Brown v R

[2010] NSWCCA 73

New South Wales
Court of Criminal Appeal

CITATION:	Brown v R, R v Brown [2010] NSWCCA 73
HEARING DATE(S):	08/09 2009
JUDGMENT DATE:	3 May 2010
JUDGMENT OF:	Macfarlan JA at 1; Howie J at 2; Hislop J at 79
DECISION:	1. Leave to the respondent to appeal against his sentence is refused. 2. The Crown appeal is allowed and the sentences imposed in the District Court are quashed. 3. In lieu the respondent is sentenced (a) for the offence of accessory before the fact to maliciously damage property by fire to a sentence consisting of non-parole period of 21 months and balance of term of 7 months that sentence to commence on 15 June 2009. The non-parole period is to expire on 14 March 2011 the date upon which the respondent would be released to parole but for the sentence for the conspiracy offence (b) for the offence of conspiracy to cheat and defraud and taking into account the Form 1 matters to a term of imprisonment made up of a non-parole period of 2 years 4 months to date from 15 June 2010 with a balance of term of 1 year 2 months. The non-parole period expires on 14 October 2012 the date upon which the respondent is eligible to be released to parole.
CATCHWORDS:	CRIMINAL LAW - Sentence - offences of fraud and accessory before the fact to arson - application for leave to appeal and Crown appeal - whether sentences manifestly excessive in light of assistance by applicant - whether sentences manifestly inadequate - whether error in determining penalty for common law offence - whether error in making sentences concurrent - whether insufficient regard to matters on Form 1 - effect of delay in determining the Crown appeal
LEGISLATION CITED:	Crimes Act 1900 - ss 178BA 197(1)(b) 300 Crimes (Sentencing Procedure) Act 1999 - ss 21A(2)(m) 23(3) Crimes (Appeal and Review) Act 2001 - s 68A Criminal Appeal Act 1912 - s 5D
CATEGORY:	Principal judgment
CASES CITED:	SZ v R [2007] NSWCCA 19 R v Sukkar [2006] NSWCCA 92 R v Mostyn [2004] NSWCCA 304 R v S [2000] NSWCCA 13 111 A Crim R 225 R v Fordham (1997) 98 A Crim R 359 R v Many (1990) 51 A Crim R 54 R v Cartwright (1989) 17 NSWLR 243 Tyler v R [2007] NSWCCA 247 R v Ashton [2002] NSWCCA 498 137 A Crim R 73 Goss v R [2009] NSWCCA 190 R v Hoar [1981] HCA 67 148 CLR 32 Verrier v director of Public Prosecutions [1967] 2 AC 195 Tyler and Chalmers v R [2007] NSWCCA 247 178 A Crim R 247 R v Koh [2001] NSWCCA 324 R v XX [2009] NSWCCA 115 Cahyadi v R [2007] NSWCCA 1 168 A Crim R 41 R v JW [2010] NSWCCA 49
PARTIES:	Gareth Brown v Regina, Regina v Gareth Brown
FILE NUMBER(S):	CCA 2008/14983
COUNSEL:	N Noman - Crown R Bonnici - Applicant and Respondent
SOLICITORS:	S Kavanagh - Crown C Donnelly - Applicant and Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/14983
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	15/06/2009

2008/14983

MACFARLAN JA
HOWIE J
HISLOP J

MONDAY 3 MAY 2010

Gareth BROWN v REGINA

REGINA v Gareth BROWN

Judgment

1 MACFARLAN JA: I agree with Howie J.

2 HOWIE J: This is both an application for leave to appeal and a Crown appeal against sentences imposed by Hughes DCJ (the Judge) in the District Court for two offences: conspiracy to cheat and defraud (“the conspiracy offence”) and accessory before the fact to maliciously damage property by fire (“the arson offence”). I shall use the term “respondent” throughout this judgment because the Crown appeal was lodged first in time. The conspiracy was a common law offence for which the penalty is at large. The arson offence was contrary to s 197(1)(b) of the Crimes Act and in respect of which there is a maximum penalty of imprisonment for 14 years. The respondent asked the Judge to take into account 9 matters on a Form 1 when sentencing for the conspiracy offence.

3 On 15 June 2009 the Judge sentenced the respondent for the arson offence to a non-parole period of 12 months with a balance of term of 12 months, that sentence to date from 15 June 2009. For the conspiracy offence the Judge sentenced the respondent to a non-parole period of 6 months and a balance of term of 6 months, that sentence to date from 15 June 2009. The respondent is to be released to parole on the arson offence on 14 June 2010.

4 The respondent has filed the following grounds of appeal:

1. That His Honour the Sentencing Judge failed to give due and proper consideration to the provisions of Section 23 of the Crimes (Sentencing Procedure) Act 1999 as regards assistance to the authorities and its effects upon the offender.

2. That His Honour erred in determining that the assistance given to the police and to be given to the prosecuting authorities is not exceptional, but only significant, as submitted by the legal representative for the Director of Public Prosecutions.

3. That His Honour erred in not taking specifically into consideration the fact that the offender would serve his sentence in protective custody, as was wrongly submitted by the legal representative for the Director of Public Prosecutions, and its hardships and consequences.

