation direction, the appellant argues that s 135.4 of the Code requires that "the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement" (s 135.4(9)(b)), and that necessarily involves proof of dishonesty which must be causally related to the loss or risk of loss. An involved semantic argument about the meaning and construction of the provisions is advanced.

67. [104]

    With due respect to the somewhat convoluted argument advanced by the appellant (which need not be further considered), the matter is in fact quite straightforward. What was charged, and what the Crown had to prove, was an agreement to dishonestly cause a loss. The Crown did not have to prove a causal nexus between the conspiracy and the object, and no direction to that effect was necessary.

68. [105]

    The focus in any conspiracy is upon what the conspirators intended or conspired to bring about, not on whether or not the object was in fact achieved. A Code conspiracy is complete where the conspiratorial agreement between two or more persons has been reached, and where an overt act is undertaken pursuant to the agreement.

69. [106]

    The directions given to the jury by the trial judge set out in clear terms the matters of which the jury had to be satisfied beyond reasonable doubt, if a verdict of guilty was to be returned. The written directions (MFI 84) included the following (at AB50:14439-40):

70. [107]

    To argue that causation had to be established is to overlook or ignore the provisions of s 135.4(10) of the Code, which specifically provides for a finding of guilt even where the object of the conspiracy was impossible:

71. [108]

    There could hardly be a causal nexus in a conspiracy with an impossible object.

72. [109]

    The direction sought by the appellant was not required, and the trial judge was correct to decline to give it. There has been no miscarriage of justice in that regard.

73. [110]

    This ground has not been made out.

74. [111]

    The appellant contends that the jury should have been directed that, before a verdict of guilty could be returned, there had to be proof beyond a reasonable doubt that NHA had neither the intention nor the capacity to pay for the acquisition of intellectual property. It is submitted that this was required because the Crown’s closing address to the jury, in which it was submitted that the agreements and assignments were a sham, was an argument that tended to undermine the appellant’s evidence that he and NHA had both the intention and the capacity to pay for the technologies.

75. [112]

    The direction given by the trial judge and impugned by the appellant as inadequate is as follows (at AB50:14403):

76. [113]

    As with ground 5, the additional directions that the appellant asserts should have been given to the jury would have had the effect of adding a layer of proof beyond that which was required to establish the charge. The appellant's argument in support of ground 1 involved a concession that the Crown's case at the end of the trial was that the relevant agreements were shams (we have rejected the appellant's argument that this involved a departure from the way the case was put earlier in the trial) and the appellant has not contended that the trial judge did not adequately explain this case to the jury.

77. [114]

    The matters referred to in the present ground of appeal were relevant to that case but not essential to be proved before the jury could find that the case had been established beyond reasonable doubt (see Shepherd v R at 578-586).

78. [115]

    Whilst the capacity to pay was a relevant feature of the matter for the jury to consider in determining whether the Crown had proved its case, it is not essential to proof of the offence. An individual or company could have considerable capacity to meet an obligation to pay without having a corresponding intention to do so.

79. [116]

    Nor could the intention of a company be a critical intermediate fact to proof of the charge. The relevant consideration was the state of mind of the conspirators and his Honour’s directions to the jury properly addressed that aspect of proof of the charge. The state of mind of the company, assuming a company could have such a thing, was not a determinative feature.

80. [117]

    The applicant’s complaint made by this ground as framed is concerned with the directions to the jury. However, a significant part of the submissions in support of the ground go to a purported failure to adequately put the appellant’s case to the jury. Although it has some factual relationship to the argument in support of ground 6, it should have formed a separate ground.

81. [118]

    Insofar as it is relevant to ground 6, we are unable to agree that the trial judge failed to adequately put the appellant’s case, and specifically, to adequately summarise the evidence of Dr Randerson. The complaint is that his Honour “paid scant attention” to the appellant’s case that he had both the capacity and the intention to cause NHA to pay for the various technologies.

