Noble v R

[2018] NSWCCA 253

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Noble v R [2018] NSWCCA 253
Hearing dates:	5 March 2018
Date of orders:	09 November 2018
Decision date:	09 November 2018
Before:	Bathurst CJ at [1]; Fullerton J at [2]; Campbell J at [19]
Decision:	(1) Leave to appeal granted. (2) The appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 11.1 – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – whether her Honour failed to take into account the applicant’s pleas of guilty – s 16A(2)(g) Crimes Act 1914 (Cth) – utilitarian value – whether the sentence imposed was manifestly excessive
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A, 17A, 19AB, 21B Criminal Appeal Act 1912 (NSW), s 6 Criminal Code 1995 (Cth), ss 11.1, 134.2
Cases Cited:	Bui v Director of Public Prosecutions for the Commonwealth of Australia (2012) 244 CLR 638; [2012] HCA 1 Cameron v The Queen (2002) 209 CLR 339 Edwards v R [2017] NSWCCA 160 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Naizmand v R [2018] NSWCCA 25 O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 37 Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Wong v The Queen (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Kathleen Noble (Applicant) Regina (Respondent)
Representation:	Counsel: T Anderson (Applicant) K Breckweg (Respondent)   Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2016/128974
Decision under appeal	Court or tribunal: Orange District Court Jurisdiction: Criminal Date of Decision: 12 May 2017 Before: English DCJ File Number(s): 2016/00128974

Judgment

1. Bathurst CJ: I have had the advantage of reading the judgments of Fullerton J and Campbell J in draft. I agree with the orders proposed by Fullerton J and with her Honour’s reasons that leave to appeal should be granted but the appeal dismissed.

2. Fullerton J: I have read and considered the judgment of Campbell J in draft. I have come to a different conclusion as to the ultimate disposition of the applicant's leave to appeal against the effective sentence of five years imprisonment with a non-period of two years and six months imposed by her Honour Judge English in the District Court on 12 May 2017.

3. For the reasons which follow, I have concluded that despite the Crown having conceded a sentencing error in her Honour’s failure to take the utilitarian value of the applicant's pleas of guilty into consideration in the assessment of the discount to be applied to the sentence for each count on the indictment (an approach now mandated by Xiao v R [2018] NSWCCA 4 and restated in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; both cases decided after the applicant was sentenced), and despite what is said by the applicant to be error in her Honour's failure to make any express reference to the pleas of guilty at all in the ultimate imposition of sentence, no lesser sentence than that imposed by the sentencing judge is warranted.

4. Accordingly, the orders that I propose are:

1. Leave to appeal should be granted.

2. The appeal dismissed.

5. For present purposes, it is not necessary to restate the facts contained within the comprehensive statement of agreed facts tendered on sentence (see AB pages 48-70) summarised by the sentencing judge at pages 2-12 of the Remarks on Sentence.

6. For the purposes of resentence it is sufficient to emphasise that by lodging 140 false business activity statements (BAS) with the Australian Taxation Office (ATO) on behalf of eight related entities between July 2007 and November 2012, where, in each statement, GST refunds for purported business expenditure of $9 million were falsely claimed, multiple acts of criminality were committed. It also bears emphasis that this occurred at a time when the applicant was on notice that she was under investigation by a succession of ATO auditors, and after she was expressly warned against making false and misleading statements. Notably, after an audit into one of the entities created by the applicant revealed discrepancies resulting in a request for more supporting documentation, she created a new entity and lodged false statements in respect of that entity. Although the applicant admitted to lodging all of the 140 BAS when she was interviewed by the ATO in May 2015, she only admitted lodging false statements in respect of three of the business entities. In the remaining cases she claimed the falsity was the result of accounting errors or “mistakes”.

7. Of the $394,500 paid directly into the applicant's bank accounts or other accounts controlled by her over the course of the offending, none has been recovered. It is also of note that the reparation order made by the sentencing judge has not, to date, been discharged, either in whole or in part. The remaining $563,160 claimed by the applicant as GST refunds were either credited to the applicant’s ATO account, cancelled, or recalled by the ATO. The applicant was in receipt of Centrelink benefits at the time of her offending.

