Director of Public Prosecutions (Cth) v Carey
[2012] VSCA 15
•16 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0187
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| KEVIN FREDERICK CAREY | Respondent |
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| JUDGES | Neave, Harper JJA and Hollingworth AJA |
| WHERE HELD | Melbourne |
| DATE OF HEARING | 9 February 2012 |
| DATE OF JUDGMENT | 16 February 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 15 |
| JUDGMENT APPEALED FROM | The Director of Public Prosecutions v Carey (Unreported, County Court of Victoria, Judge Lewitan, 23 June 2010) |
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CRIMINAL − Appeal by Director of Public Prosecutions − Criminal Procedure Act 2009 s 291 − Respondent pleaded guilty to attempting to possess precursor chemical − 15 months’ imprisonment wholly suspended and fine of $17,000 − Breach of undertaking to give evidence against co-offenders − Parity − Co-offender sentenced to 15 months’ imprisonment (12 months suspended) − Sentence based on erroneous factual basis − Appeal allowed − Respondent re-sentenced.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M Cahill | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr P G Priest QC, with Mr S Petrovich | MDG Lawyers |
NEAVE JA:
HARPER JA:
HOLLINGWORTH AJA:
The respondent, Kevin Frederick Carey (‘Carey’), pleaded guilty in the County Court of Victoria to one count of attempting to possess a precursor chemical, phenylpropanolamine,[1] contrary to s 321M of the Crimes Act 1958 and s 71D of the Drugs, Poisons and Controlled Substances Act 1981.
[1]A drug used in the manufacture of amphetamine.
The maximum penalty for the offence is two years’ imprisonment and/or a fine of 240 penalty units. On 23 June 2010, the respondent was sentenced to 15 months’ imprisonment and was ordered to pay a fine of $17,000. The learned sentencing judge directed that the sentence of imprisonment be wholly suspended for a period of three years. During his plea in mitigation, the respondent undertook to assist law enforcement authorities in the investigation or prosecution of his co-offenders by giving evidence in accordance with his written police statement.
The Director now appeals against the sentence imposed on the respondent, on the ground that he failed to fulfil his undertaking.
Background
The precursor chemical was hidden in a consignment of two rollers which arrived in Sydney from Johannesburg, South Africa and was discovered by the Australian Federal Police when the rollers arrived in Australia. The police removed the powder from the rollers, and continued their surveillance. The empty rollers were initially delivered to the consignee’s address in Queensland and then transferred into the possession of two men, Benjamin Horn (‘Horn’) and Hayden Lumsden (‘Lumsden’).
Carey went to the home of his brother, when his brother was away, where Horn and Lumsden arrived in a utility carrying two large metal rollers. He had known both men for some years. They asked him if he could transport the rollers to Melbourne and he agreed. He was told that he should call Horn on his mobile phone when he was about an hour out of Melbourne, but that Horn would not answer. He was then to meet Horn at a Caltex service station, just outside Melbourne. In return, Horn and Lumsden promised that Carey would be ‘looked after’.
After Carey transported the rollers to Victoria, he met Horn and another man, Gary Sargent (‘Sargent’) at the service station as arranged and followed them to a property in Woodstock, Victoria. There he helped to remove the rollers from his vehicle, and to cut open the rollers with an angle grinder. The men discovered that the rollers were empty. The respondent left the premises and was arrested later that day. The respondent initially made a ‘no comment’ interview, but subsequently admitted to police that he had been involved in transporting the rollers to the Woodstock property and cutting them open, and that he had suspected they contained drugs.
Her Honour’s sentencing reasons
The respondent was aged 48 years at the date of sentence. He admitted several prior convictions, including charges of stealing, forgery, assault and possessing a firearm without a licence.
In her sentencing reasons, the learned judge found that the respondent was ‘a minor player in this affair and [was] not the principal offender’.[2] Her Honour accepted that the respondent ‘knew nothing about the contents of the cylinders initially. You knew nothing about the importation or the plans that related to this precursor chemical’.[3]
[2]The Director of Public Prosecutions v Carey (Unreported, County Court of Victoria, Judge Lewitan, 23 June 2010) (‘Reasons’) [42].
[3]Ibid [22].
