DPP v Munn
[2019] VSCA 267
•21 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0147
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BRIAN MUNN | Respondent |
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| JUDGES: | BEACH, KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 267 |
| JUDGMENT APPEALED FROM: | [2019] VCC 993 (Judge Hogan) |
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CRIMINAL LAW – Sentence – Crown appeal – Three rolled-up charges of obtaining financial advantage by deception – Labour hire company’s services to value of $1,959,744.20 obtained by false representations that payment would be made and false timesheets – Total effective sentence of 3 years’ imprisonment with non-parole period of 1 year and 6 months – Whether sentence manifestly inadequate – Sentence very lenient but not manifestly inadequate due to unique circumstances of case – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Ms J Warren | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D D Gurvich QC | James Dowsely & Associates |
BEACH JA
KYROU JA
T FORREST JA:
Introduction and summary
On 23 July 2018, the respondent pleaded guilty to the charges set out in the below table and on 25 June 2019 he was sentenced in accordance with that table.[1]
[1]DPP v Munn [2019] VCC 933 (‘Sentencing remarks’).
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Obtaining financial advantage by deception [s 82(1) Crimes Act 1958] | 10 years | 1 year, 2 months | 10 months |
| 2 | Obtaining financial advantage by deception | 10 years | 2 years | Base |
| 3 | Obtaining financial advantage by deception | 10 years | 5 months | 2 months |
| Total effective sentence: 3 years’ imprisonment | ||||
| Non parole period: 1 year and 6 months | ||||
| Pre-Sentence detention declaration: 74 days | ||||
| 6AAA Statement: 4 years and 6 months’ imprisonment with non-parole period of 3 years | ||||
The respondent carried on a business through corporate entities whereby he supplied traffic control services to clients. Between 14 February 2013 and 14 October 2014, he dishonestly obtained from a labour hire company, AB Contract Packing Pty Ltd (‘AB’), staff to perform the traffic control services by making false representations that it would be paid for the hiring of the staff. He also submitted false time sheets to AB.
Each of the charges is a rolled-up charge involving multiple dishonest transactions during the offending period. The total value of the labour hire services that the respondent obtained from AB in respect of the charged conduct was $1,959,744.20, only approximately $404,000 of which was paid by him.
The Director has appealed against the sentence on the sole ground of manifest inadequacy. The ground is expressed in these terms:
The sentences imposed on each charge, the orders for cumulation on charges 1 and 3, the total effective sentence and the non-parole period are manifestly inadequate.
Particulars
The sentences imposed indicate that the learned sentencing judge
(a)Failed to have sufficient regard to the objective gravity of the offending;
(b)Failed to have sufficient regard to the principles of just punishment, general deterrence and denunciation;
(c)Failed to have sufficient regard to the maximum penalties for the offences;
(d) Failed to have sufficient regard to the effect upon the victims;
(e) Gave excessive weight to factors in mitigation.
For the reasons that follow, the appeal will be dismissed.
Circumstances of the offending
Between 2007 and 2015, the companies through which the respondent operated his business of providing traffic control services included Metropolitan Traffic Managers Pty Ltd, which went into liquidation in 2009, 24/7 Traffic (Geelong) Pty Ltd, which went into liquidation in 2011, and 24/7 Traffic Pty Ltd, which went into liquidation on 16 April 2014. Between February 2013 and 25 February 2015, he conducted the business through NMK Road Safety Designs and Audits Pty Ltd or NMK Rail Services Pty Ltd (collectively ‘NMK’).
The respondent’s business accrued significant debts, including:
(a)$1,207,870 to the Australian Taxation Office for company tax and PAYE tax;[2] and
(b)$474,000 to a debt factoring company called Benchmark Debtors Finance Pty Ltd (‘Benchmark’).[3] Benchmark provided finance to the respondent’s business for up to 80 per cent of the value of its outstanding approved debtor invoices to a maximum period of 90 days. In late 2013, the respondent made arrangements for money owed by his clients to be paid direct to Benchmark.
[2]It appears that this debt was ultimately paid in full.
[3]Over time, the debt to Benchmark was reduced to $224,288.08.
