Alcorn v Regina - [2006] NSWCCA 209

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Alcorn v Regina [2006] NSWCCA 209

FILE NUMBER(S):
2006/302

HEARING DATE(S): 30 May 2006

DECISION DATE: 10/07/2006

PARTIES:
Brian Dean Alcorn
Regina

JUDGMENT OF: McClellan CJ at CL James J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/051/0058

LOWER COURT JUDICIAL OFFICER: Black DCJ

COUNSEL:
P. M. Miller - Crown
E. Fullerton SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
G. Walsh - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act
Criminal Procedure Act
Duties Act 1997
Crimes (Sentencing Procedure) Act

DECISION:
Leave to appeal against sentence granted
Appeal against sentence allowed
Sentences imposed quashed and in lieu (as per para 88 of judgment)

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/302
McCLELLAN CJ at CL
JAMES J
HALL J
10 July 2006

Brian Dean ALCORN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with James J.
JAMES J: Brian Dean Alcorn applied for leave to appeal against sentences imposed on him in the District Court on 6 September 2005 by his Honour Judge Black for six offences charged in an indictment dated 12 August 2005, to all of which the applicant had pleaded guilty.
The six offences were two offences under s 300(2) of the Crimes Act of knowingly using a false instrument (counts 1 and 2 in the indictment) and four offences under s 249B(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent (counts 3 to 6 in the indictment).
In each of the two offences under s 300(2) of the Crimes Act the applicant had on 17 June 2002 used a false instrument being a statutory declaration purportedly signed by Manus Michael Friel (count 1) or by Kevin Patrick Friel and Manus Michael Friel (count 2), knowing it to be false, with intent to induce Malcolm Blakeley of the Office of State Revenue to accept the instrument as genuine and give the applicant a cheque, for $34,043 (count 1) or $47,539 (count 2).
In each of the four offences under s 249B(1)(b) of the Crimes Act the applicant being an agent of the Marsdens Law Group solicitors of which he was a partner, had corruptly received from a man named Neville Stumer a signed but otherwise blank cheque, on the understanding that the applicant could complete the cheque in his favour for a certain sum and the receipt of the cheque would have tended to influence the applicant to show favour to Neville Stumer in relation to the business of the Marsdens Law Group.
The dates and amounts of the cheques received by the applicant were:-

Count	Date	Amount
3	11 April 2002	$30,000
4	17 April 2002	$30,000
5	5 June 2002	$35,000
6	11 June 2002	$35,000

The applicant asked the sentencing judge to take into account in sentencing the applicant two further offences under s 300(2) of the Crimes Act of using on 17 June 2002 false statutory declarations dated 5 June 2002 and four further offences under s 249B(1)(b) of the Crimes Act of corruptly receiving payments as an agent of the Marsdens Law Group. The dates and amounts of these payments were:-