Her Honour said that the prosecutor had accepted that Carey gave significant assistance to the authorities and took his undertaking into account in determining the term of imprisonment which should be imposed,[4] and in ordering that it should be wholly suspended. Her Honour did not quantify the extent of the sentence discount given because of that undertaking. The judge also gave weight to the respondent’s early plea of guilty, his remorse, his ‘reasonably good’ prospects of rehabilitation[5] and his ‘full and frank answers to the questions put to [him] by the police’.[6]
[4]Ibid [25].
[5]Ibid [41].
[6]Ibid [24].
Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, if he had not pleaded guilty, the respondent would have been sentenced to 21 months’ imprisonment, with a non-parole period of 14 months, and fined $20,000.
The alleged breach of undertaking
On 8 March 2011, the trial of Sargent commenced in the County Court of Victoria before Judge Gaynor. The respondent was the main prosecution witness.
In his written statement to the police dated 11 August 2009, Carey said that after he had called Horn, as he had been instructed, and while he was at the service station, he saw a utility driving towards him.
I saw that ‘Benny’ was driving the hire ute and there was another bloke with him. At the time I didn’t know who the other bloke was, but I now know he is Gary SARGENT. I saw ‘Benny’ reverse his hire ute into the parking bay next to mine.
I remember Gary SARGENT, who was sitting in the passenger seat, saying to me, how are you going Dick? I had never…met the fellah. There was more or less talk about, how was the trip? I remember I told them about the policeman who pulled me over up the road. At this stage, I was fairly panicky as I had been pulled over by the highway patrol, about 60 or 70 k’s earlier. I remember thinking to myself that ‘Benny’ didn’t dilly dally, he’s obviously flown back down. I thought they would take the metal bearings back from me.
After he followed the men’s hire utility to the farm, he followed them down the drive.
I went down the driveway for about 150 to 200 metres, and I saw that ‘Benny’ and Gary SARGENT standing there and I remember being directed into a spot to park.
…
I got into the back of the ute and pulled one of the cylinders to the back of the ute. When I pulled the first one back, I think ‘Benny’ and Gary SARGENT lifted the metal bearing off the tail gate and onto the ground. I pulled the second metal bearing to the back of the Dual cab and I lifted it off and put it on the ground. That was when I first realised how heavy the metal bearings were, they were heavy, you would not have been able to carry them by yourself. It was either ‘Benny’ or Gary SARGENT who helped me lift the second metal bearing off the Dual cab, but I can’t remember who. I shut the tail gate and put the tarp back on. I just wanted to head off. I think at that stage they had carried one of the metal bearings into a back room. The room was behind where the shelter was. I think I carried the second metal bearing, I think with Gary SARGENT and we took it into the back room, and placed it on the ground next to the other metal bearing. I think it was just a concrete floor.
I don’t remember what ‘Benny’ or Gary SARGENT was wearing that day, but I remember Gary was wearing glasses. I would describe Gary SARGENT as being shorter than ‘Benny’, and about 35 to 40 years of age. He was a nuggety sort of fellah.
If I saw Gary SARGENT again I reckon I would recognise him.
…
I saw there was bench type thing over the right hand corner near the back wall. I remember seeing that sitting on the bench was a 9” angle grinder and a hammer. I remember seeing a gas bottle, the kind you would hook up to a BBQ, and they moved it away from the two metal bearings, just before they started grinding. I remember they got me a spanner which was in a bucket.
After the metal bearings were placed on the floor, I thought my role was done, and I wanted to be out of there, and I wanted to leave. I don’t remember who said it, but I was told to just wait and just hang around. I then went back to my ute and I thought I’ll try and do these pays. I’m not sure if I had logged in to my computer or not at that stage, I think it may have been Gary SARGENT who came out to my ute.
Gary asked me, along the lines of, do you know how to put a grinder blade in. As a result of that I went back inside the room with the metal bearings. ‘Benny’ was still inside the room. I saw the angle grinder sitting on the bench, I told them they had to push the button in and that they need a spanner. I picked up the angle grinder. Gary got a spanner out of the bucket, and that’s when I more or less took over. I couldn’t hold the button on the angle grinder and use the spanner at the same time, cause the angle grinder was a bit rusty, the old blade looked like it had been on it a long time. I got Gary to hold the button in, while I put the spanner on the grinder flange, and I tapped the spanner with the hammer. I took the old blade off, put a new blade on, tightened it up and I plugged it in and turned it on. When I revved the angel [sic] grinder I saw that the new blade wasn’t on level. I unplugged the grinder and re-did it all again. I tested it again and saw that it was working.
