Hodgetts v Tasmania - [2018] TASCCA 15

[2018] TASCCA 15

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Hodgetts v Tasmania [2018] TASCCA 15

PARTIES:  HODGETTS, Andrew Neville
  v
  STATE OF TASMANIA

FILE NO:  CCA 3071/2017
DELIVERED ON:  4 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  29 May 2018
JUDGMENT OF:  Blow CJ, Wood J and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Computer-related fraud – Misappropriation of $700,000 over more than four years – Sentence of five years' imprisonment with non-parole period of three years – Whether non-parole period made sentence manifestly excessive.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Reasons for length of non-parole period – Duty to give adequate reasons.

Sentencing Act 1997 (Tas), s 17(7).
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:
             Appellant:  T J Ellis SC
             Respondent:  J Hartnett
Solicitors:
             Appellant:  Grant Tucker
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 15
Number of paragraphs: 63

Serial No 15/2018
File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
MARSHALL AJ
4 October 2018

Order of the Court

Appeal dismissed.

Serial No 15/2018
File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
4 October 2018

This is a sentencing appeal. The appellant, Andrew Hodgetts, pleaded guilty before Pearce J to nine counts of computer-related fraud on a ten-count indictment. He committed those crimes in the course of his employment as the finance and insurance business manager of an entity referred to as the Launceston Motor Group. He committed those crimes over a period of more than four years, from November 2011 to February 2016. As a result, he obtained a total personal benefit of $700,000. He was sentenced to five years' imprisonment, with a non-parole period of three years. The grounds of appeal, as amended, assert that his sentence was manifestly excessive, and that the learned sentencing judge erred in law in failing to give reasons, or adequate reasons, for the imposition of such a long non-parole period.
At the hearing of the appeal, the appellant's counsel, Mr Ellis SC, did not contend that the head sentence of five years' imprisonment was manifestly excessive. His submissions were directed to the length of the non-parole period. He submitted that the non-parole period of three years made the sentence manifestly excessive. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be "the minimum time that a judge determines justice requires that he [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629.
Count 1 on the indictment related to 32 transfers of funds from an account of the appellant's employer into a loan account in the appellant's name at a different bank. The appellant caused innocent staff members to make those transfers by sending them emails directing them to transfer funds by way of payouts to named customers, each time giving account details that were his own and not those of any customer. Each time he made fraudulent electronic journal entries to conceal the fact that funds were missing. There were 34 such fraudulent journal entries. Two of them related to occasions when transfers were unsuccessful. The amounts transferred on the other 32 occasions totalled $348,231.91.
Count 2 related to a series of transfers of funds between September 2014 and February 2016 into a credit union account in the name of the appellant. He caused other staff to attempt 24 transfers into that account. There were 22 successful attempts and two unsuccessful attempts. The total transferred was $149,428.59. Again, on each occasion the appellant made fraudulent electronic journal entries to conceal the fact that money was missing.
Count 3 related to a transfer of $15,000 on 24 November 2015 into a credit union account held by the accused and his wife. The appellant caused accounts staff of his employer to make that transfer.
Count 4 was not proceeded with. Count 5 related to a transaction in July 2015 relating to the sale of a mortgaged property by the appellant. The proceeds of the sale were insufficient to pay out a loan relating to the property. The appellant arranged for accounts staff of his employer to make a payment of $20,000 into an account that was in his name, and concealed that misappropriation by making a false journal entry.
The other five counts to which the appellant pleaded guilty related to fraudulent loan applications made to a bank for the purchase of vehicles that did not exist. One of those applications was made in the appellant's name. The others were made in the names of companies without their knowledge or permission. The appellant provided false VIN numbers, registration numbers, valuations, invoices, and postal addresses. He forged electronic signatures on the applications that were not in his name. The total amount advanced by the bank was $664,941.41. Most of the proceeds went into accounts of the appellant. Some was paid to his employer to correct shortfalls and errors and to refund stolen sums. The appellant made loan payments to the bank in question totalling $43,867.03 between July 2015 and January 2016. Those payments were made from the employer's accounts, at the instigation of the appellant.
To conceal his fraudulent activities, the appellant inserted false data on numerous occasions so as to redistribute funds from one customer to another. The fraudulent entries were made in the records relating to 34 customers.
The appellant committed these crimes because he and his family were living beyond their means. He overspent on food, dining out, house renovations, clothes, holidays, and general living expenses.
The appellant's activities came to light in February 2016 as a result of a company reporting to the police that a motor vehicle loan had been taken out in its name without authorisation. The employer was insured, but inadequately insured, against the appellant's fraudulent activities. Its insurer paid out $490,000. The employer remained out of pocket by over $200,000, some of which related to interest. After the appellant's offending was discovered, his employer was obliged to assume responsibility for all of the fraudulent loans, including interest liabilities.