4. That His Honour erred in imposing a full-time term of imprisonment, as distinct from a non full-time custodial sentence, in the particular circumstances of this matter, and especially as regards the aspect of assistance to the authorities.

5. New materials. In order to avoid a miscarriage of justice in the sentencing process, leave is sought to introduce the evidence of Ms Anita McGarrigle, the partner of the Applicant, by way of affidavit, to assist this Honourable Court in considering the issue of the assistance given to the authorities by the Applicant, and its effect and hardships on all concerned.

6. Fresh Evidence. To further assist this Honourable Court on the aspect of protective custody and the hardships and dangers arising since his incarceration, leave is sought to tender the affidavit of Gareth Brown, and, if necessary, to call him to give evidence in Court.

5 The Notice of Appeal filed by the Crown does not contain any grounds of appeal. However, the written submissions filed on behalf of the Crown raise the following grounds of appeal:

1. His Honour failed to correctly assess the seriousness of the offence of conspiracy to cheat and defraud and incorrectly determined it comparable to a statutory offence with a maximum penalty of five years imprisonment.

2. His Honour erred in failing to have due regard to the 9 offences on the Form 1 which he was required to take into account in sentencing on the conspiracy to cheat and defraud.

3. His Honour erred in making the sentences concurrent.

4. His Honour erred in determining the appropriate discount for assistance or failed to have due regard to s 23(3) Crimes (Sentencing Procedure) Act 1999.

5. His Honour erred in his approach to his finding of special circumstances.

6. His Honour imposed sentences that were manifestly inadequate.

Facts

6 The offences for which the respondent was sentenced arose from his employment as a “high level accountant” with the Charsam group of companies (“Charsam”) including ALJ Holdings Pty Ltd. These companies were owned by Charles Lupica and his three sons, Anthony, Lucas and Jason. Each had a financial share in the group of companies that was mainly concerned with textile manufacturing. Anthony Lupica managed the business. The respondent commenced his employment in April 2007 and was paid at an hourly rate of fifty dollars. He had his own business cards and an office. One of his tasks was to restructure the companies.

7 Charsam was in financial difficulties at the time. In December 2004 it moved into leased premises in Jean Street, Rydalmere in a factory owned by Trevor Collins. The lease expired in February 2009 with an option to renew. The company had difficulty in meeting the lease payments and many of the cheques issued to Collins were dishonoured. In February 2003 a Mercedes motor vehicle owned by Charles Lupica caught fire at the premises. As a result Anthony Lupica refused to pay further lease payments to Collins. In March 2007 the company agreed to lease new premises in Parramatta, unbeknown to Collins.

8 In August 2006 Cash Resources Australia (“CRA”) provided an invoice finance facility that allowed Charsam to receive monies up to the value of 80 per cent of its outstanding invoices. By October 2006 CRA became concerned at the level of payment of the invoices. Under threat of a receivership, Charsam refinanced the facility in June 2007 and CRA was paid about $1.4 million. The payout to CRA was financed by PayNow and obtained by the fraudulent conduct of the respondent and the Lupica brothers who created false invoices in order to exaggerate the outstanding debts to Charsam.

The conspiracy offence

9 The conspiracy offence was committed between 1 April and 30 August 2007. It is clear that the respondent had a significant, if not the most significant, role in misleading PayNow by preparing a debtor’s list, correspondence, faxes and emails intentionally to defraud that company. This conduct involved the preparation of a list of 52 businesses with fax numbers, a substantial majority of which were fraudulent fax numbers in the name of Jason Lupica.

10 PayNow conducted a review of Charsam’s debtors by sending faxes to these businesses seeking to check the debts they owed to Charsam. The fax numbers were diverted to that of a company owned and operated by the respondent. When he received these faxes he or one of the Lupicas would verify the amount allegedly outstanding to Charsam. They would take turns in signing the verifications to add authenticity to the documents. The respondent signed 8 of the 40 false verifications.

11 The documents supplied to PayNow indicated that the major debtor to Charsam, to the amount of almost $120,000, was the respondent’s company. The respondent signed a fax sent by PayNow to that company to verify this debt in the name of his girlfriend. This conduct gives rise to one of the offences on the Form 1.

12 Charsam effectively maintained two sets of records, one was fraudulent and designed to mislead PayNow and previous lenders to the company and the other being the true financial records. After his arrest the respondent provided investigating police with a DVD containing the two sets of financial records.

The arson offence

13 The arson offence arose from discussions between two of the Lupica brothers and the respondent about their financial situation in which a discussion took place about the benefits of setting fire to the premises in Jean Street, Rydalmere. According to the respondent, Anthony Lupica initiated the discussions and he tested various explosive devices in front of the respondent in the weeks leading up to the fire.

14 During May and June 2007, Anthony Lupica arranged for parts of the business to be moved from the Rydalmere address to the newly leased property in Parramatta. Older machinery and stock were left in the Rydalmere premises to be destroyed by the fire.

15 On 19 June a member of the Lupica family was at the Rydalmere premises dismantling wooden partitions and piling them up within the premises rather than placing them in a skip.