82. [119]

    There is no obligation on a trial judge to summarise any or all of the evidence given before the jury: s 161 Criminal Procedure Act 1986 (NSW). As was held in Aravena v R [2015] NSWCCA 288, at [109]:

83. [120]

    In his summing up, the trial judge specifically told the jury that he proposed only to summarise those aspects of the evidence which were relevant to the “sharp disagreements” that had emerged during the trial. He gave the jury the standard direction to the effect that the fact that he referred to a particular aspect of the evidence did not mean the jury should give it any greater weight or emphasis than the jury considered to be warranted.

84. [121]

    His Honour set out for the jury an outline of the Crown’s case and an outline of the appellant’s case. He referred to the appellant’s capacity to discharge the payment obligations incurred under the assignment agreements, and supplemented this aspect of the summing up following a request for further directions.

85. [122]

    His Honour said (at AB15:SU159-167):

86. [123]

    After the request for further directions, his Honour added (at AB15:SU334-336):

87. [124]

    The appellant himself gave evidence as to the capacity to pay and the trial judge referred the jury to that evidence.

88. [125]

    The directions in this regard fairly presented this aspect of the appellant’s case.

89. [126]

    The appellant has failed to establish this ground.

90. [127]

    On 20 March 2015 Beech-Jones J sentenced the appellant as follows:

    1. (1)

       Count 1, the offence contrary to s 135.4(5) of the Criminal Code 1995 (Cth), for which the maximum penalty was 10 years, a sentence of imprisonment for 7 years and 6 months, to date from 22 December 2014 and expiring on 22 June 2022.

    2. (2)

       Count 6, the offence contrary to s 11.5(1) of the Criminal Code, carrying a maximum penalty of 25 years imprisonment, a sentence of 9 years imprisonment was imposed, to date from 22 December 2016 and expiring on 22 December 2025.

    3. (3)

       A single non-parole period of 7 years expiring on 22 December 2021 was fixed, pursuant to s 19AB(1) of the Crimes Act 1914.

91. [128]

    The overall term was one of 11 years imprisonment: R v Anthony James Dickson (No 18) [2015] NSWSC 268 at [140] – [142].

92. [129]

    The Crown appeals against that sentence as manifestly inadequate.

93. [130]

    The Crown’s appeal raised three grounds:

94. [131]

    In written submissions the appellant took no issue with the facts which his Honour found on sentencing, in so far as they were consistent with the jury’s verdict. It was thus accepted that it was open to find that his role had been extensive; that he was the predominate player and the moving force behind the conspiracy the subject of count 1; that Mr Issakidis was not subordinate to him, in a hierarchical sense; that they had both agreed to perpetrate a tax fraud for their own benefit by agreeing to pretend that NHA was investing in three medical technologies at a level above the true amounts; and that they had diverted funds from that purpose to themselves.

95. [132]

    Despite not himself having appealed the sentence, the appellant contended that his Honour had failed to take into account relevant considerations in arriving at his sentence. It was thus submitted to have been relevant that the amount of a tax debt was not quantitatively the same as the amount of tax that could be recovered. In this case that was argued to have been only the 9 cents in the dollar receivable by NHA, on some $68,405,000.

96. [133]

    It was also submitted to be relevant that, given the intervening audit by the Tax Commissioner and its consequences, and that absent the lodgement of a tax return with substantial depreciation claims being claimed, the loss the appellant was said to have dishonestly caused could not have materialised. Further, it was argued that assessment of the extent of the loss, or risk of loss, which he had caused should have been limited to what the jury was required to find in convicting him, namely, only one of the medical technologies which formed the basis of the false depreciation claims.

97. [134]

    The correctness of the sentencing judgment cannot be challenged by the appellant absent an appeal or notice of contention. These submissions may be advanced, however, on re-sentence, if the Crown’s appeal is upheld.

98. [135]

    For reasons which follow, the sentence appeal must be upheld and the appellant re-sentenced.

The sentencing judgment

1. [136]

   It was the appellant’s submission that the sentencing judgment provided a useful summary of the basis on which he had been found guilty of the two charges which he had defended. It has been earlier referred to.

