Kerr v The Queen

[2014] NSWCCA 235

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kerr v R [2014] NSWCCA 235

Hearing dates:

2 July 2014

Decision date:

06 November 2014

Before:

Hoeben CJ at CL at 1; Harrison J at 2; McCallum J at 51

Decision:

1. Grant leave to appeal

2. Appeal dismissed

Catchwords:

CRIMINAL LAW - appeal against sentence - deal with proceeds of crime - obtain financial advantage by deception - offences under s 178BA(1), s 193B(1) and s 300(2) Crimes Act 1900 - whether sentence manifestly excessive being unreasonable and plainly unjust

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Dela Cruz v R [2010] NSWCCA 333
Frahm v R [2014] NSWCCA 10
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Schembri v R [2010] NSWCCA 149; (2010) 78 ATR 159
Subramaniam v R [2013] NSWCCA 259
Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Category:

Principal judgment

Parties:

Michael Raymond Kerr (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Gartelmann (Applicant)
T Smith (Crown)
Solicitors:
McWilliams Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/13237

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-01-22 00:00:00

Before:

Bennett DCJ

File Number(s):

2009/13237

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J.

1. HARRISON J: The applicant seeks leave to appeal against sentences imposed by his Honour Bennett DCJ on 22 January 2013. The applicant was convicted following a trial that commenced on 12 June 2012 and concluded on 4 July 2012. The jury returned verdicts of guilty in respect of all 39 counts on the indictment variously comprising offences contrary to s 178BA(1), s 193B(1) and s 300(2) of the Crimes Act 1900. These offences are referred to in more detail in annexure A to these reasons.

1. The applicant was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. The indicative sentence for each offence is set out in annexure B to these reasons. The structure of accumulation and concurrency adopted by his Honour that produced the aggregate sentence is depicted in annexure C to these reasons.

1. The applicant propounds a single ground of appeal in this Court, contending that the sentence imposed by his Honour is manifestly excessive being unreasonable and plainly unjust.

The facts of the offences

1. William Pittelkow was the sole shareholder and director of a packaging company, Pharmaceutical Fillers Pty Ltd. In late 2005, the applicant and his business partner began to use Pharmaceutical Fillers' premises to package a product. The applicant and Mr Pittelkow took steps towards establishing a joint venture business, and discussed the applicant acquiring Pharmaceutical Fillers on Mr Pittelkow's retirement. The applicant began to act as the company's business development manager.

1. In early 2006, Pharmaceutical Fillers acquired the manufacturing and packaging arm of a client, Innoxa Pty Ltd. Pharmaceutical Fillers took over Innoxa's premises and became its supplier. Innoxa became Pharmaceutical Fillers' main client, although it continued to provide services to existing customers.

1. Until its takeover of Innoxa, Pharmaceutical Fillers had an account with AMP Bank. Some customers paid their invoices directly into the account. After the takeover, Pharmaceutical Fillers required increased capital and cash flow. It entered into an arrangement with Benchmark Debtor Finance. Pharmaceutical Fillers submitted customer invoices to Benchmark, which paid it 75 percent of their value and the balance less an 11 percent service fee once payment was recovered from the customer. It was anticipated that this arrangement would continue for up to fifteen months.

1. The applicant became increasingly involved in Pharmaceutical Fillers' financial management. He was nominated as its contact for dealings with Benchmark and dealt with payments pursuant to the arrangement with Benchmark. The applicant was also nominated as the company's contact for dealings with Innoxa and dealt with its payments.

1. On 23 November 2006, the applicant opened two accounts in his own name with Westpac Bank. The next day, he sent AMP Bank a fax with the falsified signature of Mr Pittelkow. The fax purported to authorise Pharmaceutical Fillers' customer payments to be paid into one of the Westpac accounts, stating it was a Benchmark account. Two days later, the applicant sent an identical fax to the financial controller of Innoxa. This conduct constituted the two offences of use false instrument.

1. Between 27 November 2006 and 26 March 2007, payments of Pharmaceutical Fillers' customers were transferred into the applicant's first Westpac account. Between 30 November 2006 and 2 February 2007, Innoxa also paid funds into the account. This conduct constituted the eleven offences of obtain financial advantage by deception. Particulars of the transactions are set out in annexure A.

1. Between 27 November 2006 and 15 May 2007, the applicant transferred funds from the first Westpac account into the second Westpac account. This conduct constituted the twenty-six money-laundering offences. Particulars of the transactions are also set out in annexure A.

