Krol v Regina
[2011] NSWCCA 175
•22 August 2011
Court of Criminal Appeal
New South Wales
Case Title: KROL v Regina Medium Neutral Citation: [2011] NSWCCA 175 Hearing Date(s): 11 April 2011 Decision Date: 22 August 2011 Jurisdiction: Before: CAMPBELL JA [1]
RS HULME J [2]
HOEBEN J [108]Decision: (i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentences imposed by Sorby DCJ on 11 February 2010;
(iv) In respect of count 10, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 January 2009;
(v) In respect of each of counts 11 and 12, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 September 2009;
(vi) In respect of each of counts 9 and 13, sentence the Applicant to imprisonment for a fixed term of 10 months commencing on 6 June 2010;
(vii) For failing to appear, the offence I have numbered 14, sentence the Applicant to imprisonment for a fixed term of 4 months commencing on 6 April 2011.
(viii) In respect of each of counts 1, 4 and 6, sentence the Applicant to imprisonment for 4 months commencing on 6 August 2011;
(ix) In respect of count 7, sentence the Applicant to imprisonment for 9 months commencing on 6 October 2011;
(x) In respect of count 8, sentence the Applicant to imprisonment for 4 months commencing on 6 July 2012;
(xi) In respect of count 2, sentence the Applicant to imprisonment for 12 months commencing on 6 November 2012;
(xii) In respect of each of counts 3 and 5, sentence the Applicant to imprisonment for 12 months commencing on 6 May 2013;
(xiii) Pursuant to s 20(1)(b) of the Crimes Act 1914 (C'th) direct that, upon entering into a recognisance to be of good behaviour for a period of 12 months and providing security in the sum of $1, the Applicant be released after serving imprisonment for the period from 6 August 2011 to 6 May 2013.Catchwords: Criminal Law - sentence - NSW and Commonwealth offences - fraudulent identity documents - totality
Legislation Cited: Financial Transaction Reports Act 1988 (C'th)
Australian Passports Act 2005 (C'th)
Crimes Act 1914 (C'th)
Criminal Code Act 1995 (C'th)
Crimes (Currency) Act 1981 (C'th)
Crimes Act (NSW) 1900
Bail Act 1978 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Judiciary Act 1903 (C'th)Cases Cited: R v Green and Quinn [2011] NSWCCA 71 at [21] - [25]
Stevens v R [2009] NSWCCA 260; (2009) 262 ALR 91 at [1], [6]
Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Hili and Jones v The Queen [2010] HCA 45 at [44]; (2010) 85 ALJR 195Texts Cited: Category: Principal judgment Parties: KROL, Reinier Hendrik Jan
ReginaRepresentation - Counsel: Mr RC Pontello
Mr L Crowley- Solicitors: O'Brien Solicitors
Solicitor for Public ProsecutionsFile number(s): 2009/8470 Decision Under Appeal - Court / Tribunal: - Before: Sorby DCJ - Date of Decision: 11 February 2010 - Citation: - Court File Number(s) Publication Restriction:
Judgment
CAMPBELL JA: I agree with RS Hulme J.
RS HULME J : On 11 February 2010, this Applicant for leave to appeal was sentenced by Sorby DCJ in respect of 14 charges, viz:-
1. That on 28 June 2007 he opened with St George Bank an account in a false name, viz. Brett Anthony Gillon;
That on 12 May 2008 he used as a means of identification Australian passport in the name of Mark Stephen Godleman, being a document not issued to him.
3 That on 10 July 2008 he used as a means of identification an Australian passport in the name of Raymond Murray being a document not issued to him.
4 That on 28 July 2008 he opened with St George Bank an account in a false name, viz. James Franklin;
5 That on 30 July 2008 he possessed an Australian passport in the name of James Franklin being a document that was not issued to him;
6 That on 19 November 2008 he opened with St George Bank an account in a false name, viz. Danny Angelo D'Cruz;
7 That between 1 August 2008 and 6 January 2009 he appropriated mail receptacles belonging to others with the intention of permanently depriving those persons of their mail articles;
8 That between 1 August 2008 and 6 January 2009 he made or began to make a quantity of counterfeit Australian $50 notes;
9 That on 23 February 2007 he obtained money by deception, viz. $10,000 from GE Money in relation to a personal loan application lodged in the name of Guy Brett Murray, born 10 July 1969;
10. That on 25 May 2007 he obtained money by deception, viz $6,000 from GE Money in relation to a personal loan application lodged in the name of Jolyon Fairbairn, born 13 August 1973;
11 That on 28 August 2007 he obtained money by deception, viz $6,000 from GE Money in relation to a personal loan application lodged in the name of James F Kennedy, born 10 July 1969;
12 That on 15 October 2007 he obtained money by deception, viz $6,000 from GE Money in relation to a personal loan application lodged in the name of Raymond Lynch born, 14 May 1985;
13 That on 12 May 2008 he dishonestly obtained money by deception, viz $17,533.57 from GE Money in relation to a personal loan application lodged in the name of Mark Stephen Godleman, born 21 June 1952;
14 That on 16 September 2008 he failed to appear before the Downing Centre Local Court in accordance with his bail undertaking.
Counts 1, 4 and 6 alleged offences proscribed by s 24(1) of the Financial Transaction Reports Act 1988 (C'th). So far as is presently relevant that section provides that "A person shall not open an account with a cash dealer in a false name." The maximum penalty prescribed for the offence is 2 years imprisonment. The sentence imposed for each of the three offences was imprisonment for 6 months commencing on 6 January 2012.
Counts 2 and 3 alleged offences proscribed by s 32(2) of the Australian Passports Act 2005 (C'th) . The sub-section simply provides:-
A person commits an offence if:
(a) the person uses an Australian travel document in connection with travel or identification; and
(b) the document was not issued to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
A penalty unit is $110. The sentence imposed for each offence was imprisonment for 14 months commencing on 6 January 2011.
Count 5 alleged an offence proscribed by s 32(4) of the Australian Passports Act 2005 (C'th) . That sub-section is also expressed in simple terms:-
(4) A person commits an offence if:
(a) the person has possession or control of an Australian travel document; and
(b) the person knows that the document was not issued to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
The sentence imposed for the offence was "a period of non-parole of fourteen months to commence on 6 May 2012 to commence on 6 May 2012 and to conclude on 5 July 2013. I order your release under s 20(b) Crimes Act 1914 (C'th) after 14 months upon entering a recognisance of $1.00 to be of good behaviour for a period of 10 months to conclude on 5 May 2014".
Count 7 alleged an offence proscribed by s 471.1(1)(a)(i) of the Criminal Code Act 1995 (C'th) . So far as is presently relevant, the terms of that section are:-
(1) A person is guilty of an offence if:
(a) the person dishonestly appropriates:
(i) a mail-receptacle; or
(ii) an article in the course of post ...; or
(iii) ... ; and
(b) the person does so with the intention of permanently depriving another person of the mail-receptacle, article or postal message.
