DPP (Cth) v Phan
[2016] VSCA 170
•22 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0246
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) | Applicant |
| v | |
| HUNG DIEN PHAN | Respondent |
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| JUDGES: | ASHLEY, TATE and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 June 2016 |
| DATE OF JUDGMENT: | 22 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 170 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Phan (Unreported, County Court of Victoria, Judge Cotterell, 13 November 2015) |
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CRIMINAL LAW – Sentencing – Appeal against sentence by Commonwealth Director of Public Prosecutions – Respondent pleaded guilty to dishonestly obtaining property of a Commonwealth entity by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) – Whether sentence manifestly inadequate – Respondent medical practitioner dishonestly obtained $854 188.20 from Medicare over more than six years – Offending was objectively serious – Significant matters in mitigation – Crown’s table of comparative sentences unsatisfactory – Sentence was outside reasonably available range – Manifest inadequacy shown – Appeal allowed – Respondent resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Dickie | Mr M Pedley, Commonwealth Solicitor for Public Prosecutions |
| For the Respondent | Mr S Devlin | NWA Legal Services |
ASHLEY JA:
Hung Dien Phan pleaded guilty in the County Court to two charges of dishonestly obtaining property of a Commonwealth entity by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) (‘the Code’). Each offence carried a maximum penalty of 10 years’ imprisonment.
On 13 November 2015, Phan was sentenced to an aggregate three years’ imprisonment on both charges, to be released after 16 months upon entering into a recognisance in the amount of $5000 to be of good behaviour for 20 months. The judge also ordered that Phan make reparation to Medicare of $834 188.20[1] and forfeit a laptop computer which he had used in committing the offences.
[1]Phan had made a payment of $20 000 on the day of the plea in reduction of the amount which he had dishonestly obtained, it being said by his counsel that it was ‘effectively all the money he has in the world’.
At relevant times, Phan was a medical practitioner. The charges arose out of his lodging claims for medical services that he did not in fact provide. He conceded that he had obtained from Medicare—
1.$211 425.10 as a result of 3357 claims for services not rendered (I will describe them as ‘false claims’) submitted between 29 December 2006 and 16 May 2012 (‘the first period’) (charge 1).
2.$642 763.10 as a result of 11 208 false claims submitted between 11 October 2012 and 10 September 2013 (‘the second period’) (charge 2).
The false claims were lodged in batches—145 in the first period and 99 in the second.
Grounds of appeal
The Commonwealth Director of Public Prosecutions now appeals against the sentence imposed, relying upon the ground that—
The sentence imposed upon the respondent is manifestly inadequate and in particular the learned sentencing judge:
(a)failed to give sufficient weight to the objective gravity of the offending, including the maximum penalties prescribed for the offences;
(b)erred in finding that the offending was ‘at the lower end of the scale given there are no serious aggravating factors’;
(c)failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
(d)failed to adequately cumulate in sentencing the offender;
(e)failed to adequately reflect the motive for the offending; and
(f)failed to promote the need for national consistency in sentencing.
Circumstances of offending
The respondent studied medicine and graduated in 1998. He enrolled with Medicare as a medical practitioner. He was issued with a unique provider number. It was suffixed from time to time with additional codes. In substance, they identified his employer at the time.
Between 2005 and 2012 the respondent was employed as a locum general practitioner. In that capacity he made after hours and in-home attendances. His employer between June 2005 and November 2007 was Melbourne Medical Locum Service (‘MMLS’). Between November 2007 and 16 May 2012 he was employed by Australian Locum Medical Service (‘ALMS’).[2]
[2] In the period of his employment by MMLS and early on in his employment by AMLS he was also employed at Melton Health. His work ethic could hardly be doubted.
It was part of the respondent’s responsibility to lodge electronic bulk bill claims for the services which he had provided. Initially he did so through his employer’s electronic claiming facilities. But from early 2007 he made the claims using software which he had legitimately installed on his own laptop computer. His claims made reference to his Medicare provider number.
Having been employed by MMLS for some 18 months, on 29 December 2006 the respondent began to lodge false claims using his employer-specific Medicare provider number. The claims asserted that he had provided in-home urgent after hours attendances and nursing home urgent after hours attendances which he had not in fact provided.
After 28 November 2007, when employed by ALMS, the respondent continued to lodge false claims. He now used his ALMS specific provider number.