1. From time to time the applicant in fact transferred funds from the first Westpac account into Benchmark's true account. Despite this, Mr Pittelkow noticed that Pharmaceutical Fillers was suffering from what appeared to be a poor cash flow and retained a bookkeeper who examined its accounts and discovered the transfer of funds into the applicant's first Westpac account. The applicant was asked to attend a meeting but he feigned illness. The applicant fled briefly to the United Kingdom but returned and was charged with the offences on 7 August 2007.

1. The funds transferred from the Pharmaceutical Fillers' AMP Bank account into the first Westpac account totalled $323,065.67. The funds Innoxa paid into the first Westpac account totalled $1,040,566.70. The funds involved in the offences of obtain financial advantage by deception thus totalled $1,363,632.37. However, as the applicant had transferred some funds into the true Benchmark account, his Honour accepted a submission on behalf of the applicant that the total amount misappropriated was $246,461,25.

1. Pharmaceutical Fillers' financial position deteriorated as a result of the offences and the company was sold. Mr Pittelkow had to defer his retirement plan and became an employee of the new owner. His Honour did not find harm or loss caused by the offences to be an aggravating factor. Nor did he accept that the offences involved limited planning or sophistication, and considered the applicant returned funds only to avoid discovery.

Subjective circumstances

1. The applicant was aged 46 at the time of these offences. He had no prior convictions. After completing high school, he was employed as a director of several companies operating in various industries. He had worked most recently as a consultant but at the time of the sentence proceedings he was in receipt of a government benefit.

1. The applicant has two adult daughters from his first marriage and an eleven year old son from his second marriage. That marriage ended in 2009. When sentenced, the applicant had been in a new relationship for two and a half years. He and his partner had a son shortly before the sentence proceedings and she had a four year old daughter from a previous relationship. The applicant's partner had experienced traumatic events in Sierra Leone and was dependent upon the applicant. His Honour did not consider those circumstances to be exceptional.

1. Dr Richard Furst reported on 3 October 2012 that the applicant had symptoms of depression that arose in 2008 as a result of marital stress and the investigation of the present offences. He attended a general practitioner in 2007 and a psychiatrist from late 2007 until 2008. He was prescribed anti-depressant medication and was admitted to hospitals on several occasions in 2008 and 2009 as a result of his condition. He was diagnosed with a major depressive disorder that was current when the offences were committed. His Honour rejected a contention that the applicant's condition affected his decision-making when he committed the offences and considered that it developed only as a result of the investigation and prosecution. His Honour did accept that imprisonment would weigh more heavily on the applicant because of his mental condition.

1. His Honour did not find the applicant to be remorseful and considered that he had misrepresented the circumstances of the offences and attempted to avoid prosecution. His Honour was not satisfied that the applicant had prospects of rehabilitation. He found that there were special circumstances as the applicant suffered from anxiety and depression as well as for the reason that his partner was left alone with the sole care of their child.

Submissions

The applicant

1. The indicative sentences for the offences of deal with proceeds of crime and obtain financial advantage by deception vary according to the quantum of funds involved in the particular transaction. The indicative sentences for the former offences are nevertheless substantially greater than those for the latter offences, subject to the amount involved.

1. The difference between the indicative sentences for the deal with proceeds of crime offences and those for the obtain financial advantage by deception offences appears to reflect the greater maximum penalty applicable to the former category of offences. However, the substantial maximum penalty is not a reliable guide as to the seriousness of a particular offence, as the provision embraces a very broad range of both conduct and criminality: Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 at [33]; Frahm v R [2014] NSWCCA 10 at [22] and [31].

1. Although an offence of deal with proceeds of crime may be constituted by the use of funds obtained through a substantive fraud offence, it represents a "highly technical" instance of such an offence: Thorn at [31]. The applicant's conduct in committing the deal with proceeds of crime offences was the transfer of funds from the first Westpac account to the second Westpac account. There was no transformation of the nature of the funds or disguising of their source that could have been described as "money laundering".

1. In the light of the range of conduct potentially falling within the terms of the offence, the deal with proceeds of crime offences involved only very limited criminality. The indicative sentences for these offences are said to be inconsistent with a proper assessment of the discrete criminality involved in these offences.