26 April 2002	$10,000
2 May to 3 May 2002	$15,000
9 May to 20 May 2002	$15,000
17 April 2002	$5,000

All of the offences to be taken into account were listed on a form under the Criminal Procedure Act (“the form 1”).
The maximum penalty for an offence under s 249B(1)(b) of the Crimes Act is imprisonment for seven years. The maximum penalty for an offence under s 300(2) of the Crimes Act is imprisonment for ten years.
On each of the six offences for which the applicant was being sentenced Judge Black imposed a sentence of imprisonment for thirty months, with a non-parole period of fifteen months commencing on 6 September 2005. Accordingly, his Honour imposed six sentences of equal length, to be served completely concurrently with each other.
Facts of the Offences
The sentencing judge did not in his remarks on sentence state, even in an abbreviated way, what were the facts of the offences for which he was sentencing the applicant. In the proceedings on sentence a set of facts which had been agreed by the parties had been tendered and had become an exhibit (exhibit A) and in his remarks on sentence his Honour said that exhibit A set out “the background” of the offences.
The agreed set of facts is a lengthy document of eleven closely printed pages and sets out a detailed history of the criminal conduct, not merely of the applicant, but of a number of other persons as well. I will now endeavour to summarise or quote the most salient parts of the agreed facts, so far as the applicant is concerned.
At all material times the applicant was a solicitor and a partner with the Marsdens Law Group, Campbelltown.
A number of properties in Sydney were owned by members of the Friel family, most of whom lived in North Queensland, including Manus Michael Friel, his brother Kevin Patrick Friel, their sister Mary English and their brother-in-law Christopher Maher. Mary English had a son Michael English, whose wife’s name was Grace.
Michael and Grace English, who were in financial difficulties, sought a loan from a Queensland mortgage broker named Neville Stumer. They disclosed to Stumer that members of their family owned a number of properties in Sydney.
Neville Stumer consulted a man named Sultan, who was a former Queensland solicitor.
A fraudulent scheme was devised by Stumer, Sultan and possibly others, whereby money would be obtained from lenders on short term loans with high rates of interest, repayment of the loans being purportedly secured over properties owned by members of the Friel family. Instead of a mortgage being given, there would be an outright transfer of the property the purported subject of the security, with an option to purchase exercisable by the borrower on repayment of the loan. Grace and Michael English would forge their relatives’ signatures on the loan documents. The inability to produce the certificates of title for the properties would be explained as being due to the destruction of the certificates of title in a Queensland tropical cyclone.
This fraudulent scheme was implemented. A company Direct Money Corporation Pty Limited was used in the carrying out of the scheme. Stumer’s wife was the sole director of this company and Stumer himself was its chief executive officer.
On 20 December 2001 Sultan contacted the applicant. The applicant had had one previous business dealing with Sultan and believed that Sultan was a solicitor. The agreed facts state:-
“Sultan informed Alcorn he needed him to do some work, but it had to be finalised by 21 December 2001. Sultan told Alcorn the deal was a loan that involved the transfer of property from a borrower to a lender with an option to purchase in favour of the borrower on repayment of the loan. Sultan told Alcorn the borrowers operated a business as lenders of last resort, and were prepared to pay good returns on the money they borrowed. He further informed Alcorn the borrower’s solicitor was Brown”.
Sultan told the applicant that the applicant would be acting for the lender, a man named Kritekos, whose broker or agent was a man named Primerano.
The agreed facts continue:-
“Alcorn subsequently contacted Brown and spoke with him in regard to the loan facility. In this conversation Brown told Alcorn he had prepared the necessary documentation for the loan and would fax them to him. Shortly after Alcorn received the following unsigned documents:
1. Deed of Option
2. Transfer
3Three (3) x applications for new Certificates of Title for Folio Identifier’s 2/253162, 5/253162 and 61/B/4247. (These properties are all owned by Manus Friel).
Alcorn says he expressed concern about the CT’s not being available, and Brown told him the original Titles were destroyed in a cyclone. Brown also told Alcorn he had acted for the family (English and Friel Family) for a number of years….. Members of the English and Friel families have confirmed they do not know Brown and he has never acted on their behalf as a solicitor.
Alcorn says he requested changes to the documents, and Brown agreed to these changes. Alcorn told Brown to get the documents signed and faxed down to him that night (20/12/01). When Alcorn arrived at his office the following morning he found the signed documents on the fax machine, he noted the documents had been sent just prior to midnight. All the documents had been signed in the name of Manus Michael Francis Friel and witnessed by Brown. Manus Friel has confirmed he did not sign these documents, was not in Brisbane on the 20/12/01 and does not know Brown. Manus Friel was born on the 22/08/1922, (81 old) and lives in Mourilyan, North Queensland, about 1 hour south of Cairns and some 1800kms north of Brisbane. This initial loan proceeded to settlement on 21 December 2001, in Sydney”.