The maximum penalty prescribed by that sub-section is 10 years imprisonment. The sentence imposed was imprisonment for 10 months commencing on 6 September 2010.
Count 8 alleged an offence proscribed by s 6 of the Crimes (Currency) Act 1981 (C'th) . So far as is presently relevant, that section provides that "A person shall not make, or begin to make, counterfeit money ...". The maximum penalty prescribed by the section is 14 years imprisonment. The sentence imposed was imprisonment for 10 months commencing on 6 January 2010.
Counts 9 to 13 alleged offences arising under s 178BA(1) of the Crimes Act (NSW) 1900 . So far as is relevant that section provided:-
Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind shall be liable to imprisonment for 5 years
The sentence imposed for each of the five offences was imprisonment for 10 months commencing on 6 July 2009.
The offence of failing to appear was the subject of a Court Attendance Notice and is proscribed by s 51 of the Bail Act 1978 (NSW) . The maximum penalty prescribed is the penalty for the offence in respect of which the Applicant failed to appear, not exceeding 3 years imprisonment and/or a fine of $3,300. The applicable imprisonment limit here was 3 years. The sentence imposed was imprisonment for 9 months commencing on 6 January 2009.
The effective sentence was thus of 5 years and 4 months commencing on 6 January 2009 and concluding on 5 May 2014, the last 10 months of this period being release on recognisance. (I should add that in stating the sentences imposed for the various offences, I have generally adopted what his Honour clearly intended rather than his formulation of them. That formulation is a matter I consider later in these Reasons.)
A number of offences were taken into account. In summary, the Commonwealth offences listed on two s16BA schedules were:-
(i) On 22 February 2007 operating an account with St George Bank in the false name of Brett Murray.
(ii) On 18 May 2007 operating an account with Westpac Bank in the false name of Jolyon Fairbairn.
(iii) On 23 August 2007 operating an account with St George Bank in the false name of James Frances Kennedy.
(iv) On 12 October 2007 operating an account with St George Bank in the false name of Raymond Lynch.
(v) On 16 June 2008 operating an account with St George Bank in the false name of Raymond Murray.
(vi) On 16 April 2008 operating an account with National Australia Bank in the false name of Mark Stephen Godleman.
(vii) On 15 July 2008 improperly using an Australian Passport in the name of Raymond Murray.
The schedule listing the first six of these envisaged they would be taken into account in the sentencing of the Applicant for count 4 and his Honour certified on the document that they were.
The schedule listing the seventh of these offences envisaged that it would be taken into account in the sentencing of the Applicant for count 3 and his Honour certified on the document that it was.
In summary the offences against New South Wales legislation taken into account and listed on a Form 1 were:-
Five of obtaining money by deception, viz:-
(i) On 15 February 2008, $2,500 by purporting to be Mark Godleman;
(ii) On 16 February 2008, $3,000 by purporting to be Mark Godleman;
(iii) On 10 March 2008, $2,100 by purporting to be Mark Godleman;
(iv) On 2 March 2007, $2,006.05 by using a GE Mastercard in the name of Brett Murray;
(v) On 11 July 2008, $8,500 by obtaining a personal loan from GE Money in the name of Raymond Murray.
Four of using false instruments, viz
(v)(a) On 17 June 2008, a Victorian Driver's licence in the name of Raymond Murray in support of a car rental agreement;
(vi) On 29 August 2007, fraudulent pay advices in the name of Raymond Mason in support of a lease application;
(vii) On 23 February 2008, a UK driver's licence and NSW Birth Certificate in the name of Raymond Lynch in support of a lease application;
(viii) On 15 July 2008, a UK driver's licence and fraudulent payslips in the name of Raymond Murray in support of a lease application.
(ix) On 30 to 31 July 2008, having false instruments with intent to use, viz. 57 documents of identity.
The Form 1 listing these 10 offences envisaged they would be taken into account in the sentencing of the Applicant for count 9 and his Honour certified on the Form 1 that they were.
Circumstances of Offending
I have set out above the relevant statutory provisions so as to illustrate that, judged by that criteria, offences 1 to 6 committed by the Applicant must be regarded as relatively serious. Although issues of motivation and the connection between instances of offending are relevant, it is not simply a case of seeing how much the Applicant obtained by a series of illegal steps and punishing him for obtaining that money. His offending by, for example, opening a bank account in a false name, and using a passport not issued to him for the purposes of identification also merit punishment. Of course, in the case of offences 7 to 13 much more serious offences than those committed by the Applicant, e.g. involving much larger sums of money, could be committed and accordingly his offences against the applicable provisions are not high in the scale of such offences. By contrast, in terms of objective acts, his offending in the case of some of the earlier offences was as serious as it could be.
The circumstances of the Applicant's offending and the charges or offences taken into account to which that offending related were as follows. So far as possible, I have endeavoured to refer to the offences in chronological order.
A group of offences using the name Guy Brett Murray were:-
s 16BA (i)
(a) On 22 February 2007 the Applicant opened a bank account in the name of Guy Brett Murray.
Count 9
(b) On 23 February 2007 he made application to GE Money for a personal loan in the amount of $10,000 in the name of Guy Murray.
(c) On 23 February 2007 the bank account was credited with $10,000 from GE Money.
Form 1(iv)
(d) In consequence of the personal loan application, on 26 February 2007 GE Money issued the Applicant with a Mastercard. Between 2 and 20 March eight transactions totalling $2,006.05 were conducted on the account.
A group of offences using the name Jolyon Fairbairn were:-
s 16BA (ii)
(a) On 18 May 2007, the Applicant opened a bank account with Westpac in the name of Jolyon Fairbairn.
Count 10
(b) On 24 May 2007, the Applicant made application to a GE Money branch in the name of Jolyon Fairbairn for an amount of $6,000. In support of the application he presented a number of fraudulent identity documents, including a Belgian International Driver's Licence, a NSW Birth Certificate and a Residential Tenancy Agreement .
(c) On 25 May 2007, the bank account received a credit of $6,000 from GE Finance and Insurance.
An offence using the name Brett Anthony Gillon was:-
Count 1
(a) On 28 June 2007, the Applicant opened a bank account with St George Bank in the name of Brett Anthony Gillon. In support of the application the Applicant presented a number of documents, including a United Kingdom driver's licence in the name of Brett Anthony Gillon and a fraudulent NSW Birth Certificate in the same name. On 28 June, this account received a cheque deposit of $6,000.
A group of offences using the name James Kennedy were:-
s 16BA (iii)
(a) On 23 August 2007, the Applicant opened a bank account with St George Bank in the name of James Frances Kennedy.