2. [137]

   At trial the appellant had admitted that it was he who had caused the transfer of five tranches of funds totalling some $63,715,000 by NHA, to accounts in the United Kingdom and Hong Kong, with the bulk being transferred back to Australia. His Honour explained the basis on which he came to be “satisfied beyond reasonable doubt that the offender never envisaged they would become available to Australian regulators” (see at [94]). The amount distributed to the appellant and entities associated with him was found to be $19,616,996.37, the jury having rejected the appellant’s evidence that these amounts represented sums invested on behalf of the entity HFAC, or his receipt of remuneration from Randstone.

3. [138]

   His Honour considered the nature and circumstances of the two offences. He concluded as to count 1 (at [98]) that “this case falls into the worst category of offences under s 135.4(5)”. The features identified were the extent of the loss (at [99]); the level of sophistication and planning involved, the appellant having applied his considerable expertise and business acumen in dealing with various entities, as well as documenting the arrangements necessary to implement a very large fraud in the revenue (at [100]); the use of numerous indicators of deceit (at [101]); the appellant’s extensive role in the conspiracy, it being he who possessed a detailed knowledge of the tax system and the professional skills necessary to implement aspects of the conspiracy; and his motivation, namely greed (at [102]).

4. [139]

   As to count 6, his Honour considered factors identified in R v Ly [2014] NSWCCA 78, where the respondent had also been charged with offences under ss 400.4(1) and (2) of the Code. They included the extremely large sum involved in the appellant’s offending, his Honour noting that none of the cases brought to his attention had involved an amount of that size (at [105]); the number of transactions and periods involved, namely some 110 transactions involving the movement of funds from and to Australia via companies that he secretly controlled, false identities and codes and, in some cases, disguising the nature of distributions as loans or investments; and the amount dealt with, some $19.6 million (at [106]). His Honour noted, however, that there was no suggestion that the appellant or his co-conspirator contemplated using the funds for any illegal purpose (at [107]).

5. [140]

   In the result his Honour concluded at [108] that:

6. [141]

   His Honour did not find that the formation and adherence to the conspiracies involved a course of conduct consisting of a series of criminal acts, but rather that those acts were the implementation of the conspiracy. Co-operation was not found, given the false documents supplied to the ATO.

7. [142]

   His Honour also took into account the appellant’s personal circumstances, including his age, background and family circumstances, but could not conclude that the hardship which his conviction would cause, satisfied the requirements of s 16A(2)(p) of the Crimes Act 1914 (Cth) as to exceptional cases. While it was accepted that the appellant had previously been of good character, his Honour concluded that was of less significance than it might otherwise have been, given that his qualifications, experience and good standing provided him with the opportunity to commit these offences. His Honour concluded (at 116] – [117]) that:

8. [143]

   His Honour was referred to comparable cases. He dealt specifically with R v Dunn (No 9) [2014] WASC 61 and Chen v R [2009] NSWCCA 66, after noting the limitations as to the assistance which such comparisons can provide. He gave them the weight discussed in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53].

9. [144]

   His Honour then turned to questions of totality and accumulation, concluding that there was an overlap between the elements of counts 1 and 6, as in R v Dunn (No 9), so that on sentencing “care needs to be taken in imposing a penalty for each offence and structuring the overall sentence to ensure that the combined effect of all the sentences reflects the total criminality of the offender's conduct” (at [132]).

10. [145]

    In arriving at the sentences imposed, his Honour finally observed (at [133] – [136]):

Principles applying to Crown appeals

1. [146]

   There is no issue as to the principles applicable to a Crown appeal on a sentence such as this.

2. [147]

   In brief, they are that the primary purpose of a Crown appeal is to lay down principles for the governance and guidance of sentencing courts, not the general correction of errors made by sentencing judges (see Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [36]). The “limiting purpose” of Crown appeals is thus to establish sentencing principles and achieve consistency in sentencing (see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at [53]).

3. [148]

   An appeal as to manifest inadequacy requires consideration to be given to all of the matters that are relevant to fixing a sentence (see Hili at [60]).

4. [149]

   It is thus relevant to consider other sentencing decisions, but intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court concludes that there must have been some misapplication of principle (see R v Pham [2015] HCA 39; (2015) 90 ALJR 13 at [28]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [61]).

