Cranshaw v R

[2009] NSWCCA 80

New South Wales
Court of Criminal Appeal

CITATION:	CRANSHAW v REGINA [2009] NSWCCA 80 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Wednesday 15 April 2009
JUDGMENT DATE:	25 August 2009
JUDGMENT OF:	Giles JA at 1; Hall J at 2; RA Hulme J at 77
DECISION:	(1) Grant leave to appeal. (2) Appeal upheld. (3) The sentences imposed by the District Court on 5 June 2008 in respect of the offence, sequence 205 (and the matters on the Form 1 in relation to that offence), be set aside. (4) The applicant be re-sentenced in respect of the offence of obtaining a financial advantage in the sum of $315,000 (sequence number 205) and taking into account the matters on the Form 1, to a term of imprisonment comprising a non-parole period of one year and eight months to commence on 26 March 2009 and to expire on 25 November 2010 with a balance of term of one year and four months to expire on 25 March 2012. Accordingly, the first date on which the applicant will be eligible for parole will be 25 November 2010.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – particular offences – applicant was involved in an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions – applicant was instructed by syndicate organiser and attended banks where he provided fraudulent identification and bank documents to withdraw funds – application of parity principles – co-offenders – the sentencing judge’s finding in relation to the applicant’s criminality and relativity to his co-offenders was open on the evidence – whether the sentencing judge varied the statutory ratio adequately pursuant to a finding of special circumstances – a longer period of supervision ought to have been provided to give effect to the sentencing judge’s finding of special circumstances – applicant resentenced to reduce total effective non-parole period by four months
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Lowe v Regina (1984) 154 CLR 606 Regina v Ellis (1993) 68 A Crim R 449 Regina v Zamagias [2002] NSWCCA 17
PARTIES:	Darren Mark CRANSHAW v REGINA
FILE NUMBER(S):	CCA No 2007/15103
COUNSEL:	Crown: N J Adams App: S Kluss
SOLICITORS:	Crown: CDPP App: Homeless Persons Legal Service
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0586
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	5 June 2008

2007/15103

GILES JA
HALL J
R A HULME J

TUESDAY 25 AUGUST 2009

DARREN MARK CRANSHAW v REGINA

Judgment

1 GILES JA: I agree with Hall J.

2 HALL J: The applicant, by notice lodged on 24 December 2008, seeks leave to appeal in respect of sentences imposed upon him by the District Court of New South Wales on 5 June 2008.

3 The applicant was sentenced in respect of the following offences:-

• Ten offences contrary to s.178BA of the Crimes Act 1900 (obtain money by deception). In relation to these offences, the Court was required to take into account on a Form 1, 156 counts of use or make a false instrument.

• Fourteen offences under s.344A and s.178BA of the Crimes Act (attempt to obtain money by deception).

• Thirty-seven offences under s.300(2) of the Crimes Act (use false instrument with intent).

• One offence under s.302 of the Crimes Act (have false instrument with intent to use).

4 The maximum penalty for each offence against s.178BA of the Crimes Act is imprisonment for five years.

5 The maximum penalty for each offence against s.300(2) of the Crimes Act is imprisonment for 10 years.

6 The maximum penalty for an offence against s.302 of the Crimes Act is imprisonment for 10 years.

7 The appellant asked that the abovementioned 156 counts of use or make a false instrument be taken into account by the sentencing judge in passing sentence pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999.