Between 16 March 2010 and 17 March 2013, the respondent was an undischarged bankrupt and, as such, was not permitted to be a director of any company. Although his former wife, Marcia Munn, was the director of 24/7 Traffic Pty Ltd during that period, the respondent continued to conduct the business, acting as a de facto director.
During the period that the respondent was an undischarged bankrupt, his business accrued debts owing to several other labour hire companies, before engaging the services of AB. The debts owed to those other labour hire companies included:
(a)$62,740.27 owed to Inter Industrial Services, which ceased dealing with the respondent’s business in 2011 due to its unpaid accounts;
(b)$33,326.82 owed to Staff Australia, which ceased dealing with the respondent’s business in 2012 due to its unpaid accounts; and
(c)$257,836 owed to Raven Personal Pty Ltd, which also ceased dealing with the respondent’s business in approximately 2012 due to its unpaid accounts.
It was against this background that the respondent engaged AB in February 2013 (while he was still a bankrupt) to provide labour hire services to his business, and commenced committing the offences the subject of the three charges. The business arrangement was as follows. Clients requested the respondent to provide traffic control services. The respondent requested AB to supply staff — who were nominated by him — to provide the services under his direction. AB paid the salaries and on-costs of the staff based on timesheets submitted by the respondent, and then invoiced the respondent’s business for these expenses plus AB’s profit margin.
Charge 1 is based on 65 invoices issued between 14 February 2013 and 27 June 2014 in respect of work that was actually performed. The total value of these invoices was $576,903.94. The financial advantage in charge 1 was effectively the dishonest transfer to AB of a significant part of the payroll liabilities of the respondent’s business which were accrued over the relevant period.
This conduct was criminal because the respondent obtained this financial advantage as a result of a series of false statements about his intention to pay AB’s invoices and his financial capacity to do so. The false statements enabled him to defer and evade payment to AB and to obtain further credit from it. The respondent’s false statements included the following:
(a)he repeatedly told AB that it would be paid for the services that it provided to the respondent’s business in circumstances where he did not have the financial capacity to make the payments;
(b)he falsely told AB that he was in the process of selling his business to a Chinese company for $1,600,000, that he was entitled to a payout of approximately $700,000 from Benchmark, and that he had access to a $350,000 loan from Westpac;
(c)he told AB that he owned his residence and was in the process of selling it, when he in fact rented the property and had no financial interest in it; and
(d)he told AB that his main clients were withholding payments they owed to his business, in circumstances where the clients had paid the amounts due and those payments had been applied by the respondent to reduce debts to other creditors.
Charge 2 is based on 52 invoices issued between 15 February 2013 and 27 June 2014, with a total value of $1,332,407.48. The distinction from charge 1 is that these invoices included payments based on both genuine and false timesheets. The respondent used 13 specified identities to induce payments for work not performed. They included 24/7 Traffic Pty Ltd (sheltering behind four third-party names), his current and former wives, his former girlfriend, family members, his lawyer and his landlord. The financial advantage the subject of charge 2 was effectively the dishonest transfer of a significant proportion of the remainder of the payroll liabilities of the respondent’s business for the relevant period, with the additional advantage of payments for work that was not actually performed.
The respondent’s contact at AB was its executive director, Gordon Murdoch. AB’s other director was James Mann. They and Joseph Scuderi were AB’s shareholders. Mr Murdoch managed all of AB’s dealings with the respondent. The judge accepted that Mr Murdoch had been deceived by the respondent and had persisted with the arrangements despite the mounting debt because he believed that if he could assist the respondent to keep trading, he would be able to repay AB.
The impact of the respondent’s offending was such that by June 2014 Mr Mann injected $500,000 of his own capital into AB. In June 2014 Mr Murdoch’s business partners, cognisant of the debt, instructed him to cease dealing with the respondent. However, in order to preserve the prospect of recovery from the respondent, Mr Murdoch established a new company, Lagoon Company Pty Ltd trading as ‘Melbourne Spotters R Us’, to replace NMK as a client of AB. The NMK employees and timesheets were switched from NMK to Melbourne Spotters R Us, and unknown to his business partners, Mr Murdoch continued dealing with the respondent.