8. It was in respect of each of the 140 charges laid by the issue of Court Attendance Notices on 7 April 2016 that on 19 October 2016 the applicant entered pleas of guilty in the Local Court. Upon the matter being remitted to the District Court for sentence, that course of offending conduct was comprehended by the presentation of an indictment containing two counts: the first alleged the obtaining of a financial advantage by deception contrary to s 134.2(1) of the Criminal Code1995 (Cth) (the $394,500 fraudulently obtained) and the second attempting to obtain a financial advantage by deception contrary to ss 11.1 and 134.2 (1) of the Criminal Code (the $563,550 representing the refunds either credited, cancelled, or recalled). Both counts attracted a maximum term of imprisonment of 10 years and/or a $66,000 fine.

9. The sentencing judge made express reference to that chronology of events in the opening paragraph of her Remarks On Sentence, including, importantly the fact that pleas of guilty were entered in the Local Court and pleas of guilty were entered to each count on presentation of the indictment in the District Court. Her Honour also made express reference later in her sentencing remarks to her obligation to have regard to the governing principle in s 16A(1) of the Crimes Act1914 (Cth) that the sentence to be imposed be of a severity appropriate in all the circumstances, and to her obligation to have regard to the specific matters in s 16A(2) of that Act, where relevant, in the ultimate imposition of sentence. On resentence those same considerations apply.

10. Although her Honour made no specific reference at that time to her obligation under s 16A(2)(g) of the Crimes Act to take into account the applicant’s pleas of guilty, or to having applied a discount for the pleas of guilty in the ultimate calculation of sentence, her express reference to the guilty pleas being first entered in the Local Court and then on presentation of the indictment in the District Court, coupled with the ultimate appointment of a sentence of four years and six months on each count against a maximum of 10 years imprisonment is, to my mind, strongly suggestive that the significance of the pleas of guilty was not overlooked. That said, there is also force in the applicant's supplementary submissions that the absence of any express consideration by the sentencing judge of the way in which the applicant's pleas of guilty were accounted for in the ultimate imposition of sentence on each count is highly suggestive, if not demonstrative, of error. In support of that submission the Court was referred to Edwards v R [2017] NSWCCA 160 where the obligation of a sentencing judge to make express reference to a plea of guilty as a material consideration impacting upon imposition of sentence was emphasised. Although that decision concerned a state offence where the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 applied, and although this Court has made clear in Xiao at [280] that s 16A(2)(g) neither requires nor prohibits the actual specification of a discount for the plea of guilty, the failure to refer at all to the pleas of guilty as a material consideration in the imposition of sentence for a Commonwealth offence does constitute an error in the exercise of the sentencing discretion.

11. In Naizmand v R [2018] NSWCCA 25 at [29] (a case also involving a Commonwealth sentence) reference was made to Xiao at [280] where the Court said:

[O]nce it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.

Evidence on resentence

12. On resentence the applicant read an affidavit affirmed on 28 February 2018 in which she deposes to having a good record allowing her to work in the kitchen which is located outside the prison complex. She works seven days a week from 8:30 am to 2:30 pm. She receives regular visits from her adult children. She suffers from high blood pressure and is on anti-depressant and medication to manage her cholesterol. She is also an insulin-dependent diabetic.

Submissions on resentence

13. The Crown submitted that the applicant's planned, deliberate and persistent offending over a five year period, despite being warned by an ATO auditor about the consequences of making false and misleading statements and in circumstances where she took deliberate steps to hamper the ATO’s investigation, well justifies a finding of objectively serious offending. The Crown submitted that a finding of objective seriousness, coupled with the need for the sentence on each count to reflect the principle of general deterrence, would justify the conclusion that no lesser effective sentence than that imposed by the sentencing judge is warranted in law, even with allowance for the applicant's pleas of guilty consistently with the approach in Xiao and Jinde Huang aka Wei Liu.