5. [150]

   On appeal the Court cannot, however, discard the sentencing judge’s factual findings if they are not challenged. The Court may only interfere in a sentence where error, either latent or patent, is established (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [61]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]). On a Crown appeal, a House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 error in the exercise of discretion must be established.

6. [151]

   Characterisation of the degree of objective seriousness of an offence is within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts (see Mulato v R [2006] NSWCCA 282). The Court can, however, form a different view from the sentencing judge as to the objective seriousness of an offence, where the only House v The King error found is that the sentence is “plainly unjust” (see Carroll v The Queen [2009] HCA 13; (2009) 254 CLR 259 at [24]).

7. [152]

   If the Court is satisfied that the discretion miscarried, resulting in a sentence which was below the range of sentences that could be justly imposed for the offence, consistently with sentencing standards, it must still consider whether the Crown appeal should, nonetheless, be dismissed in the exercise of the residual discretion under s 6(3) of the Criminal Appeal Act 1912 (Cth) not to interfere on sentencing (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24] [55] and CMB v Attorney General for NSW [2015] HCA 4; (2015) 317 ALR 308 at [54]). The onus is on the Crown to negate any reason why the residual discretion should be exercised (see CMB v Attorney General for NSW [2015] HCA 9; (2015) 317 ALR 308 at [34], [66]).

8. [153]

   Absent specific error being found, the Court may intervene only if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence (see Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [35]).

9. [154]

   If the Court re-sentences, it must exercise the sentencing discretion afresh, taking into account the purposes of sentencing and any other applicable Act or rule of law (see Kentwell at [42]).

Ground 1: The sentence imposed in respect of the section 135.4(5) charge was manifestly inadequate.

1. [155]

   Section 135.4(5) provides:

2. [156]

   Contrary to the appellant’s written submission, Beech-Jones J concluded at [98] in relation to this offence, that “[t]here are a number of features of the offence and the offender's conduct that warrant the conclusion that this case falls into the worst category of offences under s 135.4(5)” (see also at [135]). It was the second conspiracy, the subject of count 6, which was considered to have been a very serious example of such an offence (at [106]).

3. [157]

   Section 16A(2)(a) of the Crimes Act requires that on sentence, the nature and circumstances of the offence be taken into account.

4. [158]

   The appellant’s case was that while his Honour had found that between $368 and $402 million in false depreciation deductions had been claimed in tax returns lodged in the tax years between 2007 and 2010 and that total income from the four trusts was $750 million and $450 million in false deductions had been claimed to offset the declared income, with a risk of loss resulting of approximately $135 million, those findings had to be assessed against the intervening tax audit, which his Honour had failed to take into account.

5. [159]

   This offence was concerned, however, not only with losses, but also risks of losses.

6. [160]

   What his Honour found, to recap, was that NHA, which had been incorporated in 2006, entered into sham agreements to purchase medical technologies from Athena, another entity controlled by the appellant, purportedly for $410,000,000.

7. [161]

   The false depreciation claims were made to offset income flowing to NHA from structured finance arrangements negotiated with ANZ and its clients. The result was that some $68,405,000 was distributed to NHA by four trusts between October 2006 and December 2009. The conspiracy was continuing at the time of the appellant’s arrest, with the result that it could not be fully implemented.

8. [162]

   The loss his Honour found was a temporary delay in obtaining a tax debt of $104,152,053 (at [80]). The intended extent of the loss or risk of loss was found to be $135 million (at [76] and [99]). The appellant’s actual personal gain was found to be some $19,616,996.37 (at [95]).

9. [163]

   There was no error in these findings, notwithstanding the consequences of the tax audit and other matters advanced for the appellant.

10. [164]

    It is correct that in Ansari v R [2007] NSWCCA 204; (2007) 70 NSWLR 89, where a money laundering offence was dealt with, that it was observed at [120]:

11. [165]

    It does not follow, however, that if the money the subject of a conspiracy such as that involved in this offence, is not proven to have been used for purposes such as terrorism, that the offence cannot be found to fall into the worst category of such offending.