The respondent’s method was simple. When he attended a patient, he would for legitimate reasons take an imprint of the patient’s Medicare card. He would upload the card details onto his computer in order to make a claim. The cards set out not only the name of the patient but also the names of other family members. Those names would also find their way onto his computer records. To make a claim for services not rendered, the respondent simply selected a name at random from the details uploaded—it might be a patient whom he had attended, or a family member whom he had never attended; and he would then claim a fee for a service not rendered in respect of that person.
I have referred to false claims made by the respondent in the period up to May 2012. No allegation was made that he submitted false claims between 17 May and 10 October 2012. But on 11 October 2012 he resumed lodging false claims. He used his ALMS provider number although he was no longer in that employment.
The respondent lodged 11 208 false claims over the next 11 months, by way of 99 ‘batch’ lodgements. The intensity with which he made false claims was much greater than it had hitherto been. His methodology was unchanged.
On 10 September 2013, Medicare investigators executed a search warrant at the respondent’s home. The respondent was cooperative. Investigators seized the laptop computer through which most of the false claims had been lodged.
The respondent made full admissions in the course of a taped record of interview on 21 November 2013.
The benefit obtained by the respondent as a result of the entirety of the offending conduct was $854 188.20, a very large part of it being referable to the last 11 months of offending.
The prosecution relied upon certain of the respondent’s bank statements to suggest that his offending had been motivated by greed. The statements recorded that significant disbursements had been made to, inter alia, credit card providers, motor vehicle finance providers and personal finance providers. They also evidenced cash withdrawals[3] and transfers to other identified and unidentified bank accounts.
[3]Including withdrawals at a casino.
During the period of offending encompassed by charge 1, the respondent also lodged legitimate claims. Payments amounting to $2 961 441 were made to him by Medicare in that connection.
During the period encompassed by charge 2, the respondent made no legitimate claims upon Medicare. In that period, he was not engaged in medical practice. Indeed, as I understand it, he was not then in any employment. For some part of the period, perhaps, he was still attempting to keep afloat an import business which he had established. But it went into receivership, and he appears to have suffered considerable financial problems as a result.
After the investigation commenced, the respondent was unemployed for a time. Then he worked as a locum general practitioner in Victoria, Tasmania and South Australia. There was no suggestion that he lodged any false claims on Medicare in that period.
Committal and sentence
The respondent was charged on 17 October 2014. He pleaded guilty at a committal hearing on 19 November that year. The plea hearing ultimately took place on 9 October 2015, a little more than two years after the search warrant had been executed. The respondent was sentenced, as I have earlier noted, on 13 November 2015.
Sentencing remarks
The judge described the circumstances of the offending. She took note of the fact that that a good number of the claims in the first period were made whilst the respondent was not in fact in Australia. Indeed, it appears that, of 3357 claims for services not provided in that period, 2940 of them related to services allegedly provided whilst the respondent was overseas on five occasions between August 2008 and July 2010.
The judge described the offending as ‘extremely serious’. She stated that he had betrayed the trust reposed in medical practitioners. He had breached trust with his employers, with members of the community and, indeed, with Medicare. As to the last mentioned, her Honour observed that the ‘operation of the Medicare system is dependent entirely on trust in the practitioners who are permitted to bill Medicare with little supervision or restriction’.
The judge next dealt with matters personal to the respondent. She noted that he had been born in Vietnam on 3 April 1974 and that in 1978 his family had fled to Singapore, remaining there for a year in a refugee camp before resettlement in Australia.
The judge recorded the facts that the respondent had excelled academically, and had gone on to study medicine, graduating in 1998.
The judge next noted that the respondent had been twice married. Two children had been born of his first marriage. But he and his wife had separated, and there had been a divorce in 2007. Most of his assets had gone to his wife when the marriage ended. The judge accepted, it seems, that the respondent had been under financial pressure in the aftermath of his divorce.
Thereafter, the respondent married for the second time. There were two children of that marriage, the second of whom had a congenital physical abnormality. The judge concluded that the existing financial pressure had increased beyond the respondent’s anticipation, and had mounted over the ensuing years. In that connection, her Honour referred to the respondent’s unsuccessful attempt to establish an importing business, which had collapsed leaving him with debts in excess of $200 000. This failed enterprise had been productive of ‘a further period of intense stress’.
In summary, with respect to stress, the judge said this:
As I understand it, this entire period was one of intense financial pressure and marital upheaval for you.
There, the judge was referring to the entire period of the respondent’s offending.