Count 11
(b) On 27 August 2007, the Applicant made application to a GE Money branch in the name of James F Kennedy for an amount of $6,000. In support of the application he presented a number of fraudulent identity documents, including a United Kingdom motorcycle licence, a fraudulent NSW birth certificate and a university of California student identification card.
(c) On 28 August 2007, this account received a credit of $6,000 from GE Finance and Insurance.
Form 1(vi)
On 29 August 2007 the Applicant made a lease application and supported it with three pay slips in the name of Raymond Mason.
A group of offences using the name Raymond Lynch were:-
s 16BA(iv)
(a) On 12 October 2007 the Applicant opened a bank account with St George Bank in the name of Raymond Lynch. In support of the application the Applicant presented, inter alia, a fraudulent NSW Birth Certificate, and a fraudulent tenancy agreement.
Count 12
(b) On 12 October 2007 the Applicant made application to a GE Money branch in the name of Raymond Lynch for an amount of $6,000. In support of the application he presented a number of fraudulent documents including a United Kingdom motorcycle licence, a fraudulent NSW Birth Certificate, and a fraudulent tenancy agreement.
(c) On 15 October 2007 the account received a credit of $6,000 from GE Finance and Insurance.
Form 1(vii)
(d) On 23 February 2008, the Applicant made a lease application in the name of Raymond Lynch. In support of the application the Applicant presented a United Kingdom driver's licence and a fraudulent NSW birth certificate. The Applicant paid some rent for this property, including, on 15 May 2008, $1,720 three days after receiving an amount referred to below of $14,835 from GE Money. When the Applicant left the property leased rent was in arrears to an amount of $1,500.
A group of offences using the name Mark Steven Godleman were:-
Form 1(i)
(a) On 15 February 2008 the Applicant made an over-the-counter withdrawal of $2,500 from a GE Credit line account in the name of Mark Godleman, presenting the account holders key card and a foreign driver's licence. The card and a UK driver's licence bearing an image of the Applicant were later found in a vehicle he was using.
Form 1(ii)
(b) On 16 February 2008 the Applicant made an over-the-counter withdrawal of $3,000 from a GE Credit line account in the name of Mark Godleman using the same identification documents;
Form 1(iii)
(c) On 10 March 2008 the Applicant made an over-the-counter withdrawal of $2,100 from a GE Credit line account in the name of Mark Godleman,
A further group of offences using the name Mark Godleman were:-
s16BA(vi)
(a) On 16 April 2008, the Applicant opened an account with the National Australia Bank in the name of Mr Mark Stephen Godleman. In support of the application the Applicant presented a fraudulent NSW birth certificate and a United Kingdom driver's licence.
Count 2
(b) On 7 May 2008 the Applicant made application to GE Money in the name of Mark S Godleman. On 12 May the Applicant attended a branch of GE Money. There, in support of his application he presented a number of utility statements and pay slips in the name Mark Godleman together with a passport M3178943 in the name of Mark Stephen Godleman and containing an image of himself.
Count 13
(c) Also on 12 May the Applicant signed a loan contract in the name of Mark S Godleman in an amount of $17,553.57 and GE Money drew a cheque in the sum of $14,835.00 payable to Mark Godleman which cheque was deposited into the National Australia bank account referred to above.
(d) At the time the Applicant was the boyfriend of a daughter of Mark T Godleman and had attended the latter's home on many occasions. Passport M3178943 had been issued to Sophie Godleman, another daughter of Mark Godleman.
.
A group of offences using the name Raymond Murray were:-
s 16BA(v)
(a) On 16 June 2008 the Applicant opened an account with St George bank in the name of Raymond Murray. In support of the Application the Applicant produced a fraudulent Victorian driver's licence in the name of Raymond Murray, an identification card issued by UCLA, and a National Australia Bank visa card.
Form 1(v)(a)
(b) On 17 June 2008 the Applicant attended the offices of Ever-Ready Rentals and leased a motor vehicle. In support of his application the Applicant produced a Victorian driver's licence number 092512580 in the name of Raymond Murray. Later this licence was located in the possession of the Applicant. It contained an image of the Applicant.
Count 3
(c) On 10 July 2008 the Applicant made application to a GE Money branch in the name of Raymond Murray for a loan in the amount of $8,500. In support of the application he presented a number of fraudulent identity documents, including an Australian passport M3178843 in the name of Raymond Murray but bearing his photograph, and a tenancy agreement.
Form 1(v)
(d) This entry on the Form 1 alleges that the Applicant obtained $8,500 from GE Money on 11 July 2008 although the Statement of Facts does not assert actual receipt as distinct from making application.
s 16BA(vii)(f) Form 1(viii)
(e) On 15 July 2008 the Applicant made application for a lease in the name of Raymond Murray. In support of the application the Applicant produced Passport M3178843 and a United Kingdom motor vehicle licence 016432331 in the name of Raymond Murray. At the time of the Applicant's arrest he was found in possession of licence number 016432331 which contained an image of the Applicant. (It may that the number of this passport was wrongly referred to in the Statement of Facts.)
A group of offences using the name James Franklin were:-
Count 4
(a) On 28 July 2008 the Applicant opened an account with St George Bank in the name of James Franklin. In support of the Application the Applicant produced a fraudulent NSW birth certificate and a Dutch International driver's licence;;
Count 5
(b) On 30 July 2008 at the time of his arrest, the Applicant was found in possession of an Australian passport in the name of James Franklin and containing an image of the Applicant. The passport was numbered M3179843. Passport M317983 was that of Sophie Godleman and the number in the evidence I infer to be a mistake.
Offence 14: Form 1(ix) The circumstances of the breach of bail offence were that following his arrest on 30 July 2008, a substantial number of false documents were found in his possession and he admitted a deal of his offending. On the following day he was granted bail to appear at the Downing Local Court on 16 September 2008. On 15 August police attended at 5 Valley Road, Springwood, the address he had provided. Inspection of the premises revealed that the Applicant had vacated them. On 16 September the Applicant failed to appear.
Count 6 On 19 November 2008 the Applicant opened a bank account with St George Bank in the name of Danny D'Cruz. In support of the application he presented a number of documents, including a Belgium International driver's licence and a NSW Birth Certificate. Both documents were found in the Applicant's possession on his arrest, as was Visa card in the name of Danny D'Cruz.
Count 7 On 6 January 2009 the Accused was re-arrested. He told police he had been living at a bed-sit located at Randwick. A search of the premises revealed, in addition to several fraudulent Belgium and Dutch international driver's licences each containing a photograph of the Applicant, a large number of mail articles not addressed to him but to persons residing elsewhere, some in close proximity to the Applicant's former address. These items included Immigration applications, bank statements, utility statements, Australian Taxation correspondence including a tax refund cheque addressed to Mr Danny A D'Cruz and a fraudulent NSW Birth Certificate in Mr D'Cruz's name.
