Adam Hemsley and v The Queen
[2013] VSCA 114
•15 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0124 | |
| ADAM HEMSLEY | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and COGHLAN JJA and T FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 14 September 2012 | |
DATE OF JUDGMENT: | 15 May 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 114 | |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge M P Bourke, Date of Sentence 20 April 2010 | |
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CRIMINAL LAW — Sentence — Whether the individual sentences imposed on offences classified as continuing criminal enterprise offences were manifestly excessive — Significant prior offences for similar offending — Counts structured into groups and orders of cumulation made to reflect various aspects of the illegal enterprise — Principle of totality applied — Sentence not outside the range —Appeal dismissed — No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M P Cahill | Doogue and O’Brien |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Coghlan JA.
COGHLAN JA:
The appellant appeals against the sentence set out in the table below which was imposed in the County Court on 20 April 2010.
Presentment X01176812.1A (First Presentment) Charge on Indictment Offence Maximum Sentence Cumulation 1. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 12 months Presentment X01176812.1B (Second Presentment) Charge on Indictment Offence Maximum Sentence Cumulation 1. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months 4. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years 6. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 7. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 5 years 8. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 3 years 10. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 5 years 12. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 6 years 14. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years
16. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 20 years 6 years Base 17. Make false documents [s 83A(1) Crimes Act 1958 (Vic)] 10 years 2 years 18. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 6 months 19. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months 20. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months 23. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 18 months 24. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 3 years 6 months 25. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months 26. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months 27. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 3 years 6 months 28. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 12 months 29. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 12 months 30. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 12 months 31. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 12 months Presentment X01176812.1C.1 (Third Presentment) Charge on Indictment Offence Maximum Sentence Cumulation 1. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 18 months 2. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months 3. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months 4. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 2 years 4 months 5. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months 6. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months 7. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months 8. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 18 months 9. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 18 months 4 months 10. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 18 months 4 months 11. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 12 months 4 months 12. Obtain property by deception [s 81(1) Crimes Act 1958 (Vic)] 10 years 9 months 13. Obtain financial advantage by deception [s 82(1) Crimes Act 1958 (Vic)] 10 years 9 months Total Effective Sentence: 9 years 4 months Non-Parole Period: 7 years Pre-sentence Detention Declared: 720 days 6AAA Statement: 10 and a half years imprisonment with a minimum term of 8 years.
The appellant fell to be sentenced:
(i) on Presentment X01776812.1B after being convicted by a jury of those 31 counts,
(ii) on Presentment X01776812.1A, and
(iii) on Presentment X01776812.1C.1 after pleading guilty to those 14 counts.
Leave to appeal against sentence was granted by Redlich JA on 23 November 2011. Leave was granted on the basis that the individual sentences on counts 7, 10, 12 and 16, the total effective sentence and the non-parole period were manifestly excessive.
Continuing Criminal Enterprise Offences
The appellant had been sentenced on counts 7, 10, 12 and 16 (the ‘CCE offences’) as a continuing criminal enterprise offender and the relevant maximum sentence for those counts was 20 years.
The individual sentences imposed on counts 7 and 10 were five years’ imprisonment and on counts 12 and 16 six years’ imprisonment. All those sentences were ordered to be served concurrently so that the total effective sentence for the CCE offences was six years.
On the appeal a question arose as to whether or not the conclusion reached during the hearing of the plea that no other offences were continuing criminal enterprise offences was correct.
By definition a continuing criminal enterprise offence for present purposes is obtaining either property or financial advantage by deception of more than $50,000 where the offender has been found guilty of three or more criminal enterprise offences.[1]
[1]Sections 6H & 6I of the Sentencing Act 1991.
The appellant was a continuing criminal enterprise offender by virtue of his convictions on the CCE offences.
On the plea after discussion with the parties his Honour declined to treat any of the counts of obtaining financial advantage by deception as continuing criminal enterprise offences on the basis that it was not possible to quantify the benefit which accrued to the appellant. When the matter was heard on the appeal the parties were invited to make further written submissions on the subject which were provided to the Court.
The view taken by his Honour was that the debt evaded could not be quantified with sufficient certainty for the provision to operate. Most of the counts of obtaining financial advantage related to the provision of a cheque which was not met on presentation. It seems to follow that the amount on the face of the cheque is the financial advantage irrespective of what the amount of any benefit that was ultimately received. It is not clear in the absence of a more detailed analysis whether or not the counts showed can be classified as continuing criminal enterprise offences.[2] It is not possible on the material before the court to take the matter further.
[2]It may also be that the counts contained in the appellant’s past convictions may have also qualified see R v Roussety (2008) 24 VR 253.