12. [166]

    This conspiracy involved very sophisticated, complex offending.

13. [167]

    There was no error in his Honour’s unchallenged conclusion that this offence fell into the worst category of cases under s 135.4(5), given the nature of the appellant’s offending; its scale; the sophistication and planning involved; the way in which and time over which it was pursued and implemented; and the appellant’s role in this conspiracy, which depended on his detailed knowledge of the tax system.

14. [168]

    His Honour was bound to have regard to these matters in assessing the objective seriousness of this offence. The appellant accepted that it was open to his Honour to find that his role in the offence had been extensive; that he had been the predominant player and motivating force behind the conspiracy, even though Mr Issakidis was not subordinate to him; and that the amount of money involved had been a highly significant consideration on sentence. He submitted, however, that the absence of another illegal purpose for the money was also a relevant consideration. Of itself that does not compel a departure from the conclusion which his Honour reached.

15. [169]

    The appellant’s subjective circumstances were also correctly taken into account. They were not, however, such as could have warranted any significant reduction in his penalty. To the contrary, it was the appellant’s education, background and personal circumstances which enabled him to devise and pursue this serious offending as he did, offending which unarguably required that both general and specific deterrence feature in the sentence imposed upon him.

16. [170]

    In arriving at the appellant’s sentence, the maximum penalty fixed for the offence had to be taken into account, as a sentencing “yardstick” (see Elias v The Queen; Issa v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]). The reasons for paying attention to the maximum penalty include that “they invite comparison between the worst possible case and the case before the court at the time” (see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]). In some cases the inevitable outcome of such a comparison will be a conclusion, as his Honour here correctly came to, that the particular case falls into the worst category of such offending.

17. [171]

    In such a case, the result of the exercise of the sentencing discretion, by way of the instinctive synthesis discussed in Markarian v The Queen at [51], when all relevant considerations must be taken into account, may be that a sentence at, or close to, the maximum penalty must be imposed on the offender. The Crown contended that this was such a case.

18. [172]

    The appellant’s case was that the sentence of 7 years and 6 months, when the maximum penalty was 10 years, was an adequate sentence, in all of the relevant circumstances which his Honour considered. In the result, that sentence could not be found to have been unreasonable or plainly unjust, or outside the available range.

19. [173]

    There may, of course, be relevant considerations which will result in a sentence being imposed which is well below the maximum, even in a worst case. This may be the case where discounts are given for a plea or for assistance, for example, or where the offender’s particular subjective circumstances warrant mitigation of the sentence which would otherwise be imposed. Nothing of that kind arose for consideration in the appellant’s case.

20. [174]

    Schedules of comparative cases for both tax fraud and money laundering offences were addressed both on sentence and appeal. While there are limits to the assistance which such comparisons can provide, the Crown’s case that overall less serious offending than that which the appellant had committed has resulted in greater punishment must be accepted, albeit the comparative cases available are somewhat limited.

21. [175]

    His Honour referred to Dunn where the sentence imposed after trial was imprisonment for 7 years with a non-parole period of 4 years, for an offence under s 135.4(3) of the Code, where the maximum penalty was also 10 years. That offender was the principal in devising and implementing a scheme to offset tax payable by claiming false tax deductions the purpose of which was to inflict a loss of $7.2 million, which was not achieved because the conspiracy was detected.

22. [176]

    His Honour concluded at [125] that the appellant compared unfavourably to the offender in Dunn, given that the intention of the conspiracy was to inflict a far higher amount of loss by a scheme that was far more sophisticated. The sentence imposed upon the appellant, however, was 7 years and 6 months.

23. [177]

    On appeal particular reference was made to El-Chaar v R [2007] NSWCCA 16, which involved premeditated tax fraud involving false claims for Goods and Services Tax (“GST”) refunds, which had been committed between 12 March 2003 and 20 February 2004. That fraud had involved the use of what was found to be a sophisticated modus operandi, with assistance from an officer of the ATO. The 13 offences involved dishonestly obtaining property by deception contrary to s 134.1(1) of the Code and one offence of attempting to obtain property by deception contrary to ss 11.1 and 134.1 of the Code. The total amount involved in the dishonestly obtaining property by deception offences was $1,000,688.33, whilst the amount involved in the attempt offence was $62,500. The maximum penalty for each offence was 10 years imprisonment and the total sentence imposed after entry of a plea was 8 years with a non-parole period of 5 years. The appeal against the severity of this sentence was dismissed.