The judge considered a psychologist’s report. She noted the psychologist’s opinion that the respondent had developed symptoms of depression and anxiety, that the respondent felt intense shame for his offending, and that his self-esteem had been severely affected. The psychologists had also opined that the chances of the respondent reoffending were very limited because he had found the whole process of the prosecution extremely distressing.
The judge summarised the respondent’s current circumstances this way:
You have a home to go to. You are clearly a person of high intelligence and good insight, and you have, up to this offending, been a person of very good character. You have always been hard working, and you of course are experiencing a sense of shame and regret as a result of your conduct, and you believe that you have most likely lost your career. I do not know whether that is final or not, but that is what you expect.
The judge noted that there was some evidence that the respondent suffered a cardiac problem. But she did not conclude that his being in custody would have a negative effect on the outcome of any procedure he might have to undergo.
The respondent’s brother both provided a reference and gave viva voce evidence on the plea, revealing that the respondent had sold his home since his offending was discovered, and had taken his family to live with his parents so as to be able to pay off debts and commence to make repayments of moneys fraudulently obtained. Further according to his brother, the respondent had recognised that he had a problem with managing money, and that he had some gambling problems.
Other written references were also tendered on the plea. The judge said this:
Each of the personal letters written on your behalf, from friends, your accountant, and other medical practitioners, express astonishment, shock and surprise at the revelation of your offending, as such behaviour would appear to be completely out of character with the person they have known and worked with.
The judge concluded that the respondent had been ‘a contributing member of the community’. She concluded also that ‘it would be most unlikely that you would offend again.’ The judge referred to the respondent’s cooperation with the authorities, and his early plea of guilty.
Directing herself to matters made relevant by s 16A(2) of the Crimes Act 1914 (Cth), the judge reiterated that the circumstances of the offending were objectively serious, and in that connection that his offending involved a course of conduct. She then said this:
I also take into account the fact that this offending has resulted in the extraction of a large amount of money from the funding available to the Medicare system in this country. However, clearly, there is no individual victim who has suffered injury or loss as a result of your behaviour.
With respect to deterrence, the judge concluded that ‘specific deterrence does not play a large part in the sentence that I intend to impose’.
The judge also dealt with the issue of general deterrence. This is what she said:
General deterrence must be a predominate consideration in sentencing you in relation to fraud on the Commonwealth.
The judge rejected a submission by the prosecutor that there should be cumulation of sentences imposed on the two charges. She said this:
I see no requirement for there to be cumulation given it is a similar conduct always against Medicare, and the reason for dividing seems to be mainly that there was a five month break in your offending.
With respect to a submission for the respondent which adverted to the delay in bringing the matter to conclusion, the judge stated that from time of charge until sentence there had been a delay in excess of 12 months. This had compounded a delay of nearly a year between interview and charges being laid. She said:
These are matters which have been hanging over your head now for some two years, and I take that into account.
Apropos delay, I add, the judge noted that the prosecutor had conceded there should be some reduction in sentence given the period of delay; and her Honour noted that in the period of delay rehabilitation had commenced.
In a passage in her sentencing remarks which attracted criticism in this Court, the judge said:
I found that your offending, despite the relatively large amount of money obtained, remains at the lower end of such offending, given that there are no serious aggravating factors. In particular, you have no prior convictions; you were completely cooperative; your offending did not involve the forging of signatures or taking other identities, and I just repeat that you pleaded guilty at the earliest opportunity …
The judge finally concluded that although it was ‘difficult to send somebody who is clearly somebody who is otherwise of very good character to prison’, it was nonetheless necessary in all the circumstances.