Trial Presentment (Second Presentment)
The second presentment on which the appellant was convicted of 31 offences, after a trial lasting five to six weeks, related to his unsuccessful attempts in the Castlemaine/Bendigo area to establish a restaurant chain and food distribution business.
The chain of events began early in September 2007 when the appellant agreed to purchase a pizza restaurant called Capones in Castlemaine from Steven James. Part of the agreement was for the appellant to franchise ‘Capones’ all over Victoria. Capones in Castlemaine as the name suggests had a gangster based theme.
The various premises to be opened would need to be supplied with specific food items and the appellant leased a factory in Castlemaine where the food was to be prepared and then distributed to the franchised restaurants. That business was called Ballston Foods. The factory had to be fitted out as a commercial food preparation premise. To that end the appellant engaged Beaumonts Commercial Catering Equipment (‘Beaumonts’). The appellant dealt with the owner Jamie Lancaster.
The conduct of the appellant may be most conveniently described by references to its affect upon the different victims or sets of victims.
Complainant James
A major portion of the offending related to Steven James, the owner of Capones. They were counts 4, 6, 14, 17, 18 and 24. The appellant was due to pay a $250,000 deposit for the business. On 25 September 2007 the appellant showed a document to James which showed that $238,519.46 had been deposited into his account. No such deposit had been made as the document was false (count 4 – making a false document).
The appellant then used that document to persuade James to take seven post dated cheques totalling $286,000.13. The appellant sought to confirm the above state of affairs by way of email on 27 September 2007. On 10 October 2007 three of the cheques were not met on presentation and James did not bother to bank the other four (count 6 – obtaining financial advantage by deception).
As far as can be observed some payments must have legitimately been made to James almost certainly from the funds obtained from Graham Stalker but the appellant appears to have always remained in debt to James. In November 2007, the appellant created two false cheques both in the sum of $250,000 by altering otherwise genuine cheques. They were made to show James that in the first instance there was sufficient money in his account to cover a $60,000 cheque and in the other to have James believe that he had deposited $250,000 in Capones Pizzeria Pty Ltd’s account (counts 14 and 17 – making a false document). The latter conduct also further deferred the payment of the $250,000 debt which remained unpaid (count 18 – obtaining financial advantage by deception). On 25 January 2008 the appellant gave James a further cheque for $250,000 knowing that the balance of the account was only $2,503.55 (count 24 – obtaining financial advantage by deception).
Complainant Stalker
In relation to the venture, the appellant also sought to raise capital. In October 2007 in response to an advertisement in The Age, Graham Stalker contacted the appellant who was seeking a partner in a pizza and pasta business. Stalker was told by the appellant that he was the owner of the business which he had bought for $570,000. Stalker arranged to buy a half share of the business for $285,000 and signed a promissory note for that amount.
In the few weeks there after, Stalker provided cash and a number of cheques which by 19 November 2007 totalled $227,000. He paid over another $80,000 in December 2007 towards the cost of establishing another Capones in Bendigo. He gave a short term loan of $55,000 to the appellant in January 2008 which was never repaid. The appellant ‘edited’ a computer copy of the original promissory note to alter the amount owed to $362,000 and deleting any reference to Capones. Instead, Stalker’s interest was to be a 10% interest share in Ballston Foods which the appellant represented as being the owner of Capones. He set out in the altered promissory note a repayment schedule for the money which Stalker had advanced. The appellant had represented to Stalker and others that he was a chef and a lawyer.
Counts 7, 8, 10, 12 and 16 related to Stalker handing over a series of cheques and some times cash on five separate occasions for either the purpose of part payment of a half share in Capones or on the last occasion for part payment in establishing a Capones in Bendigo. On each occasion being 17 October, 2, 13 and 19 November and 6 December 2007 a cheque payable to Capones Pty Ltd or James and a cheque payable to Ballston Foods was handed over. The table below sets out the amounts paid on the various dates.
Count Date James Ballston Foods Cash 7 17 October 2007 $55,000[3] $5,000 8 2 November 2007 $10,000 $20,000 $7,000 10 13 November 2007 $15,000 $40,000 12 19 November 2007 $58,750.98 $16,249 16 6 December 2007 $40,000 $30,000 $10,000 [3]This cheque was made out to Capones Pty Ltd.
The cheque for $58,750.98 was used as part of the purchase price of a property which the appellant purchased in Castlemaine. Stalker lost $363,000 in total (counts 7, 8, 10, 12 and 16 – obtaining property by deception).
