Gianello v The Queen
[2015] VSCA 205
•5 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0266 | |
| ROBERT GIANELLO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 August 2015 |
| DATE OF JUDGMENT: | 5 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 205 |
| JUDGMENT APPEALED FROM: | DPP v Gianello (Unreported, County Court of Victoria, Judge Hampel, 7 November 2014) |
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CRIMINAL LAW – Sentence – Appeal – 'White collar' offender – Multiple counts of dishonestly obtaining a financial advantage by deception – Parity – Whether principles of parity infringed – Whether judge erred in rejecting community correction order as an appropriate sentencing option – Serious offending – Community correction order not appropriate – Principles of parity not infringed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K McDonald | Lawcorp Lawyers |
| For the Respondent | Mr J Dickie | Commonwealth Director of Public Prosecutions |
WHELAN JA:
I invite Justice Beach to deliver the first judgment.
BEACH JA:
Introduction
On 7 November 2014, following a plea hearing conducted over five days in the County Court in August, October and November 2014, the appellant and two other offenders, Esra Ogru and Woei-Jia Jiang were sentenced for their roles in misappropriating funds from Phosphagenics Ltd (‘POH’) a publicly listed biotechnology company, and its wholly owned subsidiary, Vital Health Sciences Ltd (‘VHS’). The appellant was sentenced as follows:
Charge Offence Period of charge Amount obtained Maximum Penalty Sentence Imposed 1 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 29 November 2004 to 8 April 2008 $1,087,812 20 years’ imprisonment 2 years (cumulative upon the sentence for charge 2) 2 Dishonestly Obtain a Financial Advantage by Deception contrary to s 82(1) of the Crimes Act 1958 19 June 2008 to 8 July 2010 $1,331,495 20 years’ imprisonment 2 years (Base) 3 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 9 July 2010 to 20 August 2012 $2,216,610 20 years’ imprisonment 2 years (concurrent with charges 1 and 2)
Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years Pre-sentence detention declared: Nil 6AAA Statement: 6 years’ imprisonment with a non-parole period of 3 years Sentenced as a continuing criminal enterprise offender in respect of each charge.
Ogru, who had been charged on a different indictment from the appellant, was sentenced as follows:
Charge Offence Period of charge Amount obtained Maximum Penalty Sentence Imposed 1 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 1 July 2004 to 8 April 2008 $1,087,812 20 years’ imprisonment 2 years (cumulative upon the sentence for charge 2) 2 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 19 June 2008 to 8 July 2010 $1,331,495 20 years’ imprisonment 2 years 6 months
(Base)3 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 9 July 2010 to 15 May 2013. $2,979,140 20 years’ imprisonment 2 years 6 months
(concurrent with charges 1 and 2)4 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 1 March 2013 to 25 April 2013. $81,400 20 years’ imprisonment 1 year and 6 months (concurrent with charges 1 and 2) 5 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 27 November 2006 and 20 August 2010 $267,186.30 20 years’ imprisonment 2 years
(1 year to be cumulative)6 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 29 March 2007 and 13 November 2013 $278,703.06 20 years’ imprisonment 2 years 7 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 5 February 2009 and 15 October 2012 $120,995.70 20 years’ imprisonment 1 year
(6 months cumulative)Total Effective Sentence: 6 years’ imprisonment Non-Parole Period: 2 years Pre-sentence detention declared: Nil 6AAA Statement: 8 years’ imprisonment with a non-parole period of 3 years Sentenced as a continuing criminal enterprise offender in respect of each charge.