Crown submissions
In written submissions, the Crown submitted that—
(1)on an appeal alleging inadequacy of sentence, intervention is only justified if it is demonstrated that the sentence imposed fell clearly outside the sentencing range reasonably available to the sentencing judge. Such inadequacy was said to be demonstrated in the present case;
(2)although the judge had described the offending as ‘extremely serious’ and ‘objectively serious’, and although her Honour had recognised that it had occurred in the context of the respondent occupying a position of trust, nonetheless the sentence failed to reflect that fact. In particular, the sentence failed to adequately reflect the total amount which had been fraudulently obtained, the fact that there had been 244 separate and discrete electronic batch claims, the fact that the offending was not sporadic nor isolated, the fact that the offending was sustained, premeditated, sophisticated and planned, the fact that the respondent continued to make claims after he had ceased employment with ALMS, the circumstance that he had infringed the privacy both of persons who were his patients and persons who had never been his patients, and the fact that he had made claims, in the first period, when he was overseas;
(3)it was wrong to describe the offending as victimless, or to characterise it as being at the lower end of the scale. The judge’s statement that there was no individual victim missed the point. Offending such as that committed by the respondent affected the Australian public who pay taxes;
(4)the judge had given only cursory attention to general deterrence in her sentencing remarks. That was in contrast to her Honour’s more frequent references to the respondent not having prior convictions, to his prior good character, to his good rehabilitation prospects, to his having made an early guilty plea, to having cooperated with the authorities, and to delay. In all, the judge had allowed the mitigating circumstances to swamp the important considerations of general deterrence, denunciation and punishment;
(5)the respondent’s conduct, in part, had been motivated by greed—there being evidence of substantial discretionary spending during the period of the offending. But the judge had not given this circumstance any—or at least sufficient—weight;
(6)the judge had erred in failing to order cumulation between the charges. Charge 2 represented a significant increase or acceleration in the respondent’s offending;
(7)the scale of the offending—it being partly hidden, as it were, by each of the charges being a rolled-up charge—had not been reflected in the sentence;
(8)there must be an objective of national consistency in the decisions of intermediate appellate courts. The head sentence and the period of imprisonment ordered to be served appeared to be out of touch with national sentencing standards;
(9)there was no reason why the residual discretion of the court not to interfere ought be exercised.
In oral submissions, counsel for the Crown accepted that what might be regarded as complaints of specific error in the particulars subjoined to the ground of appeal were simply to be regarded as signposts explaining what was said to be the manifestly inadequate sentence.
Counsel emphasised the scale and repetition of the offending conduct, and the fact that the large majority of the fraudulent claims that were made in the first period were made at times when the respondent was overseas.
Counsel also emphasised the great increase in the scale of offending in the second period.
Counsel characterised repayment by the respondent of $20 000 by way of reduction in the moneys fraudulently obtained as ‘a drop in the ocean’.
There was some debate between counsel and the Bench as to the utility of the schedule of allegedly comparable cases that had been provided to the sentencing judge. When a number of inaccuracies in the schedule were pointed out, counsel accepted that it was difficult to rely upon a table with the demonstrated inaccuracies. On the other hand, he informed the Court that the sentencing judge had been provided with copies of the cases, and he seemed to imply that it was for either defence counsel to illustrate that the cases were not comparable, or else for the judge to discern the inaccuracies for herself. But in the end, counsel said that he understood why the Court would be reticent to rely upon the schedule.
Respondent’s submissions
In written submissions, it was contended for the respondent that—
(1)the judge had properly considered all relevant circumstances and, having ‘given the matter a lot of thought’ arrived at a sentence about which there could be no legitimate complaint of manifest inadequacy. The acknowledged seriousness of the offending had been balanced against matters going in mitigation;
(2)the Crown was wrong in its contention that the judge had erred when saying that the offending was at the ‘lower end of the scale given there are no serious aggravating factors’. The statement had been taken out of context. The phrase ‘no serious aggravating factors’ referred to matters personal to the respondent, and did not qualify the judge’s conclusion that the offending was objectively serious;
(3)there was no basis for the contention that the judge had not given proper weight to general deterrence;
(4)the Crown’s submission that the judge had not sufficiently recognised greed as a motivating factor in the respondent’s offending was misplaced. Although her Honour had not used the word ‘greed’ in her sentencing remarks, she had identified the fact that the respondent had spent moneys to support his lifestyle, and had referred to there having been discretionary spending on motor vehicles, and cash withdrawals at a casino;
(5)the judge had explained why, in her opinion, there was no requirement for cumulation;
(6)the six allegedly comparable cases provided to the judge for ‘national consistency in sentencing’ purposes embraced a 19-year period. Although there were instances where head sentences of up to eight years had been imposed, there were vast differences in the individual circumstances of the particular cases;
(7)in all, whilst the sentence might be considered merciful, or even lenient, it was appropriate. The sentence was not so outside the range as to bespeak error.
Orally, respondent’s counsel submitted that there had been no error in the judge deciding to impose an aggregate sentence. The offending had essentially been of the same character throughout, although there had been a change in the volume of offending in the second period.
Counsel next submitted that in the second period of offending, his client had not been working, but still had financial commitments. It was a situation in which the respondent had been overwhelmed, broken down, and it all became too easy.