On subsequent loans the applicant received instructions to act for the lender, the applicant prepared the necessary documents, the applicant forwarded the documents he had prepared to either Brown, Sultan or Stumer in Queensland and the applicant attended, or arranged for someone else to attend, at settlement, where the settlement cheques would be handed over in exchange for the documents apparently executed by a member of the Friel family. The whole process for each loan took no longer than three days.
The agreed facts continue:-
“On 7 April 2002, Stumer contacted Alcorn and informed him that he wanted to pay him additional money, apart from the legal fees. Stumer stated he wanted to pay Alcorn $5000.00 for every $200,000.00 of loans funds received, as a bonus. Stumer informed Alcorn he was happy with the level of service and the priority preparation of documents and this warranted extra money for Alcorn. At this stage Alcorn states he did not accept or say he would take any bonus or additional money from Stumer.
On 11 April 2002, Alcorn attended a settlement at Primerano’s Rockdale office. After settlement was effected Alcorn walked into the waiting room with Stumer, at which time Stumer handed Alcorn a blank cheque, drawn on the Direct Money Corporation ANZ business cheque account. Stumer told Alcorn the cheque was money for doing a good job. Alcorn placed the cheque into his pocket and later filled it out for the amount of $30,000.00 and banked it into his National Australia Bank account on 18 April 2002.
(This conduct on the part of the applicant constituted the offence charged in count 3 of the indictment).
On 17 April 2002, Alcorn attended a settlement at Primerano’s Rockdale office. After settlement was concluded Stumer left with Alcorn and once outside handed Alcorn a blank cheque drawn on Direct Money Corporation ANZ business cheque account, which Alcorn put in his pocket. He later filled this second corrupt commission cheque for the sum of $30,000.00 and banked it into his National Australia Bank account on 18 April 2002.
(This conduct on the part of the applicant constituted the offence charged in count 4 of the indictment).
On 26 April 2002, Alcorn attended a settlement at Primerano’s Rockdale office. After the settlement was concluded Stumer walked out with Alcorn and again handed him a blank cheque, drawn on Direct Money Corporation ANZ business cheque account, which he placed in his pocket. Alcorn later filled this third secret commission cheque for $10,000.00 and banked it into his National Australia Bank account on 26 April 2002.
(This conduct on the part of the applicant constituted the third offence in the form 1).
On 3 May 2002, Primerano attended a settlement as Alcorn could not attend. Nader Reda, who was Stumer’s driver when in Sydney, had previously delivered the security documents to Alcorn at the Marsden’s Campbelltown office. The documents were accompanied by a blank cheque drawn on Direct Money Corporation ANZ business account. Alcorn subsequently filled in the fourth secret commission cheque for $15,000.00 and banked it into his National Australia Bank account on 3 May 2002.”
(This conduct on the part of the applicant constituted the fourth offence in the form 1).
As I have already stated, it was part of the original scheme that security would purportedly be given over a property owned by a member of the Friel family who lived in Queensland. At some stage the scheme was expanded, so that in some cases security was purportedly given over a property which was not owned by a member of the Friel family who lived in Queensland but by some other person who happened to have the same name as a member of the Friel family in Queensland. It would seem that Michael English and Grace English forged the signatures of these persons as well. A further change was that the form of the transaction was varied, so that instead of the transfer from the apparent borrower to the lender being registered, the transfer remained unregistered, with a caveat being lodged to protect the interests of the lender.
On 3 May 2002 the applicant received a telephone call from a solicitor named Dickinson, who informed the applicant that he acted for a client named Grace English, who was the true owner of a property in an area of Sydney. The applicant accepted an explanation given to him by Stumer that the Grace English who was a member of the Friel family did own a property in that area of Sydney but incorrect particulars of that property had been given to the applicant.
The agreed facts continue:-
“On 9 May 2002, a further settlement took place attended by Primerano on behalf of Vince Tropiano and Matthew Vella. Alcorn could not attend this settlement. The security documents were later sent by Primerano to Alcorn. Alcorn later received a blank cheque from Stumer drawn on Direct Money Corporation ANZ business account. Alcorn filled out this fifth corrupt commission cheque for $15,000.00 and banked it into his National Australia Bank account on 20 May 2002.”
(This conduct on the part of the applicant constituted the fifth offence in the form 1).
Shortly after 24 May 2002 a solicitor named Deigan informed the applicant that she considered that a signature purporting to be that of Kevin Friel on a recent document was different from a signature of Kevin Friel on a transfer executed in 1979. The applicant looked at the signatures and thought that the differences were the result of effluxion of time and changes over time in a single person’s signature.
The agreed facts continue:-
