Marks v R
[2009] NSWCCA 24
•13 February 2009
New South Wales
Court of Criminal Appeal
CITATION: MARKS, Simon Christopher v R [2009] NSWCCA 24 HEARING DATE(S): 3 November 2008
JUDGMENT DATE:
13 February 2009JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 3 DECISION: 1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed upon the applicant by Nield DCJ on 1 June 2007.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a) On charge 1: to a term of 1 year and 8 months with a non-parole period of 1 year and 2 months commencing on 23 January 2007 and expiring on 22 March 2008 with a balance of term of 6 months commencing on 23 March 2008 and expiring on 22 September 2008.
(b) On charge 2: to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 April 2007 and expiring on 22 August 2008 with a balance of term of 7 months commencing on 23 August 2008 and expiring on 22 March 2009.
(c) On charge 3: to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 July 2007 and expiring on 22 November 2008 with a balance of term of 7 months commencing on 23 November 2008 and expiring on 22 June 2009.
(d) On charge 4: to a term of 2 years and 8 months with a non-parole period of 2 years commencing on 23 October 2007 and expiring on 22 October 2009 with a balance of term of 8 months commencing on 23 October 2009 and expiring on 22 June 2010.
(e) On charge 5: to a term of 1 year and 6 months with a non-parole period of 1 year commencing on 23 October 2008 and expiring on 22 October 2009 with a balance of term of 6 months commencing on 23 October 2009 and expiring on 22 April 2010.CATCHWORDS: CRIMINAL LAW – sentence appeal – five counts of dishonestly obtain a financial advantage – early guilty plea – whether sentencing judge erred in failing separately to consider aggravating factors in relation to each individual charge – whether failure to take into account significant mitigating factors including mental illness, assistance given to authorities, contrition and rehabilitation - whether overall sentence manifestly excessive having regard to the degree of accumulation of the respective sentences – whether the trial judge erred in re-sentencing the offender - leave to appeal granted – sentences quashed – new sentences imposed LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912CATEGORY: Principal judgment CASES CITED: Assi v R [2006] NSWCCA 257
Le v R [2006] NSWCCA 136
R v Fisher [2001] NSWCCA 143
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Holder [1983] 3 NSWLR 245
R v Huang, R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
R v McDonald [1994] FCA 956; (1994) 71 A Crim R 370
R v Sandford (Court of Criminal Appeal, 7 March 1994, unreported)
R v Todorovic [2008] NSWCCA 49
R v Tomich [2002] NSWCCA 175; (2002) 127 A Crim R 234,
Scanlan v R [2006] NSWCCA 238PARTIES: Simon Christopher Marks (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2007/2937 COUNSEL: P Ingram (Respondent) SOLICITORS: Applicant in person
S Kavanagh, Solicitor for Public Prosecutions (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0268 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 13 April 2007 (date of sentence)
2007/2937
13 February 2009McCLELLAN CJ at CL
HALL J
HARRISON J
1 McCLELLAN CJ at CL: I agree with Harrison J.
2 HALL J: I agree with Harrison J.
3 HARRISON J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentences imposed by his Honour Nield DCJ on 1 June 2007. The applicant had pleaded guilty in the Downing Centre Local Court on 21 March 2006 to five charges and was committed to the District Court for sentence. On 23 January 2007 the applicant appeared for sentence in the Sydney District Court and adhered to his plea in relation to all charges. Those charges were as follows: -
Charge 1 : That on or about 21 March 2005 at Sydney, by deception, the applicant dishonestly obtained for himself a financial advantage, namely the crediting of $26,125 to the bank account of B I Connections Pty Ltd.
Charge 2 : That on or about 7 April 2005 at Sydney, by deception, the applicant dishonestly obtained for himself a financial advantage, namely the crediting of $45,650 to the bank account of B I Connections Pty Ltd.
Charge 3 : That on or about 5 May 2005 at Sydney, by deception, the applicant dishonestly obtained for himself a financial advantage, namely the crediting of $52,250 to the bank account of B I Connections Pty Ltd.