24. [178]

    In O'Meara v R [2009] NSWCCA 90, the appellant’s appeal from an overall sentence of 8 years imprisonment, with a non-parole period of 5 years and 4 months, imposed for one count of obtaining a financial advantage by deception under s 134.2 of the Code and four counts of attempting to obtain a financial advantage by deception under ss 11.1 and 134.2, after conviction at a jury trial, was also dismissed. The maximum penalties in that case were also 10 years.

25. [179]

    Those offences also involved Goods and Services Tax fraud, resulting from false claims for refunds of GST in Business Activity Statements submitted to the ATO in the names of companies controlled by the appellant. Those statements contained false information concerning alleged purchases claimed to have been made that incurred GST. They falsely claimed that the companies had made (usually) capital purchases and that they were entitled to a refund of the GST component. The total amount of GST claimed to be the subject of a refund in all charges was $64,450,896. In respect of each purchase, with the exception of one count, it was the appellant who created false documentation showing that the purchases were made from another company, or from the himself, using a business name.

26. [180]

    That his Honour’s conclusions as to the nature and seriousness of the appellant’s offence was reflected in the sentence of 7 years and 6 months, even though that is, as the appellant submitted, a “significant sentence”, or in the aggregate sentence finally imposed, is thus difficult to accept. That is the more so, given the absence of subjective circumstances which might have warranted significant mitigation of the penalty imposed upon him.

27. [181]

    In the result it must be concluded that this ground was made out.

Ground 2: The sentence imposed in respect of the sections 11.5(1) and 400.3(1) charge was manifestly inadequate.

1. [182]

   Count 6 involved a conspiracy to commit a s 400.3 (1) money laundering offence. It provides:

2. [183]

   In Ly it was observed at [86]:

3. [184]

   Given these considerations, it is apparent that this offence also involved very serious offending, as his Honour found. The sentence imposed was 9 years. The maximum penalty was 25 years.

4. [185]

   Before January 2007 the appellant and Mr Issakidis had agreed to deal with $63,715,000.00, knowing that these funds were the proceeds of crime, albeit not contemplated to be used for other illegal purposes. At [105] his Honour observed that none of the cases drawn to his attention had such a large amount. His Honour took into account the appellant’s control of the movement of these funds and that the money which finally came to him, the predominant conspirator, as the result of the steps pursued for his personal enrichment, was $19,616,996.37.

5. [186]

   His Honour thus rightly concluded that this was a very serious example of a s 400.3(1) conspiracy offence under s 11.5.

6. [187]

   His Honour also considered the circumstances of Chen v R [2009] NSWCCA 66 where, although $20 million of stolen funds were transferred to an account, the fraud was discovered and the funds were not released. Some $3.5 million was otherwise lost through the fraud. The offence under s 11.5(1) and s 400.3(2) of the Code there involved recklessness as to the fact that the money was the proceeds of crime. The maximum penalty was imprisonment for 12 years. The applicant entered a plea and was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 7 months, after a starting point of 8 years and a 25% discount. The sentence appeal was dismissed, it being observed:

7. [188]

   His Honour concluded at [126] that the appellant’s offending compared unfavourably to the offender in Chen v R [2009], given the higher maximum penalty which applied to his offending; the absence of a plea; the larger amount agreed to be laundered; the larger number transactions involved; the more sophisticated scheme; and that the offence had involved belief, rather than recklessness.

8. [189]

   Chen v R [2010] NSWCCA 224 was also referred to by his Honour at [124], but its circumstances were not considered. This case, the Crown submitted on appeal, was an appropriate “yardstick” for comparison in this sentencing exercise, particularly given the magnitude of the appellant’s profit from his offending.