Reasons relating to the non-parole period

In his sentencing comments, the learned sentencing judge summarised the appellant's fraudulent offending, and continued as follows:
"The defendant is now almost 40. He is married. There are two children aged 15 and 11. It is not asserted that the crimes arose from need. The money was taken because of a perceived pressure to maintain for his family a particular standard of living and to keep up appearances. He committed these crimes because he was living far beyond his means. He is now estranged from his wife and has less contact with his children. He brought those things on himself. Nothing has been repaid. A small proportion of the loss may be recovered from the sale of real estate. Otherwise, repayment is unlikely. He says he is remorseful, but his repeated offending over a long period greatly reduces his claim to the type of remorse a court looks for.
The defendant's only claim to mitigation arises from his plea of guilty. It was not a particularly early one. Significant resources are inevitably required to investigate and prosecute crimes of this nature. His plea likely resulted from the work of the authorities. He made some admissions to the investigating police but they were limited. Nevertheless, his plea indicates some acceptance of responsibility, facilitates the course of justice and avoids the need for what would be a lengthy trial. He has no prior convictions but that is almost invariably the case for crimes of this nature. Otherwise he would not have been in a position to offend.
General deterrence and denunciation are the primary sentencing factors. The defendant committed a gross breach of his employer's trust. He was in a senior management position. In a sustained, deliberate and considered way, he used his knowledge of the financial operations of the business and his authority over other employees to dishonestly benefit himself and conceal his frauds. Although he is to be sentenced for nine counts, he committed numerous acts of dishonesty over a long period. He made 56 separate payments to himself over more than four years. Quite apart from the fraudulent payments and the forged loan applications and documents, there were many dishonest acts whereby the defendant transferred money and falsified accounting records to conceal his activities. He did not stop offending until information about a fraudulent loan came to the attention of a customer. An investigation led to detection of the crimes. In summary, it is a case of a serious fraud involving a very substantial amount taken over a long period of time by an employee in whom a high level of trust was reposed by his employer. A substantial term of imprisonment must be imposed.
Andrew Hodgetts, you are convicted on each count in the indictment except count 4. You will pay the victim of crime compensation levy of $450 within 28 days. I make compensation orders in favour of Chubb Insurance in the sum of $500,000 and in favour of Launceston Motor Group in a sum to be assessed. I impose one sentence. You are sentenced to imprisonment for five years from 3 October 2017, the date you went into custody. I order that you not be eligible for parole until you have served three years of that sentence, which is the minimum term I consider you should serve."
It can be seen that his Honour did not provide two separate sets of reasons, one for the head sentence of five years' imprisonment and another for the non-parole period of three years.
Ground 2 of the notice of appeal reads as follows:
"The learned Trial Judge erred in law and the sentence miscarried by reason of His Honour's failure to give reasons, or adequate reasons, for the imposition of the length of the non-parole period he did [sic]."
Section 17(2)(b) of the Sentencing Act empowers a court that imposes a sentence of imprisonment to order "that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order".
Section 17(7) reads, "A court must give reasons for making an order under subsection (2)." The question raised by ground 2 is whether the learned sentencing judge's sentencing comments were sufficient to satisfy s 17(7).