Count 8 A search of the premises at Randwick and of the Accused's vehicle conducted revealed also some $6,750 in counterfeit Australian bank notes, together with paper, printer and other equipment suitable for the production of such notes.
The preparation of the forged or fraudulent documents was effected by the Applicant, often using as raw material documents he had stolen. His offending thus involved a deal of initiative and planning.
Apart from the documents which the Applicant had appropriated, the only losses arising from the depredations the subject of the offences for which he was sentenced by Sorby DCJ and the offences taken into account were in an amount of approximately $73,500 suffered by GE Money and loss by those who had entered into rental agreements with the Applicant.
At the time of the offences, the Applicant, who was born in February 1973 had no criminal record in New South Wales. However, on 9 November 2005 in the Frankston Magistrates Court in Victoria, the Applicant had pleaded guilty to 10 counts of theft, 9 counts of burglary, 11 counts of obtain property by deception and 13 counts of making a false statement. He had been sentenced to 9 months imprisonment, partially suspended, but with 4 months required to be served. He was granted bail pending an appeal of severity but absconded. Following his failure to appear on 15 February warrants were issued for his arrest, and it seems clear that when released from custody in New South Wales he will have to serve the sentence imposed in Victoria.
Tendered on the Applicant's behalf at his sentencing hearing were references from his parents and sister, together with a report from Dr Furst, a psychiatrist. None of these persons was cross-examined. Evidence was given by a Mr Baines, a prison chaplain, and the Applicant. Mr Baines was not cross-examined.
The Applicant said that he had been honest in answering Dr Furst's questions. The tenor of his evidence was that he had had a good upbringing and work history until 2005 when he commenced a relationship with a woman "Tori". Initially her mother was battling cancer and then died. Her father very quickly took to another woman. Tori was devastated by all this, had a psychological breakdown, indulged in self-mutilation and wanted to commit suicide. The Applicant gave up work in order to help Tori and prevent the suicide. He then felt his arrest in Victoria as a punishment for preventing Tori from committing suicide. He himself became very depressed and ran away (to Sydney) in the belief his problems would disappear.
On arrival at Sydney he commenced work. He said that he would work himself to distraction and then return to his accommodation where he would basically sit in a room with a couple of photos of his parents and of Tori and fall apart. Then he formed a relationship with another woman Amy. In due course her family relationship commenced to fall apart. He gave up work in January 2007. His offending thereafter was because he needed money although he said that the counterfeiting had a therapeutic value in a sense of achievement. He said that he bought no equipment to effect this but merely used a basic home computer and printer he already possessed. Prior to any offending he had been involved in making films and in that activity had acquired some skills in making, as props, imitation documents. The stealing of the mail items and the Goldman passport were for the purposes of creating false identities. The funds he obtained were spent on basic needs.
He said that during this time he himself became suicidal, going to the edge of a cliff at Coogee but was unable to jump off.
When leaving Melbourne he had not told his parents of what he was doing. He returned to see them in July 2008 but did not and was arrested. He returned to Melbourne on Christmas Eve 2008 to speak to his parents for the first time, "1,102 days" after his original departure from Melbourne.
The Applicant said in evidence that going to prison was the best thing that ever happened to him because it facilitated him seeking the help he needed. He said that he had returned to being the person he was before the events in Victoria in 2005 and there was no risk of his re-offending. He said that he was no longer depressed.
The Applicant was cross-examined. He conceded that in July 2008 he had said during an interview that he was remorseful yet had then absconded and continued to offend. The Applicant's evidence included:-
Q. I put it to you that your conduct back from 2005 through to when you were re-arrested in January 2009 shows a complete lack of insight and remorse into what you had done and that that was truly seen when you attempted to run from police and you were arrested, you were not remorseful were you?
A. I completely agree with you, it has only been through this 10 month period where I have been able to deal with my depression, get back in touch with my family, get back in touch with God that I've actually becoming to understand what I did, how serious it was what I did and how incredibly sorry I am for doing those things. But certainly at the time I don't think I was in a state of mind where I was able to rationalise that as true remorse, no, but I certainly l do now. (sic).
A letter from the Applicant's parents, his father being a former police officer, confirmed that on Christmas Eve 2008 when the Applicant arrived he was in great distress and depression. Mr Krol senior said that he had seen a great change in the Applicant since his incarceration. The Applicant's sister provided a letter to similar effect, confirming also some of the Applicant's account of events involving Tori.
Mr Baines gave evidence of a deal of contact with the Applicant, that the Applicant was horrified at what he had done, had been forthcoming about it, had shown concern about, and had made efforts to help, other prisoners who were experiencing difficulties. The witness also said that he believed the Applicant's remorse and contrition were genuine and he would not re-offend
In his report Dr Furst observed:-
Mr Krol described feeling depressed during the period in question, struggled to sleep, felt guilty, hopeless and suicidal on occasions. He found it hard to decide what to do, stopped worked in his bakery job in January 2007 because of the pressure he felt to look after Sophie...
He told me he had financial difficulties after stopping his work and his motivation in taking out the loans was to obtain enough money to support himself and Sophie, to provide for food and accommodation. There was no suggestion that he was psychotic or unaware of the wrongfulness of his actions
... (The Applicant) appears to have a tendency to engage in unhealthy, dysfunctional and enmeshed relationships with the expressed intent of "helping" women in emotional distress, which have only compounded their problems and his own. It is highly likely that the interpersonal difficulties he has endured over the last 4 years led him to develop a serious depressive condition, stopped him from functioning effectively and ultimately contributed to his offending behaviour.
...
Mr Krol is a man who has a solid family background, worked independently and successfully for the majority of his adult life, and has no history of substance abuse. He has made significant efforts to seek the help available to him in custody through the Prison Chaplains, and is likely to learn further skills if he engages in the psychological treatment I have proposed. In my opinion he has very strong prospects of successful rehabilitation and a good prognosis.
...
Mr Krol presents as remorseful, took responsibility for his actions, and felt he deserved to be punished.
After a very brief reference to the matters to which I have just referred Sorby DCJ remarked that "... on the basis of Dr Furst's opinion the offenders' mental state at the time of the offending entitled him to some mitigation as to the weight given to general deterrence, but it still must be given considerable weight ...":
His Honour referred also to the offender having provided some assistance to investigating officers and making frank admissions, adding "I accept that he is contrite and has developed some insight into his behaviour". Later his Honour referred to Dr Furst's view that the Applicant has strong prospects of successful rehabilitation and a low chance of recidivism, but without going on, as his Honour should have, to make any findings on those matters. His Honour said that he was allowing the Applicant "a full twenty-five per cent discount" for his pleas.