Charge 5 : That on or about 6 June 2005 at Sydney, by deception, the applicant dishonestly attempted to obtain for himself a financial advantage, namely the crediting of $118,800 to the bank account of I Q Pty Ltd.Charge 4 : That on or about 26 May 2005 at Sydney, by deception, the applicant dishonestly obtained for himself a financial advantage, namely the crediting of $59,400 to the bank account of I Q Pty Ltd.
4 The first four charges were offences contrary to s 178BA(1) of the Crimes Act 1900 ("the Act") and attracted a maximum penalty of imprisonment for a term of 5 years. The fifth charge was an offence of attempting to commit an offence contrary to s 178BA(1) of the Act and also attracted a maximum penalty of imprisonment for 5 years.
5 The applicant was originally sentenced as follows: -
On charge 1 : to a term of 2 years and 9 months with a non-parole period of 2 years and 23 days commencing on 23 January 2007 and expiring on 12 February 2009 with a balance of term of 8 months and 7 days commencing on 13 February 2009 and expiring on 20 October 2010.
On charge 2 : to a term of 2 years and 9 months with a non-parole period of 2 years and 24 days commencing on 23 July 2007 and expiring on 18 August 2009 with a balance of term of 8 months and 7 days commencing on 16 August 2009 and expiring on 22 April 2010.
On charge 3 : to a term of 2 years and 9 months with a non-parole period of 2 years and 23 days commencing on 23 January 2008 and expiring on 14 February 2010 with a balance of term of 8 months and 7 days commencing on 15 February 2010 and expiring on 22 October 2010.
On charge 5 : to a term of 2 years and 9 months with a non-parole period of 1 year and 6 months commencing on 23 April 2009 and expiring on 22 October 2010 with a balance of term of 1 year and 3 months commencing on 23 October 2010 and expiring on 22 January 2012.On charge 4 : to a term of 2 years and 9 months with a non-parole period of 2 years and 24 days commencing on 23 July 2008 and expiring on 15 August 2010 with a balance of term of 8 months and 7 days commencing on 16 August 2010 and expiring on 22 April 2011.
6 The aggregate sentence thereby imposed was 5 years commencing on 23 January 2007 and expiring on 22 January 2012 consisting of an aggregate non-parole period of 3 years and 9 months commencing on 23 January 2007 and expiring on 22 October 2010 and an aggregate balance of term of 1 year and 3 months commencing on 23 October 2010 and expiring on 23 January 2012.
7 On 1 June 2007 his Honour re-opened the sentence proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. His Honour then revoked all five sentences imposed on 13 April 2007 and in lieu of those sentences he imposed the following terms of imprisonment: -
On charge 1 : to a term of 2 years and 3 months with a non-parole period of 1 year and 8 months and 10 days commencing on 23 January 2007 and expiring on 2 October 2008 with a balance of term of 6 months and 21 days commencing on 3 October 2008 and expiring on 22 April 2009.
On charge 2 : to a term of 2 years and 3 months with a non-parole period of 1 year and 8 months and 9 days commencing on 23 July 2007 and expiring on 31 March 2009 with a balance of term of 6 months and 21 days commencing on 1 April 2009 and expiring on 22 October 2009.
On charge 3 : to a term of 2 years and 3 months with a non-parole period of 1 year and 8 months and 10 days commencing on 23 January 2008 and expiring on 2 October 2009 with a balance of term of 6 months and 21 days commencing on 3 October 2009 and expiring on 22 April 2010.
On charge 5 : to a term of 2 years and 3 months with a non-parole period of 1 year commencing on 23 October 2009 and expiring on 22 October 2010 with a balance of term of 1 year and 3 months commencing on 23 October 2010 and expiring on 22 January 2012.On charge 4 : to a term of 2 years and 3 months with a non-parole period of 1 year and 8 months and 9 days commencing on 23 July 2008 and expiring on 31 march 2010 with a balance of term of 6 months and 21 days commencing on 1 April 2010 and expiring on 22 October 2010.