8 The individual sentences imposed by the sentencing judge were summarised in the Crown’s submissions as follows:-

“For the 178BA offences, the Appellant was sentenced to a non-parole period on [sic] nine months with a period of parole of six months. These sentences to commence on 26 May 2008. The non-parole period to expire on 25 February 2009. The total sentence will expire on 25 August 2009.
For the 300(2) and 302 offences, the Appellant was sentenced to a non-parole period of twelve months with a period of parole of six months. These sentences were concurrent and commenced on 26 August 2008. The non-parole period to expire on 25 August 2009. The head sentence will expire on 25 February 2010.
For the offences of attempting to obtain a financial advantage by deception in the sum of $385,000 (sequence 209) and of $210,000 (sequence 196), the Appellant was sentenced in each case to a non-parole period of fifteen months with a parole period of six months. These sentences to commence on 26 November 2008. The non-parole period to expire on 25 February 2010. The total sentence will expire on 25 August 2010.
In relation to the offence of obtaining a financial advantage in the sum of $315,000 (sequence 205) and taking into account the matters on the Form 1, the Appellant was sentenced to a non-parole period of two years with a period of parole of twelve months. These sentences to commence on 26 March 2009. The non-parole period to expire on 25 March 2011. The total sentence will expire on 25 March 2012.”

9 The applicant was sentenced to an effective total non-parole period of 2 years and 10 months to commence on 26 May 2008 and to expire on 25 March 2011 with an additional term of 12 months to expire on 25 March 2012.

10 The applicant relied upon one ground of appeal in the following terms:-

“The sentences imposed on the appellant on 5 June 2008 were, in all the circumstances, manifestly excessive.”

Factual matters

11 The offences were committed between 13 April 2006 and 19 June 2006. The applicant, in that period, was aged 40/41 years (date of birth, 1 May 1965).

12 On the sentence hearing on 26 May 2008, the Crown papers, Exhibit A, included a lengthy Statement of Facts. The applicant was arrested on the morning of 19 June 2006. In the three month period prior to that time, he worked for an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions.

13 The applicant’s offending conduct involved him being instructed by a syndicate organiser and attending upon banks where he provided identification and bank documents to the banks, fraudulently presenting himself as the signatory to an account and withdrawing funds.

14 The total exposure of all the large financial institutions was $1,099,200. Of that amount, $435,900 was actually obtained and has not been recovered.

15 The applicant received 10% of whatever cash was stolen, his commission on that basis totalling $43,590.

16 A multi-agency taskforce investigation into organised crime syndicates identified one such syndicate headed by a person known as Jonathan Marven. Marven and his associates routinely dealt in personal details of others and with the assistance of “runners” such as the applicant used those details in purporting to be that person. False identity documents, including New South Wales drivers’ licences and Australian passports, were obtained through illicit sources to further the offences.

17 The activities involved in the offences are set out in the Statement of Facts. That statement establishes that Marven would provide to the applicant fake or counterfeit identity documents, a cheque(s), an account deposit slip and details of the account on a sheet. The information sheet would include the details of company accounts, including company name, account numbers, address and account holders names. A separate sheet of specimen signatures was also supplied.

18 Generally speaking, the offender would enter a bank with a counterfeit New South Wales driver’s licence bearing his photograph and the details of a legitimate account holder. The offender would then deposit a counterfeit cheque to confirm that the account was still operating and unobstructed. He would then prepare another counterfeit cheque to withdraw cash from the account.

19 The Statement of Facts records that the applicant was introduced to Marven by an illicit drug supplier and he engaged in the offending conduct for the syndicate as a means of making money to pay off his drug debts. In the course of doing so, he provided for the syndicate’s use a passport photograph of himself.

20 Over the three months in question, Marven directed and aided him to commit a very large number of frauds upon financial institutions across New South Wales. Marven instructed him as to how he was to commit the frauds and which financial institutions would be targeted. Marven provided him with all the abovementioned counterfeit documents including the forged identification documents.

21 In the remarks on sentence, the sentencing judge observed (at pp.2 to 3):-

“The offender’s role was to act as a runner to facilitate the actual contact with the bank. It is important to understand that he did not have anything to do with the actual production of the false identity documents, or the obtaining of personal information, with respect to the identities that were used. His role was to adopt the identity when the defrauding was attempted face to face at the bank. Much like a drug courier, he was to be the fall guy if things went wrong. In that role, he protected those in the syndicate who were principally responsible for perpetrating the frauds.”