Grounds of Appeal
There were originally 17 grounds of appeal that appear to have been drafted by the Applicant. The Crown conceded that Sorby DCJ had erred in a number of respects and counsel who appeared on the hearing pressed only the following grounds:-
3 The failure by the sentencing judge to set a balance of term (a head sentence) for 13 of the 14 sentences imposed as required by common law and in accordance with the principles set out in the High Court decision in the case of Pearce v The Queen;
4 Concurrency and accumulation of multiple sentences has been applied contrary to law and accumulation in general is unfounded and excessive;
6 The setting of a ratio of the overall non-parole period to the overall balance of sentence being contrary to common sense, the evidence and the law;
11 The failure to find "special circumstances" where the evidence discloses material that might amount to "special circumstances" and the failure by the sentencing judge to consider the question of "special circumstances" generally;
13 Despite the appellant's exceptional degree of remorse and contrition, no additional discount was considered in sentencing the appellant;
15 The sentencing judge failed to take into account time to serve in the State of Victoria upon conclusion of matters in New South Wales;
16 In determining a just and appropriate sentence in sentencing the appellant, the sentencing judge has accorded too much weight in consideration of the elements of general deterrence and of specific deterrence;
17 As a direct result of a vast number of serious errors of law, in conjunction with an unexplained and extreme deviation from both well-established sentencing principles and the law itself, the sentencing judge has imposed upon the Appellant a sentence that is submitted as being manifestly excessive.
The grounds were grouped for the purposes of making submissions and it is convenient to follow a similar course in dealing with them.
Grounds 3, 6 and 11
3 The failure by the sentencing judge to set a balance of term (a head sentence) for 13 of the 14 sentences imposed as required by common law and in accordance with the principles set out in the High Court decision in the case of Pearce v The Queen;
6 The setting of a ratio of the overall non-parole period to the overall balance of sentence being contrary to common sense, the evidence and the law;
11 The failure to find "special circumstances" where the evidence discloses material that might amount to "special circumstances" and the failure by the sentencing judge to consider the question of "special circumstances" generally;
The Crown conceded that Grounds 3 and 6 were made out. The Crown conceded also that there was error in the determination of the non-parole period albeit not in the precise respects asserted in Ground 11.
When dealing with the offences I have numbered 1-4, 6-8 and 14, his Honour employed a formula to the effect, "I sentence you to a period of non-parole of ...". His Honour made no reference to any balance or longer term in connection with these sentences, nor did he make any reference to a "fixed term" or expressly decline to set a non-parole period.
When dealing with the offences I have numbered 9 to 13 his Honour said, "I sentence you to five concurrent terms of imprisonment of ten months to commence on ...". In the case of these sentences his Honour made no reference to non-parole periods, or any balance or longer term and expressly declined to do so. Nor did he express the sentences as fixed terms.
For the offence I have numbered 5 his Honour imposed sentence in the terms quoted in the sixth paragraph of these reasons.
At the time the Applicant was sentenced, ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW), so far as is relevant, provided:-
44 Court to set non-parole period
(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
(3) The failure of a court to comply with subsection (2) does not invalidate the sentence.
45 Court may decline to set non-parole period
(1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so:
(a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or
(b) because of any other penalty previously imposed on the offender, or
(c) for any other reason that the court considers sufficient. .
(2) If a court declines to set a non-parole period for a sentence of imprisonment, it must make a record of its reasons for doing so.
(3) ...
(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.
It is obvious that in sentencing for the New South Wales offences, viz. those the subject of counts 9 to 14, his Honour did not comply with these requirements. He did not set a non-parole period and a balance of term and, if he meant to adopt the course envisaged by s 45 he did not provide reasons as required by s 45(2). Of course, pursuant to s 44(3), failure to comply with s 44 (2) does not invalidate any sentence imposed although it must be noted that s 101A of the Crimes (Sentencing Procedure) Act provides:-
A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.
At the time the applicable Commonwealth legislation was contained in the Crimes Act 1914 (C'th) . So far as is presently relevant that Act provided:-
19AB(1) Subject to subsection (3), where:
(a) a person is convicted of a federal offence, or of two or more federal offences at the same sitting; and
(b) a court imposes on the person a federal life sentence, or a federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years; and
(c) at the time the sentence or sentences are imposed, the person is not already serving or subject to a federal sentence;
the court must either:
(d) fix a single non-parole period in respect of that sentence or those sentences; or
(e) make a recognisance release order.
(2) ,,,
(3) Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate.
(4) Where the court decides that neither a non-parole period nor a recognizance release order is appropriate, the court must:
(a) state its reasons for so deciding; and
(b) cause the reasons to be entered in the records of the court.
19AH (1) ...
(2) A court shall not, for the purposes of subsection (1) be taken to have failed to fix a non-parole period in respect of a sentence or sentences in respect of which it has made a recognisance release order or to have failed to make a recognisance release order in respect of a sentence or sentences in respect of which it has fixed a non-parole period.
20(1) Where a person is convicted of a Federal offence or Federal offences, the Court before which he or she is convicted may, if it thinks fit:-
(a) ...
(b) Sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
By virtue of s 16, a "recognisance release order" is defined to be an order made under s 20(1)(b).
His Honour did not adhere to the strictures of these Commonwealth statutory provisions either. He did not impose a sentence for each offence (as distinct from a "non-parole period"). He did not fix a single non-parole period or a recognisance release order in respect of the sentences as required by s 19AB(1) (d) and (e).
Turning to Ground 6, the period to be served on recognisance was 10 months pursuant to the sentence imposed for the fifth offence was less than 16% of the total sentence of 5 years and 4 months - an unusually small proportion whether compared with the 75% envisaged in s 44 of the New South Wales Act or the 60-66% commonly fixed for Commonwealth offences or the period fixed by sentencing judges generally when an offender is to be eligible for parole. His Honour gave no reasons for adopting this unusual course beyond saying that he regarded the periods as appropriate.
Ground 11 alleges a failure to find "special circumstances". The concept arises pursuant to the terms of s 44(2) of the Crimes (Sentencing Procedure) Act . His Honour was asked to make a finding of special circumstances upon the grounds of what were said to be the Applicant's excellent prospects of rehabilitation and that this was his first time in custody. His Honour's reasons contain no reference to the topic. Given the possible significance of a finding of special circumstances and the argument presented to him, his Honour's remarks on sentence should have referred to the issue and they did not.
Certainly s 44(2) has no counterpart in the Commonwealth legislation and the period that the Applicant is eligible for parole was fixed by his Honour under that legislation. However, the factors that may inspire a finding of special circumstances are also relevant to the determination of the appropriate proportions of a sentence to be served in custody and to be served when parole (or a recognisance) is available and should have been addressed.
Grounds 4 and 15
4 Concurrency and accumulation of multiple sentences has been applied contrary to law and accumulation in general is unfounded and excessive;
15 The sentencing judge failed to take into account time to serve in the State of Victoria upon conclusion of matters in New South Wales;
There can be no doubt that the number and nature of the offences for which the Applicant stood to be sentenced required that there be a degree of both accumulation and concurrency of the sentences imposed - accumulation because the sentence on one offence could not reflect the criminality in the others, concurrency because the simple accumulation of all of the sentences would result in one that was too harsh for the Applicant's criminality looked at in totality.