On 14 October 2014, Mr Scuderi discovered that AB was exposed to $497,070.84 worth of invoices unpaid by Melbourne Spotters R Us. He also became aware that Melbourne Spotters R Us was associated with the respondent, and that Mr Murdoch had deceived his business partners. Mr Murdoch then abandoned his employment with AB and this marked the end of the respondent’s offending.
Mr Murdoch’s knowing participation in the deceptions that supported the Melbourne Spotters R Us transactions undermined the case against the respondent insofar as it was based on his general false representations, and so most of these transactions are uncharged.
Charge 3 relates to 15 invoices issued in the period from 4 July 2014 until 10 October 2014 that were based on false timesheets submitted by the respondent. Their value was $50,432.98.
Respondent’s personal circumstances
The respondent is 55 years old and was aged between 48 and 50 during the offending period.
The respondent left school at the age of 15 after completing Year 10 and became a professional golfer for two years. He then worked in sales for five years, landscaping for five years and recruitment for 10 years. He then established his traffic management business.
The respondent is married to Tenille Craig. They live at Safety Beach on the Mornington Peninsula and have a son, Hunter, and a daughter, Andie. At the time of sentencing, they were aged four years and 18 months, respectively. Andie was born with Down syndrome and requires close monitoring, care and support due to her developmental delay.
The respondent has not worked full time since he was arrested and released on bail. He became the primary carer for Andie and received a carer’s pension to look after her while Ms Craig worked full time. The respondent performed some part time maintenance work at a caravan park and other accommodation in Dromana and Rye.
The respondent does not have a relevant criminal history.
Procedural history and plea hearing
Mr Murdoch was interviewed by police on 9 May 2016. He said that he believed the respondent’s statements that AB’s invoices would be paid. He stated that he continued dealing with the respondent through Melbourne Spotters R Us because he believed that if he stopped doing so, AB would not receive any of the moneys owed by the respondent’s business. He denied receiving any personal financial benefit from the respondent’s dealings with AB.
Mr Murdoch was charged with several offences. After he agreed to give evidence against the respondent, the Director gave an undertaking not to use any evidence he gave against the respondent in any proceedings against Mr Murdoch. The charges against Mr Murdoch were subsequently withdrawn. Mr Murdoch was involved in civil litigation that was instigated against him by his business partners.
The respondent was interviewed on 23 May 2016 and made a ‘no comment’ record of interview. He was charged the next day. The first filing hearing was held in the Magistrates’ Court on 27 May 2016. This was followed by committal mentions on 19 September 2016, 20 October 2016 and 11 November 2016. The committal took place on 12 July 2017 and proceeded by way of hand-up brief with pleas of not guilty by the respondent being noted. Once the matter came before the County Court there were 12 directions hearings or mentions between 13 July 2017 and 23 July 2018, when the respondent pleaded guilty. The trial had been fixed for 29 July 2018. The scheduled plea hearing for 22 November 2018 was adjourned to 11 April 2019 and was completed on 12 April 2019.
At the plea hearing, the respondent’s counsel submitted that his offending behaviour was the result of poor business decision-making and attempts to trade out of the resulting difficulties. Counsel also submitted that, in effect, Mr Murdoch had facilitated the respondent’s offending by not conducting due diligence or a credit check and by deceiving his own business partners.
The respondent tendered reports from Andie’s paediatrician and physiotherapist dated 21 October 2018 and 14 November 2018, respectively. The paediatrician stated that Andie required a lot of interaction, stimulation and exercises, as well as help with the activities of daily living. The physiotherapist stated that Andie had extremely low muscle tone and would require ongoing physiotherapy until her early primary school years and support to achieve all her physical milestones such as walking, climbing stairs, running, jumping and riding a tricycle. The respondent submitted that a sentence of imprisonment would cause exceptional hardship for Andie, his wife — who would have to give up her full time job to be the main carer — and Hunter.
The respondent also tendered a report from a clinical psychologist, Carla Lechner, dated 3 March 2019. She diagnosed the respondent with a major depressive disorder. She stated that ‘[w]hilst [the respondent’s] low mood is partly reactive to his pending Court hearing, his history suggests that he has been depressed for many years but has been reluctant to seek professional help’. She expressed the opinion that a period of immediate incarceration was likely to be detrimental to the respondent’s mental health.