In the absence of a statutory requirement to give reasons, there is a general rule that a judicial officer must give reasons for any decision that is subject to a right of appeal, and that the failure to give reasons, or adequate reasons, amounts to an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, Crawford CJ, with whom the other members of the Court agreed, said at [64]:
"The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."
There is no reason to think that s 17(7) was enacted for any other purpose than making it possible to understand why a sentencer had made a particular order pursuant to s 17(2), and enabling an appellate court to adequately examine a s 17(2) decision that was the subject of an appeal.
Counsel did not refer the Court to any case in this country in which a criminal appeal has succeeded on the ground that the sentencing judge did not give reasons, or adequate reasons, for the sentence imposed. It has sometimes been said that a sentencer's failure to give reasons does not amount to an error of law. Most of the cases that have been relied on as authority for that proposition are decisions of single judges relating to the sentencing comments, or lack thereof, of magistrates: Massey v Muir A37/1976 (Rex AJ); Bastick v Cochrane 77/1997, ([1997] TASSC 79) (Crawford J, as he then was); Tame v Fingleton (1974) 8 SASR 507; Shrubsole v Rodriguez (1978) 18 SASR 233; Leech v McCall (1986) 41 SASR 96. The better view appears to be that the usual duty to give adequate reasons for a judicial determination requires a sentencer to give reasons, which may be very brief, for the sentence that he or she has decided to impose: Trueman v Tasmania [2009] TASSC 29 per Crawford CJ, with whom Tennent J agreed, at [27]-[33], and Slicer J at [55]; R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [42]; Nevermann v The Queen (1989) 43 A Crim R 347 per Malcolm CJ at 350 and Brinsden J at 354. The South Australian Court of Criminal Appeal has taken the view that, whilst a sentencing judge should give at least brief reasons for the sentence being imposed, a failure to give sufficient reasons does not necessarily constitute a ground for setting aside or interfering with a sentence: R v Capalbo [2005] SASC 47 at [98].
As I have explained, the order specifying the appellant's non-parole period was an order under s 17(2) of the Sentencing Act. By virtue of s 17(5) of that Act, such an order "forms, for all purposes, part of the sentence to which it relates".
Section 93(1) of the Sentencing Act provides that the failure of a court to give reasons in sentencing an offender does not invalidate a sentence imposed by it. However s 93(2) makes it clear that, when there has been such a failure, nothing in s 93(1) "prevents a court on an appeal against sentence from reviewing a sentence".
In his written outline of the submissions for the appellant, Mr Ellis SC said the following:
"The only comment His Honour the Trial Judge made as to the non-parole period selected was that it was 'the minimum term I consider you should serve'. These were reserved and prepared comments. What had come before was not linked explicitly to that outcome. This Court should be most hesitant to ascribe to his Honour that which he did not say. The 'reason' given is not, with respect, a reason at all. It is only an expression of the obvious. If it were all that was said as to the head sentence it would be clearly insufficient."
Similarly, in his oral submissions, Mr Ellis SC argued that the comments by the learned sentencing judge that preceded the imposition of the head sentence "were not directed to explain the imposition of more than half for non-parole period".
There is no rule that "if a sentencing judge decides that an order providing parole eligibility should be made, the order should provide for parole eligibility after serving one half of the term of imprisonment, unless [the judge is] persuaded that a longer period of ineligibility is required": Pickrell v Tasmania [2011] TASCCA 13 at [13].