14. The Crown accepted that there was evidence before the sentencing judge and before this Court of a degree of family disharmony contextual to the applicant’s offending, but invited the Court to reject the applicant’s claim to her psychologist that she was under pressure from her siblings not to erode a family inheritance and that it was this that drove her to make “mistakes” in lodging false returns as she was simply not up to the task of attending to the family's financial affairs. Instead, the Crown urged this Court to find, consistent with a finding made by the sentencing judge, that the applicant was neither remorseful nor contrite. In accepting that submission I note that the applicant’s evidence on resentence did not address this issue.

15. The Crown did acknowledge, as did the sentencing judge, the applicant’s personal circumstances including her age (she was aged 49 at the time of sentence), a lack of prior convictions and that her poor physical and mental health would make her time in custody more onerous. Nonetheless, the Crown maintained the submission that these considerations did not outweigh the need for the sentences to reflect the need for general deterrence in the context of the ubiquity of taxation fraud offences.

16. The Crown also emphasised that a considerable degree of concurrency was factored into the appointment of the commencement date for each sentence, resulting in an effective sentence of five years imprisonment with a non-parole period of two years and six months which, when regard is had to comparable sentences, is within an appropriate sentencing range for offending of this order. The Crown annexed a comprehensive schedule of comparable cases which I have found instructive in the sense that a range of sentences is discernible. I acknowledge, of course, that no sentence gives rise to a binding precedent and that no range of sentences is determinative of the upper and lower limits of sentencing discretion (see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [27]-[29]).

17. I do not propose to review the sentences in the Schedule in any length. Suffice to note that the effective sentence imposed in this case was well within the range for comparable offending in cases where pleas of guilty were entered and where the quantum of the fraud was also comparable. Two cases are worthy of note. In Edwards the offender lodged 27 BAS on behalf of three companies of which he was the sole director and shareholder. He claimed GST refunds totalling $540,898 of which he received $380,274. This offending was comprehended by four counts on an indictment. He pleaded guilty to each. The offending continued over an 18 month period. A significant discount for delay was taken into account. An effective head sentence of four years and three months with a non-parole period of two years and two months was not disturbed on appeal. In Hughes v R [2011] NSWCCA 226, 30 false BAS were lodged inflating expenditure in relation to a legitimate trading entity. The offender then used the name of two unsuspecting associates to gain control of other entities which he registered as entitled to GST refunds. A total amount of $298,022 was obtained by the fraud. Pleas of guilty were entered to offending which extended over an 18 month period. A head sentence of four years and six months with a non-parole period of three years was not disturbed on appeal.

18. In my view, to accede to the applicant's submission that a combined discount of 25 per cent should be applied to the sentence imposed by the sentencing judge to reflect both the utilitarian value of the plea and the applicant's willingness by her early pleas of guilty to facilitate the course of justice would result in a sentence which would fail altogether to address the need the sentence to accord with s 16A(1) of the Crimes Act. Even after allowing for the applicant’s pleas of guilty and her subjective circumstances, in my view, the gravity of her overall offending, in particular its persistence over an extended period of time in complete disregard of the warnings she had been given, together with what I am satisfied were deliberate attempts to hamper the ATO’s investigation into her offending conduct, compels the conclusion that no other effective sentence than that imposed by the sentencing judge was warranted in law.

19. Campbell J: The applicant was charged with and pleaded guilty to the following counts of defrauding and attempting to defraud the Commonwealth through the Australian Taxation Office (“ATO”):

Count 1: obtain a financial advantage by deception pursuant to s 134.2(1) Criminal Code 1995 (Cth) (“Criminal Code”); and

Count 2: attempting to obtain a financial advantage by deception pursuant to ss 11.1 and 134.2(1) Criminal Code.

20. Her Honour Judge English sentenced the applicant on the 12 May 2017 in Orange District Court. For each offence the sentencing judge imposed a term of imprisonment of 4 years and 6 months. The first sentence commenced on the day it was passed, on 12 May 2017. The second sentence was partially accumulated on the first after 6 months, to commence on 12 November 2017. The total effective sentence is one of 5 years duration expiring on 11 May 2022. A single non-parole period of 2 years and 6 months was fixed under s 19AB Crimes Act 1914 (Cth) (“Crimes Act”). A reparation order in the sum of $394,550 was imposed under s 21B Crimes Act.