8 The aggregate sentence thereby imposed was 5 years commencing on 23 January 2007 and expiring on 22 January 2012 consisting of an aggregate non-parole period of 3 years and 9 months commencing on 23 January 2007 and expiring on 22 October 2010 and an aggregate balance of term of 1 year and 3 months commencing on 23 October 2010 and expiring on 23 January 2012.
The appeal
9 The applicant relies upon four grounds of appeal as follows: -
Ground 1 : "His Honour erred in determining aggravating factors and setting sentence for offences."
Ground 2 : "His Honour erred when he failed to consider significant mitigating factors."
Ground 4 : "His Honour erred when he re-sentenced the offender."Ground 3 : "His Honour erred when he imposed a crushing and manifestly excessive sentence."
10 The Crown did not oppose the grant of any extension of time that the applicant sought in this appeal for leave to appeal against his sentence.
11 The applicant appeared for himself unrepresented in this Court. His written submissions in aid of his appeal would also appear to have been prepared without the assistance of legal advice.
Background
12 At the time that the offences were committed the applicant was employed by the New South Wales Department of Health. He was dismissed from that employment on 4 August 2005. The offences were serious involving a breach of trust and a combined loss to the department of $183,425, and an unsuccessful attempt to obtain a further $118,800. The applicant committed the offences by lodging documentation with his employer that purported to support payments for staff training provided by companies with which he was associated when no such training had been provided at all. The documentation was entirely false and the transactions were shams.
Ground 1
13 The applicant contended that his Honour erred by treating the breach of trust, the substantial loss that was suffered and the planning that occurred as aggravating factors. The defence had argued at the sentencing hearing that if the injury is an element of the offence it could not also be taken into account as an aggravating factor. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 provides that it is an aggravating factor that "the injury, emotional harm, loss or damage caused by the offence was substantial." In his remarks on sentence his Honour said the following:
"25. In determining an appropriate sentence to impose upon the offender for each of the offences I must recognise the purposes of sentencing outlined in Section 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in Section 21A, subs 2, of that Act as are present and such of the mitigating factors referred to in subs 3 of that section as are present and any other relevant factor.
26. There cannot be any argument that the offences committed by the offender are serious offences. They were planned offences. They were committed by an employee of the department in gross breach of the trust imposed [sic] in him by the department. They resulted in a substantial loss of money to the department.
29. As to Section 21A, subs 2, . . . I consider that the aggravating factors are those lettered (g) because the department's loss was substantial, (k) because the offender abused his position of trust as an employee of the department and (n) because the offences were planned and that, as to subs 3 of that section, the mitigating factors are those lettered (e) because the offender's criminal [sic, record] is not significant, (i), because of the offender's admissions of guilt when interviewed and his early guilty pleas to the charges show his remorse and, (k), because of his guilty pleas."
14 I do not think that his Honour erroneously took into account as aggravating factors any matters that were otherwise elements of these offences in the way suggested by the applicant. The reference by his Honour to pars (g), (k) and (n) of s 21A(2) does not to my observation pick up any specific elements of the s 178BA charges in an impermissible way at all. The factors referred to in those paragraphs continue in my view to have work to do and no double counting took place.
15 The applicant also submitted that in expressing his view that there had been substantial loss to the department his Honour failed properly to discriminate between or among the various offences and in particular to take account of the fact that there had been no loss at all as a result of the attempt offence. His Honour was required to sentence in relation to each of the offences individually and to the extent that he took account of the size of the losses the applicant contended that he did not do so. The applicant agued that the correct approach would have been to determine whether the loss was substantial in relation to each separate offence and impose a sentence accordingly.