Complainant Beaumonts
As indicated earlier a company called Beaumonts Commercial Kitchens had been engaged to outfit the factory. The company had provided $365,905.70 worth of goods and services for which they had not been paid. On 22 February 2008 the appellant gave Jamie Lancaster a cheque for $263,905.70 which was not met on presentation there being only $15,392.70 in the relevant account. A further invoice of $395,490.20 was forwarded on 29 February 2008 and a valueless cheque for $42,000 was handed over. That cheque was honoured in error by the bank and the money was paid. The appellant wrote out a further cheque for $321,905.70 which he asked Lancaster to hold. He did not ever tell Lancaster to bank the cheque (count 27 – obtaining a financial advantage by deception).
Complainants Fernie, Labbett & Carter
Counts 1, 19, 20, 23, 25, 28, 29, 30 and 31 related to the complainants Bryan Fernie (1, 19, 28 and 31), Ross Labbett (20 and 30) and Andrew Carter (23, 25 and 29). In September 2007 the appellant placed an advertisement in the Bendigo Advertiser seeking owner drivers for a food distributer business. The three men responded. They were told that the appellant either owned or part owned Capones. The appellant made various extravagant claims about the business. Each of the complainants agreed to purchase a distribution route and paid $8,200, $21,600 and $29,400 respectively as a deposit or as part payment. Labbett who had started a company called Cross Country Refrigerated Transport made two payments one of $7,200 and one of $14,400 as part payment of 30% for the route. Fernie made a payment of $8,200. Carter who had started a company called Ancaw Pty Ltd made two payments being one of $9,800 and one of $19,600 as part payment for 30% of the route (counts 1, 20, 23 and 25 – obtaining property by deception).
It was part of the agreement that these complainants would be paid a salary. They received cheques from the appellant which were not met on presentation being cheques for $11,088.05, $2,217.61 and $6,652.83 (Fernie), $3,856.15 (Labbett) and $5,753.11 (Carter) (counts 19, 28, 29, 30 and 31 – obtaining financial advantage by deception).
His Honour therefore framed the sentence as follows for the whole of the conduct involving Stalker six years; for James six months; for Beaumonts six months; and for Fernie, Labbett and Carter four months each. The whole of the conduct on this presentment therefore lead to a head sentence of eight years.
First Presentment
On the first presentment to which the appellant pleaded guilty to one count of obtaining property by deception the appellant was sentenced to 18 months imprisonment to be served concurrently.
On or about 2 November 2006 the appellant had obtained two bank cheques for a total of $10,000 by falsely representing his financial position and by the provision of false documents.
Third Presentment
The appellant pleaded guilty to the third presentment which contained a total of 13 counts. The first count related to obtaining a loan of $186,048 from Bluestone Mortgages in October 2007 on the property at 2 Vincent Place, Castlemaine by the provision of a set of entirely false financial details relating to his position at Ballston Foods and his assets.
The remaining 12 counts were counts of obtaining financial advantage by deception.
Count 2 related to a valueless cheque for $5,000 given by the appellant to his solicitor on 6 February 2008 for legal services rendered.
Count 3 occurred on 12 January 2008 when the appellant started to negotiate the purchase of a pizza and pasta restaurant in Gisborne. He paid the deposit with a valueless cheque.
Count 4 was a rolled up count dealing with a number of dealings which the appellant had with Westpac involving the manipulation of accounts by the use of valueless cheques and a bogus loan application which was approved conditionally for the sum of $1,287,348. Any attempts for the bank to have the appellant deal with the valueless cheques he had provided were fruitless.
Count 5 related to a further valueless cheque for $11,506.22 given to Carter on 3 April 2008 as part of his distribution agreement.
Count 6 related to similar conduct but with Labbett whereby a valueless cheque of $7,712.30 was given to him on 3 April 2008.
Count 7 related to the appellant providing Cappy Real Estate on 3 April 2008 with a valueless cheque for $4,766.66.
Count 8 related to a further valueless cheque to Fernie dated 4 April 2008 for $26,611.32.
Count 9 related to conduct on or about 11 and 16 April 2008 whereby two valueless cheques were given to Printz Plumbing for $6,710.13 and $10,316 respectively by the appellant. The cheques related to work valued at $20,553 which Printz Plumbing had performed for Ballston Foods.
Count 10 related to a valueless cheque for $20,000 given to Dennis Ralph as a deposit for the purchase of his restaurant in Halls Gap.
Count 11 related to a valueless cheque for $3,000 given to James Mills to repay a loan.
Count 12 was a rolled up count involving obtaining cash for $2,000 and $15,000 on 18 and 24 April 2008 respectively from Regional One Credit Union on the pretext that he was to receive a GST refund.