16 On 20 June the respondent hired a motor vehicle using his credit card and bonus points. He then travelled with Anthony Lupica to a service station where Lupica filled three 20-litre containers with petrol. They then travelled to the premises in Parramatta where Lupica attempted to disguise the vehicle and replaced the registration plates with those that he had previously stolen.

17 Lupica then travelled in the hired vehicle with the containers of petrol to Rydalmere. He left his mobile phone with the respondent so that he could use it to make calls in the Parramatta area and thus create an alibi for Lupica. Lupica set the fire in the Rydalmere premises and then returned to Parramatta. He and the respondent then replaced the registration plates and used air fresheners to remove any petrol odour from the vehicle. They then drove the hire car to Lupica’s premises where they parked it. The respondent then drove the two of them in Lupica’s vehicle to Rydalmere fire station to make observations. They then drove to the Rydalmere premises to check on the progress of the fire. The vehicle driving near the premises without headlights illuminated was captured on the CCTV of neighbouring premises. They then returned to Parramatta in the early hours of the morning. Later that morning they collected the hire vehicle.

18 The fire in the Rydalmere premises was observed at about 1.10am on 21 June and reported to the fire brigade. It was extinguished at about 2.50am. The premises were completely destroyed with severe structural damage but the efforts of the fire fighters were able to contain it from spreading to adjoining properties. Investigators formed the opinion that the fire was deliberately lit.

19 As a result of the fire Anthony Lupica made an insurance claim on behalf of Charsam for nearly $2 million.

20 On 8 August 2007 police interviewed the respondent. He denied any knowledge of the fire and gave an account consistent with the alibi that had been established for Anthony Lupica. Police spoke to him again on 23 January 2008 and the respondent participated in an induced statement in which he disclosed the fraud by Charsam and his involvement in the fire. He also was prepared to engage in conversations with the Lupicas while wearing a listening device obtaining what police described as “significant admissions”.

21 On 11 October 2007 there was an anonymous call to Crime Stoppers in which detailed information was given as to the involvement of the respondent and Anthony Lupica in the arson. The caller was later identified as a friend of Ms Roberts, a former partner of the respondent. On 8 November Ms Roberts entered into a lengthy induced statement setting out her detailed knowledge of the circumstances surrounding the fire at the Rydalmere premises. This statement led to further police investigations that supported the reliability of her account. Ms Roberts also attended meetings with the respondent during which police lawfully recorded their conversations.

The Form 1 matters

22 The respondent’s company imported a brand of outdoor sinks intending to become a distributor. However, as the respondent’s company did not reach the projected sales, the exporting company entered into distribution agreements with Kmart stores. From late 2006 the respondent and Ms Roberts commenced taking the sinks to Kmart on the pretence that they were purchased from that store and seeking a refund by way of credit. The respondent was charged with a number of these fraudulent transactions and they appear on the Form 1.

23 The respondent owned a box trailer that was insured for $10,000. The respondent loaded it with some of the stock owned by his company. He took the trailer and stock to the Rydalmere premises knowing of the plan to set them on fire and parked the trailer on the site intending that it would be destroyed in the fire. He had previously attempted to sell the trailer but he rejected the largest offer of $900. After the fire the respondent made an insurance claim that would have resulted in a payout of about $5,000. The claim progressed to the point of settlement until police advised the insurer of the arson offence. This offence is included on the Form 1.

24 An acquaintance of the respondent operated a company that sold garden products. The respondent would assist in displaying and selling some of the company’s stock. In 2007 the respondent was supplied with some stock for him to display and sell. The respondent, or Ms Roberts at his request, took some of the stock to various Bunnings stores and pretended that it had been purchased from the store and was being returned. The respondent was charged with a number of these frauds and they appear on the Form 1.

25 The respondent’s offences, in particular the conspiracy and arson offence have resulted in very substantial losses to PayNow and different insurance companies. Collins, the owner of the Rydalmere premises, lost about $10,000 above what he recovered by way of compensation from insurance.

Subjective matters

26 The respondent was born on 22 January 1977 and hence was aged 32 years at the date of sentence. He has no criminal record of any relevance. His upbringing was uneventful. His parents separated about ten years ago and since that time he has had little contact with his father but had continued support of his mother. He was in a stable relationship and expecting a child in early 2009. He has tertiary education and obtained a Bachelor of Commerce in 1999. He was employed chiefly in finance companies before entering into the aviation industry. He was self-employed in this industry from 2002 to 2007. He was employed at the time of sentencing with a security glass company.

27 There was a pre sentence report dated 2 February 2009 before the Judge. It records that the respondent had been suffering depression for a period of about 3 years and sought psychiatric treatment in 2008. He was placed under medication. He did not consume alcohol or illicit drugs. He stated that his earlier marriage broke down in July 2007 causing him financial and emotional difficulties. At about this time his aviation business collapsed. In 2007 he moved in to live with his mother to conserve money and sought employment with Charsam because he had no income.