Gary took the angle grinder and he started cutting into the end of one of the metal cylinders. I’m about 90 % sure that ‘Benny’ was still in the room, when Gary was grinding the area around the little steel lugs. I saw that there was sparks going every where from the angle grinder, so I left the room and went back to my ute.
…
About 5 to 10 minutes after Gary started grinding the metal bearings, I was standing out side and I could them swearing [sic]…After that ‘Benny’ came outside and asked me to go back inside. He wanted me to have a look at something. I followed ‘Benny’ into the room and I saw the two metal bearings. I saw that they had tried to hack into one of the metal bearings, as there was cut marks around the end of the cylinder. I think ‘Benny’ told me that Gary had no idea about using the grinder. They asked me how would I get the steel lug off. I asked them if they had a chisel. They gave me a cold chisel, maybe 12 inches long in size, if that. I put the cold chisel on the spot where they had been cutting the metal bearing and I got the hammer and started banging the chisel to try and get the lug off. I chiselled away for a few minutes, maybe 5 minutes, and that didn’t work, I couldn’t remove the lug from the metal bearing.
I looked at lug at the opposite end of the metal bearing, and I told them to just cut around the weld. After that I picked the angle grinder up and replaced the blade, as the other blade had been worn down. I then started to cut around the weld, and showed them how to do it, how to hold the grinder, so to speak. I think I done probably two or three cuts on the metal bearing and I give the grinder to Gary. I saw him start doing what I had shown him, cutting into the metal bearing. I then left the room again and went back to my ute.
I don’t remember the time, but it was either just after, the first time Gary started using the angle grinder, or it was just after the second time he used it, that I went to me Dual cab and I spoke to someone on my mobile phone, I think it may have been Karen, but I’m not 100% sure. I remember I walked further away from the shed, because the grinder was going and the noise was loud.
After going back to my ute, I packed my computer up which was sitting on the tarp, and put it back in my car. I could hear that the grinding was still happening. The grinding stopped. When the grinding stopped I walked back towards the room, and I could hear them inside making banging noises, which sounded like a hammer, I went into the room and I saw Gary had the hammer and he was hitting the lug on the end of the metal bearing with the hammer. ‘Benny’ was still in the room. As a result of Gary hitting the lug, I saw the lug come loose. After that they were both bent over, they had their backs to me, and they wobbled the lug, and the lug came out.
I remember ‘Benny’ and Gary were looking inside the metal bearing. I saw Gary stuck his hand inside the hole in the metal bearing. When I saw the hole in the end of the metal bearing, after the lug was removed, I was surprised because I could see through the hole that was quite a fair empty area inside. It surprised me because, before that, I thought they were pretty much solid metal because of the weight. They stood the metal bearing up on its end, with the hole nearest the ground. I thought the reason they lifted the metal bearing onto the end like that, was if there was something in there, it would fall out. After standing it up they shook the metal bearing back and forward, and then lay it back down on the ground again. After shaking it and as they laid it back on the ground, I could see that nothing had fallen out from inside the metal bearing. I knew at this time the whole thing was shifty as shifty. I didn’t know what was going to fall out, in the back of my mind I thought it might have been marijuana or cocaine. If cocaine had of fallen out of the metal bearing, it wouldn’t have surprised me, put it that way.
After that Gary said something like it’s fucken empty. The whole focus then went to the next cylinder.