Count 13 related to a valueless cheque for $2,318.40 dated 24 April 2008 to Castle Motel for accommodation.
In relation to all the valueless cheque counts there was no possibility of the cheques being met on presentation.
In dealing with the further criminality his Honour ordered cumulation of four months each on the counts involving the Westpac Bank, Printz Plumbing, Dennis Ralph and James Mills respectively
There was no further cumulation relating to offending against Fernie, Labbett and Carter.
That lead to a total sentence of nine years four months. His Honour fixed a non‑parole period of seven years.
Ground of Appeal
The ground of appeal is that the individual sentences imposed on the CCE offences and therefore the total effective sentence and the non-parole period are manifestly excessive.
In the written submissions on behalf of the appellant, several major contentions were relied upon in support of the ground of appeal. Firstly that insufficient weight had been given to the mitigating features attached to the offending, in particular, that the appellant had acted recklessly rather than intentionally, that his personal gain was ‘measurably small’ and that the appellant had genuinely intended to complete the purchase of Capones. Further, the mitigating features personal to the appellant had been given insufficient weight, in particular his age, 36 at the time of sentence, that he had been in custody since 2008 and that he has a wife and daughter living in the United States but has no family support in Australia.
Secondly, the individual sentences for the CCE offences were manifestly excessive having regard to the mitigating features found by his Honour. His Honour’s findings as to absence of ‘real remorse’ is challenged particularly in view of the plea to the counts on the first and third presentments which should have been taken as an indication of remorse. It was further submitted that the structure of the sentences gave rise to the conclusion that his Honour had simply doubled the sentences on the continuing criminal enterprise offences which would be wrong in principle.
Thirdly, the non-parole period that was fixed is too long having regard to the appellant’s age and that his Honour was wrong to have concluded that his prospects of rehabilitation were ‘remote and bleak’ and that his conduct was ‘venally greedy’. It was further contended that his Honour gave too much consideration to the protection of the community.
Fourthly, the discounts for the pleas of guilty were inadequate.
At the hearing, counsel emphasised the main contentions relied upon as being that the individual sentences imposed on the CCE offences are manifestly excessive and therefore the total effective sentence is manifestly excessive; that the learned trial judge, in the way his Honour had structured the sentence, had effectively doubled the sentences imposed on the CCE offences; that the learned trial judge had characterised the offending as reckless and not intentional; and that the purpose of the offending was to further the enterprise and not for personal gain.
It was submitted by the respondent that the sentences were within the range having particular regard to the manner in which his Honour structured his sentence. It was submitted that the findings made by his Honour complained of on behalf of the appellant were open to him .
The individual sentences on the continuing criminal enterprise counts are high and must be looked at in the context of the sentence as a whole.
It should first of all be observed that the sentence imposed on counts 7, 10, and 12 lead to no cumulation of sentence.
In the sentence his Honour had regard to the appellant’s prior convictions which involved eight court appearances between 1991 and 2003 mostly for dishonesty. Of most importance were the prior convictions in Geelong in 2003 for similar offending. That offending appeared to have been some business venture relating to the distribution of cut flowers which went wrong. The appellant was sentenced to a total of four years six months’ with a non-parole period of three years on 12 August 2003 after pleading guilty to two counts of obtaining property by deception, 10 counts of obtaining a financial advantage by deception and one count of destroying (or damaging) property. He was released on parole on 12 March 2006. His Honour Judge Lewis, the sentencing judge, had ‘considerable reservations’ about the appellant’s prospects of rehabilitation. The parole was completed on 11 September 2007. It seems to follow that the appellant had been released on his earliest release date.
The offence on the first presentment (2 November 2006) and the first count on the second presentment (4 September 2007) were committed whilst the appellant was on parole. The blatant dishonesty in the count on the first presentment is obvious. In relation to the other count which related to the complainant Fernie, it must have occurred after dealings had commenced by the appellant to buy Capones. So the enterprise as a whole was launched whilst the appellant was on parole but very near the end of it.
His Honour described the appellant’s gain and the effect on his victims as follows:[4]
These various amounts are only broadly indicative of the level of your offending. The benefit to yourself may ultimately have been measurably small, however that leaves out, for example, lifestyle gain and most particularly the harm you have caused.
The tendered Victim Impact Statements state that harm in many ways. I do not seek to particularly or individually describe the victim impact. However I have not only read the Victim Impact Statements, but I have observed or experienced, I feel, at least some of the personal damage you have caused during the trial on the second Presentment. Unsurprisingly your offending has caused financial loss and embarrassment, personal stress and anxiety including effect on relationships such as marriage, psychological impact such as loss of trust and confidence, diagnosed psychological conditions and major effect on business viability. The Victim Impact Statement of Jamie Lancaster states that Beaumonts Commercial Catering has gone into liquidation, in part because of the financial loss you caused it. It was a family run business that had operated, I would surmise competently and honestly, over 17 years.