“On 3 June 2002 Alcorn effected a settlement on a loan on behalf of Peter Famularo. Alcorn later received from Neville Stumer a sum of $35,000.00, which was deposited directly into his National Australia Bank account on 5 June 2002.
(This conduct on the part of the applicant constituted the offence charged in count 5 of the indictment).
On 6 June 2002, Alcorn attended settlement for a further two loans on behalf of Yuen Oh Lau and Andira Holdings P/L. Settlement was conducted at the Quay West Apartments, Sydney, where Stumer was staying. Alcorn later received from Stumer a sum of $35,000.00 which was deposited directly into his National Australia Bank account on 11 June 2002”.
(This conduct on the part of the applicant constituted the offence charged in count 6 of the indictment).
On 14 June 2002 the applicant received a facsimile transmission from a solicitor named Axtens, informing him that a caveat had been lodged over a property owned by a client of Ms Axtens named English and demanding that the caveat be withdrawn.
The agreed facts continue:-
“Alcorn states he rang Stumer in regards to this information and was told by Stumer that there must have been a mistake as the borrowers were the correct people. Alcorn states he told Stumer to repay all loans immediately, to which Stumer replied, ‘How does $500,000.00 sound?’ Alcorn claims he asked Stumer what he was talking about and Stumer replied, ‘$500,000.00 to keep this quiet’. Alcorn states he rejected the offer.
Alcorn claims up until this point in time he believed he had enough verification to give him sufficient confidence the borrowers in all matters were legitimate. However, after three separate occasions on which he was contacted by other solicitors stating there was a problem, he became certain he had been duped”.
As I have already stated, many of the transactions had taken the form of a transfer of land by way of mortgage. Stamp duty had been paid on these transfers. A number of the loans had actually been repaid and the land which had been the subject of the security for the loan had been re-transferred. Under s 51 of the Duties Act 1997, upon the land being re-transferred and the borrower becoming again the registered proprietor of the land, the Chief Commissioner came under an obligation to refund the duty which had been paid on the original transfer, less the amount of duty which would have been payable on a mortgage.
On 8 May 2002 the applicant wrote a letter to the Office of State Revenue seeking guidance on the proper procedure to follow to receive a refund of stamp duty under s 51 of the Duties Act. The Office of State Revenue replied to the applicant’s letter, outlining the evidence required to be produced in order to receive a refund of duty.
At a meeting with Mr Blakeley of the Office of State Revenue on 17 June 2002 the applicant produced the following statutory declarations:-
1.A statutory declaration purporting to be a statutory declaration of Grace English (this instrument was the subject of a form 1 offence).
2.            A statutory declaration purporting to be a statutory declaration of Kevin Patrick Friel and Manus Michael Friel dated 5 June 2002 (this was the instrument which was the subject of count 2 in the indictment).
3.            A statutory declaration purporting to be a statutory declaration of Kevin Patrick Friel dated 5 June 2002 (this instrument was the subject of a form 1 offence).
4.            A statutory declaration purporting to be a statutory declaration of Manus Michael Friel dated 5 June 2002 (this was the instrument which was the subject of count 1 in the indictment).
The agreed facts state:-
“When he produced the documents on 17 June 2002 Alcorn was fully aware that the four statutory declarations he used to support the application for a refund of stamp duty were in fact false instruments. By his own admissions he knew there were serious problems with the dealings in respect of these properties on 14 June 2002 when Stumer offered him a bribe to keep quiet”.
On 21 June 2002 the applicant attended at the Office of State Revenue and took possession of the refund cheques which totalled $91,080. The refund cheques were drawn in favour of the respective lenders and were banked into the trust account of the Marsdens Group.
On 22 July 2002 the applicant became aware that the New South Wales Law Society was conducting an investigation into the loans. In the course of the investigation the applicant told a senior partner of Marsdens that the money he had received from Stumer and Direct Money Corporation Pty Limited had been interest on advances made by the applicant. The applicant subsequently admitted to Marsdens that he had been receiving secret commissions.
On 5 August 2002 the applicant attempted to dispose of documents relating to his dealings with Stumer by putting the documents in a garbage bin. However, council employees who were collecting garbage advised Marsdens of the documents they had seen in the garbage bin. On 9 August 2002 the applicant admitted that he had put the documents in the garbage bin. The applicant also admitted that he had sought to disguise, as being interest, the secret commissions he had been receiving, by sending documents to Stumer referring to purported advances of money by the applicant.
In March 2003 the applicant through his legal advisers wrote to police volunteering to be interviewed in relation to these matters, with a view to assisting the police in their enquiries regarding the other offenders. The applicant was interviewed in an electronically recorded interview and made a statement of 209 pages, making a full disclosure of his conduct and providing detailed information about the criminal conduct of others.
The Sentencing Judge’s Remarks on Sentence