Putting aside the complaint as the ultimate result, one of the Applicant's complaints under ground 4 was that in consequence of grouping sentences made concurrent by offence type rather than by transaction, the result has been to impose excessive sentences for transactions. By way of example the Applicant drew attention to the fact that for counts 13, 2 and 5, the Applicant had been sentenced to imprisonment for a total period of 48 months, including 38 months non-parole when the offences - dishonestly obtaining money in the name of Mark Godleman, by the use of the Godleman passport, which the Appellant still possessed at the time of his arrest, albeit then in the name of Franklin, - were essentially incidents of the one transaction.
This argument ignores the fact that the earlier transaction involved 2 offences and the retention of the passport was no part of either. Furthermore, one might readily infer that the passport was kept against the possibility of use in the future. Possession of someone else's passport does not cease to be an offence once it has been improperly used. There remains the potential for misuse in the future. Furthermore, while Sorby DCJ could well have dealt with the matters, transaction by transaction, his Honour would then logically have had to consider accumulating the sentences, transaction by transaction. It does not follow that the Applicant would have been better off.
There was nothing inherently erroneous in his Honour's methodology of grouping offences by their type. Whether the result was excessive, is a matter that conveniently can be left until I consider grounds 16 and 17.
So far as ground 15 is concerned, the Crown conceded that Sorby DCJ was required to take into account that, upon his release from the sentences his Honour imposed, the Applicant will be obliged to serve further incarceration in Victoria. The principles of totality so require as do the terms of s16B of the Crimes Act 1914 (C'th) . Although his Honour was conscious of the Victorian sentence, his remarks provide no indication that he did take into account as he should have done. The inescapable inference is that he did not.
On behalf of the Applicant it was submitted that the Victorian offending shared common elements with that in New South Wales, being of the same nature and influenced by the same mental condition. Indeed the submission went so far as to suggest that, but for the events in Victoria in 2005, no criminal offences would have eventuated in New South Wales.
The last proposition is not self evidently true, is not supported by evidence and amounts to no more than speculation. Furthermore, when one has regard to the fact that the Victorian offences were committed in 2005 or earlier and the first of the New South Wales ones in May 2007, it is not sensible to regard them all as but incidents of the one period of criminality. If, contrary to this view, they should be so regarded, appropriate weight should be given to the duration of the extended period of the Applicant's criminality.
Some reduction in the sentence otherwise appropriate to the New South Wales offences may have been appropriate in light of the Applicant's future incarceration in Victoria and Sorby DCJ should have directed attention to the issue. However, given the extent to which discretionary judgment is involved in applying the principle of totality, it cannot be said that his Honour would have erred had he made a conscious decision not to reduce the effective sentence he imposed on account of the Victorian sentence. Certainly, any reduction made would not have been great.
Ground 16 and 17
16 In determining a just and appropriate sentence in sentencing the appellant, the sentencing judge has accorded too much weight in consideration of the elements of general deterrence and of specific deterrence;
17 As a direct result of a vast number of serious errors of law, in conjunction with an unexplained and extreme deviation from both well-established sentencing principles and the law itself, the sentencing judge has imposed upon the Appellant a sentence that is submitted as being manifestly excessive.
In its written submissions the Crown submitted that the length of the individual periods specified by Sorby DCJ were appropriate as sentences, (although elsewhere submitting that the sentence for count 13 was unduly lenient) but conceded that the errors made by Sorby DCJ made it proper to grant leave to appeal, allow the appeal and re-sentence, that adjustment of some of the starting dates was appropriate to give greater concurrency, and a non-parole period should be set at 60% of the head sentence. The Crown submissions said also "The Respondent concedes that the aggregate head sentence imposed by the learned sentencing judge is not a sentence justified by the proper application of the principle of totality" and "was not justifiable or warranted according to the relevant circumstances of the offending and offender".
In light of these concessions, counsel for the Applicant did not seek to address the individual grounds, contenting himself with addressing what the Court should do on re-sentence. He did however say that no complaint was made about the overall length of the total sentence.
Given the number of errors made by Sorby DCJ, the conclusion is inevitable that this Court must quash his Honour's orders and re-sentence. However, what sentences should be imposed are matters for the Court which is not bound by concessions made by the Crown or Defence counsel.
Before turning to the topic of re-sentencing, reference should be made to some other features of the sentencing below. The individual sentences imposed for the offences other than that the subject of count 5 were for periods of 6, 9, 10 and 14 months and the aggregate sentence was for 5 years and 4 months including an effective non-parole period of 4 years and 6 months. His Honour said that the Applicant would receive "a full twenty-five per cent discount" for his plea. Adding back that discount would suggest that in the determination of the second and third of the periods stated, his Honour must have commenced with pre-discount periods of 13 1/3 and 18 2/3 months, periods that are inherently unlikely. His Honour could certainly have done some rounding, particularly in the case of the full term but he did not say so. It is difficult to escape the conclusion that, despite saying that he proposed to give the Applicant the full benefit of a 25% discount for his plea, his Honour did not do so.
Another feature of the sentencing below that bespeaks error is that, although his Honour certified that he had taken into account in the case of counts 3, 4, and 9 the offences on the s 16BA Schedules and the Form 1, he imposed sentences for these offences no different than the sentences imposed for virtually identical offences. Nor did he provide any reasoning for such a result. In fact, particularly in the case of count 9 and the Form 1 offences many of which had no connection with the offences charged and involved different victims, no reasoning could have justified what his Honour did.
The next matter to be mentioned falls into a different category. It is clear that Sorby DCJ intended to impose for the offence the subject of count 5 a sentence that included a non-parole period of 14 months followed by a period of 10 months when the Applicant was subject to a recognisance release order, a total period of 24 months. Having regard to the terms of the Commonwealth legislation it may be that his Honour did not effect this intention. In that event, by the combined effect of s 68 of the Judiciary Act 1903 (C'th) and s 43 of the Crimes (Sentencing Procedure) Act it would have been open to his Honour to re-open the proceedings and by amendment achieve what he intended. His Honour also had implied or inherent power to do so - see the cases cited in R v Green and Quinn [2011] NSWCCA 71 at [21]-[25].