Jiang, who was charged on the same indictment as the appellant (charges 1–3 relating to the appellant and charges 4–6 relating to Jiang), was sentenced as follows:
Charge Offence Period of charge Amount obtained Maximum Penalty Sentence Imposed 4 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 19 June 2008 to 8 July 2010 $1,331,495 20 years’ imprisonment 2 years and 6 months (concurrent) 5 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 9 July 2010 to 24 May 2013 $2,979,140 20 years’ imprisonment 2 years 6 months
(concurrent)6 Dishonestly Obtain a Financial Advantage by Deception, contrary to s 82(1) of the Crimes Act 1958 2 May 2013 and 10 June 2013 $81,400 20 years’ imprisonment 1 year 6 months
(concurrent)Total Effective Sentence: 2 years 6 months’ imprisonment Non-Parole Period: 12 months Pre-sentence detention declared: Nil 6AAA Statement: 3 years 9 months’ imprisonment with a non-parole period of 2 years Sentenced as a continuing criminal enterprise offender in respect of each charge
While s 82(1) of the Crimes Act 1958 provides that the maximum term of imprisonment for obtaining a financial advantage by deception is 10 years, the appellant and his co-offenders fell to be sentenced on each charge as continuing criminal enterprise offenders pursuant to Part 2B of the Sentencing Act 1991. In the circumstances, the maximum term of imprisonment for each charge of dishonestly obtaining a financial advantage by deception, to which the appellant and his co-offenders pleaded guilty, was 20 years.[1]
[1]See s 6I(1) of the Sentencing Act 1991.
On 14 April 2015, Redlich JA granted the appellant leave to appeal on the following ground:
3. The sentence infringed the principle of parity:
3.1 when considered in sentences imposed upon the co-offenders;
3.2by finding that the appellant’s moral culpability in respect of the offending the subject of charge 1 was the same as for the co-offender Ogru; and
3.3by finding that the appellant’s moral culpability in respect of the offending the subject of charges 2 and 3 was greater than that of the co-offender Jiang.
Redlich JA refused leave to appeal with respect to the appellant’s remaining four other grounds. The appellant has now elected to renew his application for leave to appeal in respect of one of those grounds as follows:
5.The sentencing judge erred in rejecting a community correction order as an appropriate sentencing option for consideration in this case.
Circumstances of the offending
The appellant worked as a biochemist at Monash University, and then later at POH, during the relevant periods of offending. He was also the director of PMP (Vic) Pty Ltd (‘PMP’), a company which was involved in the offending, and was additionally a controlling person behind Pharma Max Pty Ltd (‘Pharma Max’) and Integrated Pharmtech Research Pty Ltd (‘IPR’), which companies were also involved in the offending. The appellant, Ogru and Jiang all have PhDs in biochemistry. Initially, while the appellant was at Monash University, he supervised both Jiang and Ogru as students. However, in late 2002, Ogru became the appellant’s supervisor. After Ogru was awarded her PhD, she was retained by VHS and given the title of Vice-President, Research and Development, of POH.
Charge 1 (appellant’s indictment)
In 2003, while the appellant was employed by Monash University working on research funded by VHS, Ogru suggested that the appellant establish a business through which he could invoice VHS for work he did for it outside normal hours, and for which he was not paid by Monash University. The appellant registered the business name Bynex Research Services (‘Bynex’) and initially invoiced only for work actually performed. After about 12 months, at the suggestion of Ogru, he agreed to the rendering of invoices to VHS for work only partially performed or not performed at all. On Ogru’s direction, those invoices were addressed to VHS care of Ogru, and she authorised their payment. On receipt of the money, the appellant would transfer half to Ogru, and keep half. The total benefit he received was $577,597. From early/mid 2006 Ogru, using a Bynex invoice template, prepared the Bynex invoices herself, determined the amount of each invoice, decided to which VHS project she would allocate the false invoices to and decided on how much of each of the invoiced amount would be paid to her and the appellant.
Around mid-2008, the then Chief Financial Officer of POH, Alistair Hodges, discovered that Bynex was linked to the appellant. Ogru then emailed the appellant, stating they needed to set up another entity.
At the request of Ogru, the appellant incorporated Pharma Max on 9 May 2008 with the appellant’s wife as its unknowing director. On 15 May 2008, at the request of Ogru, the appellant presented one invoice from Pharma Max to VHS, but that invoice was never approved or paid.