22 The sentencing judge recorded that the syndicate’s most successful operation involving the applicant occurred on 27 April 2006. On that day, Marven provided the applicant with false identification documents and instructed him to enter the Martin Place branch of Westpac and transfer $315,000 into a company account. Marven told him that someone else would launder the money from that account. The sentencing judge recorded the facts concerning the transaction and noted that the amount of $315,000 has never been recovered. The applicant received a commission of approximately $24,000 in US currency in respect of the transaction.

23 The sentencing judge noted that the applicant’s role extended to introducing a friend of his to Marven as a potential runner, Melissa Mrillo. As a result of her activities, a further $57,000 was obtained from banks.

24 The sentencing judge observed that, on a number of occasions, the applicant attended banks and presented false documents only to find that they were reluctant to carry out the transactions involved. On such occasions, he would simply leave the bank.

25 Following his arrest, the applicant fully co-operated with police. By reason of the assistance being of a high order and his early plea, he was given a 45% discount on the sentence. The applicant entered a guilty plea to all offences on 17 July 2007 at the Downing Centre Local Court.

26 In the course of his remarks on sentence, the sentencing judge stated:-

“The Crown accepts that the offender’s role was significantly less important than that of Marven. The offences committed by the offender were extremely serious. Whilst his role was clearly much less than those further up the syndicate, such as Marven, sight should not be lost to the fact that he entered into this arrangements knowingly. He was aware that his identity would be substituted for that of some genuine person to defraud either that person, a company or the bank. It was clearly an extremely well organised scheme employing sophisticated technology to be able to counterfeit drivers’ licences and passports. Apparently they were copies of a high quality.
Whilst the offender’s part in the whole scheme may have been relatively small, the scheme itself was a concerted attack on the integrity of the banking system in Australia. In this one case it netted nearly $500,000. The offender is but one of the runners used in this scheme. The objective seriousness of the offences can be determined by analysing the amount of money that was involved in the fraud, the period of time over which the frauds were perpetrated and the motive of the offender in carrying out the frauds. See Regina v Meers (unreported, CCA 14 September 1991 at 7) …”

27 The sentencing judge also stated that the amount of money was relevant in demonstrating the extent to which the applicant was willing to be dishonest and to flout the law and that each transaction in which he was involved required him to be prepared to carry out a series of false transactions which themselves amounted to breaches of the law. In this case, it was noted he had been charged separately with each of those matters and most of them appeared on the Form 1.

28 On sentencing the applicant, his Honour observed that an underlying cost to such frauds existed over and above the immediate cost of the money itself. His Honour further observed that it was very evident that the syndicates behind the defrauding were cynically attempting to obtain what they regarded as easy money.

29 In relation to the applicant’s motivation in committing the crimes, the Crown accepted that this related to his need to obtain money to pay off drug debts. In this respect, his Honour observed (at 7):-

“… It appears that Marven was dealing drugs to the offender, and in particular the drug ice. The offender had been a user of amphetamines for some time, and had progressed to using ice. Initially he was using only small quantities, but this increased in time to the point where he was using up to three injections a day.”

30 The sentencing judge accepted that the applicant’s expressions of contrition appeared to be genuine and that he had very good prospects of a full rehabilitation. In this respect, it was noted that he had the support of his family and had formed a new relationship.

31 In relation to the objective criminality of the offences, his Honour made a number of observations including the following:-

• Overall, the applicant’s offending was of a very high order.

• That his criminality could not be placed much below that of the offender known as “JOD” who was described as a runner and a trusted lieutenant of the principal. He had been charged with 70 offences and a further 58 offences on a Form 1 and pleaded guilty and provided assistance to the authorities and received a combined discount of 35%. The sentencing judge noted that the applicant had obtained far more money than JOD and must bear responsibility for that level of defalcation.

• Had the matter gone to trial, a starting sentence of some seven years imprisonment would have been appropriate.

32 The sentencing judge accepted that the applicant had had a significant drug problem and that he did not have any relevant prior criminal history and that he had not previously been in custody.

33 A finding of special circumstances was made. The sentencing judge observed that the applicant’s addiction was largely under control and that the need for a longer period of parole was not great. In addition, the accumulation of sentences would also indicate the need to find special circumstances and such a finding was made.