It does not follow that this Court has the same power of correction as distinct from allowing an appeal and it may be - I do not need to decide - that it would not be a proper exercise of power under s 7 of the Criminal Appeal Act to effect such a correction. However, once this Court is seized of an appeal under s 5(1)(b) of the Criminal Appeal Act, s 6 of that Act empowers it to impose a higher sentence. Normally of course that power would not be exercised in the absence of a Crown appeal but in this case during the course of argument the Court gave notice to counsel for the Applicant that, subject to the other issues in the appeal, it was minded to proceed on the basis that a sentence of 24 months, including a non-parole period of 14 months and a period of 10 months when the Applicant was subject to a recognisance release order, was imposed for count 5, if necessary making whatever order was appropriate to reflect his Honour's intention. Subject of course to the principal arguments in support of the appeal, counsel for the Applicant did not seek to argue that the Court should not do so. Reflection has confirmed my view that the course foreshadowed is one that the Court is free to adopt. (Although I do not need to rely in it, it may be noted that in Okeke v R [2010] NSWCCA 266, in an appeal by an offender this Court felt free to increase individual sentences.)
The major difficulty faced by the Applicant in challenging the effective sentence and non-parole period imposed lies in the extent of his offending, both in terms of the number of offences committed and their seriousness judged by the relevant statutory provisions. That difficulty is exacerbated by the fact he chose to commit the offences with which this Court is concerned in the face of the sentences imposed for similar offences in Victoria and bail granted pending an appeal and, in the case of offences the subject of counts 6, 7 and 8, after he had been arrested and then granted bail in New South Wales. This Court has pointed out on innumerable occasions that offending whilst on conditional liberty is a seriously aggravating circumstance.
After those events the Applicant can have been in no doubt that his conduct was regarded with grave disfavour by the community. But he continued with it. Thus, subject to what follows, the case is one where the need for specific deterrence was unusually great. Furthermore, this Court has made it clear that in cases of identity fraud, considerable weight should be afforded to considerations of general deterrence - see Stevens v R [2009] NSWCCA 260; (2009) 262 ALR 91 at [1], [6].
It is appropriate that there be some amelioration of the sentences that would otherwise be imposed on account of the Applicant's mental condition at the time. His previous exemplary record to age 32 does tend to confirm that his offending was in consequence of the circumstances and mental state into which he has allowed himself to fall. Clearly he did not adopt obvious and sensible steps to improve his situation and, although the analogy should not be taken too far, there was an element of the mad about his actions, in addition to them being bad.
I turn then to consider the individual sentences that, if I am not constrained by the sentence imposed by Sorby DCJ, I would favour. In that connection, account must be taken of two affidavits filed on behalf of the Applicant. One was from his solicitor and attached copies of gaol records. These records and the Applicant's own affidavit show that the Applicant has not been the subject of disciplinary action since he was sentenced, has applied himself to work and has self referred for psychological issues that may arise on his release. The Applicant says that he has derived appreciable benefit from chaplaincy services. He says also that he is in protection.
Because all of the sentences for the New South Wales offences are to be accumulated, it is appropriate to make them fixed terms rather than sentences involving non-parole periods and further terms. I make it clear that in the determination of all sentences, I have allowed the Applicant the 25% discount for his pleas that Sorby DCJ thought appropriate.
For count 14, failing to answer his bail, a fixed term of 4 months should be imposed.
For each of counts 10 to 12, a fixed term of 9 months should be imposed. I do not regard the differences in the amount obtained in these offences as justifying different sentences. As these three offences involved separate transactions, with additional losses to their victim, the sentences should not be completely concurrent.
Given in the case of count 9 the offences on the Form 1 had to be taken into account, and, in the case of count 13, the amount involved was significantly more than it was in the case of offences 10 to 12, a fixed term in excess of those for counts 10 to 12 should be imposed. I would fix these at 13 months, i.e. 18 months less 25%, for each of counts 9 and 13. Again, as these offences involved separate transactions, with additional losses to their victim, the sentences should in principle not be completely concurrent with themselves or those imposed for counts 10 to 12.
The remaining offences arise under Commonwealth legislation, and accordingly it is not appropriate to talk of fixed terms or non-parole period for individual offences.
Offence 7, the stealing of mail articles, was committed while on bail. Against the statutory maximum of 10 years imprisonment, a sentence of less than 9 months would not be appropriate
Offence 8 was also committed whilst on bail. Given that there is no evidence that the Applicant sought to put the counterfeit notes into circulation, for this offence also I would impose a sentence of 4 months.
The offences the subject of counts 1, 4 and 6 - opening a bank account in a false name - would seem to have been committed as a step towards offences like those the subject of counts 9 to 13. Nevertheless they were offences in their own right and, putting aside the fact that in the case of offences 4 and 6, there has to be taken into account the offences of the s 16BA Schedules, sentences of 4 months for each of these offences is appropriate. In light of the limitations on the use to which the offences on such schedules can be put - see Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 - and to the fact that the totality of the sentences being imposed are likely to meet the demands of personal deterrence and retribution, in the circumstances I would not increase any of those 4 month periods on account of the offences in the s 16BA Schedules. Had counts 1, 4 and 6 been incidents of more serious offences charged and punished, it may be that a deal of concurrency with such more serious charges would have been appropriate, but the more serious charges here involved unrelated transactions. Prima facie there should be some accumulation of the sentences for counts 1, 4 and 6.
Offences 2, 3 and 5 had similarities. Certainly offences 2 and 3 involved improper use of a passport while offence 5 merely involved improper possession. However, it is clear that the Applicant's possession was so, the passport remained available for use in the future in a similar way to the way he had used those, the subjects of counts 2 and 3. Against the statutory maximum of 10 years imprisonment, it is difficult to see how the sentence for each of these offences should have been less than 16 months, reduced by 25% for the Applicant's plea. As I have indicated, judged by the statutory specification of the offence, the Applicant's offending cannot be regarded as other than serious. Again, the mere fact that offences 2, 3 and 5 were of a same or similar nature does not justify complete concurrency.
The principle of totality means that the sentences for the 14 offences should not simply be aggregated. On the other hand, one must also recognise that all of the offences involved additional criminality, and in many cases additional victims or loss. Were there not so many sentences to be imposed, there would be much to be said for the view that there should be some degree of accumulation in the case of each sentence. However, simplicity argues for not adopting that course.
For each of offences 11 and 12, I favour an accumulation of 4 months on the sentence imposed on count 10. For each of offences 9 and 13 there should be further accumulation to the extent of 5 months. In the interest of simplicity, these results can be achieved by making each pair of sentences concurrent with each other but accumulating them by double the periods stated.
Purely on totality grounds, I would make all of the sentences on counts 1, 4 and 6 concurrent with each other. However, the sentences on those counts and on each of counts 14, 7 and 8 should be accumulated on each other and on other sentences.
The sentences for each of counts 3 and 5 should be accumulated by 4 months on the sentence imposed on count 2.