The prosecution tendered a victim impact statement by Mr Murdoch. He said that, as a result of the respondent’s offending, he lost his position with AB and was involved in years of civil litigation with his former business partners as well as the subject of a criminal investigation. He also lost the financial security which he had worked hard over many years to achieve. At 61 years of age, he now runs a small business from which he earns an income which is less than a quarter of what he had earnt at AB. He has required counselling.
Sentencing remarks
The judge described the gravity of the respondent’s offending in strong terms. Those descriptions included the following:
·‘blatantly dishonest’[4]
·‘premeditated and repeated many times’[5]
·‘repeatedly dishonest conduct’[6]
·‘protracted and persistent premeditated dishonest behaviour’[7]
·‘deeply dishonest behaviour’[8]
·‘egregious dishonesty for a protracted period’[9]
·‘very serious offending on a grand scale which was planned and sophisticated and involved false representations and documents over a lengthy period of time for the purpose of obtaining a financial advantage by deception’[10]
[4]Sentencing remarks [21].
[5]Sentencing remarks [21].
[6]Sentencing remarks [31].
[7]Sentencing remarks [44].
[8]Sentencing remarks [45].
[9]Sentencing remarks [45].
[10]Sentencing remarks [46].
The judge described the respondent as ‘a successful “con man”’ who had shown ‘scant regard for those to whom [he had] caused significant financial disadvantage in the past’.[11] She said that the respondent’s behaviour resulted in the impoverishment of others.
[11]Sentencing remarks [23], [45].
The judge accepted a concession made by the prosecutor that it could not be proved that the respondent had enriched himself as a result of his offending.[12] However, the judge said that this was not a mitigating factor but simply constituted the absence of an aggravating factor.[13]
[12]Sentencing remarks [21], [46].
[13]Sentencing remarks [46].
The judge rejected the submission made by the respondent’s counsel on the plea that the respondent’s offending behaviour was the result of poor business decision-making. She stated that, ‘whilst [the respondent was] obviously trying to trade [his] way out of difficulties, [he was] doing so unscrupulously with scant regard for the financial detriment that [he] would cause to AB’.[14] She did not accept that the respondent genuinely believed that he would repay AB the amounts owed to it. She said:
To describe such deliberate, premeditated misrepresentations designed to have AB pay money for workers either never engaged by [the respondent], or for hours well in excess of what they actually performed as ‘poor business decision-making’ is a serious mischaracterisation of repeated and blatant dishonesty calculated to extract further services from AB to whom [the respondent was] already seriously indebted.[15]
[14]Sentencing remarks [21].
[15]Sentencing remarks [24].
The judge found that there was no evidence that Mr Murdoch was aware of the respondent’s deception.
In relation to charge 3, the judge said that, although the amount involved was considerably less than the amounts the subject of charges 1 and 2, ‘the blatant nature of the conduct underpinning it makes it serious’.[16]
[16]Sentencing remarks [24].
The judge stated that even though the respondent’s guilty plea was ‘relatively late’, it entitled him to a ‘significant discount’.[17] She described the utilitarian value of the plea as ‘high’ because it avoided a trial involving evidence extending over 15 volumes of material.[18]
[17]Sentencing remarks [43]–[44].
[18]Sentencing remarks [44].
The judge noted that the applicant had not reoffended since the current offending ceased in June 2014 and that, since he had settled in Safety Beach, he was well regarded and was considered to be a community-spirited person who assisted others generously. She acknowledged that, in these circumstances, specific deterrence required less emphasis than it would have required ‘some years ago’.[19]
[19]Sentencing remarks [47].
The judge considered that, provided the respondent steered clear of attempting to run any business, his prospects of rehabilitation were ‘probably reasonable’.[20] She also considered that he appeared to have changed his ways since he was charged.
[20]Sentencing remarks [45].
The judge stated that she held serious reservations about whether the respondent was remorseful for his conduct.
The judge described Ms Lechner’s report as ‘unimpressive’.[21] She stated that, in the light of the respondent’s stable home life, sporting achievements and community engagement, she could not understand the basis on which Ms Lechner had concluded that the respondent had been depressed for many years. The judge also noted that the respondent’s counsel said on the plea that he had not been taking any anti-depressants for the last couple of months. For these reasons, the judge was not satisfied that there was cogent evidence of any psychological or psychiatric condition over the offending period such as to enliven the principles in R v Verdins.[22]
[21]Sentencing remarks [42].