There is no reason why a judge who has decided to impose a sentence that comprises a head sentence of imprisonment and an order specifying a non-parole period should not simply summarise all the matters that he or she has taken into account in deciding what sentence, or what package of sentencing orders, is appropriate. Ordinarily it will be crystal clear that the specified non-parole period, whether it is half of the head sentence or a longer period, is the minimum time that the sentencing judge considers that justice requires the offender to serve after taking into account the degree of seriousness of the offending and all circumstances relevant to the offender. See Wright v Tasmania [2010] TASCCA 7 per Tennent J, with whom Wood J agreed, at [41]-[44] and per Porter J at [47]-[52]; Mortyn v Tasmania [2018] TASCCA 2 per Estcourt J, with whom Pearce J and Porter AJ agreed, at [14]-[16].
In this case, the learned sentencing judge took into account the appellant's age, his family circumstances, his motive for offending, the extent to which restitution was likely, the extent of his remorse, his plea of guilty and its timing, the degree to which he co-operated with the authorities, the extent to which he appeared to have accepted responsibility for his offending, his lack of any significant prior convictions, the need for general deterrence and denunciation, the position of trust that he held, the number and nature of his dishonest acts, the fact that he did not stop offending until he was caught, and the scale and duration of his offending. All of those matters were relevant both to the fixing of an appropriate head sentence and the fixing of an appropriate non-parole period. Plainly the learned sentencing judge, in his comments as to all those factors, was explaining not only the basis for the head sentence, but also the basis for the order he had decided to make as to parole.
Mr Ellis SC made a submission to the effect that it was not possible to tell from the comments of the learned sentencing judge which of the factors he referred to were considered by him to be relevant to the fixing of the non-parole period. He submitted that his reference to the appellant's age – "now almost 40" – could not possibly have been relevant to the decision as to the length of the non-parole period. In relation to that determination, age may very well have been a neutral factor, but it is often very appropriate to mention neutral factors. It was significant that the appellant was not entitled to leniency by reason of either youth or old age. The learned sentencing judge mentioned aggravating factors, mitigating factors, neutral factors, and the absence of one mitigating factor, that being voluntary desistance from offending. Apart from neutral factors, every factor that he mentioned was relevant to the determination of both the head sentence and the length of the non-parole period.
Sometimes sentencing judges explain separately the reasons that have led them to fix a particular non-parole period. However there is no reason why that should be necessary in every case, and certainly no reason why that should be necessary when all the same factors have been taken into account in determining both the head sentence and the length of the non-parole period.
In his submissions relating to this ground, Mr Ellis SC relied on a proposition that, in his words, "crimes of this kind … don't usually attract a non-parole period of more than half". That proposition may or may not be correct. If it happens to be usual for crimes like those committed by the appellant to be punished by a prison sentence with a 50% non-parole period, it does not follow that a sentencing judge has a duty to give a special explanation if he or she chooses to impose a 60% non-parole period, as was done in this case. Provided the offender knows what factors have been taken into account in deciding what sentencing orders are to be made, he or she will know why he or she has been given such a heavy head sentence and such a long non-parole period, and an appeal court will be able to determine whether the sentence as a whole or the non-parole period in particular was manifestly excessive or manifestly inadequate. Ground 2 must fail.