1. The applicant also contended that where the offences of deal with proceeds of crime reflect the use of funds obtained through substantive fraud offences, they may involve no real additional criminality that warranted an effective increase in sentence: see Dela Cruz v R [2010] NSWCCA 333 at [19]; Schembri v R [2010] NSWCCA 149; (2010) 78 ATR 159 at [15]; Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463 at [17]; Subramaniam v R [2013] NSWCCA 259 at [33] - [35].

1. The indicative sentences for the deal with proceeds of crime offences were substantially greater than those for the obtain financial advantage by deception offences. Despite their partial concurrency, the indicative sentences for those offences gave rise to a substantial increase in the effective sentence. The applicant contended that the effective increase exceeded what was warranted to reflect the discrete criminality involved in the offences.

1. The applicant also contended that the indicative sentences for the use false instrument offences were inconsistent with any proper assessment of the discrete criminality involved in these offences. The indicative sentences for these offences were terms of imprisonment for five years. The conduct constituting these offences consisted of the applicant sending the false faxes to AMP Bank and Innoxa. The conduct was ancillary to that constituting the obtain financial advantage by deception offences. The indicative sentences for the use false instrument offences cannot be reconciled with the conduct constituting those offences unless it were taken to embrace the criminality involved in the obtain financial advantage by deception offences, in which case it represents double punishment: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40], [42], [45] - [47].

1. The indicative sentences for the use false instrument offences nominally commenced before and expired after the indicative sentences for the obtain financial advantage by deception offences. The use false instrument offences gave rise to an effective increase in sentence that is inconsistent with any proper assessment of the additional criminality involved in those offences.

1. The applicant submitted that an examination of the criminality involved in the individual offences and the indicative sentences determined for the offences respectively demonstrates that proper principle was not applied in determining the aggregate sentence: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59], [75]. The resultant aggregate sentence was therefore unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [8].

1. The applicant submitted that a lesser aggregate sentence was warranted in law and should have been imposed: s 6(3) Criminal Appeal Act 1912.

The Crown

1. The applicant submitted that the proceeds of crime offences related to the use of the same funds acquired as a consequence of the obtain financial advantage by deception charges, and that therefore the former offences represent a highly technical instance of such an offence, involving no real additional criminality warranting an effective increase in sentence. The Crown acknowledged that if the different offences related to the same moneys then there would be merit in this argument. However, the total amount of $515,009.44 involved in the proceeds of crime offences was significantly larger than the overall amount of $323,065.67 involved in the obtain benefit by deception offences. The proceeds of crime charges did not therefore relate only to funds obtained as a result of the obtain benefit by deception charges.

1. Some of the proceeds of crime charges related to money that had been paid by Innoxa directly into the applicant's account in accordance with the false document given to them by the applicant. There was therefore arguably additional criminality warranting an effective increase in the sentence. Consequently, there was no strong reason in principle why the indicative sentences in respect of each of the proceeds of crimes charges should run entirely concurrently with the indicative sentences for the obtain benefit by deception charges.

1. The applicant further contended that the indicative sentences imposed by his Honour in respect of the proceeds of crime offences were, in effect, incorrectly inflated because of the substantially longer maximum penalty for that offence, particularly when regard is had to the length of the indicative sentences his Honour imposed for the obtain benefit by deception charges. The Crown accepted that there may be some substance to this complaint. That is because despite having a higher maximum penalty, the deal with proceeds of crime offences were not the principal offences. The authorities relied upon by the applicant provide support for the conclusion that the greater criminality lay in the acts of obtaining the funds through fraudulent means rather than in the use of those funds after they had been so obtained: Thorn at [27].

1. However, the way his Honour structured the indicative sentences meant there was no increase in the effective sentence as a consequence of the 11 obtain benefit by deception charges. This is because the indicative sentences in respect of the obtain benefit by deception charges were entirely subsumed by the sentences imposed for the use false instrument charges. That approach was clearly favourable to the applicant.

1. The applicant also benefited from the fact that the two use false instrument indicative sentences were made entirely concurrent with each other. Whilst each of them involved the use of the same false document, it was nevertheless used on two separate and discrete occasions by the applicant for two different purposes. In the first count, it was used to authorise the AMP bank to permit transfers of greater than $5,000 into the applicant's account (on the pretext it was a Benchmark Debtor Finance Account). This enabled the applicant to transfer customer payments that were made into the AMP Bank account into his own personal account. On the second occasion, the document was handed by the applicant to Innoxa's financial controller for the purposes of inducing Innoxa to transfer payments directly into the applicant's account.