On 1 May 2008, Ogru gave birth to a daughter, CG. Shortly after birth, CG was diagnosed with a rare and fatal disease called molybdenum cofactor deficiency type A (MoCD Type A).
Ogru and her family and friends, including the appellant, embarked upon a search for possible solutions to prevent the death of CG. A potential cure was found at a university lab in Germany headed by Prof Guenter Schwarz through the use of a drug called cyclic pyranopterin monophosphate (cPMP). Over the following several weeks, at Ogru’s request, the appellant worked to procure cPMP from Germany, tested the drug to ensure its quality for intravenous administration, and procured the necessary approvals from the institutional human research ethics committee for CG’s treatment. CG commenced treatment using the drug on 6 June 2008 and responded well.
On 1 July 2008, at the request of Ogru, the appellant incorporated IPR, with his wife as its unknowing director. On 17 July 2008, IPR presented an invoice to VHS for $41,030.00 for goods and services never provided to VHS. The invoice was never approved or paid by VHS.
Given the success of the drug, Schwarz, Ogru and the appellant agreed the work with cPMP should continue and that they would explore ways to commercialise the drug so that it could be used in treatment of other children afflicted by the disease. To facilitate a clinical study registered with the Therapeutic Goods Administration, it was necessary to incorporate a company in Australia. At Ogru’s request, the appellant registered PMP on or about 25 July 2008, with the appellant as the sole director, so as to conceal any public link between Ogru and PMP, which Ogru was keen to keep from POH’s knowledge.
Charges 2 and 3 (appellant’s indictment)
Following the birth of CG in May 2008, a mechanism was put in place whereby Jiang’s company, TABridge Pty Ltd, commenced invoicing VHS and POH for services never provided by it. In the period 20 June 2008 to 15 May 2013, TABridge rendered 128 false invoices, totalling $4,392,035.
The appellant’s involvement was substantially agreeing to the presentation of the false invoices until 18 March 2009. At that point, TABridge had rendered 12 out of the total of 128 false invoices, totalling $375,265.00.
From 18 March 2009 until 20 August 2012, the appellant would have been aware that false invoices continued to be submitted by TABridge because he remained a director of PMP, and a signatory to its bank account, and because in that period PMP received funds from TABridge. However, there was no evidence that the appellant was aware of the total amount misappropriated by TABridge in the period 18 March 2009 to 20 August 2012. His knowledge was limited to the amount paid by TABridge to PMP.
The total amount falsely invoiced by TABridge to POH and VHS was split between Jiang as to $1,100,026; Ogru as to $2,717,513; and PMP, Pharma Max and IPR as to the total combined amount of approximately $500,000. The appellant personally benefited by about $100,000 in total from the funds misappropriated by TABridge and transferred by it to PMP, Pharma Max and IPR.
The judge’s reasons
The judge commenced her reasons for sentence by noting that out of the total of approximately $6 million defrauded by the appellant and his co-offenders, the appellant received a personal benefit of just under $680,000, Ogru received a personal benefit of just under $4 million and Jiang received a personal benefit of just over $1.1 million.[2] The judge then described the offending in some detail, including that it was motivated, on the part of each offender, by greed rather than need.[3]
[2]DPP v Gianello (Unreported, County Court of Victoria, Judge Hampel, 7 November 2014) [2] (‘Reasons’).
[3]Ibid [3]–[43].
The judge correctly observed that general deterrence and denunciation were significant sentencing considerations.[4] The judge said:
Each of you are persons otherwise of good character. None of you has previously been convicted of any offences. Each has earned good reputations, personally and professionally, and each had the capacity, by reason of your high academic attainments, to obtain employment commensurate with your skills and attainments and to earn a good income by honest endeavour in your chosen field. None of you suffers any disability, psychiatric illness or psychological condition, misfortune or other impediment which precluded you from being able to fulfil your potential.