I have already noted that the sentencing judge did not in his remarks on sentence make any statement of the facts of the offences for which he was sentencing the applicant. However, his Honour did make some comments about what he considered to be the objective criminality of the applicant.
At pages 2-3 of the remarks on sentence his Honour said:-
“Now exhibit A sets out the background to this. It was a fraudulent scheme to induce people to part with money on ostensible security but in truth no security. The offender presently before me, became caught up in this because he was a solicitor, it was necessary for those running the scheme to have the appearance of substance to their manoeuvres or inducements to get people to part with money. The offender was used by them in that context.
The offender’s counsel has addressed me on the basis of what he would like me to regard as the criminality of the offences. It is probably best if I state the view I take about the criminality here. I take the view that in the light of the pleas, it was apparent to the offender that this was a dishonest enterprise and he was going to be receiving money for lending his name to it, and the money he was going to get totals some $175,000 altogether, being the secret commissions.
Now the commissions, if you’re in a large partnership, you disclose what you’re up to, to your partners for a number of reasons, one of which is so that they can perhaps give you appropriate advice, if what you’re up to is immoral, illegal or otherwise underhand. That is quite apart from people being fair with each other in a financial way.
The presentation of these false documents to the Officer of State Revenue were part and parcel of lending false colour to transactions to enable money to be extracted from investors and, in my view, the offences go hand in hand ………………..”
At page 5 of the remarks on sentence his Honour said:-
“Now I take the view this was a bad case of a professional man abusing the trust and authority that the community had in him, let alone any of the victims, to advance himself financially, and it is argued before me by the Crown that the offence involved multiple victims and a series of criminal acts, that it was planned and organised activity and that the injury or damage was substantial.”
In his remarks on sentence the sentencing judge accepted that delay had occurred in the sentencing of the applicant. His Honour noted that the applicant had admitted his guilt as far back as 2002 but was not being sentenced until September 2005. His Honour found that the delay was “nobody’s fault”. His Honour considered that it had been inevitable that the investigation of a complex fraud would take time.
Near the beginning of his remarks on sentence his Honour said that he would take into account the first two offences in the form 1 in sentencing the applicant for the offence charged in count 1 of the indictment and that he would take into account the last four offences in the form 1 in sentencing the applicant for the offence charged in count 3 of the indictment.
His Honour was, of course, mindful that he was sentencing the applicant for multiple offences and his Honour referred, appropriately, to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. His Honour said:-
“… (I) acknowledge the authority of Pearce, which says that separate sentences should be passed ……………. (on) each count in the indictment. They may be partly consecutive, they may be totally consecutive or they may all be concurrent. The overall guiding rule is the overall criminality and totality has to be observed …… .”
His Honour then referred to section 44 of the Crimes (Sentencing Procedure) Act and continued:-
“What I have done is assess the overall criminality and the sentence that I pass will be the same sentence in respect of each count and each sentence will be concurrent.”
In his remarks on sentence his Honour said that he was allowing a discount of 25 per cent for the applicant’s early pleas of guilty.
His Honour then said that he would allow a discount for past and future assistance of one-third of the putative sentences, after allowing a discount of 25 per cent for the pleas of guilty, and his Honour apportioned one-third of the discount to past assistance and two-thirds of the discount to future assistance.
His Honour found special circumstances in that the present offences were the first criminal offences the applicant had committed, and in the applicant’s state of health, the serious extra-curial punishment the applicant had already incurred, including the loss of his profession, and “the financial penalties” he had incurred and the delay which had occurred in the sentencing of the applicant.