Submissions

34 Ms S M Kluss of counsel for the applicant relied upon her written submissions, which she supplemented with oral submissions.

35 Ms Kluss observed that the sentencing judge imposed a total non-parole period of 2 years and 10 months with a further 12 months on supervised parole, having applied a 45% discount for the plea of guilty and assistance to authorities.

36 The total sentence reveals that the non-parole period is 74% of the head sentence and that this was despite the fact that a finding of special circumstances had been made.

37 It was also observed that, following the initial charges having been laid on 19 June 2006, the applicant was on bail and had made a significant contribution to his rehabilitation. He reported to police five days per week (Monday to Friday) between September 2006 and May 2007.

38 Reference was made to the fact that the applicant said that he had been threatened against giving evidence with respect to the principal and that it was anticipated that he would spend his sentence “on protection”.

39 It was submitted that the applicant was a “runner” and was “… at the bottom end of the hierarchy of the operation” (written submissions, p.2).

40 Whilst the offences occurred in the context of a planned and organised criminal activity, it was noted that the sentencing judge found there to be no evidence that the applicant was involved in any part of the forgeries or the more sophisticated elements of the sentence (written submissions, p.3).

41 In the course of her submissions, Ms Kluss emphasised the following matters:-

• That the sentencing judge should have placed the applicant’s participation at a notional starting point further towards Mrillo and that his Honour had erred in assessing the objective criminality of the offences.

• That the starting point of seven years’ imprisonment after a trial was excessive in all the circumstances. Even if “this logic” is applied, deducting 45% from 84 months revealed a head sentence of 37.8 months. The overall head sentence, however, imposed by his Honour was 46 months.

• That although strict parity considerations did not apply, the applicant’s sentence, nonetheless, was disproportionate to those of his “co-offenders” .

42 The Crown, in its written submissions, submitted that the sentencing judge found that the applicant was a “runner” but did not, as was contended for by the appellant, find that he was “at the bottom end of the hierarchy of the operation”. The Crown observed that the finding that the applicant had not been involved in the production of false identity documents or obtaining personal information did not preclude an acceptance by his Honour that the offences were part of a planned or organised criminal activity.

43 In relation to matters of totality and accumulation of sentences, it was submitted that the fact that the sentences were imposed partly concurrently was reflective of the fact that the sentencing judge viewed the offences, to some extent, as being a continuing course of conduct. It was further submitted that a balance had been struck by partially accumulating the sentences in recognition of the fact that the offences did not occur in isolation but occurred over a period of three months and involved multiple victims.

44 The Crown contended that the level of accumulation did not reveal a total sentence that was excessive in all the circumstances and that proper recognition was given to the relevant matters on sentence by providing for an appropriate degree of accumulation.

45 The Crown further contended that the sentencing judge correctly concluded that no other punishment than full time custody was appropriate. It attached to its written submissions a summary of sentences imposed upon Mrillo and JOD. It contended that because they were members of the same syndicate and engaged in similar offences, “the sentences imposed upon those two offenders are useful as comparative sentencing decisions” (paragraph 5.4 of the Crown’s written submissions).

46 However, the Crown also observed that those sentences did not involve the concept of parity as discussed by the High Court in Lowe v Regina (1984) 154 CLR 606. The conviction of JOD and Mrillo, it was observed, were based upon different transactions although some offences were common to each offender. However, the convictions did not arise from the same facts.

47 The Crown also relied upon this Court’s decision in Regina v Ellis (1993) 68 A Crim R 449, in particular, at 461 (per Hunt CJ at CL) wherein it was held the parity principle which applies to sentences imposed on co-offenders but is not an appropriate principle to apply in relation to different offenders with similar characteristics who have committed similar crimes:-

“… What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and the subjective circumstances of the particular appellant and not whether it is more severe or lenient that some other sentence which merely forms part of that range.”