The positions you held, your academic and professional attainments and your status in the community were used, exploited, by you to carry out these protracted frauds. For each of you, in different ways, this is properly characterised as a breach of trust, and a profound one.[5]
[4]Ibid [44].
[5]Ibid [44]–[45].
In continuing her very detailed analysis of the circumstances of the offending and the circumstances personal to each of the appellant and his co-offenders, the judge said:
Each of you are shamed, personally and professionally, and the consequences of detection for you and your families has had and will continue to have a significant deterrent effect on each of you. The families of each of you has already and will continue to suffer hardship, and I accept that for each of you imprisonment will be more onerous as a result. The effect, all these consequences of detection, in my view, count in your favour when considering specific deterrence and your prospects for rehabilitation. I consider each of you should be regarded as having good prospects for rehabilitation.[6]
[6]Ibid [61].
As to Ogru’s offending, the judge said:
As your counsel acknowledged, this is grave offending. The total moneys fraudulently diverted from Phosphagenics and the amount you personally received are very high, in the order of $6 million and $4 million respectively. Your offending spanned a period of nearly nine years. Over that time, 180 separate false invoices were created and approved for payment by you. Thirty-seven separate false credit card claims were made. It was a sophisticated fraud involving many layers of concealment. The breach of trust was of a very high order. You owed a fiduciary duty to the companies you served. You took active steps to frustrate investigations, telling lies to the successive Chief Financial Officers, changing entities and seeking to corrupt or co-opt innocent third parties into the fraud. Although neither Dr Gianello nor Dr Jiang can shirk responsibility for their conscious, indeed, enthusiastic decisions to participate, you were the initiator, and the Bynex, TABridge and CK Australia scams could not have occurred without your abuse of your position in Phosphagenics.[7]
[7]Ibid [75].
As to the appellant’s offending, and sentencing options in relation to him, the judge said:
I do not consider the sentencing options contended for by your counsel, namely, a sentence of imprisonment followed by a community correction order or a fully suspended sentence, are appropriate, having regard to the gravity of the offending, notwithstanding the mitigating features relied upon on your behalf.
Your offending too is properly characterised as grave. Although your personal benefit was not as great as that derived by Dr Ogru overall, you personally took advantage of just over half of the proceeds of the Bynex scam and you played that significant role that I have described in facilitating the TABridge scam, which was the vehicle for the vast majority of the funds being misappropriated after the Bynex scam was brought to an end. Although the period of offending is not as long as Dr Ogru’s, it is still a substantial period: four years for the Bynex scam and three and a half for the TABridge one. Although your personal benefit from the latter scam is substantially less than that derived by Dr Ogru and Dr Jiang, it is still significant. Again, as with Dr Ogru, your role in the defrauding involved the creation of numerous false invoices over the extended period of your involvement, and is properly to be regarded as a sophisticated and sustained scheme. Your motive for participation in the Bynex scam can only be characterised as greed, and your attempt to rationalise your motive for participating in the TABridge scam does you no credit when it is considered that you benefited to the amount of about $100,000 yourself and you acquiesced in and, indeed, took positive steps to encourage the defrauding of Phosphagenics to advance the interests of your commercial venture in PMP.[8]
[8]Ibid [100]–[101].
As to Jiang’s offending, the judge said:
For you too, this is grave offending. Your personal benefit was in excess of a million dollars, of approximately $4 million was obtained by the device that you lent yourself to. Although your wife said in her evidence that as a family you were not rich, but happy, it is clear that much of the money went to personal use: to lifestyle, to building up assets or to investment in research and development of drugs or products which you hoped might not only help people afflicted with illness or disease, but also bring you personal gain. As with your co-offenders, the offending involved numerous transactions over a considerable period: for you, four years and nine months. It came to an end only through discovery. Although you did not personally prepare any of the TABridge invoices after the first, you were well-aware of how much money was being received because you were the one who then, again using false invoices, transferred it as directed by Dr Ogru or Dr Gianello. Thus, you too took part in what can properly be characterised as a sophisticated and sustained fraud using false documents.[9]
[9]Ibid [122].