They asked me, what end I thought would be the end to come off, the easiest end to come off. I looked at the welds of both ends of the 2nd metal bearing and the welds at both ends looked pretty much the same. I said to them, have a go at one end. As a result of that they flipped the metal bearing over. I put a new blade in the angle grinder, and I cut right around the weld. At that stage I was thinking I just wanted to get out of there was quick as I could. It was quicker for me to cut the lug than them, as I knew how to use an angle grinder, so I decided to use the angle grinder to cut the weld. I cut it to the point where I thought the weld was cut, and I’m not sure if it was ‘Benny’ or Gary who then hit it with the hammer. I sat the angle grinder back on the bench, I turned around and I saw the lug was loose. I saw them get the lug out. The same thing happened as before, they tipped up the metal bearing to see if anything fell out. I don’t remember the exact words said or who said them, but it was along the lines of this fucken thing is empty too, what the fuck is going on. Both ‘Benny’ and Gary looked agitated. At that stage I was pretty stressy so I was a bit relieved when I saw that there was no cocaine in either metal bearing. I remember after nothing was found, either ‘Benny’ or Gary…said something like it’s a dry run. I took the reference to dry run to mean there was nothing illegal inside the metal bearings.
The applicant said that he had then seen Benny and Gary drive off in their hired utility and he had left as well.
In his statement, the respondent also identified participants in a number of intercepted telephone calls. Sargent was not identified as a party to any of these calls.
The applicant was called as the main Crown witness in Sargent’s trial. Sargent’s defence appears to have been that he was not present at the property when the events referred to in Carey’s written statement had occurred.
In his evidence in chief, the respondent said that another man had been in the utility when he met Horn at the service station, and counsel for Sargent agreed that it was not in issue that this man was Sargent.
When asked about who removed the first cylinder from his Ute, he said he could not be 100% certain, but he was ‘pretty sure it was Ben and Gary’ and that he thought they had carried it into the room where the cutting occurred. He (Carey) and Ben had removed the second cylinder. He said he could not be sure whether there was any conversation between Horn and Sargent when he took the second cylinder into the room.
He said that it was Horn who had asked him how to replace the blade in the grinder and that he thought he had got Sargent to hold down the button for him when he did this. He said it was mainly himself who had done the cutting, and he could not be sure who had first used the angle grinder. He was not sure where Sargent was when he was doing the grinding, although he was sure ‘Gary was probably in the room’. He then said that he did not know where Horn or Sargent were when he was doing the grinding. Nor was he sure what Sargent was doing when the first cylinder was tipped upside down. He said he had got the hammer to get the lug off the second cylinder and he was not sure where Horn or Sargent were at that time. He could not recall who was present when the cylinder was tipped upside down and he could not say who had exclaimed that it was ‘effing empty’. Horn was agitated when the cylinder was empty, but he could not say anything about the attitude of Sargent at that time.
At that point, the prosecutor sought leave under s 32 of the Evidence Act2008 for Carey to rely on his statement to the police to revive his memory, indicating that there were a number of differences between Carey’s written statement and what he had said in court. He referred, in particular, to Carey’s statements that he had seen Sargent using the grinder, hitting the lug with a hammer, putting his hand inside the roller, saying that the cylinder was empty and, along with Horn, looking agitated when this was discovered.
Defence counsel said that Carey had had the opportunity to read his statement before giving evidence, that his version of events was ‘more than a little dissimilar’ to his statement to the police and that the Crown was really trying to get Carey ‘to swear up to [his] statement’.
A voir dire was then held for the purpose of determining whether Carey had genuine difficulties in recalling what had occurred and should be permitted to refresh his memory.
Following the voir dire, the prosecutor made an application under s 38 of the Evidence Act 2008 to have the respondent declared an unfavourable witness, to which her Honour acceded. Carey was recalled and a number of inconsistencies between his written statement and what he had said previously were put to him by the prosecutor. Initially, he said that his police statement was ‘true and correct’. However, when he was given a copy of the statement by the prosecutor, he said that:
· he thought that he, rather than Sargent, had banged the cylinder with a hammer, until the lug came loose;
· he had been involved in tipping up the cylinder with the other men;
· he was not sure whether Sargent had said that the cylinder was empty; and
· Horn and Sargent drove off together.
In his answers to defence counsel’s cross-examination, Carey said that he could not be sure if Sargent was involved in the venture, and
· that Sargent never offered to cut open the cylinders or attempted to do so;
· that Sargent had never attempted to change the blade on the angle grinder; and
· that he never heard Sargent discuss the contents of the cylinders.
In re-examination by the Crown, Carey said he thought that Sargent was with Ben and helped him to lift the roller, but that he was not sure if it was him or Ben who used the grinder. However, when asked what Sargent was doing while he was at the property, he said ‘I couldn’t really say with – with full confidence that he was probably doing anything’.