21. The applicant was aged 49 years and 8 months at the time of sentence and was a person with no previous convictions.

The offending

22. Between 25 July 2007 and 19 November 2012, the applicant lodged 140 false Business Activity Statements (“BAS statements”) with the ATO.

23. Over this period of 5 years and 4 months, the applicant claimed GST refunds totalling $957,710 on behalf of 8 “entities”. The “entities” were “businesses” said to have been operated variously by the applicant, family members or former partners as sole traders or in partnership. Each had an Australian Business Number (“ABN”). Other than the pastoral enterprise operated by her parents in partnership each “business” was, during the period, either non-operating or fictitious. There is no suggestion that either of the applicant’s parents (who are now deceased) were implicated in her fraud. The substance of the fraud was the excess of claimed GST input tax credits over the GST claimed to have been received by each entity.

24. Later financial investigation to support the prosecution showed that through the various entities the applicant claimed by way of the false BAS statements an aggregate business expenditure of $9,607,277. Total withdrawals by one means or another from the principal nominated bank account did not exceed $795,118.84 with a shortfall of $8,812,158.16 between actual and claimed expenditure. Throughout the period when these businesses were claimed to be operating the applicant was a recipient of one type of Centrelink benefit or another.

25. From the $957,710 fraudulently claimed, $394,550 was paid by the ATO into bank accounts, largely what I have described as the principal operating account, under the applicant’s control over the period of the offending. These sums have never been recovered. Of the refunds paid the vast majority were in sums less than $10,000. This course of conduct underpinned Count 1 of the indictment.

26. The remaining $563,160 relates to numerous claimed refunds over the period which had been credited to the applicant’s ATO account, but were cancelled, or recalled by the ATO following an internal investigation or inquiry. The largest of these was a sum of $100,379 for the April 2009 BAS statement. This was offset on 29 July 2009 against a tax liability which the pastoral enterprise could not otherwise meet. This constituted Count 2 of the indictment.

27. From as early as 7 February 2008 the applicant was questioned by internal auditors employed by the ATO on many occasions about the integrity of the BAS statements she had lodged. When convincingly challenged she variously claimed mistake or ignorance. On other occasions she prevaricated or obfuscated. All of these auditors concluded that a number, at least, of the BAS statements had been lodged improperly. This internal process explains the cancellations and recalls subject to Count 2.

28. On 13 November 2012, yet another internal auditor from the ATO, a Ms Michelle Gillespie, contacted the applicant and challenged her directly that she had been fraudulently lodging BAS statements. The applicant initially denied this but on 27 November 2012 she sent a two page fax to Ms Gillespie admitting to lodging some false BAS statements on behalf of some of the entities.

29. On 20 May 2015, the applicant was formally interviewed by ATO investigators, and on this occasion she again admitted to knowingly lodging false BAS statements in some instances, but claimed to have made innocent accounting errors on other occasions.

30. On 7 April 2016, the applicant was formally charged. Initially 140 separate charges of Commonwealth taxation fraud were brought in the Local Court. The applicant entered a plea of guilty to each of them at the earliest available opportunity. These individual charges were, however, reduced to the two preferred in the District Court on which she was arraigned. The applicant maintained her pleas of guilty in the District Court.

Grounds of appeal

31. The applicant seeks leave to appeal from the sentence passed on two grounds: first, that her Honour failed to take into account the applicant’s pleas of guilty; and secondly that the sentence imposed was manifestly excessive.

Applicant’s submissions

32. The applicant submits that the sentencing judge erred in law because her Honour did not extend any mitigation to the applicant for her pleas of guilty. In support of this, the applicant relies on the consideration that her Honour did not advert to the pleas other than on one occasion in her Honour’s introductory remarks on sentence, and failed to refer to the timing of the pleas, or their mitigatory effect.

33. The applicant argues this is another case raising issues which relate to whether the utilitarian value of pleas of guilty in Commonwealth matters ought to be assessed and whether this value ought to be expressed in percentage terms. The applicant acknowledges that these issues were settled by this Court’s decision in Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1 (“Xiao”), which was decided after she was sentenced.