[22](2007) 16 VR 269 (‘Verdins’).
The judge accepted that it is likely that the respondent would find imprisonment more burdensome than someone that did not have his concerns about his family. She also stated that it is possible that imprisonment may worsen the respondent’s low mood and that, as a 55 year old man without a relevant criminal history, it will not be easy for him to undergo a sentence of imprisonment for the first time.
The judge said that most of the delay prior to the respondent being sentenced was attributable to him. Nevertheless, she took into account in his favour that some of the delay was not caused by him and the fact that the charges were hanging over his head likely caused anxiety.
In relation to the respondent’s submission that a custodial sentence would cause family hardship, the judge said that ‘it is only in exceptional cases that a plea for mercy by way of family hardship should be taken into account, as it is almost inevitable that imprisoning a person will have an adverse effect on that person’s family’.[23] The judge noted that Ms Craig would be able to look after their children if the respondent was incarcerated and that Ms Craig’s parents lived nearby. The judge also noted that the reports from Andie’s paediatrician and physiotherapist were not up to date, as they were prepared eight months and seven months prior to the plea hearing, respectively.
[23]Sentencing remarks [38].
The judge found that the evidence regarding family hardship arising from Andie’s special needs did not meet ‘the high standard of exceptional circumstances such as to call for a more lenient sentence than that which would be required by the gravity of the offending’.[24] However, notwithstanding this finding, the judge stated:
I consider that some mercy for the sake of [the respondent’s] child Andie might be appropriate in the non-parole period which I set, which is also an acknowledgment of [the respondent’s] prospects of rehabilitation. For these reasons, the non-parole period is disproportionately low compared to the head sentence.[25]
[24]Sentencing remarks [40].
[25]Sentencing remarks [49].
The judge placed emphasis on general deterrence, just punishment and denunciation. She stated that she was mindful of the principle of totality but, as the respondent had received the benefit of each charge being a rolled-up charge, some cumulation was appropriate to reflect the gravity of his offending on each charge.
Parties’ submissions
The Director submitted that although the judge correctly described the gravity of the respondent’s offending, the sentences she imposed did not reflect that gravity. She emphasised that the total amount involved in the present case was very high and that, while quantum was not determinative in the exercise of the sentencing discretion, it was of great significance.[26] The Director also relied on the fact that the respondent had accrued significant debts through various companies, including during the period prior to engaging the services of AB when he was an undischarged bankrupt.
[26]The Director relied on Koch v The Queen [2011] VSCA 435 [58].
The Director contended that the respondent engaged in sophisticated and calculated deception of AB and that his moral culpability was high. She submitted that, when balanced against the objective gravity of the offending, the judge gave excessive weight to matters in mitigation. According to the Director, none of the matters in mitigation, alone or in combination, were significant and they warranted only a modest mitigation in sentence.
In relation to the respondent’s guilty plea, the Director stated that the judge observed that it was relatively late and lacked genuine remorse. It was argued that the respondent provided no cooperation during the investigation and that the judge observed that there was no expression by him of regret or remorse for the victims in Ms Lechner’s report.
The Director submitted that although the judge detailed the significant victim impact of the respondent’s offending, she failed to give it sufficient weight. The Director relied on the victim impact statement of Mr Murdoch, which is summarised at [30] above, and on the fact that Mr Mann was forced to inject $500,000 of his own money into AB as a result of the respondent’s offending.
The Director argued that when represented as percentages of the maximum penalty, the individual sentences demonstrate that the judge had insufficient regard to the maximum penalty for the offending. She stated that the individual sentence imposed for charge 2 was 20 per cent of the maximum penalty, despite the offending the subject of the charge involving amounts totalling over $1,300,000. The individual sentence imposed for charge 1 was said to be 14 per cent of the maximum penalty and the sentence for charge 3 was said to represent 5 per cent of the maximum penalty.[27]
[27]The correct percentages are 11.67 per cent for charge 1 and 4.17 per cent for charge 3.