16 The applicant also submitted that by taking this approach his Honour imposed sentences that were potentially distorted or inflated by an inappropriate reference to the totality of the offending, in place of the individual monetary amounts involved in each offence. This may in turn have led his Honour to place far greater emphasis on things such as punishment, deterrence and retribution than would otherwise have been warranted in the circumstances. The Court was referred to a series of arguably comparable cases such as R v Tomich [2002] NSWCCA 175; (2002) 127 A Crim R 234, Scanlan v R [2006] NSWCCA 238 and R v Fisher [2001] NSWCCA 143. The applicant argued that by comparison to these cases he had received a sentence that was disproportionately high having regard to the sums involved in those cases and to the corresponding sentences that were imposed.
17 The Crown argued that no error had occurred in his Honour's approach. However, I consider that his Honour's comments at par [26] of his remarks on sentence, that the offences "resulted in a substantial loss of money to the department", fail adequately, or indeed at all, to distinguish between the amount of the loss that is individually referable to each of the offences. His Honour's approach in sentencing the applicant for charges 1 to 4 inclusive was to impose what were in effect identical sentences. The amounts involved were not the same and in the case of charge 1 it was approximately one half of the amount involved in charge 4. Moreover, a review of the cases upon which the applicant relied suggests that the sentences imposed in similar cases were for amounts that approached the total sum involved in all of the present offences but were quite different to the sums involved in the individual offences. The choice of a starting point of three years for each of the first four charges appears to have resulted from a failure separately to consider aggravating factors that may have been established in relation to each individual charge. In my opinion this is an error that this Court should correct.
Ground 2
18 The applicant submitted that his Honour overlooked a significant number of mitigating factors. These are discussed below.
19 Mental illness: The applicant had a long history of severe depression that was documented in reports from his treating psychologist and psychiatrist. He also made submissions about a severe gambling addiction and unresolved child sexual assault. He submitted that his Honour overlooked a material consideration being the impact of stress affecting the applicant that arose from his work and an internal inquiry there in an unrelated matter. These matters played a central role in the period immediately prior to the commission of the offences and were never fully explored.
20 Assistance given to authorities: The applicant submitted that his Honour failed to consider the applicant's assistance given to police throughout the police investigation. This would appear to be a submission drawing upon the fact that the applicant co-operated with the police.
21 Bail: His Honour failed to consider that the applicant was on bail for a period of two years without further offending which should have been treated as evidence of substantial rehabilitation warranting special circumstances and mitigation.
22 Delay in process: The proceedings took two years to conclude.
23 Offences committed over a short duration: The offences were committed as a short burst of criminal behaviour attracting a high degree of concurrence.
24 First custodial sentence: His Honour failed to give consideration to the fact that this was the first time that the applicant had served any term of imprisonment.
25 Rehabilitation: The applicant contended that during the sentencing procedure his Honour indicated that the applicant's chances of rehabilitation were difficult to determine. His Honour failed to have regard to the period on bail with no offences committed together with successful abstinence from alcohol and drugs for a period of ten years.
26 Culpability of the casino (at which the applicant gambled: The applicant had been diagnosed with a pathological gambling addiction and was by definition a compulsive gambler who was susceptible to the attractive and alluring marketing strategies if the Star city casino in Sydney. He argued that in motivating the applicant to gamble and by inviting him to attend the casino the casino had entered into a relationship with him involving a duty of care to him that was breached.
27 Contrition: The applicant presented an argument for a reduction in sentence for his demonstrated contrition. He referred to and relied upon significant steps taken to seek help for his addiction, mental health and sexual assault issues. His attendance at counselling, psychiatric appointments and Gamblers Anonymous demonstrated a willingness to address issues in his life that were relevant to his original offending.
28 The Crown contended in response to these matters that they had all been addressed and taken account of by his Honour. His Honour referred to evidence of depression, drug and alcohol abuse and related matters and the evidence concerning sexual abuse. He also referred to the evidence of work related pressures and the applicant's belief that those pressures had caused his relapse into gambling. His Honour accepted that the applicant was addicted to gambling and that such addiction slightly mollified his culpability but he also observed that this did not reduce the seriousness of the fact that the offences had been committed to obtain money for that purpose. His Honour referred to the internal investigation and recognised that it was against the background of events at the applicant's workplace that he relapsed into gambling.