28 Under the heading “Attitude to the Offences” the following appeared:

[The respondent] stated that he feels the financial and emotional stress he was under caused him to become involved in a situation which he did not know how to get out of. [The respondent] stated that his actions were "stupid" and recalled that he had always lived a law-abiding life and never before felt that he would find himself before the Courts. The offender presented as remorseful and willing to take responsibility for his offending behaviour.

The officer preparing the report did not believe that the respondent would require, or benefit from, supervision from the Service.

29 There was an updated pre sentence report dated 3 April 2009. It recorded that the respondent's partner had given birth to a son who was two months old at the date of the report. The respondent was still living with his mother and still employed. The officer reported that the respondent’s mental health issues continued to improve and that he had a positive frame of mind. There was still no need for the respondent to be supervised by the Service.

30 There were a number of psychiatric reports in evidence. The first was from Dr Roberts and dated 20 January 2009. Based upon the accounts given by the respondent, the psychiatrist diagnosed that he had been suffering from periods of “profound depression” but also periods of “mood elevation”. He had been treated for depression. The psychiatrist stated:

In relation to the offences for which [the respondent] is now facing Court, I am of the view that on reasonable psychiatric grounds it can be stated that [the respondent’s] capacity to make sound judgements was substantially impaired by the presence of an untreated mood disorder, compounded by significant physical illness namely diabetes.

Each condition alone, let alone both conditions together, have the capacity to interact one with the other, to exacerbate the effects of each other to produce abnormalities of mood, feelings of lassitude, general unwellness which will affect the capacity to make sound judgements.

I am of the view that [the respondent’s] ill health namely his undiagnosed mood disorder and his undiagnosed diabetes are substantial contributing factors giving rise to his inappropriate behaviour.

31 There was also a report from the same psychiatrist dated 2 February 2009. The psychiatrist stated:

[The respondent] presents in a manner remarkably different from the manner in which he initially presented - his prognosis in terms of his long-term psychiatric status and general health status has improved. He has achieved indicators of stability, namely gainful profitable employment, a stable relationship, and has established a family.

Prognostically, the potential for him [to] reoffend must be deemed to be extremely low.

32 There was a report from Dr Nielssen dated 26 March 2009. He diagnosed the respondent with major depression that was then in remission. He stated:

[The respondent] was significantly depressed around the time of becoming involved in these offences. There appears to be an association between the presence of depression and [the respondent's] involvement in the offences, as he reported a loss of self confidence and a negative appraisal of the circumstances that affected his problem-solving ability and contributed to him becoming involved in business arrangements that he would not normally have contemplated. He was also affected by anxiety symptoms and reported being generally afraid of members of the Lupica family.

[The respondent] has responded to treatment with antidepressive medication, and at the time of the recent interview was not thought to be significantly depressed. However, he would be advised to continue treatment of depression because of the increased risk of relapse in the year after recovery from severe depression. His involvement in the offences appears to be due to his circumstances at the time, rather than from a pervasive pattern of antisocial conduct and he was assessed to carry a relatively low risk of committing a further offence of a similar nature.

33 There was a third report from Dr Roberts dated 10 June 2009. He stated:

[The respondent] maintains his improvement, his business is increasing in terms of turnover, [the respondent] is engaged in the sponsoring of overseas employees, his depression has been effectively treated, his diabetes is well controlled.

I reiterate that [the respondent’s] improvement, both in terms of his physical and mental health has been dramatic and he cannot be deemed in terms of his psychiatric presentation to resemble the person who initially presented and who had committed the offences for which he now will be receiving sentence.

34 The officer in charge of the investigation was called by the defence to give evidence before the sentencing judge. He confirmed that the company was having financial difficulties and that there had been allegations of fraud against the Lupicas before the respondent joined the company. He also confirmed that the company had maintained two sets of books before the respondent commenced employment. He said that the respondent did not gain financially from his involvement in the fraud apart from the salary he was paid. He confirmed that the respondent had lost money as a result of declaring that his company was indebted to Charsam.

35 There were a number of testimonials in evidence as to the general honesty and integrity of the respondent and giving the opinion that the offences were out of character.

36 A letter of comfort, Exhibit B, detailed the respondent’s assistance to the authorities. The respondent had worn a listening device when speaking with the Lupicas after his arrest and had agreed to give evidence against them. The officer declared that the assistance of the respondent was “exceptional”. In cross-examination the officer agreed that the Lupicas had no criminal record and were not known to be generally violent. They had made no threats to the respondent. Anthony Lupica had been in possession of licensed firearms but they had been taken by police.

Application for leave to appeal

37 The substance of the respondent’s appeal is that the Judge failed to give sufficient weight to the respondent’s future assistance which, it was submitted, ought to have resulted in a sentence other than full-time custody. This Court was asked to read for itself the letter of comfort, Exhibit B, and have due regard to the fact that the respondent would be required to give evidence at committal proceedings as well as at a criminal trial in relation to both the charge of fraud brought against his alleged co-offenders and the charge of arson against Anthony Lupica. In effect the complaint was that the Judge failed to find that the assistance given and proffered by the respondent was “exceptional”.