With respect to the judge’s observation that there had been no individual victim of this offending, it was put to counsel by the Bench that this took no account of the effect upon the individual patients, to the violation of their integrity. Counsel’s response was that her Honour had been speaking about the monetary consequences of the respondent’s offending for Medicare.
With respect to delay, counsel submitted that it was mainly attributable to the conduct of the prosecution.
Finally, in response to a question from the Bench, counsel stated that his client was still registered with the Medical Board. But he could say no more as to whether his client might be able to return to medical practice after completion of his sentence.
Analysis
It is difficult to make out a contention that a sentence was manifestly inadequate. As in the case of a complaint that a sentence was manifestly excessive, the sentence must be wholly outside the range of the exercise of a sound sentencing discretion.
In this instance, several particulars subjoined to the complaint of manifest inadequacy of sentence implied specific error. I refer particularly to particulars (b) and (d).[4] But applicant’s counsel expressly conceded that those particulars were not to be treated as complaints of specific error. Rather, they were to be treated as signposts, or perhaps explanations, for what was asserted to be an impermissibly low sentence. So the entire focus of this Court must be upon the assertion of manifest inadequacy.
[4]See [4] above.
It is plain indeed that the sentencing judge gave anxious consideration to the sentence which should be imposed in this case. Nonetheless, in my respectful opinion, the sentence was so low as to be outside the range reasonably available.
Her Honour accepted that the respondent’s offending was ‘extremely serious’. It is necessary to say something in explanation why that was so.
First, the overall amount of money wrongfully obtained was very substantial.
Second, the amount ultimately obtained was the consequence of repeated misconduct over a lengthy period of time.
Third, emphasising the extent of the offending conduct, despite it being comprehended by only two charges there were no less than 244 batched claims alleging the provision of services which had not been provided. Those batched claims encompassed 14 565 instances of services allegedly rendered, but not rendered in fact.[5]
[5]It is permissible to consider the entirety of the circumstances comprehended by a rolled-up count. Compare the situation in the case of a representative count. See, for instance, R v Jones [2004] VSCA 68 [13] (Charles JA); R v Hunter [2006] VSCA 9 [2] (Charles and Vincent JJA).
Fourth, by far the larger number of claims in the first period were made whilst the respondent was overseas—and so not engaging in medical practice. As to the second period, all of the claims were made at a time when, it appears, the respondent had no other source of income. It is difficult to avoid a conclusion that the claims made in respect of both periods constituted a kind of income replacement.
Fifth, the intensity of the respondent’s offending increased over time.
Sixth, the false claims in substance defrauded the revenue. As Gallop J said when sentencing in Kibukamusoke v The Queen,[6] ‘[d]efrauding Medicare is really robbing other taxpayers.’
[6](Unreported, ACTSC, Gallop J, 17 December 1997).
Seventh, the integrity of individual patients whose names were attached to claims was violated by the claims which were made. The claims implied a use of medical services by the particular persons. Moreover, the record of interview in which the respondent participated shows that a number of claims, randomly made, used the name of a patient who had by that time died.
Eighth, there was an element of greed in the applicant’s offending. It was not the whole story, because there was evidence that the applicant had been under personal and financial stress for most, if not all, of the period of offending. Nonetheless, the fact that moneys wrongfully obtained were used in part to facilitate a lifestyle involving expensive cars and activities at a casino did bear upon the seriousness of the offending.
There were, clearly, significant matters running in mitigation.
First, the respondent was cooperative once the investigation into his misconduct commenced. He made full admissions in a record of interview.
Second, the respondent pleaded guilty at the earliest opportunity.
Third, the respondent was considered to have good prospects for rehabilitation. Indeed, the judge was satisfied that he had commenced to turn his life around in the period of delay between being first interviewed and coming to sentence.
Fourth, the respondent had led a previously blameless life.
Fifth, the judge accepted that the offending had taken place during a period when the respondent was under both financial and family stress.
Sixth, a ‘drop in the ocean’ it might be, but the respondent had begun to make reparation.
Seventh, there had been delay, for the most part attributable to the prosecution. It was conceded before the sentencing judge that this was a factor going in mitigation of sentence.
I pause to note that some of the matters going in mitigation appear to be characteristic of offenders such as the respondent. For that reason, they have often been accorded lesser weight than might otherwise have been expected.
I turn to other considerations bearing, or said to bear, upon the sentencing synthesis.
First, there is no doubt that general deterrence is a predominant sentencing consideration in a case of this kind. Authorities say so, and the sentencing judge accepted that this was so.