Manifestly excessive?

There were a number of factors that warranted the imposition of a substantial prison sentence in this case, as follows:
·     The appellant's crimes resulted in a loss of over $200,000 to his employer, and a loss of $490,000 to its insurer.
·     The appellant received a total personal benefit of $700,000.
·     The appellant's offending continued over a period of a little over four years.
·     He committed several dozen dishonest acts in the course of committing the crimes charged.
·     He abused a position of trust as his employer's finance and insurance business manager.
·     He used innocent fellow employees to effect dozens of misappropriations.
·     His crimes inconvenienced his employer, its staff, and at least one of the companies in whose names he made fraudulent loan applications.
Some common mitigating factors were absent;
·     The appellant did not defraud his employer because of any financial needs.
·     He did not cease offending until he was caught.
·     There was no prospect of substantial restitution being made. The appellant's counsel told the learned sentencing judge that the appellant and his wife owned two modest houses with significant mortgages, that there was not a lot of equity in those properties, and that the appellant's wife would have some entitlements in relation to her interests in the properties.
The fact that most of the burden of the crimes fell on an insurance company was significant. A heavier sentence would have been warranted if the entire burden had fallen on an uninsured employer. The degree of vulnerability of a victim of a crime is always a relevant sentencing factor. However the fact that a liability of $490,000 fell on an insurance company still meant that there was a loss to a victim.
The relevant mitigating factors in this case, and my comments on them, are as follows:
·     The appellant pleaded guilty. He thereby saved the State the cost and inconvenience of a trial, and avoided the need for witnesses to have to give evidence. Because of those factors, a plea of guilty should ordinarily result in a sentence about 10% to 20% lower than a sentence imposed after a trial. However the plea of guilty was not an early one. The police completed a detailed financial analysis in or before August 2016. An indictment was filed in June 2017. It was not until 3 October 2017 that the appellant pleaded guilty. There was no reason to think that there was any significant chance that he would be acquitted of any of the counts to which he pleaded guilty. However, as the learned sentencing judge observed, his plea indicated "some acceptance of responsibility".
·     The appellant had no significant prior convictions. The learned sentencing judge was not correct when he said that he had no prior convictions, but his prior convictions were trivial and therefore irrelevant. Offenders who commit crimes of this nature almost invariably have no significant prior convictions since individuals with significant convictions are not normally placed in positions where they can misappropriate large sums. Further, when a trusted employee commits crimes against his or her employer involving multiple dishonest acts over a period of years, the claim for mitigation by reason of prior good character is substantially negatived: Attorney-General v Saunders [2000] TASSC 22 at [10]; Langridge v The Queen [2004] TASSC 97, 12 Tas R 470 at [18].
·     The appellant's offending resulted in him becoming estranged from his wife and having less contact with his children. However he brought those things on himself.
·     There was some remorse on the appellant's part. His counsel told the learned sentencing judge that he was remorseful; that he accepted that there was a breach of the trust of the directors of the employer company, most of whom he got on well with; and that he was embarrassed by the fact that there would be some shame on his family, and the likelihood that his children might get "some blowback". However, as the learned sentencing judge observed, "his repeated offending over a long period greatly reduces his claim to the type of remorse a court looks for".
·     The appellant made some admissions to the authorities. However, as the learned sentencing judge observed, those admissions were limited, and did not obviate the need for the police to undertake a thorough financial investigation. He of course had the right not to assist them at all: Neill-Fraser v Tasmania [2012] TASCCA 2 at [213]-[215].
In the circumstances, it is fair to say that the appellant's plea of guilty was the only substantial mitigating factor.
During the sentencing proceedings, the prosecutor provided the learned sentencing judge with the sentencing comments made in ten other cases involving frauds by employees, apparently without checking whether any of those cases had been the subject of successful sentencing appeals. Some of them had. Then, on the hearing of this appeal, Mr Ellis SC relied on seven other fraud cases and constructed an argument to the effect that, in relation to each of those cases, if one took the amount involved and divided it by the number of months of the offender's non-parole period, the result would show that the number of dollars per month for each of those offenders was greater than the number of dollars per month for the appellant. That argument was particularly inappropriate and unhelpful.