38 The Judge determined that the respondent should receive a combined discount of 50 per cent: 20 per cent for the early plea and 30 per cent for assistance divided equally between past and future assistance. He made no finding as to the quality of the assistance. However, having regard to the decisions of this Court as to the appropriate discount for assistance, the discount was at a high level although not at the very highest. A discount for assistance, in association with a discount for a plea of guilty, is generally between 20 and 50 per cent. Although this Court has accepted that the combined discount may exceed 50 per cent, such a discount should be reserved for exceptional cases: SZ v R [2007] NSWCCA 19 at [53]. Unless there is evidence that the offender will serve his or her sentence in more onerous conditions as a result of giving assistance, the combined discount should not normally exceed 40 per cent: R v Sukkar [2006] NSWCCA 92 at [5]. None of these principles was referred to by his Honour.

39 In the present case there was no evidence before the Judge concerning the effect upon the respondent of having given assistance and, because he had been on bail, there was no material as to what form the respondent’s custody would take. The court no longer assumes that an offender who has given assistance will spend any custodial period in more onerous conditions: R v Mostyn [2004] NSWCCA 304.

40 In SZ with the concurrence of Simpson J, I stated:

The fact that the overall sentence is discounted in recognition of assistance or for some other reason must affect the ability of the court to reduce the non-parole period in order to reflect special circumstances.

In R v S [2000] NSWCCA 13; 111 A Crim R 225 this Court stated that a judge should explain why assistance justifies a further reduction in the non-parole period where a discount has already been given to the overall sentence.

41 The Judge reduced the non-parole period to the level of 50 per cent of the overall sentence that, as has been noted, had already been reduced by a discount of 50 per cent for the plea and assistance. He did not indicate why such a reduction was justified apart from the fact that the respondent had not served prison sentences before. In my opinion that is an inadequate basis for a finding of special circumstances and could not justify a reduction to 50 per cent of the head sentence. The leniency of the non-parole period is a ground raised by the Crown as part of its appeal.

42 With respect, the issue of assistance and the appropriate discount to be awarded to the respondent was inadequately dealt with by his Honour in his reasons. Apart from announcing the amount of the discount and the break up of the discount into past and future assistance, after being reminded by the Crown to do so, the only other reference to the assistance is as follows:

I have read exhibit B and I will not read it out loud. I take note of the contents because I am going to make a finding that his assistance to the police should be taken into account when sentencing.

43 Nowhere did the Judge explain why, in the lack of any evidence as to the deleterious effects of giving assistance upon the respondent, a discount of 50 per cent was appropriate. There is no indication that he appreciated that to reduce the non-parole period from the statutory relationship after having given a 50 per cent discount was to run the risk of the non-parole period falling foul of the requirement in s 23(3) of the Crimes (Sentencing Procedure) Act that “a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence”.

44 Counsel for the respondent before this Court criticised the Judge for failing to refer to the provisions of s 23. There is no requirement for his Honour to refer to the section but it seems to me that, if there is to be any criticism of the Judge for apparently failing to have sufficient regard to the section, it is because the sentence imposed on its face breaches s 23(3) and not because a consideration of that section would have resulted in a non-custodial sentence.

45 As I have noted, the respondent complains that the Judge did not find that the respondent’s assistance was exceptional thus justifying a greater discount than he was awarded. In light of the fact that his Honour gave the respondent 50 per cent in the absence of any evidence that the respondent’s custodial situation would be more onerous, that argument cannot be sustained on the material before the Judge. On the face of it the discount was excessive. To meet this situation the respondent sought to rely upon two affidavits: one from his current partner and one from himself. It should be noted that the respondent did not give evidence before the Judge and called no witnesses other than the officer-in-charge.

46 The affidavit by Ms McGarrigal, the respondent’s current partner, was described as “new evidence”. Counsel sought to justify its reception on the basis that, without it, there would be a miscarriage of justice. There was no affidavit from the counsel or solicitor who represented the respondent at the sentencing hearing to explain why the deponent was not called before his Honour. There is nothing in the material to suggest that in any way they were incompetent in the manner in which they represented the respondent. Defence counsel at the sentencing hearing was highly experienced in the criminal law and produced for the Judge’s assistance 13 pages of written submissions that addressed every aspect of the respondent’s case including his assistance and s 23.

47 This is a court of error and it will not normally receive evidence that could, and should, have been called before the sentencing judge: see R v Fordham (1997) 98 A Crim R 359. Such evidence will be received where the interests of justice require it: R v Many (1990) 51 A Crim R 54. But the interests of justice are not made out simply because evidence that was available was not called at the sentence hearing and no explanation is given for that decision.

48 It was argued that the evidence should be received because the Crown was under an obligation to provide information to the sentencing court as to the assistance given by an offender and its consequences and, therefore, should have called Ms McGarrigal. This argument has no merit. In R v Cartwright (1989) 17 NSWLR 243 Hunt CJ at CL and Badgery-Parker J held that there was an onus upon the Crown to establish the extent and effectiveness of any assistance but the Crown’s duty goes no further than this. There was also a complaint that the Crown had sought unjustifiably to diminish the significance of the assistance given. But this is also without merit.