48 The Crown argued that to the extent that the sentence imposed on Mrillo served as a useful comparison, “… the facts involving this Appellant are clearly distinguishable in that he played a role in the recruiting of Mrillo into the syndicate and was successful in fraudulently obtaining $378,000 more than she did” (Crown’s written submissions, paragraph 5.6).

49 As to the comparison with JOD, the Crown submitted that the sentencing judge sought to balance JOD’s more senior position in the hierarchy with the much greater sum of money fraudulently obtained by the appellant (Crown’s written submissions, paragraph 5.7).

50 The Crown acknowledged in its submissions that the circumstances of the present case were somewhat unique. It referred to a document that it had prepared which provided a summary of sentences imposed on what it referred to as “related matters”. The summary set out the sentences imposed on 11 other members of the syndicate which formed part of “Operation Hickey”. The Crown submitted (written submissions, paragraph 5.8):-

“… Although the offences for which each of those offenders was sentenced varied each between the other, there was nonetheless a significant number of offences common to most offenders and the syndicate heads to whom they reported were all connected. Although it might be argued that considerations of parity do not technically apply, the Crown would be hard pressed in the circumstances of the present case to submit that considerations of parity are totally irrelevant. In sentencing the Appellant, His Honour for practical purposes, regarded other syndicate members (particularly [JOD] and Morello) as ‘co-offenders’.”

51 The Crown acknowledged that, in terms of “hierarchy” of the syndicate, on sentence the Crown had submitted and the sentencing judge seemed to accept, that the offender fitted somewhere between JOD and Mrillo in the hierarchy (Crown’s written submissions, paragraph 5.9).

52 The Crown also observed that the applicant, Mrillo and JOD were not sentenced in relation to the same transactions which made comparison of the respective roles more difficult.

53 It contended that the appellant was somewhere between JOD and Mrillo in the “hierarchical chain” and was probably closer to Mrillo. It was stated that he was clearly a runner, like Mrillo, but that he had recruited her into the syndicate which was indicative of his greater seniority. The Crown conceded that the appellant was certainly lower in the hierarchy than JOD who had been described as a “second lieutenant”.

54 The Crown contended the objective criminality of the applicant’s conduct was significantly greater than Mrillo, given the greater number of transactions and sums of money involved.

Consideration

55 The sentencing judge’s findings that the offences committed by the applicant were “extremely serious”, that he was aware of the intended fraudulent purpose of the use of his identity and that his role was part of an extremely well organised scheme are all significant findings and were well supported by the evidence including the applicant’s own admissions. The amount of money involved is, of course, also of importance, not as the overriding measure of the applicant’s criminality but as an index or measure of it. The sentencing judge in this respect said (remarks on sentence, p.6):-

“… it demonstrates the extent to which the offender was willing to be dishonest and flout the law …”

56 In summary, the following matters established the objective seriousness of the applicant’s offending:-

• The nature and purpose of his role as described above including his recruitment of Mrillo into the activities of the syndicate.

• That the offences committed by him occurred in the course of a planned or organised criminal activity which itself involved a scheme designed to undermine the integrity of the banking system.

• That the offending continued over a period of three months.

• That the amount of money involved in the fraud was almost $500,000 ($435,900).

• That the latter amount of money has not been recovered.

• That the applicant stood to financially gain on the basis of a 10% commission totalling $43,590.

• That the applicant’s offending involved 39 separate attendances by him upon various banks (statement of facts at pp.5 to 32).

• That it was the applicant who recruited Mrillo into the activities of the syndicate.

• That of the total offences charged, 37 offences were contrary to the provisions of s.300(2) of the Crimes Act (for which a maximum penalty of 10 years imprisonment is prescribed) and that the offence in sequence 205 committed on 27 April 2006 involved the amount of $315,000.

• The fact that every transaction involving the applicant required him to be prepared to carry out a series of false transactions which were themselves breaches of the law. He was charged separately with each matter (156 in all) which appeared on the Form 1.