His Honour explained in his remarks on sentence how he had arrived at the sentences which he ultimately imposed. His Honour had determined that an appropriate starting point was a head sentence of 5 years. From that figure he deducted a discount of 25 per cent for the plea of guilty, thus arriving at a figure of 3 years 9 months. From that figure he deducted a discount of one-third for the applicant’s assistance, thus arriving at a figure of 2 years 6 months. His Honour then divided the sentence of 2 years 6 months into a non-parole period of 1 year 3 months and a parole period of 1 year 3 months.
Grounds of Appeal
The applicant relied on grounds of appeal that the sentencing judge had erred
“(i)In categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders;
(ii)In failing to give sufficient weight to the significant delay between the applicant disclosing the offences and when he was charged, particularly, having regard to his contrition and rehabilitation during that period;
(iii)In failing to have proper regard to the restitution and reparation made by the applicant, particularly when made before the charges were laid”.
I will now consider the first ground of appeal.
(i)The sentencing judge erred in categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders.
It was submitted by counsel for the applicant that the sentencing judge erred in characterising the applicant’s objective criminality as being that of a principal in the fraudulent scheme. It was pointed out that on the agreed facts the applicant had not been an original party to the scheme and that, even after he had become involved, he had played a lesser role than the true principals, such as Stumer and Sultan.
In my opinion, the sentencing judge did err in the way in which he assessed the objective criminality of the applicant.
I have already quoted a number of extracts from his Honour’s remarks on sentence in which his Honour made comments about the objective criminality of the applicant. In my opinion, some of these extracts clearly demonstrate that his Honour did not keep in mind what the offences were for which he was sentencing the applicant.
The offences for which his Honour was sentencing the applicant were offences of using false statutory declarations in making applications for refunds of stamp duty and offences of receiving payments which would have tended to influence the applicant to show favour to Stumer in relation to the business of Marsdens. The offences for which his Honour was sentencing the applicant were not offences of participating in a fraudulent scheme to defraud lenders and were not offences of failing to account to Marsdens for secret commissions he had received.
A number of his Honour’s comments in his remarks on sentence about the objective criminality of the applicant, although they might have been appropriate to these latter offences, were not appropriate to the offences for which he was actually sentencing the applicant. For example, his Honour’s view that this was a bad case of a professional man abusing the trust of the “victims”, by which his Honour could only have meant the lenders, might have been an appropriate view, if his Honour had been sentencing the applicant for participating in a scheme to defraud the lenders, but was not appropriate to any of the offences for which his Honour was actually sentencing the applicant. Similarly, his Honour’s comments about the applicant not disclosing “secret commissions” to his partners might have been an appropriate view, if his Honour had been sentencing the applicant for not accounting to the partnership for payments he had received but were not appropriate to any of the offences for which his Honour was sentencing the applicant.
Furthermore, there would appear to me to be some inconsistencies in his Honour’s comments about the applicant’s objective criminality. On the one hand, his Honour spoke of the applicant as having been “caught up” and “used” by those running the scheme. On the other hand, his Honour said that it “was apparent to the offender that this was a dishonest enterprise and he was going to be receiving money by lending his name to it”.
Some of his Honour’s comments about the objective criminality of the applicant are not supported by, and are inconsistent with, the agreed facts. On the agreed facts it could not have been apparent to the applicant that he was going to receive secret commissions, until, at the earliest, on 7 April 2002, when Stumer first told the applicant that he wished to pay the applicant a bonus.