49 I have read the affidavit of Ms McGarrigal in order to determine whether it should be received, but I do not believe there is any basis for this Court to take the evidence into account. It concerns the circumstances surrounding the respondent giving assistance and the consequences to her and the respondent. It is, in any event, of little, if any, weight and would not in my opinion have had any effect upon the sentence imposed on the respondent.

50 The affidavit of the respondent is in a different position insofar as it refers to the situation since he was sentenced. The Judge made no finding at all about the respondent’s future custodial situation. He could not do so because there was no evidence before him relevant to that issue. Defence counsel submitted that the respondent “might well be expected to suffer harsher custodial conditions as a consequence of his assistance and undertaking to assist”. However he had no basis for that submission.

51 This Court will receive evidence of events that occur after sentence in very exceptional cases. The fact that the respondent’s custodial situation has changed since he was sentenced is not necessarily sufficiently exceptional: Tyler v R [2007] NSWCCA 247 at [130].

52 One of the situations in which such evidence will be received is where it concerns the physical or mental health of the offender in circumstances where the condition existed at the time of sentence but its existence was unknown or not fully appreciated at the time: R v Ashton [2002] NSWCCA 498; 137 A Crim R 73. By analogy, in the present case there was the potential for the respondent’s custodial situation to be affected by the giving of assistance but there was no way of knowing whether it would be at the date of sentence because he was not in custody. Yet it is to be assumed that his custodial situation would not be harsher as a result of his assistance. Therefore, in my opinion it is open to this Court to receive evidence of the custodial situation of the respondent after his imprisonment where it relates to the assistance he proffered.

53 I am not to be taken as suggesting that this Court will generally allow evidence of a change in an offender’s custodial situation after sentence simply because for some reason or other the offender is placed on protection. This Court does not review administrative arrangements within the prison system: Goss v R [2009] NSWCCA 190.

54 However, I do not believe that the evidence is of any significance. I accept that the respondent is fearful that his assistance may become known and open him to threats or violence, but that has not occurred. He is housed in protection but has association with other protected prisoners. He is able to undertake courses even though he has not done so because he is scared of threats or violence. He states that had he not given assistance he would have been placed in a minimum security prison. Of course had he not given assistance he would not have received a discount of 50 per cent of his sentence.

55 The assistance given by the respondent was of a high order, but whether it was exceptional or not is a matter upon which minds might differ. There was no apparent danger to the respondent in what he did. There is no real suggestion that the Lupicas were violent or posed a substantial threat to the respondent at the time he was obtaining admissions from them through his recorded conversations. Nor is there any reason to suppose that the respondent or his partner is under any significant danger by reason of the assistance given. As I have indicated, a discount of 50 per cent is overly generous and the assistance could not have justified a penalty of less than full-time custody.

56 The application for leave to appeal should be refused.

The Crown appeal

57 The Crown’s first ground of appeal concerns his Honour’s finding that the maximum penalty for the conspiracy offence should be taken as imprisonment for 5 years. As has been noted, the fraud offence was a common law offence for which the penalty was at large. The parties addressed his Honour on the basis that he was to ascertain the relevant penalty by having regard to a statutory offence of a similar kind. The Judge determined that the appropriate maximum penalty to be considered was imprisonment for 5 years on the basis that the corresponding statutory offence was one contrary to s 178BA of the Crimes Act. That is an offence of obtaining a financial advantage by deception. The Crown submitted that the appropriate offence was that under s 300 of the Crimes Act being an offence of using a false instrument to another’s prejudice. That is an offence carrying a maximum penalty of 10 years imprisonment. There is no need to resolve this controversy because his Honour’s approach was seriously flawed in any event.

58 The relevant principle is that contained in R v Hoar [1981] HCA 67; 148 CLR 32. The majority of the Court stated:

Although the principle is that the penalty for conspiracy to commit an offence should not as a rule exceed the penalty fixed for that offence — see Verrier — the court must take into account the number of offences which are the subject of the conspiracy. If the conspiracy is to commit but one offence, and Verrier was such a case, then the penalty to be imposed for conspiracy should not in general exceed the maximum penalty for the commission of the substantive offence. If, however, the conspiracy is to commit a number of offences then the court for the purpose of the principle will have regard to the maximum penalty that can be imposed in respect of those offences.

The reference to “Verrier” is a reference to Verrier v Director of Public Prosecutions [1967] 2 AC 195 a decision that concerned an offence of conspiracy to defraud by false pretences.

59 In the present case the conspiracy charged was not an agreement to commit a particular substantive offence. It was an over-arching offence to cover the whole of the fraudulent conduct of the respondent and his co-offenders over the period charged in the offence, some four months. It involved the respondent and his co-conspirators creating false invoices and other documents to substantiate the deception made to PayNow as to the outstanding debts owed to Charsam. The respondent as the accountant provided a debtor’s list to PayNow that he knew was false. He sent faxes listing 52 businesses purporting to be debtors to Charsam and was involved in making false documents to verify these debts. He engaged with the others in falsely verifying the debts by signing the forms sent by PayNow. He was prepared to use his own company as an alleged debtor and he verified the non-existing debt.