29 This Court has held that the commission of offences to provide funds for an addiction (including gambling) is not a matter to be considered in mitigation of an offence: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [203] and [252] – [255]. See also R v Todorovic [2008] NSWCCA 49 at [12] – [13], [60] – [63], R v Huang, R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 at [42], Le v R [2006] NSWCCA 136 at [32] and Assi v R [2006] NSWCCA 257 at [27].
30 The Crown submitted that his Honour in fact relied upon the principle of totality, and not deterrence simpliciter, partially to accumulate the sentences. This was an appropriate approach for his Honour to take in all of the circumstances and it was therefore open to him to accumulate the sentences in the way that he did.
31 The applicant's assistance was no more than the making of admissions to police in the course of an ERISP. No other assistance was in evidence.
32 The period of two years on bail was contended by the Crown to be not particularly significant and his Honour was in any event aware that no further offences had been committed.
33 The period between charge and sentence was nineteen months to the date of the imposition of the initial sentences and twenty-two months to the date of the corrected sentences. These periods were unexceptional and did not attract the principles referred to in R v Sandford (Court of Criminal Appeal, 7 March 1994, unreported).
34 The primary significance of the circumstance that offences have been committed over a short period is the impact that that has upon the aggregate sentence to be imposed by virtue of the operation of the principle of totality: R v Holder [1983] 3 NSWLR 245 at 260. The Crown submitted that his Honour was well aware of the time frame over which the offences were committed and the aggregate sentence did not fail appropriately to reflect the period over which they occurred.
35 His Honour was also well aware that the sentences he was imposing were the first custodial sentences that the applicant would be required to serve.
36 The Crown also contended that his Honour recognised that the applicant had not consumed alcohol or drugs since 20 August 1997 and had abstained from gambling for ten years prior to the commission of the subject offences. In the circumstances his Honour could not have failed to notice or to appreciate that there was no evidence that the applicant had committed any further offences whilst on bail. The finding made by his Honour with respect to the prospects of rehabilitation was therefore entirely open.
37 The Crown submitted that the submissions about the casino's culpability were simply misconceived. His Honour took the applicant's admissions in the ERISP and his subsequent early pleas of guilty into account as evidence of remorse and contrition.
38 However, it is instructive in this context to recall what his Honour had to say in his remarks on sentence at pars [32] to [35]:
"[32] What, then, having regard to what I have said about the offences and the offender, are appropriate sentences to impose upon him for the offences?
[33] Balancing the purposes of sentencing, the objective seriousness of the offences, the subjective features of the offender and the other factors, to all of which I have referred, I have determined that the starting point for the sentence for the offences is imprisonment for three years. I reduce each sentence by twenty five per cent, so that the period of three years is reduced to two years three months.
[35] As to special circumstances, I cannot see anything in what I have said about the offences and the offender that I consider to be special". (Emphasis added)[34] Absent a special circumstance, the period of two years nine months would be apportioned into a non-parole period of two years twenty-one days and a parole period of eight months seven days.
39 During the course of argument in this court, the applicant's case emerged as follows. Following his quoted remarks his Honour proceeded to impose a total sentence of imprisonment for 5 years with a non-parole period of 3 years 9 months and a parole period of 1 year 3 months. His Honour clearly declined to vary the statutory ratio. The applicant's challenge to this approach in the circumstances therefore was not that it was not open to his Honour to decline to apply a finding of special circumstances, which it clearly was, but rather that the highlighted portions of the passages just quoted demonstrate that he was not even of the view that special circumstances existed at all. The applicant contended that having regard to the evidence before him his Honour's approach cannot withstand scrutiny and is erroneous. In particular the applicant contended that this was so having regard to the evidence of what occurred at his place of employment when he was made the subject of a special inquiry, superimposed upon his labile mental state.