The presentation of false declarations to the Office of State Revenue could not have been “part and parcel of lending a false colour to transactions to enable money to be extracted from investors”. The false statutory declarations were presented to the Office of State Revenue on 17 June 2002, that is after the applicant had come to a realisation that he had been duped and several days after the last occasion on which he had acted on a loan transaction. The applicant’s purpose in presenting the false declarations to the Office of State Revenue could not, on the agreed facts, have been to enable money to be extracted from investors.
I would uphold the first ground of appeal..
As I have already noted, his Honour was mindful that he was sentencing the applicant for multiple offences and his Honour referred to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. However, I consider that, in imposing the sentences he did, his Honour seriously contravened the sentencing principles stated by the High Court in Pearce.
In the well known passage in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce their Honours said (at 624 (45)):-
“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrency, as well, of course, as questions of totality”.
In her judgment in R v Hammoud (2000) 118 A Crim R 66 at 67-68 (9-10) Simpson J identified, as being one of the approaches to sentencing for multiple offences which is prohibited by Pearce, “to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges”. As her Honour pointed out, such a sentence cannot be an appropriate sentence for any of the individual offences. However, this approach is precisely the approach which was adopted by the sentencing judge in the present case.
Section 44 of the Crimes (Sentencing Procedure) Act, which was referred to by his Honour in his remarks on sentence, has no particular relevance to sentencing for multiple offences.
The contravention of sentencing principles by his Honour is magnified, when the offences in the form 1 are taken into account. His Honour said in his remarks on sentence that he would take into account the first two offences on the form 1 in sentencing the applicant for the offence charged in the first count in the indictment and that he would take into account the last four offences on the form 1 in sentencing the applicant for the offence charged in the third count of the indictment; yet the sentences his Honour imposed on the first and third counts in the indictment are no longer than the sentences his Honour imposed on the other counts in the indictment.
In my opinion, the errors made by the sentencing judge in the way in which he assessed the objective criminality of the applicant in the offences for which the applicant was actually being sentenced and the sentencing judge’s contraventions of the sentencing principles in Pearce require this Court to enter upon a determination of what sentences it considers should have been imposed for the applicant’s offences. In carrying out this determination I will take into account the delay in the sentencing of the applicant and the restitution made by the applicant, which are the subjects of grounds of appeal (ii) and (iii).
I have already in this judgment summarised or quoted parts of the agreed facts in the proceedings on sentence.
The first two offences for which the applicant was to be sentenced were that on 17 June 2002 he produced to an officer of the Office of State Revenue statutory declarations which he knew had not been made by the persons by whom they purported to have been made.
The applications for refunds of stamp duty, in support of which the statutory declarations were produced by the applicant, were not, in themselves, dishonest or fraudulent applications. Stamp duty had been paid, at the rates applicable to transfers, on documents which were intended to operate as transfers by way of mortgage and not as outright transfers and, in the circumstances, the right to a refund of duty was conferred by section 51 of the Duties Act.
The applicant did not intend to misappropriate, and did not misappropriate, the refunds of duty. The refund cheques were made payable to persons who had lent money and were paid into the Marsdens Group Trust Account.
On the other hand, it was an offence of some seriousness to lodge with an officer of the Office of State Revenue statutory declarations which were known not to have been made by the persons by whom they purported to have been made.
It was an aggravating factor that the applicant was a solicitor. Many documents are lodged by solicitors with Government departments and officers of Government departments need to be able to rely on documents lodged by solicitors as being authentic or, at least, as not being known by the solicitor in question to be inauthentic.
As I have stated earlier in this judgment, the applicant had not been charged with, and was not to be sentenced for, participating in a fraudulent scheme.