In Hili v The Queen [2010] HCA 45, 242 CLR 520, the High Court considered submissions as to an arithmetical approach to the determination of the proportion of a prison sentence that an offender should be required to serve. The two appellants in that case had been convicted in New South Wales on tax evasion charges under Commonwealth legislation. Each of them was sentenced to imprisonment, with a recognizance release order that provided for release after seven months. The Crown appealed to the New South Wales Court of Criminal Appeal. That court proceeded on the basis that "the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66 percent, which figure will be affected by special circumstances applicable to a particular offender": R v Jones [2010] NSWCCA 108, 76 ATR 249 at [39]. The Court of Criminal Appeal concluded that the sentences were manifestly inadequate, and re-sentenced the two offenders, who then applied for special leave to appeal to the High Court. The High Court granted special leave but dismissed the appeals. In a joint judgment, six of the seven judges, namely French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, were critical of the arithmetical approach that had been adopted in the court below. At [13] their Honours said:
"There neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order."
Their Honours went on to say, at [38]:
"Even if the ambiguities inherent in references to a 'norm' were to be resolved, references to a 'norm' will necessarily mislead if they distract attention from the applicable statutory provisions ... They will mislead if they suggest that the same kind of sentencing outcome will generally be expected in the sentencing of any federal offender. That is, they will mislead if they are read as saying that the same proportionate relationship should (or should normally) exist, between the time that is to be served in prison and the length of the head sentence imposed, in relation to all federal offences, no matter whether the offender has defrauded the Commonwealth, has been knowingly concerned in the importation of prohibited imports, or has committed some other federal offence. They will mislead if they suggest that matters such as the absence of prior convictions, or the willingness to co-operate with authorities, can have no effect on fixing a non-parole period, or time to be served before a recognizance release order takes effect, greater than a stated small percentage of the head sentence. They will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence."
At [42] their Honours cited with approval the following passage from the decision of the Queensland Court of Appeal in R v Ruha [2010] QCA 10, 198 A Crim R 430 at [47]:
"... because the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects of the overall sentencing process may differ according to infinitely variable circumstances, there can be no 'mechanistic or formulaic' approach which requires sentencing judges to ensure that the proportion which the pre-release period bears to the sentence of imprisonment must or must usually fall within a range which is substantially narrower than the whole period of the imprisonment, which is the range the statute expressly contemplates for recognizance release orders. The proportions commonly encountered in the decided cases should themselves be the results of application of conventional sentencing principles to the particular circumstances of each case: the appellant's argument inverts that proper approach by requiring that the sentence in a particular case be substantially dictated by a pre-determined range unless there are unusual factors." [Footnote omitted.]
Their Honours went on to say, at [48]-[49]:
"Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles."
For similar reasons, an arithmetical approach to sentencing, or to the fixing of non-parole periods, should be rejected in relation to cases like the one now before this Court. Few offenders are sentenced for large frauds in this State. The personal circumstances of the offenders, and the nature of their offending, is so varied that it is not possible to make any useful statistical analysis of their head sentences or their non-parole periods.
As French CJ, Hayne, Kiefel and Bell JJ said in Barbaro v The Queen [2014] HCA 2, 253 CLR 58, at [40], "Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence." [Footnote omitted.]
Mr Ellis SC relied on some comments made by Kirby J in Postiglione v The Queen (1997) 189 CLR 295 at 335-340. That was a case concerning the sentencing of co-offenders. It is authority for the propositions that there should not be a marked disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance, and that a sentence which offends that principle should be reduced. Of course this appeal does not concern the sentencing of co-offenders. However some of the comments of Kirby J in the passage relied upon relate not just to the sentencing of co-offenders, but also to the desirability of consistency in sentencing in similar cases. His Honour said at 336-337:
"Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that when performing their function sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts. So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders." [Footnote omitted.]
At 339 his Honour said:
"It is a mistake to endeavour to reduce judicial sentencing to mathematical accuracy or analytical certainty." [Footnote omitted.]
In the course of his oral submissions, Mr Ellis SC made a submission about the integrity of the members of this Court. That submission had not been foreshadowed in his written outline of submissions. And that submission made no difference to the merit, or lack thereof, of his submissions about his client's non-parole period.