57 The following matters, in my opinion, were directly relevant in establishing the relative criminality of the applicant and JOD:-

(1) That of the 62 counts to which the applicant pleaded guilty, 37 counts were, as stated above, contrary to s.300(2) of the Crimes Act , an offence under that provision carrying a maximum penalty of 10 years. JOD was sentenced in respect of 22 offences under s.300(2) of the Crimes Act .

(2) The amount obtained by the applicant was $435,900, in contrast to the amount obtained by JOD of $166,588 (a difference of $269,312).

(3) The applicant attended on banks on 39 occasions compared to JOD’s 26 personal attendances. He organised a runner in respect of further attendances, that is, he was involved in a total of 29 attendances.

58 The sentencing judge referred to the fact that the applicant’s criminality “cannot be placed much below that of [JOD]” (remarks on sentence, p.12). His Honour in so stating took into account the fact that the applicant obtained more money than JOD but plainly considered that other aspects of JOD’s role both as a runner and “a trusted lieutenant” of the principal in the relevant identity fraud syndicate placed his objective criminality at a higher level than that of the applicant. Having regard to all relevant matters, including those referred to in this and the preceding paragraph, I consider that the sentencing judge’s finding in relation to the applicant’s criminality and its relativity to JOD to have been open on the evidence.

59 In relation to the offender Mrillo, I note:-

• Of the 32 offences to which Mrillo pleaded guilty, eight offences were under s.300(1) of the Crimes Act and 23 were under s.300(2) of the Crimes Act .

• The applicant fraudulently obtained a much larger amount of money from the banks than Mrillo. In this respect, he obtained $378,000 more than Mrillo obtained (she having obtained $57,900).

60 In relation to the sentences imposed upon the applicant relative to those imposed upon JOD, there were factors affecting their respective criminality that pointed in different directions. A finding was made that JOD was both a runner and a trusted lieutenant of the principal which indicates that JOD was somewhat more integrated into the hierarchy of the syndicate thus distinguishing his role or position in it at a somewhat higher or deeper level than that of the applicant.

61 On the other hand, the applicant had, as earlier noted, obtained more money than JOD which rendered his criminality on that aspect at a higher level than JOD. Those offsetting factors were recognised by the sentencing judge and I do not consider any error in his Honour’s determination in relation to these matters has been demonstrated. I am of the opinion that the assessment made of the applicant’s criminality was appropriately made having regard to that of JOD.

Alternatives to full time custody

62 It was submitted that there was no indication in the remarks on sentence that an alternative to full time custody was considered.

63 It was submitted that the sentencing judge had only considered the question of full time imprisonment, it being noted that there was no reference in the remarks on sentence to the principles enunciated by this Court in Regina v Zamagias [2002] NSWCCA 17.

64 Although the applicant did not have any relevant criminal history and although there was no express reference made by the sentencing judge to alternatives to full time custody, I do not consider that the failure to do so is material in the particular circumstances of the present matter. The evident seriousness of the offences, their number and nature and the other matters to which I have referred in relation to the objective criminality of the offences, in my opinion, meant that there was no sentencing option other than full time imprisonment. Those matters indicate clearly enough, in my opinion, that a full time custodial sentence was the only sentencing option that could properly reflect the objective and subjective circumstances of the applicant’s offending.

65 Accordingly, I do not consider that there was any sentencing error made in the failure to expressly refer to sentencing options or with respect to the application of the principles to which I have earlier referred.

Special circumstances

66 A specific complaint is that the sentencing judge did not substantially alter the proportion of the non-parole period to the head sentence in the overall sentence. The submission for the applicant was that a longer period of supervision was warranted, in view of the “drug issues applicable to the applicant”, particularly his rehabilitation and the fact that this was the first time in custody for him and taking into account what was said to be the successful rehabilitation as at the date of sentence.

67 Reliance was placed upon the observation made in the remarks on sentence that the applicant was a suitable person for a slightly longer period of supervision than the statutory formula would require (remarks on sentence, p.12). The complaint is that, having so stated, the statutory ratio was varied only in the most marginal way. Accordingly, insufficient attention, it was submitted, was paid to ensuring the rehabilitation that had already commenced. In the circumstances, a longer period of supervision ought to have been provided than that represented by the ratio of 74% of the non-parole period to the total term resulting from the sentences imposed.