34. Xiao decides that a discount is available for the utilitarian value of a guilty plea for Commonwealth offences. In Xiao, the Court (Bathurst CJ; Beazley P; Hoeben CJ at CL; McCallum and Bellew JJ) reviewed authorities concerning s 16A(2)(g) Crimes Act including Cameron v The Queen (2002) 209 CLR 339 (“Cameron”), and held at [277]:

“… in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence of remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object.”

35. The applicant submits that the absence of any express consideration by the sentencing judge of the applicant’s guilty pleas in the Local Court is an appealable error, necessitating the Court’s intervention. And, although it is not a statutory requirement for a sentencing judge to specify the precise amount of a discount, the Court explained in Xiao (at [279] – [280]) that “the courts should be encouraged [in the interests of transparency] to identify the reduction given” (citations omitted). This is consistent with the views expressed by Kirby J in Cameron (at [71]) and McHugh J in Markarian v The Queen(2005) 228 CLR 357; [2005] HCA 25 (at [74]).

36. The applicant submits s 16A(2)(g) Crimes Act ought to have been applied as extending to the full utilitarian benefit of her guilty pleas at the first available opportunity, that is to say a discount of 25 per cent on each sentence.

Crown’s submissions

37. In regard to the first ground of appeal, the Crown acknowledges the sentencing judge did not expressly quantify a discount to be afforded to the applicant for her pleas of guilty. However, the Crown contends it does not necessarily follow that her Honour did not take the pleas into account in sentencing. In support of this, the respondent draws attention to her Honour’s reference to factors associated with a plea of guilty, including the level of remorse. Her Honour disposed of this, stating, the applicant was “neither remorseful nor contrite” (AB 30).

38. The Crown also draws attention to her Honour’s remarks on sentence, whereby she expressly referred to the requirement to have regard to the factors set out in s 16A Crimes Act (AB 29). The Crown argues it was implicit from this that the sentencing judge had regard to s 16A(2)(g) Crimes Act.

39. In the event that the Court rejects the primary argument and proceeds to re-sentence the applicant, the Crown argues by reference to Naizmand v R [2018] NSWCCA 25 that the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 could not apply to the Court’s exercise of federal jurisdiction under s 16A Crimes Act which “… applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws”: Bui v Director of Public Prosecutions for the Commonwealth of Australia (2012) 244 CLR 638; [2012] HCA 1 at [18]; Wong v The Queen (2001) 207 CLR 584. Moreover, the adoption of the New South Wales practice for discounting for guilty pleas may be at variance with the need for sentencing consistency for Commonwealth offences throughout Australia: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 (“Pham”). Reference in general terms was made to differences among some of the States in oral submissions but, with respect, no material was provided by way of precedent or otherwise from which a common national approach of discounting for guilty pleas may be discerned, or fashioned.

40. Although in oral submissions the Crown sought to maintain that the sentencing judge had “taken into account the plea of guilty” (4.5T) in written submissions (at para 7) the Crown seemed to concede there was error in as much as “the objective utilitarian benefit of the plea of guilty” had not been taken into account and “the sentencing exercise is [to be] re-opened”.

Consideration

41. Given that the sentencing judge did no more than narrate that the pleas of guilty had been entered in the Local Court, and then maintained in the District Court, in her Honour’s introductory remarks, and made no specific reference to s 16A(2)(g) Crimes Act, to which she was not referred to by the Crown, the concession in written submissions that her Honour erred is correct. However, in fairness to the sentencing judge, not only was her Honour not referred to s 16A(2)(g), she sentenced the applicant before the law in this regard was clarified by this Court’s decision in Xiao.

42. It is unnecessary for this Court to consider whether the manifest excess ground is made out. The sentencing judge’s error in failing to take the applicant’s plea of guilty, including its utilitarian value, into account necessitates this Court to re-exercise the sentencing discretion for the purpose of deciding whether some other, lesser, sentence is warranted in law for the purpose of s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [42] – [43].