I have been less than complete.
Further to those stated impacts I recognised during the trial the real not only financial but personal situations you exploited. Many of your victims physically assisted the fitting out of the Ballston Foods factory. There was personal engagement. People, who were not fools or greedy, personally trusted and, I suspect, liked you. You created for them the dreadful predicament of growing suspicion that they were being let down but knowing that they had invested so much and trusted so much that it was really too late. They hung on in hope. You exploited the integrity and good faith of good people.
[4]Sentencing comments [21] – [24].
His Honour said of the offending:[5]
My earlier description of the circumstances of your offending states very plainly the seriousness of it. On any objective view it can be seen as nothing but uncontrolled, venally greedy conduct without reference or any sensitivity at all to the rights and situation of others. Some decent people would respond in disbelief.
The sentencing purposes and considerations of deterrence, both specific and general, condemnation and your moral culpability are highly important. I also see community protection as relevant (not just in the general sense often addressed by the notion of deterrence) but in a way individual to you, this offending and your past offending. You should be stopped from exploiting and cheating people and institutions as you seem likely to continue to do.
‘Recidivist’ is a term perhaps often loosely used. I can see you, presently viewed, as nothing but that.
As you present now, rehabilitation seems a remote and bleak prospect.
[5]Ibid [33] – [34].
Having regard, in particular, to the appellant’s most recent prior convictions, his Honour was entitled to those conclusions. His Honour had rightly disregarded the more favourable assessment provided by Dr Kennedy, a forensic psychologist.
His Honour had regard to the matters put in mitigation including the pleas of guilty where appropriate including that he took into account that there were aspects of the appellant’s background which would make imprisonment more onerous for him.
His Honour made no order for cumulation in relation to any breach of the parole sentence to be imposed which might be viewed by some to be generous.
His Honour was aware of totality:[6]
Mr Wheelahan raised, appropriately, the principle of totality. For example, concurrency or at least only partial cumulation applies to offences that were a necessary part or very closely related to other offences. There is also a need for a just, proportionate total sentence, one that does not unduly crush your hopes for rehabilitation in the future. There are very many counts. I am mindful of appellate court authority that I should appropriately moderate individual sentences and cumulate sentences appropriately.
[6]Ibid [41].
At the end of the day the real question is whether or not his Honour has imposed a sentence which is manifestly excessive. I have no doubt that his Honour might have imposed a smaller sentence on some, perhaps even many, of the counts and made many more orders for cumulation but as I pointed out earlier his Honour arranged the sentences in groups.
Counts 7, 8, 10, 12 and 16 related to the victim Stalker. The offending in total meant that Stalker lost more than $360,000. The offending on count 16 was particularly blatant, the money being used largely to pay for a house being purchased by the appellant. Given the appellant’s criminal history a sentence of six years cannot be said to be outside the range when it was designed to cover the whole of the criminality.
Those are the counts (except count 8) which give rise to the ground of appeal as it relates to the individual counts.
Counts 4, 6, 14, 17, 18 and 24 related to James. James did receive some money much of it at the expense of Stalker. The counts relating to him all involved the
provision of debt but those offences enabled the appellant to keep the scheme alive to the financial destruction of others and probably James himself. Six months was cumulated on those counts.
Count 27 related to Beaumonts. The count related to keeping the debt owing to Beaumonts at bay which again supported the scheme going on. Six months was cumulated on that count.
Counts 1, 19, 20, 23, 25, 26 and 28-31 on the second presentment and counts 5, 6 and 8 on the third presentment related to Fernie, Labbett and Carter all of whom invested in probably non-existent distribution routes and who later were paid for work with valueless cheques. Cumulation of four months with respect to each of those complainants was ordered. The cumulation related only to counts of obtaining property by deception.
No cumulation was ordered with respect to the count on the first presentment which is a further indication that his Honour was setting out to achieve a sentence which did not offend the principles of totality. That count had been committed whilst the appellant was on parole and the criminality relating to it was completely separate from the other offending.
In relation to the third presentment which covered conduct either directly related to the second presentment, ancillary to it and in some cases fresh enterprises, that offending lead to a total cumulation of one year and four months.
When viewed as a whole having regard to the difficult sentencing task facing his Honour, he formed a sentence which was a substantial one but which cannot be said to be outside the range available to his Honour.
I would dismiss the appeal.
T FORREST AJA:
I also agree with Coghlan JA.
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