In support of the proposition that the total effective sentence and non-parole period imposed are manifestly inadequate, in her written case the Director relied on the decisions of this Court in Akkala v The Queen,[28] Caruana v The Queen,[29] and Pun v The Queen.[30]The Director emphasised that, in each of these cases, the terms of imprisonment imposed on the offenders were similar to that imposed on the respondent even though the offenders — who had no relevant prior convictions, had pleaded guilty and had at least good prospects of rehabilitation — had dishonestly obtained significantly lesser amounts than the respondent. The Director contended that this demonstrated that the sentence imposed on the respondent was disproportionate and without justification.
[28][2012] VSCA 29 (‘Akkala’).
[29][2011] VSCA 180 (‘Caruana’).
[30][2017] VSCA 219 (‘Pun’).
In relation to the non-parole period, the Director conceded that, although the judge had found that the respondent’s family circumstances were not sufficient to meet the threshold of exceptional circumstances, she retained a discretion to exercise mercy based on the principles set out in R v Osenkowski.[31] In that case, King CJ stated:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[32]
[31](1982) 30 SASR 212 (‘Osenkowski’).
[32]Osenkowski (1982) 30 SASR 212, 212–13.
The respondent conceded that the sentence imposed by the judge was lenient. However, he submitted that the sentence was not manifestly inadequate in the light of the strong mitigating factors in his favour. In particular, he relied on: his plea of guilty, which had significant utilitarian value; the substantial delay between the cessation of his offending and his sentence, during which the matter was hanging over his head; his substantial progress in his rehabilitation; and his prior good character and work within his local community.
The respondent also contended that imprisonment was additionally burdensome for him due to his depression and anxiety and that the prosecution had conceded that the sixth Verdins principle applied to mitigate his sentence as imprisonment might worsen his low mood.
The respondent argued that, for a head sentence of 3 years, a non-parole period of 18 months is not ‘disproportionately low’, as described by the judge. He submitted that there was no inconsistency between the judge’s finding that his family circumstances were not sufficient to meet the threshold of exceptional circumstances and her statement that ‘some mercy for the sake of … Andie’ was warranted because the reference to mercy was to the principles set out in Osenkowski.
The respondent submitted that the decisions on which the Director relied do not provide any real assistance to this Court in determining whether the sentence imposed on him is manifestly inadequate. He contended that the total amount involved in the present case is only one of the many factors that informed the proper exercise of the sentencing discretion and that the judge had given appropriate weight to all such factors. He emphasised that the mitigating circumstances on which he relied, in combination, were unique and justified the sentence imposed by the judge.
The respondent further submitted that pursuant to the residual discretion that this Court has in Crown appeals, it can have regard to the impact that any increase in his sentence resulting from a successful appeal by the Director would have on his family, in particular on Andie.
Decision
The offending in the present case was very serious. It was planned, prolonged, callous and involved significant amounts of money. The respondent repeatedly lied to Mr Murdoch over a protracted period and was seemingly impervious to the financial harm that his conduct was causing to AB and its shareholders. In addition, he fabricated timesheets. AB’s decision to refuse to provide any further services to NMK did not deter him — he continued to offend through Melbourne Spotters R Us. His moral culpability was high.
We accept that the respondent was entitled to moderation of his sentence on account of the mitigating factors which the judge found in his favour, particularly his plea of guilty. However, in the light of the gravity of his offending and his high moral culpability, the mitigating factors did not diminish the need for a significant custodial sentence to adequately reflect the principles of denunciation, general deterrence and protection of the community from fraudulent conduct. This is particularly so having regard to the maximum penalty of 10 years’ imprisonment. As each of the charges was a rolled-up charge involving multiple transactions, the respondent had the benefit of a single maximum penalty. He would have been exposed to a separate maximum penalty for each transaction if the transactions had been the subject of separate charges.[33]
[33]See R v Jones [2004] VSCA 68 [12]–[13]; Reid v The Queen (2014) 42 VR 295, 307–8 [73]–[74]; Barber v The Queen [2018] VSCA 232 [32]–[34].
In all the circumstances, the individual sentences are very lenient and do not sufficiently reflect the judge’s findings about the gravity of the offending. We agree with the Director’s submission that there is a disconnect between those findings and the sentences imposed by the judge. We would have imposed higher sentences to better reflect the gravity of the respondent’s offending and his moral culpability.