43. I think it appropriate to point out that the question of whether any lesser sentence is warranted, notwithstanding the error below, was raised squarely with Mr Anderson of counsel who appeared for the applicant (2.10 – 2.37T). Mr Anderson very properly accepted that if the discount of 25 per cent for which he contends was allowed and applied to the maximum sentences and the non-parole period, “it would certainly place the applicant’s sentence at the very bottom” of the range of sentences appearing from the table of comparable sentences provided by the Crown, which Mr Anderson accepted were “accurate” (2.25T).

Is a lesser sentence warranted?

44. In Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Bathurst CJ summarised the current state of the law in the following terms (at [9]):

“[b]ecause somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case:

(1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error.

(2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error.

(3) It is an error to specify a range of percentage discounts as distinct from a specific percentage.”

45. The facts referrable to the applicant’s offending are summarised above. That offending: involved a large amount of money, just short of $1 million; it persisted for a long time, in excess of 5 years; involved obfuscation and prevarication when tax office officials challenged the applicant about any particular BAS statement; and the element of dishonesty was significant extending to the theft of the identity of innocent persons.

46. Offences involving fraud on the revenue call for a sentence which emphasises denunciation, punishment and general deterrence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (“Hili”) at [63]. The plurality in Hili said:

“[t]he applicants’ offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As has been pointed out in [previous cases], the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognizance release orders that were made.”

In my view these observations are apposite to the present case; other than, perhaps, the attribution of personal greed as the motive. Clearly, in the present case, financial gain was the motive, but it was borne out of straightened circumstances rather than naked greed.

47. According to the account given to Ms Margaret Johnson, a forensic psychologist whose report of 1 March 2007 was admitted as Ex 1, the applicant’s offending behaviour related to issues “surrounding the family inheritance”. Under her grandfather’s will, her parents only enjoyed a life estate over the rural property on which their pastoral enterprise was conducted. The remainder had been vested in each of her two brothers who did not actively participate in the business. There had been two separate parcels of land but one was sold when the applicant’s parents defaulted on a loan during a period of drought. The remaining parcel was not profitably run due to her father’s ill-health. She perpetrated the fraud and continued with it “as her parent’s financial predicament became direr”. She was also under pressure from her brothers “to ensure their inheritance was not eroded further” (Ex 1 at [17]).

48. As I have already stated, both parents have now died. She is a single parent of two adult daughters, the younger of whom has significant health issues.

49. She has worked as a trained bookkeeper, but not for many years outside the home.

50. The applicant gives a history of mental health issues since early adulthood. There is no psychiatric opinion, but Ms Johnson carried out psychometric testing. She expressed this opinion (Ex 1 at [21]):

“[t]he profile indicates that [the applicant] is severely depressed, discouraged, and withdrawn, and most likely meets criteria for a major depressive episode. She is plagued by thoughts of worthlessness, helplessness, and personal failure. She admits opening to feelings of sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed. She reports a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of appetite and/or weight. Psychomotor slowing is also evident.”

51. The sentencing judge who had the advantage of seeing and hearing the applicant give oral evidence formed the view that “she is neither remorseful nor contrite” (AB 30). Her Honour was prepared to accept that the applicant suffered from a major depressive illness, but regarded it as “a result of the predicament she now finds herself in which is, of course, of her own making” (AB 30). Nonetheless, the mental health issue is not irrelevant for sentencing purposes. The applicant also suffers from the general medical conditions of insulin-dependent diabetes and essential hypertension. These matters in combination will increase the burden of imprisonment for her.

52. She was assessed a low risk of re-offending “considering her age and her lack of other offending in the past” (AB 30).

53. Having considered a submission that a community based sentence was appropriate, her Honour decided in accordance with s 17A Crimes Act that no sentence other than full-time imprisonment was appropriate in all the circumstances of the case. Having regard to all of the circumstances of the offending and the offender, in my view, this finding was inevitable.

54. An affidavit detailing the applicant’s progress in custody affirmed on 28 February 2018 was read on the usual basis. It stated she has been of good conduct and is trusted to work in the kitchen which is located outside the correctional centre where she is being held. This material tends to indicate, as expected, that the applicant is making good progress towards rehabilitation.

55. Section 16A(1) Crimes Act expresses a fundamental requirement of federal sentencing law, “a court must impose a sentence … that is of a severity appropriate in all the circumstances of the offence”.