The failure to order a community correction order (ground 5)
In the renewal of his application for leave to appeal in respect of ground 5, the appellant sought to argue that the judge erred in rejecting a community correction order as an appropriate sentencing option for consideration in this case. There is no substance in the appellant’s contention. This was very serious offending, engaged in over a protracted period, involving serious breaches of trust and a substantial amount of money.
In Dyason v The Queen,[10] this Court discussed the appropriateness of making a community correction order for serious white-collar crime of a kind possessing some of the features of the appellant’s offending in the present case. Specifically, in rejecting a submission that a short term of imprisonment coupled with a community correction order was appropriate for this kind of offending, the Court referred with approval to what had previously been said in DPP v Bulfin[11] in the following terms:
In Bulfin this Court considered a sentencing appeal from an offender who had pleaded guilty to a variety of offences involving fraud and deception concerning public investments of many millions of dollars. The offender pleaded guilty early, was remorseful, co-operated with authorities and agreed to give evidence against other accused, and was otherwise a person of good character. A submission was made on behalf of the offender on the sentencing appeal that in ‘white collar cases’ there should be a ‘wider than normal gap’ between the head sentence and the non-parole period.
Charles JA, with whom Winneke P and Callaway JA relevantly agreed, rejected that submission. He referred to the fact that white collar offenders usually had no prior criminal history and that the prospects of rehabilitation of such offenders were generally very high. He observed that specific deterrence would often not feature largely in the sentencing consideration. He said, however, that these features had a tendency to distract attention from the importance of general deterrence. Charles JA then said the following:
The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. Many of these matters were discussed by this court, similarly constituted, in R v Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12 September 1996); see also R v Cave (1988) 32 A Crim R 484 per O’Bryan J at 487. The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
For persons first contemplating corporate criminality, a sentence which requires an offender to spend a substantial term in actual custody by virtue of the non-parole period fixed, is, in my view, much more likely to focus their attention and have real deterrent impact than a longer head sentence, much of which is likely to be served on parole after the offender’s release from custody. If this view be correct, to fix an unduly short non-parole period, would, in cases such as the present, be quite subversive of the whole concept of general deterrence, notwithstanding that a significantly longer head sentence was imposed. The sentencing practice discussed in Corbett must be understood with those considerations firmly in mind.[12]
[10][2015] VSCA 120 (‘Dyason’) (Whelan, Santamaria and Beach JJA).
[11][1998] 4 VR 144 (‘Bulfin’).
[12]Dyason [2015] VSCA 120, [32]–[33].
In the light of the reasoning in Bulfin and Dyason, and given the nature and seriousness of the appellant’s offending, notwithstanding the significant mitigating factors which the sentencing judge took into account, there is simply no basis for contending that the judge erred when she rejected a community correction order as an appropriate sentencing disposition in this case. The appellant’s ground 5 is not reasonably arguable. Accordingly, leave in respect of it must be refused.
Parity (ground 3)
The principles governing parity are well established. As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[13]
[13]See Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell P); Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]–[25] (Weinberg and Kyrou JJA); Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA).
Further, while the avoidance of an unjustifiable disparity between sentences imposed on co-offenders may require a reduction of one offender’s sentence to a level which might otherwise be regarded as the bottom end of the range, the principles governing parity do not require the reduction of a co-offender’s sentence to a point where the sentence becomes manifestly inadequate.[14]
[14]Taleb v The Queen [2014] VSCA 96, [43]–[52] (Weinberg and Neave JJA).
The appellant submits that the judge infringed the principle of parity when sentencing the appellant and his co-offenders, Ogru and Jiang. Specifically, the appellant makes complaint about the judge’s finding that his moral culpability in respect of the offending the subject of charge 1 on his indictment was the same as for Ogru in respect of charge 1 on her indictment. Additionally, the appellant makes complaint about the judge’s finding that his moral culpability in respect of the offending the subject of charges 2 and 3 on his indictment was greater than that of Jiang in respect of charges 4 and 5 (relating to Jiang) on the same indictment.
Reasonable minds might be capable of debating, with greater precision than would otherwise be appropriate, the differences in moral culpability between the appellant and his co-offenders in relation to the charges they faced in common. However, the real question is whether the principle of parity was actually infringed by the sentences imposed by the judge. That said, I see no error in the judge’s conclusions about relative moral culpability. Differences in moral culpability are not measured by some arithmetic comparison between differing benefits that might have been obtained by co-offenders. A sentencing judge is, in the performance of the sentencing synthesis, required to take a myriad of facts and circumstances into account. In the present case, it was well-open to the sentencing judge to regard the moral culpability of the appellant and Ogru in respect of the offending the subject of charge 1 to be relevantly equivalent. Similarly, it was open to the judge to differentiate between the appellant’s and Jiang’s moral culpability, in the way the judge did, because Jiang came into an existing scheme already run by the appellant and Ogru.
In sentencing Ogru, the judge said:
The circumstances of your older daughter raise complex and irreconcilable considerations. Her prognosis is uncertain. It is clear that considerable hardship will be caused to your husband and those family members and other people who will have to share the burden of her care during what was acknowledged to be the inevitable incarceration resulting from your wrongdoing. The effect on her as a person and the effect on her care of your absence is unable to be predicted with any certainty. What can be said is that
this is a case where the hardship caused by your absence is such that the sentence that otherwise would be appropriate must be tempered by mercy.[15]
[15]Reasons [70].
With respect, it was entirely appropriate for the judge to take this approach in relation to Ogru’s sentence. In the end, Ogru, for greater offending, received a significantly longer total effective sentence. On the other hand, Ogru’s non-parole period is unusually low as a proportion to her head sentence. From the judge’s reasons, the very low non-parole period might be explained by Ogru’s personal circumstances involving CG. That said, it cannot be assumed that either the appellant or Ogru will necessarily be released on parole at any particular time during their sentences.[16] Further, a very low non-parole period for Ogru does not require this court to intervene to impose what would be a manifestly inadequate non-parole period on the appellant.
[16]Cf s 5(2AA) of the Sentencing Act 1991.
So far as the difference between the appellant and Jiang is concerned, it is to be noted that, at the time of sentencing, Jiang had made restitution of approximately $100,000 in excess of the amount she personally derived from the fraud. The appellant has not made restitution of that kind. Rather, he and his wife have become voluntarily bankrupt, and it was ‘expected that POH and VHS will receive the majority of the proceeds of their assets’.
There are a number of other differences between the appellant on the one hand, and Ogru and Jiang on the other hand, that the Crown invited this Court to consider on the parity question. The differences to which the Crown refers are capable of debate. The short point is that, notwithstanding the force of the Crown’s submissions about some of these differences, they were not matters expressly relied upon by the judge in her reasons when determining the appropriate sentences to impose on the appellant and his co-offenders. Further, the differences between the circumstances of the appellant and his co-offenders, to which I have already referred, well-justified the different sentences she imposed in this case. The appellant’s complaint about parity must be rejected.
Additionally, on any view, the sentences imposed on the appellant, the order for cumulation and the non-parole period fixed by the judge were lenient for this offending. Even if the appellant had established error, no different sentence[17] should now be imposed.[18]
[17]Including no different individual sentence, order for cumulation and non-parole period.
[18]See s 281 of the Criminal Procedure Act 2009. See further, Kentwell v The Queen (2014) 252 CLR 601, 618[43].
Conclusion
The appeal must be dismissed.
WHELAN JA:
I agree.
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