However, the fact that we would have exercised the sentencing discretion differently is not sufficient for the Director to succeed. The Director must persuade us that the sentences imposed by the judge are wholly outside the range of sentences reasonably open to the judge. Not without considerable hesitation, we have concluded that this test has not been satisfied. We accept the respondent’s submission that the mitigating circumstances on which he relied have unique features which explain why the judge imposed such lenient sentences. Those unique features mean that this case is incapable of providing any guidance for any future cases.
We have considered the cases set out at [52] above on which the Director relied in her written case and the additional cases of Di Cioccio v The Queen,[34] Pedersen v The Queen[35] and Gianello v The Queen[36] to which the parties referred in oral argument. These cases have not provided any meaningful assistance on the question of whether the sentences in the present case are manifestly inadequate. The fact that terms of imprisonment similar to those in the present case were imposed for offending that involved significantly lesser amounts in Akkala, Caruana and Pun is insufficient, in the special circumstances of this case, to establish that the sentences imposed by the judge are manifestly inadequate. Further, Di Cioccio, Pedersen and Gianello are not comparable because the offenders in those cases were sentenced as continuing criminal enterprise offenders with the consequence that the applicable maximum term of imprisonment was 20 years rather than 10 years.[37] Also, Di Cioccio and Pedersen involved guilty verdicts after a trial and the offender in Pedersen had a relevant prior criminal history.
[34][2013] VSCA 74 (‘Di Cioccio’).
[35][2013] VSCA 321 (‘Pedersen’).
[36][2015] VSCA 205 (‘Gianello’).
[37]See Sentencing Act 1991 ss 6H, 6I.
In Director of Public Prosecutions v Dalgliesh,[38] the High Court stated that a sentencing judge has a duty to impose a sentence that is just in all the circumstances of the offender’s case and no sentence in a previous case can prevent the judge from discharging that duty.[39] So-called comparable cases do not set a mandatory benchmark or binding precedent as to the sentence that is reasonably open in a subsequent case.[40] A sentence is not manifestly inadequate simply because it is similar to a sentence in another case that involved less serious offending or, conversely, lower than a sentence imposed in another case that involved similar offending.[41]
[38](2017) 262 CLR 428 (‘Dalgliesh’).
[39]Dalgliesh (2017) 262 CLR 428, 434 [5], 449 [65], 452 [79], 454–5 [83]–[85]. See also Camara v The Queen [2019] VSCA 207 [34] (‘Camara’).
[40]Lee v The Queen [2018] VSCA 63 [89]; Blango v The Queen [2018] VSCA 210 [61]; Camara [2019] VSCA 207 [33].
[41]For the application of these principles in cases involving the ground of manifest excess, see Hamid v The Queen [2019] VSCA 5 [56]; Camara [2019] VSCA 207 [34]; Chong v The Queen [2019] VSCA 216 [64].
In relation to the orders for cumulation for charges 1 and 3, we agree with the Director’s submission that they are very low. However, having regard to the fact that the offending the subject of those charges was similar to the offending the subject of charge 2, we are not satisfied that the level of cumulation or the total effective sentence are manifestly inadequate.
Once it is accepted that the total effective sentence of 3 years’ imprisonment is not manifestly inadequate, the non-parole period of 18 months cannot be regarded as either disproportionately low or manifestly inadequate. Although the ratio between the non-parole period and the head sentence of 50 per cent is lower than the historical range of 60 per cent to 75 per cent,[42] that range is not apt for low sentences such as the present. As a matter of common sense, a non-parole period of 10 years for a head sentence of 20 years would be so unusual that it would call for scrutiny of the sentencing judge’s reasoning whereas a non-parole period of 18 months for a head sentence of 3 years would not be regarded as uncommon.
[42]See Kumova v The Queen (2012) 37 VR 538, 542–3 [12]–[14].
In any event, it cannot be said that it was not open to the judge to fix a non-parole period of 18 months on the basis of the principles discussed in Osenkowski and her finding regarding the respondent’s prospects of rehabilitation.
Conclusion
For the above reasons, the appeal will be dismissed.
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