1. The applicant further submitted that the indicative sentences of 5 years for the use false instrument charges are themselves excessive. These offences carry a maximum penalty of 10 years. The conduct the subject of the charges is described by the applicant as "ancillary to that constituting the obtain financial advantage by deception charges". However, there were no obtain benefit by deception charges in respect of Innoxa's payments into the applicant's account.

1. Further, in each case the creation and use of the false fax was the first necessary step in the applicant's overall fraudulent scheme. Without these crucial actions the applicant would not have been able easily to transfer the money into his account. As his Honour observed, "all that followed the commission of those offences was facilitated and made possible by the publication of those fraudulent instruments."

1. The applicant also submitted that the indicative sentences for the use false instrument offences could not be reconciled with the conduct constituting those offences unless it were taken to embrace the criminality involved in the obtain financial advantage by deception offences, in which case it represents double punishment. At certain points in the remarks his Honour did refer to the Innoxa transactions being made as a consequence of the use of the false instrument the subject of count 2. The funds obtained from Innoxa as a result of the use of the false document could have been taken into account in assessing the criminality involved in count 2 given that there was no separate obtain benefit by deception charges in respect of those amounts. There were no such further charges because no further action was required by the applicant after the initial use of the false document, in contrast to money transferred in from the AMP Bank account. Consequently, there would have been no double counting involved if his Honour took into account the amounts received in the applicant's account from Innoxa under count 2.

1. The Crown did however acknowledge that if that approach was indeed taken, then the deal with proceeds of crime charges would have represented funds obtained either as a consequence of the obtain benefit by deception charges or of the use false instrument charge in count 2, and therefore there should not have been any effective additional penalty in respect of the proceeds of crimes charges. The receipt of the money from Innoxa had already been reflected in the sentence for count 2.

Consideration

1. The offences involved planned and protracted criminal activity. They involved reasonably intricate and structured arrangements which permitted the applicant to exploit the trust extended to him by Mr Pittelkow. It involved the applicant using a false instrument on two occasions and fraudulently obtaining access to $1,363,632.37, of which $246,461.25 was ultimately retained by the applicant and not subsequently recovered.

1. As his Honour noted, regardless of the sums actually retained and used by the applicant, it remained the case that he availed himself of substantial sums of money at the expense of Pharmaceutical Fillers and its creditors. As his Honour also found, the return of some of the funds while these frauds were continuing simply gave the applicant scope to persist in what he was doing by minimising the risk of detection.

1. The Crown emphasised that the applicant embarked on an egregious course of conduct by befriending Mr Pittelkow. While ostensibly assisting him, the applicant acquired considerable influence over Mr Pittelkow, which both enabled him to gain control of the financial side of the business and thereafter to exploit it to his own advantage. The applicant appropriated funds in order to maintain his lifestyle and further his own interests. His actions left the business financially vulnerable and caused Mr Pittelkow and his family to lose assets and resources that had been accumulated from years of hard work.

1. His Honour found that the applicant was neither remorseful nor contrite. He was entitled to do so on the material before him and no challenge is mounted to that finding. His Honour imposed sentences after a trial so that any comparison with comparable cases needs to recognise the absence of any discount for a plea of guilty. There was also no favourable finding made in respect of the applicant's prospects of rehabilitation. The applicant had the benefit of a finding of special circumstances which was reflected in the overall non-parole period representing 66.6 percent of the total term.

1. It seems to me that, with one exception, his Honour approached the sentencing exercise by attributing primacy to the use false instrument offences. His indicative sentence of five years for each of these offences, respectively commencing and concluding on the same date, suggests that his Honour considered that these offences were at the heart of the facilitation of the entirety of the fraudulent conduct. The indicative sentences for obtain financial advantage by deception are wholly subsumed within the indicative terms for the use false instrument offences. It is difficult in the circumstances to find fault with the way in which the indicative sentence structure adopted by his Honour deals with the relative terms for these sets of offences. Indeed, subject to the applicant's complaint that the use false instrument sentences were too long standing alone, the latest of the obtain financial advantage by deception sentences expires twelve months before the five year term for the use false instrument sentences. That total concurrency means that the applicant was effectively not sentenced to any separate term of imprisonment for the obtain financial advantage offences inasmuch as they were entirely subsumed in the sentences for the two use false instrument offences.