60 The respondent was to be punished for his involvement in the conspiracy and not just for the acts that he himself performed: Tyler and Chalmers v R [2007] NSWCCA 247; 178 A Crim R 247. The extent of his role was a significant factor to be taken into account in determining the appropriate penalty as was the amount of money involved: R v Koh [2001] NSWCCA 324. The respondent was a major participant in the fraud and it is highly likely that it could not have been carried out without his involvement as the company’s accountant. It is of little significance that the company had already been acting fraudulently in maintaining two sets of accounts, as the fraud, in which the respondent was concerned, was a separate and independent act of deception. The respondent must have been aware of the extent of the fraud and the amount of money involved. It may have been the case that he was not to benefit directly from the fraud as his co-conspirators were, but the fraud was aimed at keeping the company afloat and, therefore, his employment with the firm. In any event the lack of direct benefit to the offender is not a matter of very great moment. The offence is principally concerned with its effects upon the victim.

61 The sentencing remarks inadequately dealt with an assessment of the objective seriousness of the respondent’s offending. His Honour refers to the amount involved as “over a million dollars” and to the Crown’s submission that the position of an accountant is a position of trust, at least so far as persons outside the company are concerned. Apart from indicating that the offences should be treated as having a maximum period of imprisonment for 5 years, there is no other consideration of the seriousness of the respondent’s conduct.

62 The relevance of the maximum penalties for statutory offences was to give some guidance to the seriousness of the respondent’s conduct and the appropriate penalty to be imposed for it. It was a serious error to fetter the sentencing discretion to the maximum penalty for a single offence committed in the course of the conspiracy, whatever offence was chosen. The conspiracy involved the commission of numerous criminal offences including offences contrary to s 300 as well as offences contrary to s 178BA. If the approach of the Judge were correct, the offender was placed in a better position by the fact that he had been party to a conspiracy than if he had committed the offences by himself. The result of this error was to grossly under-estimate the seriousness of the respondent’s conduct and the appropriate penalty.

63 The only matters of mitigation to the objective seriousness of the offence were the respondent’s depression and diabetes. His illnesses might go some way to explain why a person of no prior convictions so readily involved himself in such serious criminality with the Lupicas. But it is clear that the respondent was in need of money with the collapse of his aviation business. The significant relevance of the matters on the Form 1 was that they indicated dishonest conduct committed by the respondent independently from the Lupicas and both before and after he was employed by them.

64 In light of the nature of his criminality, its extent and the period of time over which it extended, there was in my opinion very little mitigation in the fact that his judgment might have been affected by his depression. This was not simply “inappropriate behaviour” as Dr Roberts described it: it was seriously criminal. The substantial significance of the respondent’s illnesses was that with treatment he was unlikely to offend again and, therefore, personal deterrence had no role to play. In my opinion the sentence to be imposed had to have an element of general deterrence notwithstanding the respondent’s depressive illness. The Crown’s first ground of appeal is made out. The Judge’s discretion miscarried in relation to the sentence imposed for the conspiracy offence and the sentence was manifestly inadequate.

65 The Crown’s second ground of appeal concerns the weight that should have been given to the matters on the Form 1. It is obvious that the Judge paid them little regard, describing them as “petty fraud”. However, at least one of the matters, the fraud in relation to the trailer, could not be so described. However, they pale into relative insignificance in light of the two offences for which he was to be sentenced. Having regard to the fact that the Judge’s discretion miscarried in relation to the sentence for the conspiracy offence, it is unnecessary to determine this complaint. If the Court re-sentences the respondent for that offence, it will take into account the Form 1 matters.

66 The Crown’s third ground of appeal is that the Judge erred in making the sentences for the arson and conspiracy offences concurrent. The Judge stated:

I was urged by the Crown that these matters were separate and ought not to be made concurrent. In this particular circumstance I am persuaded by Mr King’s overall argument that this is a man who has fallen on hard times from a high executive position and whilst this course of conduct ought strictly be separated, I am not inclined to make them consecutive but make the sentences concurrent.

67 This was clearly an erroneous exercise of his Honour’s discretion. As the Judge recognised, the application of proper principle required that the sentences for the two offences be at least partly cumulative. It is unnecessary to state again the principles that inform the discretion to determine whether sentences are to be served concurrently or not. They have been stated frequently in this Court in recent times: see R v XX [2009] NSWCCA 115. The penalty for one offence charged against the respondent could not comprehend the criminality involved in the other offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41.

68 In my respectful opinion it was unprincipled to make the sentences concurrent simply because his Honour found some sympathy for the respondent. In any event, many persons in the community fall on “hard times” and I find it difficult to understand why a person who falls from “a high executive position” and commits serious planned criminal conduct over a significant period of time using his skills to do so should be accorded such leniency. This ground is made out.

69 Ground 4 is a complaint about the discount awarded to the respondent. I have already expressed the view that, in the absence of any evidence that as a result of the assistance the respondent was going to spend his sentence in more onerous conditions than the general prison population, a discount of 50 per cent was unwarranted. I have also noted that the respondent’s affidavit does not reveal that his conditions are more onerous to the extent of justifying a discount of more than 40 per cent. This ground is made out.