When asked if the statement he made to police was true and correct, he responded:
Yes, I believe it to be so, but as I’ve said earlier, I said looking back now I think I’ve made the assumption of things that happened, and until you get right into the whole gist of it, and saying yes or no, that definitely happened or no it definitely didn’t, then you know, probably things in there that I shouldn’t have said.
Following the evidence, defence counsel submitted that Sargent had no case to answer, because the strongest proposition that could be put against Sargent was that he had assisted in unloading one of the rollers. In discussion with counsel, her Honour commented that:
Life might become a bit more problematic for Mr Carey, who knows, but at the end of the day, what his evidence has done, is it’s – he’s recanted and retracted on everything and I think it’s - it would be extremely difficult in the circumstances because of the way he went about his evidence, notwithstanding the fact that his statement was put but at the end of the day you’ve got - that witness was central to the establishment by the Crown of there being a link between Mr Horn’s activities and Mr Sargent’s, and he’s flip flopped if I can put it that way, in relation to every aspect of that.
After the Crown conceded that there was no case to answer, her Honour said that:
I think - and I say this for the record, I think Mr - my view of Mr Carey’s evidence was that he came here seeking to assist Mr Sargent as much as he could. He hadn’t read his statement properly, when he went to read his statement he then came back and made the totally untenable suggestion that he’d made assumptions when making the statement that he shouldn’t have made. How someone makes assumptions about I heard him say, I saw him do, I do not understand. In my view he has completely retreated from that statement, and indeed it was quite clear he was intending to do that in my view when I made the ruling that he be treated by the prosecution as an unfavourable witness.
The jury was then discharged.
Counsels’ submissions
The Director appeals against the sentence imposed on the respondent pursuant to s 291 of the Criminal Procedure Act 2009. That section provides that:
Without limiting any right of appeal under section 287, the DPP may appeal to the Court of Appeal against a sentence imposed on a person by an originating court if—
(a) the sentence was less severe because of an undertaking given by the person to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, whether or not proceedings for that offence had commenced at the time of sentencing; and
(b) the DPP considers that the person has failed, wholly or partly, to fulfil the undertaking.
The Director contends that, in his evidence in chief, the respondent left out important aspects, and contradicted critical details, of his police statement. As a result, the respondent effectively reduced Sargent’s role ‘from a significant involvement to virtually no involvement at all’.
The respondent’s co-offender, Benjamin Horn, was sentenced by a different judge to 15 months’ imprisonment, 12 months of which was suspended for three years. Although Horn played a greater role than the respondent (which is conceded by the Director), and did not make any offer of assistance to authorities, he was sentenced to the same term of imprisonment as the respondent (although he was required to serve three months of it in gaol) and no fine was imposed on him.
The respondent’s primary submission is that it would be futile for this Court to allow the appeal, because it would offend the principle of parity to increase the term of imprisonment to be served by him.
The respondent also argues that he was sentenced on an erroneous basis. In her sentencing reasons, the learned judge stated that ‘[d]epending on the method used, the expected pure amphetamine which could have been produced ranged from 12.11 to 27.5 kilograms’.[7] At Horn’s plea hearing, the Crown conceded that the correct potential quantity of pure amphetamine which could be produced from the precursor chemical was 6.02 to 13.70kg. The respondent claims that this consideration was material to the judge’s sentencing discretion. Although he did not appeal against his sentence, this matter should be taken into account in relation to the Director’s appeal.
[7]Ibid [19].
In these circumstances, the respondent contends that the Court should dismiss the appeal.
As a secondary submission, the respondent contends that when the whole of his evidence at Sargent’s trial is taken into account, Carey had truthfully said that he could not recall details of events which occurred in 2009, that he had conscientiously attempted to tell the truth and that he had not failed to fulfil the undertaking.
Conclusion
Where a respondent to a Director’s appeal does not admit that he or she has failed to fulfil an undertaking, it is necessary for the Court to decide whether that is the case.
In our view, the transcript of the aborted Sargent trial clearly indicates that Carey failed substantially to fulfil the undertaking he had made which was taken into account in sentencing him.