1. The one exception to which I have referred is the way in which his Honour aggregated the sentences he proposed to impose for the deal with proceeds of crime offences in counts 16, 18, 21 and 39. The sentences for these four offences were structured to increase the overall aggregate sentence by 12 months. The applicant's complaint is that the criminality involved in these offences did not warrant sentences that had that effect, either in terms of their relative expiration dates or the length of their non-parole period, because the conduct giving rise to these charges was in reality not discretely different to that concerned with the use false instrument offences. The applicant formulates his complaint in this respect as one of double counting.

1. In Thorn the following passages appear:

"[26] The second ground asserts that the sentence for the money laundering offence was excessive. The submission is that the criminality involved in this offence is less than the fraud offences and that the sentencing of the applicant was overly complicated by the use of this offence, especially as it overlapped to an extent with the fraud offences. It is further submitted that the sentence imposed is out of proportion with the penalty imposed for the other offences.

[27] This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained. Further the money laundering charge was used to punish the applicant for his criminality arising from his partner's fraudulent conduct. As was noted earlier, there is no concept of a joint criminal enterprise under the Code, so the applicant could not be charged with his partner's fraudulent activity even though it was common activity of them both.

...

[31] But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.

...

[33] In my opinion his Honour should have treated this as an offence towards the lowest range of the type of offending covered by the section, even while noting, as he did, that it encompassed a number of transactions over a significant period of time. In the particular circumstances of this case the maximum penalty was not a reliable guide to the seriousness of the conduct involved: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]. Further, the penalty was based upon the offender dealing with money over the value of $100,000 yet that amount was reached by including a sum of money, whatever it might have been, that overlapped with the fraud offences.

...

[35] Whether the sentence for the money laundering offence is manifestly excessive depends upon how that sentence compares with what would have been appropriate to reflect the seriousness of the dishonesty offences by which the funds had been obtained, bearing in mind that they would each have attracted a maximum penalty of 10 years imprisonment..."

1. The burden of the applicant's complaint is that whereas his convictions for the proceeds of crime offences may have been technically unexceptionable and liable to attract the imposition of a sentence of imprisonment standing alone, the extent to which his overall sentence was thereby increased meant that the resultant practical sentencing outcome was unreasonable or plainly unjust.

1. It is obvious that where a recipient of the proceeds of crime has been uninvolved in the crime that produced them, a deal with proceeds of crime offence will have a useful role to play. The utility of such charges in circumstances where the relevant offender is one and the same is less obvious. Nonetheless, the actual use of, or dealing with, the proceeds of crime may have an important independent significance. In the present case, the applicant defrauded his victim by the use of a false instrument. For as long as the money obtained in that way remained in the accounts set up by the applicant for that purpose, so that the transaction could be reversed, the victim had potentially suffered no irrecoverable loss. It was the use of the funds, or so much of them as were utilised or directed for the applicant's own purposes, that consummated the loss. That loss has never been recouped. In that sense at least, the effective damage was caused by the applicant's dealings with some of the proceeds of the use false instrument offences. In that way the deal with proceeds of crime offences displayed an independent criminality that was worthy of a separate penalty.

1. The applicant was not sentenced to any term for the obtain financial advantage offences that resulted in any discrete period of imprisonment not otherwise subsumed within a sentence for a different offence. The applicant's Pearce complaint may in such circumstances have theoretical force but has generated no practical prejudice in the end result. The applicant's contention must therefore be considered as raising the single question of whether an aggregate head sentence of 6 years with a non-parole period of 4 years for the other offences was in all of the circumstances unreasonable or plainly unjust. On one view, his Honour's aggregate sentence was stern. A shorter head sentence and a correspondingly shorter non-parole period could certainly have withstood scrutiny in this Court. However, that is neither the point nor the proper approach.

1. His Honour's reasons are expansive and clear. It is a significant aspect of his conclusions that the applicant was engaged in a planned and extensive course of criminal conduct. It was not triggered by some family crisis or other personal catastrophe, which might render his conduct explicable if not excusable. The anguish and anxiety diagnosed by Dr Furst was to a considerable extent a function of the applicant's original continuing and undetected criminal activities. The applicant's letter to his Honour was curiously self-centred and arguably lacked any degree of insight. The criminal activities in which the applicant engaged had serious practical consequences and no restoration of the loss was offered or made.