68 In the Crown’s written submissions, it is acknowledged that there is some force to the submission made on behalf of the applicant in respect of the question of special circumstances. The Crown frankly conceded:-

“6.3 The sentences imposed by His Honour did not result in any real variation in the statutory nexus. As a result, the Appellant is serving a non-parole period which represents 74% of the total sentence.”

69 The Crown, accordingly, submitted that if the Court saw fit to intervene and re-sentence the appellant, the non-parole period should not be reduced below that which was necessary to give due weight to the objective offending and to considerations of general deterrence.

70 In relation to special circumstances, the sentencing judge stated (remarks on sentence, pp.12 to 13):-

“The offender plainly has had a significant drug problem. This will be the first time in custody for him. There is a basis for finding special circumstances here. In his case, his addiction is now largely under control, and therefore the need for a longer period of parole is not great. In addition, due to the accumulation of sentence that will be applied, it is necessary to find special circumstances and I will do so.”

71 This statement supports an interpretation that the sentencing judge discerned the need for special circumstances based, at least, upon the fact that there was a need for a longer period of supervised parole and having regard to the need to have accumulated the sentences. I consider, in those circumstances, that this Court should proceed upon the basis that his Honour intended to give effect to a finding of special circumstances but effectively failed to do so.

72 In varying the statutory ratio of the non-parole period to the total term of imprisonment, having regard to the finding of special circumstances, this Court is required not to lose sight of the objective seriousness of the applicant’s multiple offending. To do otherwise would undermine both individual and general deterrence as an important sentencing factor which must be reflected in the sentence including the ratio of the non-parole period to the total term.

73 In those circumstances, the question is what adjustment to the sentences imposed is required in the circumstances of the present case? In that respect, I am of the opinion that the total effective non-parole period should be reduced by four months from a period of two years and 10 months to a period of two years and six months. A reduction in the total effective non-parole period of four months would, in my opinion, appropriately give effect to the finding of special circumstances. On that basis, the structure for re-sentencing, in my opinion, would require the non-parole period for the offence of obtaining a financial advantage in the sum of $315,000 (sequence number 205), taking into account the matters on the Form 1, to be reduced by four months to produce a total effective non-parole period of two years and six months with a total effective total parole period of one year and four months.

74 Accordingly, the applicant should be re-sentenced in respect of the offence of obtaining a financial advantage in the sum of $315,000 (sequence 205) (taking into account the matters on the Form 1), to a non-parole period of one year and eight months in lieu of the sentence imposed by the District Court as stated in paragraph [8] above which included a non-parole period of two years.

75 On that basis, the total effective sentence in respect of all offences will be, as stated above, a non-parole period of two years and six months in lieu of the total effective non-parole period previously imposed of two years and 10 months with an effective parole period of one year and four months in lieu of the additional term of 12 months that was previously imposed. Accordingly, the total term will remain three years and 10 months, the sentences to be imposed by this Court having the effect of reducing the total effective non-parole period by four months.

76 Accordingly, I propose the following orders:-

(1) Grant leave to appeal.

(2) Appeal upheld.

(3) The sentences imposed by the District Court on 5 June 2008 in respect of the offence, sequence 205 (and the matters on the Form 1 in relation to that offence), be set aside.

(4) The applicant be re-sentenced in respect of the offence of obtaining a financial advantage in the sum of $315,000 (sequence number 205) and taking into account the matters on the Form 1, to a term of imprisonment comprising a non-parole period of one year and eight months to commence on 26 March 2009 and to expire on 25 November 2010 with a balance of term of one year and four months to expire on 25 March 2012. The applicant to be released to parole on the expiration of the non-parole period on 25 November 2010.

77 R A HULME J: I agree with Hall J.

21/09/2009 - Incorrect sequence number inserted - amended to read "205", not "5" - Paragraph(s) Order (3) on cover sheet