56. As the sentence set out at [2] above demonstrates, the sentencing judge imposed two sentences of equal length accumulated to the extent of only six months. The high degree of concurrency inherent in that structure evinces a significant degree of leniency. So too does the imposition of a non-parole period of two years and six months or one that is one-half of the total effective sentence. Comparing the sentence passed to the detailed particulars of comparative cases provided by the Crown in its written submissions, the sentence imposed was relatively low in the range suggested by those 21 cases decided between 2007 and 2016 from across Australia. I acknowledge both the necessity to consider this material and, paradoxically, its limited utility. The information provided in the schedule goes beyond the “numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases” which French CJ, Keane and Nettle JJ regarded as “unhelpful” and to be “avoided” in Pham at [28]. Such information may provide assistance when it demonstrates that an “impugned sentence differs from sentences that have been imposed in comparable cases” especially for the purpose of assessing a claim of manifest excessiveness or inadequacy (Pham at [28]).

57. The question, of course, is not where does the sentence passed fit in the pattern established by the outcomes in previously decided like cases? The question is: is some other sentence warranted?

58. In answering the statutory question for this offending, which the sentencing judge assessed as “objectively very serious indeed”, and for this offender, the fundamental consideration is that the applicant is entitled to be sentenced according to law: O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 37 at [13]. As the applicable law provides for a discount in the sentence that would otherwise be passed for a plea of guilty, including for its utilitarian value, she has not had the benefit of that consideration. I am not of the view that it is open to this Court to simply decide that no other sentence is warranted without applying the law as stated in Xiao.

59. Although the Court’s concerns about the potential inadequacy of a discounted sentence were raised with Mr Anderson, and acknowledged by him, on reflection I have concluded that to fail to allow a Xiao discount would effectively increase the sentence that was passed at first instance unfairly: Kentwell at [43]; cf Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255.

60. It is necessary that the sentence is of an appropriate severity taking into account the s 16A(2) matters to the extent to which they are relevant. Those matters, of course, include the pleas of guilt: s 16A(2)(g) Crimes Act. Additionally, it is important to bear in mind that the non-parole period fixed under s 19AB Crimes Act must be the minimum term that justice requires the offender to serve in full-time custody: Power v The Queen; and Selenski v The Queen; and Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26 (“Power v The Queen”).

61. In my judgment to ensure that the applicant is sentenced according to law, it is necessary to allow a discount for her early pleas on the sentences imposed by the learned sentencing judge. I would in the case of each sentence allow a 25 per cent discount, but I would adjust the sentence somewhat to avoid calculating it in weeks or days. Applying a 25 per cent discount, a sentence of 4 years and 6 months is reduced to 3 years, 4 months and 15 days. Given the requirements of s 16A(1) Crimes Act I would round the term of the sentence up to 3 years and 6 months in respect of each count. Like the sentencing judge I would accumulate the sentence for Count 2 on the sentence for Count 1 after 6 months, producing a total effective sentence of 4 years.

62. I do not think it necessary to carry the 25 per cent discount through to the non-parole period, having regard to the principle expressed in Power v The Queen. For this reason I would alter the ratio of 50 per cent adopted by the sentencing judge. In my judgment the minimum term that justice requires the applicant to serve in full-time custody for this offending is a term of 2 years and 3 months.

63. The orders I propose are:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentences passed in the District Court on 12 May 2017 and instead sentence the applicant as follows:

1. In respect of Count 1 on the indictment, sentence the applicant to a term of imprisonment of 3 years and 6 months commencing on 12 May 2017 and expiring on 11 November 2020;

2. In respect of Count 2 on the indictment, sentence the applicant to a term of imprisonment of 3 years and 6 months commencing on 12 November 2017 and expiring on 11 May 2021;

3. Under s 19AB Crimes Act 1914 (Cth) fix a single non-parole period of 2 years and 3 months commencing on 12 May 2017 and expiring on 11 August 2019; and

4. Confirm the reparation order under s 21B Crimes Act 1914 (Cth) in the sum of $394,550 imposed in the District Court.

**********

Decision last updated: 09 November 2018