40 His Honour recorded these matters in some detail and it is instructive to record what he said as follows: -
"[5] The offender joined the St John's Ambulance Brigade during 1979 as a cadet and remained a member of the Brigade until the end of 1985. During his time in the Brigade he became an instructor and then an examiner. Between 1982 and 1985 he was sexually assaulted on a number of occasions by older members of the Brigade. I cannot say what effect these sexual assaults had upon him and whether they caused or contributed to his offending.
[6] The offender was a member of the Australian Army Cadet Corp at his high school. He was drum major in his unit's drum corps, chief medic in his unit and reached the rank of Company Sergeant Major. He was sexually assaulted on a number of occasions by older members of his unit. Again, I cannot say what effect these sexual assaults had upon him and whether they caused or contributed to his offending.
[7] After commencing the nursing degree course at Sydney University, the offender left his mother's home to live with his girlfriend. After some time, and I do not know when, this relationship broke down and he and his girlfriend separated. He is single and does not have anyone dependent upon him.
[8] In 1990 the offender commenced employment as a registered nurse at the Prince of Wales Hospital. He worked in Oncology, Paediatric Neurosurgery and the emergency department.
[9] In 1995 the offender was transferred from the Prince of Wales Hospital to Sydney Hospital at where [sic] he worked in the emergency department.
[10] For some time before 1995, and I do not know for how long, the offender had abused both intoxicating liquor and prohibited drugs. He suffered a breakdown during 1995 and was admitted into a drug detoxification centre.
[11] After discharge from the detoxification centre, the offender resumed his employment as a nurse but after about eight months he resumed his use of prohibited drugs.
[12] On 4 April 1997 the offender was charged with one offence of stealing from a dwelling and seven offences of making a false or misleading statement, and on 6 May 1997 he was dealt with by a magistrate in the Local Court at North Sydney for these offences. I do not know the facts related to these offences.
[13] During July 1997 the offender suffered a second breakdown. He resigned from his employment at Sydney Hospital and he was admitted into, firstly, the McKinnon Unit at Rozelle Psychiatric Hospital and then at the Phoenix Rehabilitation Unit at Manly Hospital. He was discharged from the Phoenix Rehabilitation Unit on 20 August 1997 after successfully completing the rehabilitation course. He has not consumed intoxicating liquor or used any drug since his discharge from this unit.
[14] During 1998 the offender commenced employment as a care manager in a clinical trial at Manly Hospital.
[15] During 1999 the offender was appointed to the position of Health Information Exchange Co-ordinator for the Northern Sydney Area Health Service.
[16] During 2001 the offender transferred from the Northern Area Health Service to the Department of Health to manage the department's data collection and reporting service. He held this position until he was suspended from duty on 29 March 2005 for alleged misconduct, that being, order splitting. His employment was terminated on 4 August 2005. Not surprisingly or unexpectedly, his suspension from his employment with the department was both embarrassing and distressing to him.
[18] The offender's fraud was discovered on 6 June 2005…"[17] Between mid March 2005 and 6 June 2005 the offender prepared 11 false invoices, five in the name of B. I. Connections Pty Limited and six in the name of I.Q Pty Limited, the successor of B. I. Connections Pty Limited, totalling of $302,225 claimed for staff training and submitted them in five batches to the Department of Health by personally putting them into the accounts payable tray in the department's accounts branch. He facilitated payment of the invoices by submitting them with falsified Department of Health non-creditor invoice vouchers, which he had signed in his name and countersigned in a false name. He received payments of four amounts totalling $183,425.
41 Special circumstances were argued in the applicant's case at the sentencing hearing before his Honour. A report from Dr Bruce Westmore dated 22 July 2006 was tendered and it included the following opinion: -
There is however a clear "non psychotic" explanation for his behaviour. He thought he was being picked on and bullied in the workplace and his "paranoid" ideation regarding that may be reality based. He was suspended for certain work practices and he acknowledges that he was very upset after that occurred.""I note the opinions of the psychologist but I am unable to confirm that Mr Marks was psychotic at the time the offending behaviour occurred. I do not think the history supports that proposition in any consistent way.