70 Ground 5 concerns the Judge’s finding of special circumstances. I have noted that the only reason his Honour gave for finding special circumstances was that this was the respondent’s first prison sentence. In my opinion that will not normally be, and was not in this case, a proper basis for finding special circumstances. In any event, the reduction of the non-parole period to 50 per cent of the discounted head sentence could not in my opinion result in a non-parole period that reflected the objective seriousness of the offence. If it is necessary for the Court to re-sentence the respondent, it will be necessary to reconsider the question of special circumstances and the appropriate non-parole period.

71 Ground 6 asserts that the sentences are manifestly inadequate. In my opinion the sentence for the conspiracy offence was manifestly inadequate to a considerable degree as a result of the patent errors made by the judge in determining that sentence. The total sentence imposed upon the respondent was also manifestly inadequate arising from the error in making the sentences concurrent.

Decision

72 The respondent was charged as an accessory to the arson committed by Anthony Lupica. He was very fortunate not to be charged with the completed offence having regard to his conduct. But as an accessory his criminality was high given what he did to assist the principal. A starting sentence before discount of 4 years was very lenient indeed and probably inadequate. It was not a mitigating factor, as his Honour found, that no person was harmed. Had any person been injured that may have given rise to a separate offence. It was a very substantial fire that caused considerable damage and had the potential to spread to other buildings. The damage was contained only by the skill of the fire fighters. General deterrence was a very significant factor in sentencing for this offence. However, the Crown has not filed any ground of appeal against the starting sentence for that offence but complains generally of the discount awarded to the respondent for his assistance.

73 In my opinion the sentence that should have been imposed for the conspiracy offence and taking into account the Form 1 matters and before discount was 6 years imprisonment as the middle of the range. There were a number of aggravating factors. As I have indicated, there were numerous criminal acts committed the most serious of which would have carried a maximum penalty of 10 years if charged as a single offence: see s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The offence was planned and the loss occasioned was very substantial. However, unlike his co-conspirators there was no suggestion that the respondent was involved in the company’s previous fraudulent conduct. He was not the prime mover although he had a significant role in the fraud as the firm’s accountant.

74 In this appeal there were clear errors in the exercise of the sentencing judge’s discretion and the sentence over-all was manifestly inadequate. The question arises as to what, if anything, should be done as a consequence. In light of s 68A of the Crimes (Appeal and Review) Act 2001, this Court can no longer take into account in the exercise of its discretion under s 5D of the Criminal Appeal Act the distress or anxiety suffered by a respondent to a Crown appeal arising from the fact that the respondent faces sentencing for a second time: see R v JW [2010] NSWCCA 49 per Spigelman CJ at [141].

75 The finalisation of the present matter has been delayed awaiting the decision in JW. That is not the fault of the respondent because no point was taken as to the effect of s 68A or its Constitutional validity. However, a Court of five judges was constituted to determine issues arising from the enactment of s 68A and this appeal could not be determined until the decision of that Court was delivered. In the meantime this Court received an affidavit from the respondent as to the effect of the delay in resolving the present matter. He states that, as a result of the Crown appeal, he has been unable to progress through the prison system because of a change to his classification. He states that as a result he has not been given the benefit of day or weekend leave, work release, access to areas outside his compound, access to computer facilities or access to outside areas during visits.

76 I accept that the delay in determining the appeal has impacted adversely on the respondent but that would be significant if I considered that there should only be a slight increase in the sentence. In that case the detriment suffered by the respondent would have been a factor in considering whether in the exercise of its discretion the Court should refrain from intervening. But in my opinion the sentence imposed upon the respondent was so inadequate that there must be a substantial increase in the period he is to serve in custody notwithstanding the delay in the finalisation of the appeal and the matters contained in the respondent’s affidavit. I also take into account that had it not been for the Crown appeal the applicant would have expected to be released to parole on 14 June next.

77 The sentence for the arson offence is to be 4 years less 40 per cent, half of which is for future assistance, and resulting in a term of 2 years 4 months. The sentence for the conspiracy offence is to be 6 years less 40 per cent, half of which is for future assistance, and resulting in a term of 3 years and 6 months. There will be special circumstances found only to ensure that the overall non-parole period is in the statutory relationship with the overall total term.

78 I propose the following orders:

1. Leave to the respondent to appeal against his sentence is refused.

2. The Crown appeal is allowed and the sentences imposed in the District Court are quashed.

3. In lieu the respondent is sentenced

(a) for the offence of accessory before the fact to maliciously damage property by fire to a sentence consisting of non-parole period of 21 months and balance of term of 7 months that sentence to commence on 15 June 2009. The non-parole period is to expire on 14 March 2011, the date upon which the respondent would be released to parole but for the sentence for the conspiracy offence;
(b) for the offence of conspiracy to cheat and defraud and taking into account the Form 1 matters, to a term of imprisonment made up of a non-parole period of 2 years 4 months to date from 15 June 2010 with a balance of term of 1 year 2 months. The non-parole period expires on 14 October 2012 the date upon which the respondent is eligible to be released to parole.

I agree with Howie J.

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