Second, respondent’s counsel submitted in this Court, as he did below, that his client had been in a state of psychological collapse during the second period of offending. He pointed to several of his client’s answers in the record of interview in an attempt to make the point good.
I do not accept that characterisation. Having read the entirety of the record of interview, it appears to me to suggest that, in the second period of offending the respondent was under severe stress. But it goes no further than that. The respondent may not have had a clear sense of the potential consequences of his wrongdoing, and it may be accepted that, having commenced to offend, it became easier to do so, and that he just kept doing it; but that does not bespeak psychological collapse.
Third, the comparable cases schedule which was placed before the judge was an unsatisfactory document. It identified six cases decided over a 20-year period.[7] Two of them were decisions of lower courts, and it was said in R v Pham[8] that for consistency of sentencing purposes an intermediate appellate court should give consideration to the decisions of other intermediate appellate courts.
[7]Between 1991 and 2011.
[8](2015) 325 ALR 400.
Further, the schedule which was provided was in significant respects inaccurate, or else otherwise apt to mislead. So—(1) in one case, it was noted that the offender had pleaded guilty when he had not done so; (2) another offender had been charged with a different offence; (3) not all of the so-called comparable cases concerned medical practitioners; (4) some of the offenders had prior convictions; (5) one offender had forged the signatures of patients in order to facilitate his fraud.
In all, the schedule, and the decisions to which it referred, were not of much use to the sentencing judge, or for that matter, to this Court. What was, in substance, a concession ultimately made by applicant’s counsel about the schedule’s lack of utility was rightly made.
One of the cases to which the schedule referred was El Rakhawy v The Queen.[9] Hall J, who gave the leading judgment in that case, referred to an expanded list of allegedly comparable cases which had there been provided to the sentencing judge.[10] What had been provided was a list of sentences involving widely differing circumstances. Hall J, after careful examination, concluded that the list was of little help. Some of the sentences were sentences to which reference was made in the schedule in the present case.
[9](2011) 214 A Crim R 124.
[10]Ibid 133–137 [50]–[65].
As I earlier observed, counsel for the Crown initially seemed to suggest that it was for defence counsel or the judge to work out what criticism could be made of the schedule; something which could be done by reading the decisions. But I do not accept that this is so. The Commonwealth Crown ought be a model litigant. It is not satisfactory that a busy sentencing judge should be provided with a schedule which is inaccurate in part and unhelpful in part.
That said, to the extent that any assistance can be gleaned from any of the decisions referred to in the schedule, I think there is some support for a conclusion that the sentence imposed in the present case was impermissibly low. Thus, in El Rakhawy v The Queen, the defendant was sentenced on appeal to a total effective sentence of three years’ imprisonment on a recognizance release order in the sum of $5000 to be of good behaviour for 16 months. There the charges were laid under a different provision with a lesser penalty. For all that, in concluding that the appeal should succeed, and that a different sentence should be imposed, I have focussed upon first principles.
Looking at the entirety of the circumstances as I have described them, as I have earlier said it does appear to me that the sentence was impermissibly low. On the other hand, I see no error in the judge having imposed an aggregate sentence. It was not suggested that imposition of an aggregate sentence was legally
impermissible. So long as such a sentence reflected the totality consideration, I do not think it was objectionable, and I consider that a sentence of that kind ought be imposed in the event that my opinion becomes the opinion of the Court.
There not being, in my view, any reason why the residual discretion ought be exercised,[11] I would allow the appeal, and in lieu of the sentence imposed below, I would impose a sentence of four years’ imprisonment with a two-year non-parole period, the sentence being taken to have commenced on 13 November 2015. I would confirm the ancillary orders made below. I would make a declaration under s 6AAA of the Sentencing Act 1991 that, had the respondent not pleaded guilty, I would have imposed a sentence of six years’ imprisonment with a three years and nine months non-parole period.
[11]Despite the unsatisfactory nature of the ‘comparable cases’ schedule.
TATE JA:
I have had the advantage of reading, in draft form, the judgment of Ashley JA. I agree, for the reasons his Honour gives, that the appeal should be allowed. I agree also that the sentence imposed below should be set aside and that the respondent should be sentenced in the manner indicated by his Honour.
SANTAMARIA JA:
I have had the benefit of reading, in draft, the reasons of Ashley JA, and I agree that the appeal should be allowed. I also agree that the respondent’s sentence below should be set aside and that the respondent be resentenced in the manner indicated by Ashley JA.
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