Shortly stated, the accumulation of imprisonment resulting from the above would be as follows:-
Count 10 9 months
Counts 11 and 12 8 months (in total)
Counts 9 and 13 10 months (in total)
Count 14 4 months
Counts 1, 4 and 6 4 months (in total)
Count 7 9 months
Count 8 4 months
Count 2 12 months
Count 3 4 months
Count 5 4 months
The result is a total sentence of 5 years and 9 months, 5 months longer than that imposed by Sorby DCJ. Subject to one matter, I regard the principle of totality as sufficiently taken into account by the extent of concurrency I have incorporated in the sentences I have proposed but, there being no Crown appeal, nor argument that any sentence should be increased it is preferable that not only the total sentence but also the individual ones not exceed those imposed by Sorby DCJ. Some further concurrency or reduction in sentences is therefore required although it is somewhat arbitrary how this is effected.
I expressed a reservation in the early part of the immediately preceding paragraph. In the determination of the periods selected, I did not take into account the impact of the sentence yet to be served in Victoria. Having regard to the further concurrency or reductions referred to in that paragraph, I do not regard any further reduction needed to take account, under the principles of totality, of the Victorian sentence.
I would propose to achieve the objectives stated by imposing sentences as indicated in the following table. For ease of comparison I have set out the sentences which I would impose irrespective of those imposed by Sorby DCJ, the sentences I propose in light of what his Honour did and the extent of the accumulation I would propose. The terms indicated are measured in months.
| Count | Favoured Sentence | Final Sentence | Accumulation | Notes |
| 1 | 4 | 4 | 4 | Concurrent with counts 4 and 6 |
| 2 | 12 | 12 | 12 | |
| 3 | 12 | 12 | 6 | Concurrent with count 5 |
| 4 | 4 | 4 | 0 | Concurrent with count 1 |
| 5 | 12 | 12 | 0 | Concurrent with count 3 |
| 6 | 4 | 4 | 0 | Concurrent with count 1 |
| 7 | 9 | 9 | 7 | |
| 8 | 4 | 4 | 4 | |
| 9 | 13 | 10 | 10 | Concurrent with count 13 |
| 10 | 9 | 9 | 9 | |
| 11 | 9 | 9 | 8 | Concurrent with count 12 |
| 12 | 9 | 9 | 0 | Concurrent with count 11 |
| 13 | 13 | 10 | 0 | Concurrent with count 9 |
| 14 | 4 | 4 | 4 | |
| Total | 64 months |
The result will be sentences totalling 2 years and 7 months for the New South Wales offences and 2 years and 9 months for the Commonwealth offences.
I have set out above the terms of s 19AB of the Crimes Act 1924 (C'th). Given its terms the Court is required to fix a single non-parole period in respect of the Commonwealth offences. In the past there has been a common practice of fixing that period in the range of 60 to 66% of the total sentence but the High Court has made clear that that range should not be regarded as a "norm" - see Hili and Jones v The Queen [2010] HCA 45 at [44]; (2010) 85 ALJR 195 - and it is to be determined in light of earlier decisions of the High Court to which reference was made. In short, what is the minimum time that justice requires that the Applicant must serve having regard to all of the circumstances of his offences?
In that connection, it is important to not forget that the periods referred to above include periods for New South Wales, as well as for Commonwealth offences and furthermore, that the periods stated for New South Wales offences are what I regard as appropriate fixed term (or non-parole) periods. These are periods which, given that totality has been taken into account, the Applicant should be required to serve in custody. They are not full terms, a portion of which should be served on parole or recognisance. That is not to say that they should be completely disregarded in determining the period during which the Applicant is to be subject to a recognisance, but it is appropriate to recognise that they were not deserving of the same weight as the (full term) sentences for the Commonwealth offences in the selection of an appropriate recognisance period. Perhaps because the matter does not seem to have been the subject of prepared argument in that case, the approach in Cahyahi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 does not completely accord with what I have said.
In judging how much of 5 years and 4 months the Applicant should be required to serve, a number of features stand out. One is what would seem to be his much above average prospects of rehabilitation. Operating in the other direction is the extent and duration of his dishonesty and the contumelious nature of his offending following his arrest in, and decamping from, Victoria and later, following his arrest and in breach of his bail in New South Wales.
In these circumstances, I am of the view that the period that the Applicant should be required to serve in custody is 4 years and 4 months. I would limit the period that the Applicant is to be subject to a recognisance release order to 1 year. In so concluding, I am conscious of the fact that this 1 year is but 18.75% of his total sentence and this is an unusually low proportion (although it is about 32.5% of the total of the sentences for the Commonwealth offences). However, given the magnitude of the Applicant's offending it would in my view be an affront to the legislative provisions and to the administration of the criminal law if the Applicant served less time in custody than the 4 years and 4 months I propose. In so concluding, neither do I ignore the Applicant's apparently excellent prospects of rehabilitation. However, in the face of what he did, there remain limits as to the weight that can be given to such subjective factors. And, although I do not need to rely on it, his prospects of rehabilitation mean that he should not need an extended period on parole or recognisance.
And lest it be thought that the period on recognisance is too small a proportion of the total sentence, I would add the following. In my view the appropriate total sentence is 5 years and 9 months. Constrained by the sentence that Sorby DCJ imposed, I have proposed a reduced period of 5 years and 4 months but the reduction should be effected by reducing the non-parole or recognisance period. Had the sentence been 5 years and 9 months, the "non-parole" portion of it, i.e. 4 years and 4 months, would have been 75% - again, I accept, a high proportion but I have stated why I believe the period in custody should not be less.
To give effect to these views, I propose that the Court make the following orders:-
(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentences imposed by Sorby DCJ on 11 February 2010;
(iv) In respect of count 10, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 January 2009;
(v) In respect of each of counts 11 and 12, sentence the Applicant to imprisonment for a fixed term of 9 months commencing on 6 September 2009;
(vi) In respect of each of counts 9 and 13, sentence the Applicant to imprisonment for a fixed term of 10 months commencing on 6 June 2010;
(vii) For failing to appear, the offence I have numbered 14, sentence the Applicant to imprisonment for a fixed term of 4 months commencing on 6 April 2011.
(viii) In respect of each of counts 1, 4 and 6, sentence the Applicant to imprisonment for 4 months commencing on 6 August 2011;
(ix) In respect of count 7, sentence the Applicant to imprisonment for 9 months commencing on 6 October 2011;
(x) In respect of count 8, sentence the Applicant to imprisonment for 4 months commencing on 6 July 2012;
(xi) In respect of count 2, sentence the Applicant to imprisonment for 12 months commencing on 6 November 2012;
(xii) In respect of each of counts 3 and 5, sentence the Applicant to imprisonment for 12 months commencing on 6 May 2013;
(xiii) Pursuant to s 20(1)(b) of the Crimes Act 1914 (C'th) direct that, upon entering into a recognisance to be of good behaviour for a period of 12 months and providing security in the sum of $1, the Applicant be released after serving imprisonment for the period from 6 August 2011 to 6 May 2013.
HOEBEN J: I agree with RS Hulme J and the orders which he proposes.
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