1. I am not persuaded, to the extent that the applicant has been punished by the imposition of an aggregate sentence that contemplated serving any additional time beyond the sentence indicated for the use false instrument offences, that he has been doubly punished or that the sentence is therefore or in any other way unreasonable or unjust. Nor am I satisfied that the imposition of a five year term for those offences was itself beyond the bounds of a proper exercise of the sentencing discretion. It is the nature of sentencing that no one sentence is correct. It follows that the availability of a different view about the suitability or appropriateness of a sentence does not mean that error has been demonstrated. The aggregate sentence imposed by his Honour was not in my opinion manifestly excessive. It was not unreasonable or plainly unjust. I do not consider that some other sentence is warranted in law.

1. In my opinion the applicant should be given leave to appeal but the appeal should be dismissed.

1. McCALLUM J: I agree with Harrison J. I would add that I do not think it was necessary for the learned sentencing judge to address the issue of accumulation in the detail that he did in his indicative sentences, which included specification of the commencement and concluding date of each sentence: cf Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] per Button J (Hoeben CJ at CL and Garling J agreeing at [1] and [2]). The whole point of the introduction of a power in s 53A to impose an aggregate sentence was to remove at least one complexity in the sentencing task which was adding unnecessarily to the already substantial sentencing workload of the District and Local Courts. These remarks are not in any respect to criticise the learned sentencing judge, whose approach was detailed and precise, but only to note the permissibility of adopting a simpler approach. Section 53A(2) requires a court imposing an aggregate sentence to indicate "the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence". Truong, I think, stands as authority for the proposition that, in order to comply with that provision, in the case of sentences of imprisonment, the judge need only indicate the term of imprisonment that would have been imposed for each individual offence. In doing so there is no need, in my view, for the judge to indicate the commencement date or non-parole period that would have been fixed for each individual offence

**********

ANNEXURE A

Individual offences

Count	Date(s)	Offence	Crimes Act	Particulars
1	24.11.06	Use false instrument	s300(2)	N/A
2	27.11.06	Use false instrument	s300(2)	N/A
3	27.11.06	Obtain financial advantage by deception	s178BA(1)	$29,741.36
4	29.11.06	Deal with proceeds of crime	s193B(1)	$5,000.00
5	30.11.06	Obtain financial advantage by deception	s178BA(1)	$91,954.57
6	07.12.06	Deal with proceeds of crime	s193B(1)	$50,000.00
7	14.12.06	Deal with proceeds of crime	s193B(1)	$20,000.00
8	02.01.07	Deal with proceeds of crime	s193B(1)	$1,300.00
9	02.01.07	Deal with proceeds of crime	s193B(1)	$7,000.00
10	12.01.07	Obtain financial advantage by deception	s178BA(1)	$5,653.31
11	12.01.07	Obtain financial advantage by deception	s178BA(1)	$16,477.71
12	12.01.07	Deal with proceeds of crime	s193B(1)	$10,000.00
13	16.01.07	Deal with proceeds of crime	s193B(1)	$3,000.00
14	19.01.07	Deal with proceeds of crime	s193B(1)	$5,000.00
15	24.01.07	Deal with proceeds of crime	s193B(1)	$4,000.00
16	30.01.07	Deal with proceeds of crime	s193B(1)	$90,000.00
17	31.01.07	Deal with proceeds of crime	s193B(1)	$5,000.00
18	05.02.07	Deal with proceeds of crime	s193B(1)	$100,000.00
19	07.02.07	Deal with proceeds of crime	s193B(1)	$2,000.00
20	12.02.07	Obtain financial advantage by deception	s178BA(1)	$100,000.00
21	13.02.07	Deal with proceeds of crime	s193B(1)	$90,000.00
22	16.02.07	Obtain financial advantage by deception	s178BA(1)	$6,507.00
23	16.02.07	Deal with proceeds of crime	s193B(1)	$189.00
24	19.02.07	Deal with proceeds of crime	s193B(1)	$5,000.00
25	22.02.07	Deal with proceeds of crime	s193B(1)	$1,500.00
26	26.02.07	Obtain financial advantage by deception	s178BA(1)	$20,064.00
27	27.02.07	Deal with proceeds of crime	s193B(1)	$17,000.00
28	01.03.07	Deal with proceeds of crime	s193B(1)	$600.00
29	09.03.07	Obtain financial advantage by deception	s178BA(1)	$6,297.77
30	12.03.07	Deal with proceeds of crime	s193B(1)	$6,000.00
31	13.03.07	Deal with proceeds of crime	s193B(1)	$295.00
32	14.03.07	Obtain financial advantage by deception	s178BA(1)	$15,000.00
33	15.03.07	Deal with proceeds of crime	s193B(1)	$15,000.00
34	22.03.07	Obtain financial advantage by deception	s178BA(1)	$5,763.53
35	23.03.07	Obtain financial advantage by deception	s178BA(1)	$25,604.72
36	23.03.07	Deal with proceeds of crime	s193B(1)	$5,700.00
37	23.03.07	Deal with proceeds of crime	S193B(1)	$25,000.00
38	26.03.07	Deal with proceeds of crime	s193B(1)	$670.00
39	27.11.06 /15.05.07	Deal with proceeds of crime	s193B(1)	$45,755.44