42 There was in my opinion considerable material before his Honour that did amount to special circumstances. The applicant had a history of mental illness that was not insignificant. He remains in need of psychiatric care and supervision. His psychologist was of the opinion that when assessed by him the applicant's "state of mental distress closely reflect[ed] an ongoing pattern of mental health instability under stress" and that he "require[d] psychological treatment for his underlying traumatic abuse". Added to this is the fact that the sentences imposed by his Honour will be the applicant's first time in custody. In R v McDonald [1994] FCA 956; (1994) 71 A Crim R 370, in the context of a gaol sentence imposed in relation to fraud offences, Burchett and Higgins JJ observed at 379 "[in] a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed".
43 It was not in such circumstances in my opinion open to his Honour to make the finding that he made at par [35] of his remarks on sentence. His Honour effectively put out of his consideration the matters to which his attention was drawn. He did not permit himself the opportunity to consider of whether or not the statutory ratio could be varied.
Ground 3
44 It is uncontroversial that each of the applicant's offences should carry a sentence that is appropriate for that offence and that the totality of the sentence should be derived by appropriate orders for accumulation and concurrence. In this respect I consider that the individual sentences that were imposed by his Honour for each separate offence were on one view not inappropriate. No one sentence was excessive standing alone. However, whereas the principle of totality can obviously operate to lead to the imposition of an aggregate sentence for multiple offences that might exceed the maximum sentence available for any one or more of the individual sentences, the degree of accumulation between or among the respective sentences here under appeal is excessive and has produced an overall non-parole period that is too long. For this reason it is my view that the applicant's aggregate sentence is manifestly excessive even if the individual sentences are unexceptionable.
Ground 4
45 The re-opening of the sentence by his Honour was not opposed. The applicant suffered no prejudice in the circumstances. He does not suggest that the sentence imposed following the re-opening was more onerous than the sentence originally imposed. His Honour uncontroversially put in place a sentence that he had foreshadowed he would impose but which he mistakenly failed to implement. He corrected that failure when he re-sentenced. This ground of appeal is without merit.
Orders
46 In my opinion, having regard to the foregoing, some other less severe sentence is warranted in law and should have been passed. I would therefore propose to re-sentence the applicant in accordance with the orders that follow. The effect of that re-sentencing will produce an aggregate sentence of 3 years and 5 months commencing on 23 January 2007 and expiring on 22 June 2010 consisting of an aggregate non-parole period of 2 years and 9 months commencing on 23 January 2007 and expiring on 22 October 2009 and an aggregate balance of term of 6 months commencing on 23 October 2009 and expiring on 22 April 2010. For that purpose I would propose the following orders: -
1. Grant leave to appeal and allow the appeal.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment: -2. Quash the sentences imposed upon the applicant by Nield DCJ on 1 June 2007.
(a) On charge 1 : to a term of 1 year and 8 months with a non-parole period of 1 year and 2 months commencing on 23 January 2007 and expiring on 22 March 2008 with a balance of term of 6 months commencing on 23 March 2008 and expiring on 22 September 2008.
(b) On charge 2 : to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 April 2007 and expiring on 22 August 2008 with a balance of term of 7 months commencing on 23 August 2008 and expiring on 22 March 2009.
(c) On charge 3 : to a term of 1 year and 11 months with a non-parole period of 1 year and 4 months commencing on 23 July 2007 and expiring on 22 November 2008 with a balance of term of 7 months commencing on 23 November 2008 and expiring on 22 June 2009.
(e) On charge 5 : to a term of 1 year and 6 months with a non-parole period of 1 year commencing on 23 October 2008 and expiring on 22 October 2009 with a balance of term of 6 months commencing on 23 October 2009 and expiring on 22 April 2010.(d) On charge 4 : to a term of 2 years and 8 months with a non-parole period of 2 years commencing on 23 October 2007 and expiring on 22 October 2009 with a balance of term of 8 months commencing on 23 October 2009 and expiring on 22 June 2010.
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