9. [190]

   There an appeal against sentence was dismissed, the offender having been found guilty of an offence under s 31(1) of the Financial Transaction Reports Act 1988 (Cth) and s 400.3(1) of the Code, committed between about 14 January and 4 November 2003, when the offender dealt with $3,088,311, intending that the money become an instrument of crime. The maximum penalty was 25 years and/or a fine of 1500 penalty units. The offender was sentenced to 16 years and 6 months with a non-parole period of 10 years and 6 months.

10. [191]

    A difference to the appellant’s offending was that in Chen v R [2010], the money was intended to become the instrument of a crime, rather than already being proceeds of crime, and so the sentencing judge could not say what benefit had flowed to the offender, for his involvement. Here, of course, the huge personal gain which the appellant achieved was established.

11. [192]

    The sentence imposed for the appellant’s offence was, however, 9 years. That was 7 years and 6 months less than that imposed in Chen v R [2010], where the maximum penalty was also 25 years, but three years more than the head sentence imposed in Chen v R [2009], where the maximum penalty was only 12 years.

12. [193]

    When these comparisons are considered together with the aggregate sentence imposed on the appellant of 11 years for his offending as reflecting the totality of conduct, it must be accepted that this ground of appeal has also been established.

Ground 3: The overall effective sentence was manifestly inadequate by reason of insufficient accumulation.

1. [194]

   The appellant’s case on sentence was that the evidence revealed a unique combination of features which called for a sentence below the norm to be imposed upon him.

2. [195]

   While his Honour did not accept this submission and concluded at [132] that a significant degree of accumulation in the two sentences was warranted, he came to the view that the sentences had to be made largely concurrent, lest they otherwise have a crushing effect on the appellant.

3. [196]

   The appellant’s case on appeal, that this approach was open as a matter of discretion, may not be accepted. The result of such an approach here to accumulation, concurrency, and totality was an overall sentence which was manifestly inadequate, given the criminality found to have been involved in the appellant’s offending.

4. [197]

   The sentence did not achieve the stated purpose of ensuring that the combined effect of the sentences reflected the total criminality of the appellant’s conduct (at [132]).

5. [198]

   Care unarguably had to be taken in the application of the totality principle, to ensure that a crushing sentence was not imposed on the appellant, that is, one which would induce a feeling of hopelessness and destroy any expectation of a useful life after release (see R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [97]). That undoubtedly required the imposition of some concurrency (see Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]).

6. [199]

   Application of the totality principle also had to result, however, in a sentence reflective of the overall criminality involved in the appellant’s entire offending, one which ensured that there was no suggestion that there had been a discount for multiple offending (see R v MAK at [18]).

7. [200]

   The appellant contended, nevertheless, that his Honour’s conclusions involved no error, given the approach discussed in authorities such as Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 ; Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463; Schembri v The Queen [2010] NSWCCA 149; (2010) 78 ATR 159; Redfern v R [2012] NSWCCA 178; Subramanian v R [2013] NSWCCA 159 and Dela Cruz v R [2010] NSWCCA 333. These, however, are considerably different cases to this one.

8. [201]

   In Subramaniam v R [2013] NSWCCA 159 it was observed that the money laundering offences there in question (at [34] – [36]):

9. [202]

   Subramaniam involved a string of offences involving the fraudulent transfer of money used to purchase properties, which were the subject of the money laundering offences.

10. [203]

    In Thorn v R [2009] NSWCCA 294, sentences imposed for one count of dealing with the proceeds of crime contrary to s 400.4(1) of the Code, 11 counts of dishonestly obtaining a financial advantage contrary to s 134.2(1) of the Code and one count of attempting to obtain a financial advantage arose to be dealt with. There it was observed that (at [30] – [31]):

11. [204]

    The appellant argued that in the result in his case, “it is appropriate to impose a sentence substantially cumulative upon the predicate offence of fraud when the very money laundered involved concerns the gaining of access to the funds the product of the fraud.”