He began by referring to the structure of the Court of Criminal Appeal in this State. By virtue of the Charter of Justice and the Supreme Court Act 1887, this Court consists of a Chief Justice, a maximum of six puisne judges, and any acting judges that may be appointed. The same judges sit as trial judges and as members of the Court of Criminal Appeal. The Court of Criminal Appeal is almost always constituted by three judges in accordance with s 400(1) of the Criminal Code. In other words, the judges of the Supreme Court of Tasmania sit in groups of three to hear appeals from each other's decisions. The same arrangement exists in relation to Full Court appeals in civil matters under s 40 of the Supreme Court Civil Procedure Act 1932.
Mr Ellis SC made submissions to the following effect:
·     The judges are "a small coterie" who sit in judgment on each other's judgments.
·     They are possibly prone to the fallibilities of "groupthink" and protecting each other's decisions.
·     There should be a guarding against the unconscious temptations not to upset each other's judgments.
·     He had compiled some statistics from the published decisions of this Court, as follows. In 2014 there were four decisions as to whether sentences were manifestly excessive, and only one of those appeals succeeded. There were 14 such cases in 2015, and only two appeals succeeded[1]. There were 12 such cases in 2016, and only one succeeded. There were 18 such cases in 2017, and only one succeeded.
·     Figures published by the Judicial Commission of New South Wales, and by Victoria's Sentencing Advisory Council, showed that larger percentages of similar appeals were successful in those States in recent years.
·     The structure of the Court of Criminal Appeal invites apprehension that it might be reluctant to overturn its colleagues' decisions; and "the low rate of success of appeals might point to that being valid".
·     He was "asking the Court to examine itself".
[1]   In fact three such appeals succeeded in 2015: Baldock v Tasmania [2015] TASCCA 3; Connelly v Tasmania [2015] TASCCA 15; and Summers v Tasmania [2015] TASCCA 23.
Mr Ellis SC did not go so far as to suggest that the judges of this Court were ever actually biased, but his submissions did carry the implication that there was a possibility, though no more than a possibility, that at times judges of this Court have been insufficiently conscientious when considering submissions that sentences imposed by their colleagues were manifestly excessive.
In my experience, all the judges of this Court have been consistently conscientious in hearing and determining appeals from their colleagues' decisions and appeals relating to the conduct of trials and other proceedings by their colleagues. Every year, appeals are allowed in the civil and criminal jurisdictions.
Of course I acknowledge that I am one of the judges whose conscientiousness has been called into question by Mr Ellis SC. However members of the public are able to make their own assessments as to whether the judges of this Court are appropriately conscientious. All trials and other hearings are conducted in public. With rare exceptions, all the decisions of the Court of Criminal Appeal, the Full Court, and single judges are published on the internet, as are the judges' sentencing comments in criminal cases.
Each judge of this Court has either sworn a judicial oath, or made the equivalent affirmation. That oath or affirmation includes a promise in the words, "I will faithfully execute the office of a judge of the Supreme Court of Tasmania and do equal right and justice to all persons to the best of my judgment and ability according to law." The submission made by Mr Ellis SC suggested that there is an open question as to whether the judges of this Court might sometimes not act in accordance with their judicial oaths when they dismiss appeals. I am unaware of any case in which it could reasonably be suggested that that happened. Mr Ellis SC did not refer to any individual cases in making his submission. He relied on statistics.
It is an undeniable fact that in this State the great majority of appeals by defendants who are aggrieved by their sentences are unsuccessful. That is not surprising. Every convicted person is entitled to appeal, and to contend that his or her sentence was manifestly excessive. Prisoners do not need lawyers to institute such appeals. They having nothing to lose by instituting them.
I can only speculate as to why such appeals succeed less frequently in Tasmania than in New South Wales or Victoria. One possibility is that because there are so few judges in Tasmania, and because we all sit on sentencing appeals as well as sentencing offenders, we have achieved a greater degree of consistency in sentencing than judges in other States. If so, that consistency in sentencing should be regarded as a positive type of "groupthink".
Another possibility is that the statistics reflect legislative differences between Tasmania and other States. In Tasmania, a convicted person may appeal against his or her sentence as of right: Criminal Code, s 401(1)(c). However in both New South Wales and Victoria, a convicted person may only appeal against his or her sentence if the appellate court grants leave to do so: Criminal Appeal Act 1912 (NSW), s 5(1)(c); Criminal Procedure Act 2009 (Vic), s 278. It is not clear whether or not unsuccessful applications for leave to appeal under those provisions were counted in the statistics relied upon by Mr Ellis SC.
The principles relating to the determination of sentencing appeals are as stated in House v The King (1936) 55 CLR 499, where Dixon, Evatt and McTiernan JJ said at 504-505:
"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