The County Court judge who presided at Sargent’s trial took the same view. However, counsel for Carey submitted that this Court could not have regard to her Honour’s remarks, citing State Securities Pty Ltd v Dromi[8] (‘Dromi’) in support of that proposition. Dromi was concerned with the question of whether a trial judge had erred in law, by taking account of a finding made by a Master in a different proceeding, that one of the appellants had lied on oath and rejecting that appellant’s evidence on that basis. The Court[9] said that:
With all respect, however, the trial judge was wrong to take the Master’s conclusions into account. Evidently, they related solely to the second appellant’s credit and, whatever may be the juridical significance of a Master’s notes under the heading ‘Other Matters’, they are not a recognised exception to the collateral evidence rule. It was of course permissible for the respondent to cross-examine the second appellant on the contents of his affidavit of 18 April 2008, and to put to him in cross-examination as going to his credit, that, by telling only half the truth, he had been deceitful. But counsel for the respondent was bound by the witness’s answers. Counsel was not entitled to tender Master Efthim’s views to rebut the witness’s answers.[10]
[8][2010] VSCA 264.
[9]Nettle, Redlich and Harper JJA.
[10][2010] VSCA 264, [22].
Dromi is clearly distinguishable. The issue in this case does not involve an application of the collateral evidence rule, which in its relevant aspect provides that, at least in general, what a court has said about the credit of a witness in one proceeding is irrelevant when assessing the credibility of that witness in a different proceeding. The question in issue which arises on this appeal is whether Carey reneged from his undertaking. The trial judge before whom Carey gave his evidence had his statement before her, and was concerned when making the remarks in question to ascertain whether the witness had sworn up to that which he had told the authorities he would say. Her conclusion on the very point this Court must decide is relevant to our consideration of that point.
Her Honour observed Carey giving evidence and was well equipped to express a view as to whether he was genuinely unable to recall what occurred or was equivocating. That is the factual question which we must determine. We see no unfairness to Carey in taking account of the judge’s view and there is no reason in principle which requires us to disregard it, although we are not bound to accept it. However, even if, contrary to our view, it would be an error to have regard to her Honour’s opinion, the transcript, read as a whole, clearly indicates that Carey did breach the undertaking.
Public policy requires an offender who received a lower sentence because of his or her undertaking to give evidence against a co-offender, to receive a significant increase in his or her sentence if the offender does not do so.[11] If it were not for the fact that the co-offender, Horn, had received a sentence of 15 months of which three months was suspended, it is likely that this Court would have significantly increased Carey’s sentence.
[11]DPP v Mann [2006] VSCA 228; DPP v Tong Yang [2011] VSCA 161.
In resentencing the respondent, the Court is constrained by the principle of parity. Like Carey, Horn pleaded guilty to the offence at a relatively early stage, the sentencing judge found that he was remorseful, that he had a consistent work record and a good work ethic and that his prospects of rehabilitation were good. Although he was fined without conviction for an offence of recklessly causing injury in 1995 and fined with conviction for four driving offences in 1998, his previous offences had little relevance to his sentence. However, unlike Carey, he could not rely on his minor role in the offending or his significant cooperation and high level of assistance to the prosecuting authorities.
In our opinion, some increase in Carey’s sentence is required in order to indicate the significance of his failure to comply with the undertaking which he gave, from which he subsequently resiled, although the sentence which is imposed on him must also take account of the sentence of 15 months’ imprisonment imposed on Horn.
Having regard to the principle of parity and to the fact that the judge misstated the potential quantity of pure amphetamine which could have been produced by use of the precursor chemical, we would not alter the length of the term of imprisonment imposed on Carey, but would direct that he be required to serve six weeks in custody and that the remainder of the sentence be suspended. In the unusual circumstances of this case, requiring the respondent to serve some time in custody is necessary to give effect to the public policy principle to which we have referred and should not be seen as ‘mere tinkering’.
The order of the Court is that the appeal be allowed and that Carey be resentenced to a term of 15 months’ imprisonment, of which 13 and a half months is suspended for 2 years, and pay a fine of $15,000.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that if the respondent had not pleaded guilty, he would have been sentenced to a term of 17 months’ imprisonment, with a non-parole period of 8 months, and a fine of $17,000.
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