12. [205]

    Each case must turn on its own facts. While, as his Honour found, there was an overlap between the elements of counts 1 and 6, the result of the successful conspiracy that was the subject of count 1, which the appellant and Mr Issakidis first pursued in relation to the funds involved of over $63 million, was that they were put in the position where they were able to pursue the other sophisticated steps the appellant largely devised, in order that they could implement the second conspiracy, which was the subject of count 6. Thereby the appellant was able to achieve the result that he and those associated with him came into possession of over $19 million.

13. [206]

    Offending of such a significant nature cannot justly be sentenced on the basis that the second offence involved “merely gaining access” to the funds obtained as the result of the first offence, or a conclusion that the penalty for that further offending, which attracted a maximum penalty of 25 years, could be substantially subsumed in the penalty imposed for the first conspiracy, which carried a maximum penalty of only 10 years.

14. [207]

    The Crown has met the onus falling upon it to demonstrate that the overall sentence imposed resulted from the errors earlier discussed and that, in the circumstances which arose for consideration in this sentencing exercise, the overall sentence imposed was unreasonable and plainly unjust.

15. [208]

    In the result this ground of appeal must also be upheld. As discussed in Hili at [58] - [62] appellate intervention is warranted, because misapplication of principle has been established.

Residual discretion

1. [209]

   The Crown has also established that the Court’s residual discretion not to interfere in the sentence should not be exercised.

2. [210]

   The overall sentence imposed on the appellant reflects error in principle. Given the serious offences for which the appellant was being sentenced, the nature of the errors identified, and their result, it is necessary for this Court to intervene to correct the sentence in order to maintain adequate standards of punishment for offences of this kind.

3. [211]

   The appellant must thus be sentenced afresh in order that “principles for the governance and guidance of courts having the duty of sentencing convicted persons” may be given (see Griffiths v The Queen at [54]).

Re-sentence

1. [212]

   As his Honour observed, sentences imposed in cases of serious revenue fraud such as this must reflect the need for denunciation, as well as general and personal deterrence (see Milne v R [2012] NSWCCA 24 at [297]). There reference was made to Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) A Crim R 147 where the Victorian Court of Appeal explained at [57]:

2. [213]

   The appellant’s criticism of his Honour’s approach to fact finding on sentencing cannot be accepted. A sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict (see Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 at 8). While facts found must be arrived at beyond reasonable doubt, there is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender (see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14]).

3. [214]

   As earlier discussed, no error in his Honour’s fact finding has been established.

4. [215]

   The appellant submitted that on re-sentence account would be taken of the fact that any fraud after the 2010 tax year depended on NHA exiting the tax audit notified in 2010 without the depreciation claims being assessed as being based on shams. That did not happen given what the Commissioner came to know. However, this consideration would have been obvious to his Honour and, no error has been shown in his Honour’s finding as to the extent of the loss.

5. [216]

   The appropriate sentence for the s 135.4(5) offence is one of 9 years, and for the offences under s 11.5(1) and s 400.3 of the Code, 12 years. The overall sentence which is of a severity appropriate for the appellant’s offences and provides a minimum period that he must spend in custody appropriate to all the relevant elements of punishment, including rehabilitation, the objective seriousness of his offences and his subjective circumstances is 14 years imprisonment, with a non-parole period of 9 years and 3 months.

6. [217]

   This means that the appellant’s sentence will commence on 22 December 2014 and will expire on 21 December 2028. The non-parole period will expire on 13 March 2024, the appellant’s earliest date of release on parole. If released on parole the appellant will then spend the balance of the sentence in the community, subject to conditions then imposed upon him by the relevant parole authority, which may later be amended or revoked. If the appellant fails, without reasonable excuse to comply with such conditions, his parole may be revoked, in which event he will be returned to custody to serve the balance of his sentence.

7. [218]

   For the reasons given, we propose the following orders:

   1. (1)

      Leave to appeal in relation to grounds 1 and 2 of the conviction appeal is refused.

   2. (2)

      The conviction appeal is otherwise dismissed.

   3. (3)

      The sentence appeal is upheld and the sentences imposed by Beech-Jones J are set aside.

   4. (4)

      The appellant is re-sentenced as follows: