Henderson v Tasmania; Henderson v The Queen
[2012] TASCCA 12
•23 October 2012
[2012] TASCCA 12
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Henderson v Tasmania; Henderson v R [2012] TASCCA 12
PARTIES: HENDERSON, Michael John
v
STATE OF TASMANIA
HENDERSON, Michael John
v
R
FILE NO/S: 64/2012
65/2012
DELIVERED ON: 23 October 2012
DELIVERED AT: Hobart
HEARING DATE: 17 August 2012
JUDGMENT OF: Crawford CJ, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Whether total effective sentence of imprisonment for seven years and six months for 80 crimes of dishonesty involving $1,356,766.20 manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: C J Gunson
Respondent/State of Tasmania: D G Coates SC
Respondent/Crown: I M Arendt
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent/State of Tasmania: Director of Public Prosecutions
Respondent/Crown: Commonwealth Director of Public Prosecutions
Judgment Number: [2012] TASSC 12
Number of paragraphs: 28
Serial No 12/2012
File Nos 64/201265/2012
MICHAEL JOHN HENDERSON v STATE OF TASMANIA
MICHAEL JOHN HENDERSON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
PORTER J
WOOD J
23 October 2012
Orders of the Court
Appeal dismissed.
Serial No 12/2012
File Nos 64/201265/2012
MICHAEL JOHN HENDERSON v STATE OF TASMANIA
MICHAEL JOHN HENDERSON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
23 October 2012
The appellant pleaded guilty before Blow J to 80 crimes of dishonesty. On a State indictment there were 24 counts of dishonestly acquiring a financial advantage, contrary to the Criminal Code (Tas), s252A, by which he defrauded a finance company of $468,311 between February and July 1999, and on a Commonwealth indictment there were 56 counts of obtaining a financial advantage by deception, contrary to the Criminal Code Act 1995 (Cth), s134.2, by which he defrauded the Commonwealth of $888,455.20 between September 2005 and May 2006. The total defrauded was $1,356,766.20.
On 22 December 2011, for the State crimes he was sentenced to imprisonment for three years six months commencing on 16 September 2009, when his custody commenced. No order for parole was made, for reasons explained by the learned judge. For the Commonwealth crimes he was sentenced to imprisonment for five years six months commencing on 16 September 2011, and a non-parole period of one year nine months was fixed. In combination, the total effective sentence was imprisonment for 7½ years from 16 September 2009, with eligibility for parole under the Crimes Act 1914 (Cth) commencing on 16 June 2013, three years nine months after the imprisonment commenced. In other words, once the appellant has served half of the 7½ years' imprisonment he will become eligible for parole.
He filed notices of appeal against both sentences. Each is based on a sole ground that the sentence was manifestly excessive in all the circumstances.
The facts upon which he was sentenced were comprehensively stated by the learned judge in his comments when passing sentence. They were as follows:
"Mr Henderson has pleaded guilty to 80 crimes of dishonesty that resulted in losses of over $1.3 million. He has been prosecuted by both the Tasmanian authorities and the Commonwealth authorities. I have heard the State and Commonwealth cases together, but I will have to impose separate sentences. The State prosecution relates to earlier events than the Commonwealth prosecution, and I will therefore discuss those events first.
Mr Henderson has pleaded guilty to 24 charges of dishonestly acquiring a financial advantage contrary to s252A of the Criminal Code (Tas). He committed these crimes over a period of about five months, between February and July 1999. He systematically defrauded a company named IBM Global Financing Australia Ltd, which I will refer to as 'IBMGF'. That company was based in Sydney. It was a member of the International Business Machines (or 'IBM') group. It provided finance for the operators of small businesses wishing to lease computer equipment. Mr Henderson controlled a company named Millennium Hardware (Australia) Pty Ltd. He arranged for his company to become an agent of IBMGF.
On 24 relevant occasions he faxed lease applications to IBMGF. Each application purported to be signed by an individual who was the proprietor of a small business. Some of the individuals had never met Mr Henderson. Some had met him. None of them knew anything about the lease applications. Mr Henderson had obtained copies of the drivers' licences of some of these individuals. He had forged copies of the licences of others. He faxed photocopies of the actual and forged licences to IBMGF in support of the applications.
All of the 24 applications were successful. When a lease application was successful, it was the practice of IBMGF to transfer the price of the goods to its agent as the supplier of the computer equipment. Accordingly, the company made 24 payments into an account nominated by Mr Henderson. The payments varied in size from $18,833 to $19,945. The total paid was $468,311. It was by obtaining each of those 24 payments that Mr Henderson committed the 24 crimes with which he has been charged under s252A. There were other similar transactions that do not concern me.
In order to delay the detection of his fraudulent conduct, Mr Henderson made a practice of paying at least one monthly instalment to IBMGF in respect of each of these fraudulent transactions. The total amount of the instalments that he paid in relation to them was $20,796.83. The loss to IBMGF was therefore $447,514.17. None of that money has been recovered.
Mr Henderson was charged in late 1999 in relation to IBMGF. There were protracted committal proceedings. He was committed for trial in March 2003. An indictment was filed in September of that year. As a result of a pre-trial conference in November 2004, Mr Henderson's solicitors wrote an open letter to the Director of Public Prosecutions advising that he proposed to plead guilty, and the Crown consented to the proceedings being adjourned to February 2005. In that month Mr Henderson failed to appear. A warrant was issued for his arrest. He had not left Tasmania, or even changed his address, but he was lying low. In August 2009, the police learned that he was living in New South Wales. He was arrested in that State on 16 September 2009, and has been in custody ever since. He was extradited to Tasmania shortly after his arrest.
The crimes to which the Commonwealth charges relate were committed by Mr Henderson after the warrant was issued for his arrest, over a period of about eight months from September 2005 to May 2006 inclusive. Mr Henderson has pleaded guilty to 56 counts of obtaining a financial advantage by deception, contrary to s134.2 of the Criminal Code (Cth). The Commonwealth Government operates a scheme whereby business proprietors engaged in primary industry and related activities can obtain rebates in relation to their purchases of diesel fuel. That scheme is known as the Energy Grant Credits Scheme. Mr Henderson committed the crimes in question by lodging 56 false claim forms with the Australian Taxation Office ('the ATO') and thereby obtaining payments under that scheme when he was not entitled to any such payments at all. The proceeds of those claims totalled $888,455.20. None of that money has been recovered.
Mr Henderson did not make any of the false claims in his own name. He used the names of three other individuals: his half brother, a man who worked for him in a firewood business, and a friend. He lodged false documents with the ATO registering eight non-existent businesses for the purposes of the scheme. Those documents showed that the three individuals were the proprietors of logging, transport and firewood businesses. At one time anyone wishing to defraud the Commonwealth by lodging false claims for diesel fuel rebates needed to submit forged invoices, but the Commonwealth had streamlined its procedures by 2005, with the result that forged invoices were no longer necessary. Having registered some small businesses, Mr Henderson needed only to submit claim forms setting out false information as to the dates and quantities of fuel purchases. The resulting payments were so large that an audit was undertaken. There was ample evidence that someone had committed a substantial fraud, but it took quite some time for the authorities to amass a considerable body of circumstantial evidence implicating Mr Henderson as the offender.
During the sentencing proceedings before me, a controversy emerged as to why Mr Henderson committed these crimes and what he did with the proceeds of them. Mr Henderson had a friend and business associate named Dimitrios Belias. Mr Belias was murdered in Melbourne on 9 September 1999. Mr Henderson understood that Mr Belias owed very large amounts of money to some Melbourne underworld figures, was unable to pay, and was first threatened and ultimately killed as a result. Counsel for Mr Henderson told me that, although Mr Henderson was in no way responsible for the incurring of any debts that led to the killing of Mr Belias, he was contacted after the murder; that a demand was made for him to pay the balance of Mr Belias' debts; that he was threatened; and that he paid the debts in full with the proceeds of money that he fraudulently obtained. As a result of discussions between counsel, I will sentence Mr Henderson on the basis of the following undisputed facts:
· Mr Belias told Mr Henderson of his predicament and his fears, and Mr Henderson decided to help him financially.
· Mr Henderson made arrangements for his company to become an agent of IBMGF so that he could defraud that company in order to obtain money to pay the debts of Mr Belias.
· Some money was obtained from IBMGF and used for that purpose, but that money was the subject of other transactions. None of the proceeds of the 24 transactions to which the pleas of guilty relate was used for that purpose. The proceeds of the 24 relevant transactions were used by Mr Henderson for his own purposes.
· Mr Henderson commenced sending false claim forms to the ATO as a result of demands and threats relating to the payment of the debts of Mr Belias long after the murder.
· Most of the proceeds of the fraudulent claims to which the Commonwealth charges relate were used to pay the debts of Mr Belias. However a substantial and unquantifiable component of those proceeds was used for Mr Henderson's own purposes.
In relation to the Commonwealth charges, Mr Henderson's pleas of guilty indicate that he concedes that no defence of duress is available to him under s10.2 of the Criminal Code (Cth). For one thing, that defence is only available when a threat is made to encourage the committing of an offence, whereas the threats to Mr Henderson were made for the purpose of extorting payments, not for the purpose of getting him to break the law. However threats not amounting to exculpatory duress can be relevant for sentencing purposes: R v Oblach (2005) 65 NSWLR 75 at par[70]; Tiknius v R [2011] NSWCCA 215 at par[35].
No such factor is relevant for the purpose of sentencing on the State charges. Mr Belias seems to have been under threat in 1999, but it has not been suggested that Mr Henderson was under any threat himself when he defrauded IBMGF. He may well have obtained money from that company for the benefit of Mr Belias by means of transactions that are not the subject of the charges now before me. However the charges before me that relate to IBMGF all concern money that Mr Henderson concedes that he used for his own benefit, or at least for his own purposes.
Counsel for Mr Henderson told me remarkably little about the threats made after the killing of Mr Belias. I was not told who made the threats, nor how often Mr Henderson was threatened, nor what was said. I was told that he heard his life was at risk, but I was not told enough to enable me to evaluate how reasonable or unreasonable Mr Henderson's conduct was in choosing to give in to the threats rather than reporting them to the police. Mr Henderson was a fugitive when these threats were made. I was told that he feared he would not be safe if he gave himself up to the police and was remanded in custody. If I knew more about the circumstances surrounding Mr Henderson's decision to give in to the threats, I might be able to attach more weight to the fact that he had been threatened. I think I should take the threats into account as a mitigating factor, but I will sentence Mr Henderson on the basis that he did the wrong thing by giving in to those threats. And it is of course very significant that he defrauded the Commonwealth of a great deal more money than was needed to pay Mr Belias' debts.
The proceeds of these crimes, State and Commonwealth, were not used by Mr Henderson to live extravagantly or to acquire significant assets. He was a gambler, but his counsel told me that he was the sort of gambler who tended to beat the house when he went to a casino, and to win at the races. I am not able to take into account a gambling addiction as a mitigating factor. I was told that Mr Henderson had a number of businesses at different times, including a computer business in 1999, hotels in Melbourne and Hobart, and a firewood business in 2005. I was not told anything about the profitability or unprofitability of those businesses. I simply do not know what became of the hundreds of thousands of dollars that passed through Mr Henderson's hands and did not go towards the payment of the debts of Mr Belias.
Mr Henderson was 47 when he defrauded IBMGF, was 51 and 52 when he defrauded the Commonwealth, and is now 58. He has no significant prior convictions. He has been waiting for a spinal fusion operation, and for dental treatment, since he has been in custody. He seems to have made good use of his time in custody, acting as a peer tutor and peer mentor for the benefit of other prisoners, undertaking kitchen and laundry duties, and undertaking a variety of courses to enhance his qualifications and skills with a view to obtaining work after his release.
Although it has taken 12 years for the State charges to be disposed of, Mr Henderson does not contend that any part of that delay is attributable to the Crown. The delays have been due to the complexity of the case, his absconding from bail, and close scrutiny of the Crown case over an extended period by a number of legal advisors. So far as the Commonwealth charges are concerned, there has been a complaint as to delay. Counsel for Mr Henderson told me that an ATO investigator said in December 2009 that charges would be laid the following month. However a complaint was not signed until 4 March 2011, and he was not brought before a magistrate on those charges until 15 April 2011. The Crown disputed the assertion as to what was said by the ATO investigator, but I decided that that dispute was not significant enough for me to call for sworn evidence. I will sentence on the basis that the investigator made the prediction in question. In my view the delay in the preparation of the Commonwealth's case has not been unusual, given the complexity of the case, particularly since it took the authorities some time to get expert evidence relating to the identification of Mr Henderson's fingerprints on relevant documents.
It of course counts in Mr Henderson's favour that he has pleaded guilty to the 80 charges. The matters that I take into account in determining what weight to attach to his pleas of guilty are as follows:
· But for the pleas of guilty, it would have been necessary for there to have been two separate trials relating to IBMGF and the ATO. By pleading guilty Mr Henderson has saved the State, the Commonwealth and the Court the cost and inconvenience of two lengthy trials involving large quantities of documentary evidence and large numbers of witnesses, including many from interstate.
· The State and Commonwealth cases against Mr Henderson, though circumstantial, appear to me to have been strong. The individuals named in the 24 lease applications, and the three individuals whose names Mr Henderson used in defrauding the Commonwealth, could all have given evidence that they had nothing to do with any lease applications or diesel fuel purchases. Financial records could have been produced to show many payments into accounts controlled by Mr Henderson. However there was always a chance that Mr Henderson might have been acquitted, at least on some charges.
· It was made known to the Tasmanian Director of Public Prosecutions as long ago as November 2004 that Mr Henderson would plead guilty, though there had to be subsequent discussions as to which of the 45 charges on the indictment he would plead guilty to, and as to the facts.
· Mr Henderson did nothing to facilitate the administration of justice between the pre-trial conference of November 2004 and his arrest in September 2009.
· It was made known to the Commonwealth Director of Public Prosecutions from the time of Mr Henderson's first appearance in the Magistrates Court that he would be pleading guilty although, once again, there needed to be discussions as to which charges he would plead guilty to, and as to the facts. Mr Henderson co-operated by entering holding pleas on his first appearance in the Magistrates Court, so that he could be committed to this Court without any further appearances. He also expedited the matter by not applying for any witnesses to be examined in preliminary proceedings.
· There is no suggestion that remorse has played any part in his decision to plead guilty to any of the charges.
These crimes involved the misappropriation of enormous sums of money by means of multiple criminal acts over extended periods of time. Mr Henderson was not in the same sort of position of trust as a solicitor, an accountant, or an employee. His company was in a position of trust as an agent of IBMGF, but in an arm's length commercial context. The crimes against the Commonwealth were of such a nature that they were easy to commit, difficult to detect, and hard to prosecute. In those circumstances, the only appropriate penalties are substantial sentences of imprisonment.
In my view the most appropriate sentence for the crimes relating to the IBMGF is a sentence of 3½ years' imprisonment, backdated to the date of Mr Henderson's arrest. In fixing a sentence for the Commonwealth crimes, I must have regard to the 'totality principle' as discussed by the High Court in Mill v R (1988) 166 CLR 59. I think it would be appropriate for Mr Henderson to receive State and Commonwealth sentences effectively totalling 7½ years' imprisonment, and to be eligible for parole after he has been in prison for half of that time. I note that State laws relating to non-parole periods do not apply in relation to Commonwealth crimes: Hili v R (2010) 242 CLR 520 at par[22]. I think the most appropriate course is to impose two partly concurrent sentences, not to make a parole order in respect of the State sentence, and to fix a non-parole period in respect of the Commonwealth sentence pursuant to the Crimes Act 1914 (Cth), s19AB(1)(d). There is no minimum non-parole period under that Act.
Michael John Henderson, on the 24 charges under the Criminal Code (Tas), I convict you and sentence you to three years six months' imprisonment with effect from 16 September 2009. I order you to pay your victims of crime compensation levies totalling $1,200 within 28 days after your release from prison. On the 56 charges under the Criminal Code (Cth), I convict you and sentence you to five years six months' imprisonment with effect from 16 September 2011. I fix a non-parole period of 21 months in respect of that sentence."
Counsel for the appellant accepted that three years six months' imprisonment for the State crimes was unappealable, when viewed alone, but submitted that the sentence of five years six months' imprisonment for the Commonwealth crimes was excessive. However, his main submission was that, in combination, the total effective sentence of 7½ years' imprisonment was manifestly excessive.
Counsel for the appellant drew to the Court's attention that since its sentencing database commenced in 1989, only two sentences of imprisonment for dishonesty have exceeded 7½ years, and only one other has exceeded six years. The two sentences concerned Room and Durovic. Room was sentenced on 15 August 1989, after a long trial, to eight years' imprisonment for 141 counts of stealing, one of obtaining goods by a false pretence, 23 counts of forgery, and 23 associated counts of uttering, and five incidental counts of obtaining property on forged documents. The crimes were committed over a six year period between 1976 and 1982. He was a chartered accountant who breached the trust of many clients, family members and friends, to steal $1.7 million, a substantially greater amount, in real terms, than the amount dishonestly obtained by the appellant.
Durovic was sentenced on 12 February 1993, after a trial occupying many months, to a total effective term of 8½ years' imprisonment for 165 counts of stealing and 71 counts of improper use of a position as a corporate officer. The crimes were committed over an 18 month period in 1987 and 1988. He dishonestly obtained a total of $1,262,510. He was responsible for the general and financial administration of a company, and for most of the period he was its managing director. In a position of trust, he destroyed the commercial viability of the company. He had prior convictions for dishonesty.
The appellant's counsel submitted that aggravating factors in Room and Durovic, when compared to this case, were that the crimes amounted to serious breaches of trust, there were substantially more counts, the total amount defrauded was greater in real terms when regard is had to the dates of the crimes and, in the case of Durovic, he had prior convictions for dishonesty. A mitigating factor in the appellant's favour, which was not to the advantage of Room and Durovic, is that he pleaded guilty to all of the crimes charged.
The only other person sentenced in this State to more than six years' imprisonment for dishonesty was Pannala, who was sentenced on 12 December 2008 to seven years' imprisonment for 19 counts of computer-based fraud committed between 2002 and 2007. An accountant, he defrauded his employer of $1,219,539, an amount fairly close to the amount defrauded in this case. An aggravating factor was that the crimes amounted to serious breaches of trust and a mitigating factor to which he was not entitled was a guilty plea. However, there were some mitigating factors taken into account.
Other sentences of dishonesty to which the appellant's counsel referred included McCulloch, in which, on appeal, six years' imprisonment was ordered by this Court on 22 December 2010 following pleas of guilty to 346 counts of computer-related fraud over 3½ years by an employer, involving misappropriation totalling $1,205,118.70. Reference was also made to sentences in the Australian Capital Territory, Victoria and Western Australia in Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24, Director of Public Prosecutions v Rowson [2007] VSCA 176, R v Bromley [2010] VSC 345 and R v Thompson (13 May 2010, Supreme Court of Western Australia) in each of which the total defrauded was far greater than in this case (in Bromley $9,462,384 was fraudulently obtained by presenting false business activity statements to the Australian Taxation Office, and in Thompson $27 million of income tax was fraudulently avoided), and yet the sentences were far more lenient than here, except in the case of Bromley who was sentenced to 7½ years' imprisonment with a non-parole period of five years. In all of those cases the offenders pleaded guilty.
Counsel particularly argued that the appellant's pleas of guilty should have been regarded as a significant factor in mitigation. If he had pleaded not guilty, there would have had to be separate trials of the State and Commonwealth charges. Counsel asserted that the State charges raised complex facts and the trial could have lasted a number of months. He also asserted that a two to four week trial would have been required to hear the Commonwealth charges.
In response, counsel for the State referred to a number of other cases in this State. One was Badger, a financial advisor who misappropriated $705,000 in clients' funds between 1990 and 1994 and, having pleaded guilty, was sentenced by this Court on 7 April 1997, to imprisonment for six years. Another was Avery, a solicitor who stole clients' funds totalling $512,218 between 2000 and 2006 and, having pleaded guilty, was sentenced by this Court on 1 May 2009 to six years' imprisonment, with eligibility for parole after four years. There were 130 counts.
Counsel for the State submitted that an aggravating feature of the State crimes was that they amounted to breaches of trust. The learned sentencing judge acknowledged that when he said that the appellant's company was in a position of trust as an agent of IBMGF, but in an arm's length commercial context. However, as his Honour observed, the appellant was not in the same sort of position of trust as a solicitor, accountant or employee.
Counsel for the Commonwealth made the point that many of the sentences in other cases to which counsel for the appellant referred, were for crimes against Tasmanian laws. Room, Durovic, Pannala and McCulloch were in that category. He submitted, in accordance with Hili v R (2010) 242 CLR 520 at pars[20] and [21], that of their own force, the laws of the States with respect to the sentencing of offenders can have no operation with respect to the sentencing of offenders against laws of the Commonwealth. While that is undoubtedly correct, it does not contain a proposition that courts need not seek consistency in sentences for breaches of State and Commonwealth laws, after taking into account the differences between the laws and, in particular, the sentencing regimes and the crimes.
Consideration is given to sentences in other cases for the purpose of achieving consistency. "Consistency in punishment – a reflection of the notion of equal justice – is a fundamental element of any rational and fair system of criminal justice." Lowe v R (1984) 154 CLR 606 at 610 – 611. In the course of considering the need for reasonable consistency in the sentencing of Federal offenders, the majority in Hiliv R (supra) at pars[46] – [57] referred to the need for consistency in the application of the relevant legal principles, and although it was stated at par[48] that consistency is not demonstrated by, and does not require, numerical equivalents, their Honours said, at par[49], that what is sought is the treatment of like cases alike, and different cases differently. See also Wong v R (2001) 207 CLR 584 at par[6]. That is a task that confronts judicial officers all the time and is a regular consideration of courts of criminal appeal. As was said in Hili v R at par[53], "In seeking consistency, sentencing judges must have regard to what has been done in other cases". Further, it is a mistake to confine consideration to Tasmanian sentences for Commonwealth offences. "There should be consistency in the approach taken across all State courts when sentencing for Commonwealth offences." Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 243 FLR 28, at par[193].
Reference was made by counsel for the Commonwealth to sentences in this State for Commonwealth offences. Counsel said that he could find only two in which the Commonwealth was defrauded through the diesel fuel rebate scheme, as was the case here. Wilson was sentenced on 9 July 2004 to 3½ years' imprisonment, with recognisance release after serving two years, on her pleas of guilty to 34 counts committed over a 12 month period in 2000 and 2001, causing a loss to the Commonwealth of $546,850. Rothall was sentenced on 10 September 2008 to 4½ years' imprisonment, with recognisance release after serving 2½ years, on his pleas of guilty to 21 counts committed over a period of 5½ years between 1998 and 2003, as a result of which he obtained $564,564 to which he was not entitled. He had a 1992 conviction for receiving stolen property for which suspended imprisonment had been imposed.
Comments are warranted concerning the submissions of the appellant's counsel about the mitigating effect of the pleas of guilty. They were not made out of remorse or contrition. The appellant was arrested for the State offences on 28 October 1999 and declined to be interviewed. He originally pleaded not guilty to them and protracted committal proceedings took place, leading to an order on 24 March 2003 committing him for trial. On 2 November 2004, he sought an adjournment of the charges until February 2005, only securing the adjournment, with the consent of the prosecution, after his solicitors wrote an open letter to the Director of Public Prosecutions stating that he would plead guilty. He failed to appear on the next occasion and a warrant was issued for his arrest. On 16 September 2009, he was arrested in New South Wales and extradited to this State. He has been in custody since. Following his arrest, he appeared in court on about 30 occasions before pleading guilty. The various adjournments were not blamed on the State.
The State's case against him was a strong one. Before pleading guilty to the charges for which he was sentenced, the State agreed to abandon a number of other charges against him in return for his pleas. As counsel for the State submitted to the learned judge, by pleading guilty he gave up a slim possibility of acquittal but gained the benefit of not being convicted on the abandoned counts. As a result, the effect in mitigation of his pleas of guilty to the State charges was diminished. See R v Shannon (1979) 21 SASR 442 at 452 – 453, adopted in Hyland v R [1996] TASSC 144 at pars[9] and [42]; R v Lyons (1993) 69 A Crim R 300 at 310, 314, 317.
Concerning his pleas of guilty to the Commonwealth charges, he did not appear before a magistrate for the first time until 15 April 2011. The Commonwealth's case was also a strong one, although there was a chance he might have been acquitted, at least on some charges. From the time of his first appearance it was made known to the Commonwealth Director of Public Prosecutions that he would be pleading guilty, subject to discussions concerning the charges he would admit and the facts. He entered pleas of not guilty at his first appearance, thereby enabling his committal to the Supreme Court without delay and he did not seek to have witnesses examined in preliminary proceedings.
It has not been suggested that the learned judge did not treat the appellant's pleas of guilty to all of the charges as a factor in mitigation. The learned judge noted what matters he took into account when deciding the weight he should give to the pleas. His Honour did not state what reduction was made in the length of the sentences as a consequence. It has not been suggested that his Honour was required to do so. This Court must assume that the sentences were reduced to some extent.
It was submitted for the appellant that another factor in mitigation of sentence was that there was delay in the bringing of the charges for the Commonwealth crimes. Following the appellant's arrest, an investigator from the Australian Taxation Office attempted to interview him in about December 2009. Initially he agreed to be interviewed but later he declined. The Commonwealth Director of Public Prosecutions decided there was insufficient evidence at that time to warrant charging him. In December 2010 a report was received from a forensic examiner that his fingerprints were on a number of the material claim forms lodged with the Australian Taxation Office. Following that it was decided there was enough evidence to warrant the bringing of charges. In March 2011 the complaint was signed and he appeared in the Magistrates Court for the first time on 15 April 2011.
The learned judge found that the delay in the preparation of the Commonwealth case was not unusual, given the complexity of the case, particularly because of the time it took to obtain expert evidence identifying the appellant's fingerprints. No ground of appeal attacks that finding, and the Court should accept it. The appellant was not entitled to favourable consideration because of the delay in bringing the Commonwealth charges against him.
Counsel for the Commonwealth made the point that the learned judge had to impose two sentences for two separate courses of criminal conduct, one in 1999 and the other in 2005 – 2006. The Commonwealth offences were committed at a time when the appellant, having been freed on bail, had absconded. A court is entitled to regard that as an aggravating factor when considering the sentence for those offences, Wisniewski v Tasmania [2007] TASSC 25 at pars[10] – [11].
When fixing the terms of imprisonment, the learned judge said that 3½ years' imprisonment was an appropriate sentence for the State crimes, and having regard to the "totality principle" as discussed in Mill v R (1988) 166 CLR 59, determined that the appropriate effective imprisonment in total for both the State and Commonwealth crimes would be 7½ years, with eligibility for parole after serving half of that time in prison. His Honour then tailored the respective sentences, and the non-parole period, in accordance with that determination.
After some hesitation, I have concluded that the sentencing orders were not manifestly excessive. The overall imprisonment was high and could justifiably have been lower, but I am not persuaded that the length of the imprisonment to be served was so great as to amount to an error in the exercise of the sentencing discretion.
For that reason, I would dismiss the appeal.
File Nos 64/2012
65/2012
MICHAEL JOHN HENDERSON v STATE OF TASMANIA
MICHAEL JOHN HENDERSON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
23 October 2012
I agree with the Chief Justice.
File Nos 64/2012
65/2012
MICHAEL JOHN HENDERSON v STATE OF TASMANIA
MICHAEL JOHN HENDERSON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
23 October 2012
I agree with the reasons of the Chief Justice and would also dismiss the appeal.
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