ANNEXURE B

Indicative sentences

Count	Date(s)	Offence	Term	From/to
1	24.11.06	Use false instrument	5y	10.11.11-09.11.16
2	27.11.06	Use false instrument	5y	10.11.11-09.11.16
3	27.11.06	Obtain financial advantage by deception	2y	10.11.12-09.11.14
4	29.11.06	Deal with proceeds of crime	ly	10.11.12-09.11.13
5	30.11.06	Obtain financial advantage by deception	2y6m	10.11.12-09.05.15
6	07.12.06	Deal with proceeds of crime	3y6m	10.11.12-09.05.16
7	14.12.06	Deal with proceeds of crime	2y6m	10.11.12-09.05.15
8	02.01.07	Deal with proceeds of crime	9m	10.11.12-09.08.13
9	02.01.07	Deal with proceeds of crime	1y	10.11.12-09.11.13
10	12.01.07	Obtain financial advantage by deception	9m	10.11.12-09.08.13
11	12.01.07	Obtain financial advantage by deception	1 y6m	10.11.12-09.05.14
12	12.01.07	Deal with proceeds of crime	1 y6m	10.11.12-09.05.14
13	16.01.07	Deal with proceeds of crime	9m	10.11.12-09.08.13
14	19.01.07	Deal with proceeds of crime	1V	10.11.12-09.11.13
15	24.01.07	Deal with proceeds of crime	9m	10.11.12-09.08.13
16	30.01.07	Deal with proceeds of crime	4V	10.05.13-09.05.17
17	31.01.07	Deal with proceeds of crime	1V	10.05.13-09.05.14
18	05.02.07	Deal with proceeds of crime	4y	10.05.13-09.05.17
19	07.02.07	Deal with proceeds of crime	9m	10.05.13-09.02.14
20	12.02.07	Obtain financial advantage by deception	2y6m	10.05.13-09.11.15
21	13.02.07	Deal with proceeds of crime	4y	10.05.13-09.05.17
22	16.02.07	Obtain financial advantage by deception	9m	10.11.13-09.08.14
23	16.02.07	Deal with proceeds of crime	6m	10.11.13-09.05.14
24	19.02.07	Deal with proceeds of crime	1y	10.11.13-09.11.14
25	22.02.07	Deal with proceeds of crime	9m	10.11.13-09.08.14
26	26.02.07	Obtain financial advantage by deception	1 y6m	10.11.13-09.05.15
27	27.02.07	Deal with proceeds of crime	2y	10.11.13-09.11.15
28	01.03.07	Deal with proceeds of crime	6m	10.11.13-09.05.14
29	09.03.07	Obtain financial advantage by deception	9m	10.11.13-09.08.14
30	12.03.07	Deal with proceeds of crime	1y	10.11.13-09.11.14
31	13.03.07	Deal with proceeds of crime	6m	10.11.13-09.05.14
32	14.03.07	Obtain financial advantage by deception	1 y6m	10.11.13-09.05.15
33	15.03.07	Deal with proceeds of crime	2y	10.11.13-09.11.15
34	22.03.07	Obtain financial advantage by deception	9m	10.11.13-09.08.14
35	23.03.07	Obtain financial advantage by deception	1 y6m	10.11.13-09.05.15
36	23.03.07	Deal with proceeds of crime	1y	10.11.13-09.11.14
37	23.03.07	Deal with proceeds of crime	2y6m	10.11.13-09.05.16
38	26.03.07	Deal with proceeds of crime	6m	10.11.13-09.05.14
39	27.11.06 /15.05.07	Deal with proceeds of crime	4y	10.11.13-09.11.17

Decision last updated: 27 November 2014