From the sentencing comments of the learned sentencing judge, it is not possible to identify any specific error that could have affected his sentencing discretion. It is therefore necessary to determine whether the sentence of five years' imprisonment, with a non-parole period of three years, was "unreasonable or plainly unjust". I have discussed the factors relevant to that determination at [28]-[32] above. There is no reason to regard the head sentence of five years' imprisonment as excessive. Mr Ellis SC quite rightly did not argue that it was. Having regard to the all the facts and circumstances relating to the appellant and his offending, and particularly to the fact that there was little in the way of mitigating circumstances for the learned sentencing judge to take into account, I am not satisfied that the three-year non-parole period made the sentence as a whole unreasonable or plainly unjust. In my view the orders made were well within the bounds of reasonableness.
I would therefore dismiss the appeal.

File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
4 October 2018

I agree with the reasons of the Chief Justice and his Honour's conclusion that the appeal should be dismissed. I wish merely to add some brief remarks about the submissions of Mr Ellis SC drawing on the structure of this Court.
It is difficult to see how Mr Ellis SC arrives at the risk that he urges us to guard against from a comparison of statistics of the number of successful appeals against sentence in this State compared to other jurisdictions.
An unsuccessful appeal against sentence on the ground of manifest excess or inadequacy does not mean that the judges composing the appellate court were of the same mind as the sentencing judge. In fact, the outcome may simply lie in the application of legal principle, as stated by the High Court in House v The King (1936) 55 CLR 499 and referred to by the Chief Justice, restraining intervention by appeal courts, and also in consequence of the wide discretion of sentencing judges which will be respected by appellate courts: Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Consequently, the sentence may not be a sentence that the judges composing the appellate court would have imposed if they had been in the position of the sentencing judge, and yet the appellant may not succeed. Further, the judges of the appeal court may take the view that the sentence is harsh and excessive, but the appeal will be unsuccessful unless it is excessive to the point of being unreasonable or plainly unjust. It follows that an order dismissing an appeal on the ground of manifest excess is a far cry from indicating homogeneity of views.
The structure of this Court means appeal judges are also sentencing judges at first instance. This means they have an active awareness of the broad limits of the sentencing discretion enabling them to balance competing considerations and arrive at a just sentence for the particular case.
I also fail to see how the structure of the Court may lead to a risk of ignoring the need for consistency. In considering whether a sentence is manifestly excessive or inadequate it is necessary for appeal courts to have regard to past sentences for comparable cases, and sentencing decisions of appeal courts: Hili v The Queen [2010] HCA 45, 242 CLR 520 at [54]. However sentencing courts must also consider such sentences and decisions in seeking "reasonable consistency" as a "requirement of justice": Wong v The Queen [2001] HCA 64, 207 CLR 584 per Gleeson CJ at [7]; Hili at [53]. This means the "treatment of like cases, alike, and different cases differently", Hili (above) at [49] and [53]. Past sentences in comparable cases provide guidance as to principle, and stand as a yardstick against which to examine a sentence for sentencing judges as well as appellate courts: Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [304]; Hili at [49]. The task of a sentencing judge in seeking consistency and considering past sentences complements the reflection and analysis engaged in at appellate level. This shared focus and the mutual objective of consistency is apparent from the comments of Gleeson CJ in Wong v The Queen at [7]:
"Day by day, sentencing judges, and appellate courts, are referred to sentences imposed in what are said to be comparable cases. There will often be room for argument about comparability, and about the conclusions that may be drawn from comparison. But sentencing judges seek to bring to their difficult task, not only their personal experience (which may vary in extent), but also the collective experience of the judiciary. Communicating that collective experience is one of the responsibilities of a Court of Criminal Appeal."
It may be interesting for some scholarly work to explore any differences in rates of successful outcomes between jurisdictions to see whether they are tied to the structure of the courts or other considerations, such as statutory provisions which operate as a filter on appeals, the percentage of appeals in each jurisdiction that assert specific error as opposed to the high threshold test of manifest excess or inadequacy, or practical considerations such as the availability of legal aid and the number of unrepresented appellants who pursue appeals in the respective jurisdictions.
Rather than speculate about these matters I will treat the submission of Mr Ellis SC as pressing upon us what is at stake generally in appeals and for this appellant, and the heavy responsibility that appeal judges bear in reviewing sentences. It is understood that for the appellant the difference between three years non-parole and the minimum of two and a half years is a matter of great significance. In discharging that responsibility, and having undertaken a close and careful consideration of this sentence, the nature of the crime, the appellant's culpability and his circumstances, it is however plain that the non-parole period does not render the sentence excessive, let alone manifestly so.

File No CCA 3071/2017

ANDREW NEVILLE HODGETTS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
4 October 2018

I agree with the reasons for judgment of Blow CJ.