Although there are some deficiencies in the agreed facts, my reading of the agreed facts is that the applicant is not to be taken as having come to a realisation that Stumer was conducting a fraudulent scheme, until 14 June 2002.
The other offences for which the applicant was to be sentenced were that, as a partner of the Marsdens Law Group, he had received a number of payments totalling the large sum of $175,000, the receipt of which would have tended to influence the applicant to show favour to Stumer in relation to the business of the Marsdens Law Group.
According to the agreed facts, the respect in which the receipt of the payments would have tended to influence the applicant to show favour to Stumer in relation to the business of the Marsdens Law Group, was that the receipt of the payments would have tended to influence the applicant to attend to Stumer’s matters in priority to the matters of other clients of Marsdens.
As I have already observed earlier in this judgment, the applicant was not charged with any offence of failing to account to Marsdens for the payments he had received.
I turn to some subjective circumstances of the applicant.
The applicant was a solicitor and a partner of the Marsdens Law Group.
In August 2002 the applicant became severely depressed and he did not work between August 2002 and August 2003.
The applicant’s home which he jointly owned with his wife was sold and out of the proceeds of sale the sum of $280,000 was paid to Marsdens. A total amount of approximately $400,000 has been paid by the applicant to Marsdens.
The applicant forfeited an entitlement to $97,000 out of the partnership profits of Marsdens. The applicant has lost his profession as a solicitor.
There were character references before the sentencing judge from the Lions Club, sporting clubs, the local Chamber of Commerce and a number of charitable organisations which the applicant had supported.
The applicant is entitled to have the delay in his being sentenced taken into account. The sentencing judge found that the delay was “nobody’s fault”. This finding necessarily included a finding that it was not the applicant’s fault.
Three years had elapsed between the applicant admitting his guilt and the applicant being sentenced. During that period the applicant had not offended in any way, that is he had made progress in his rehabilitation, and he had been left in a state of suspense as to what would happen to him when he was ultimately sentenced. See R v Todd (1982) 2 NSWLR 517.
I consider that this court should allow the same percentage discounts for the applicant’s pleas of guilty and his assistance as the sentencing judge did and, for the reasons given by the sentencing judge, and also because some of the sentences should be made cumulative, find special circumstances.
I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act.
In my opinion, the court should intervene and re-sentence the applicant. Some of the sentences I am about to propose are fixed terms of imprisonment, because, if a sentence containing a non-parole period and a parole period was imposed, the parole period would be completely subsumed in the fixed term or the non-parole period of another sentence. As the offences were committed before 1 February 2003, the provisions of the previous, and not the current, section 44 of the Crimes (Sentencing Procedure) Act should be applied.
In my opinion, the following orders should be made:-
Leave to appeal against sentence granted.
Appeal against sentence allowed.
Sentences imposed by Judge Black on 6 September 2005 quashed and in lieu thereof the following sentences imposed:-
Count 1 (taking into account the first two offences in the form 1) – a fixed term of imprisonment of 10 months commencing on 6 September 2005 and expiring on 5 July 2006.
Count 2 – a fixed term of imprisonment of 8 months commencing on 6 September 2005 and expiring on 5 May 2006.
Count 3 (taking into account the last four offences in the form 1) – a sentence of imprisonment of 14 months consisting of a non-parole period of 2 months commencing on 6 July 2006 and expiring on 5 September 2006 and a balance of term of 12 months commencing on 6 September 2006 and expiring on 5 September 2007.
Counts 4, 5 and 6 – a sentence of imprisonment of 12 months consisting of a non-parole period of 2 months commencing on 6 July 2006 and expiring on 5 September 2006 and a parole period of 10 months commencing on 6 September 2006 and expiring on 5 July 2007.
The earliest date on which the applicant will be eligible for release on parole will be 5 September 2006.

HALL J: I agree with James J.

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LAST UPDATED: 12/07/2006