PC v The Queen - [2020] NSWCCA 147

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PC v R [2020] NSWCCA 147
Hearing dates: 29 April 2020
Decision date: 01 July 2020
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Harrison J at [143]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – 11 offences of dishonestly obtaining a financial advantage by deception – 10 further offences of the same kind on three Forms 1 – $3.6 million unaccounted for – whether sentencing judge erred in failing to assess the objective seriousness of the offences – whether sufficient discount for assistance to authorities allowed – whether sentence imposed was manifestly excessive – objective seriousness of offences properly assessed – no error in discount allowed for assistance – sentence not manifestly excessive – error in formulation of indicative sentences – requirement to set out basis for differences between indicative sentences – error in formulation of indicative sentences not sufficient to require change in the aggregate sentence – appeal against sentence dismissed.

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010) (NSW) – s 7
Crimes Act 1900 (NSW) – s 192E(1)(b)
Crimes Amendment (Fraud Identity and Forgery Offences) Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 23
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases Cited:
AB v The Queen [1999] HCA 46;198 CLR 111
Barbaro v The Queen; Zirilli v The Queen (2014) CLR 253 CLR 58; [2014] HCA 2
Baumer v The Queen [1988] HCA 67; 166 CLR 51
Bland v R (2014) 241 A Crim R 51/ [2014] NSWCCA 82
Book v R [2018] NSWCCA 58
Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41
DV v R [2017] NSWCCA 276
Frigiani v R [2007] NSWCCA 81
Gal v R [2015] NSWCCA 242
House v The King (1936) 55 CLR 499; [1936] HCA 40
Haouchar v R [2014] NSWCCA 227
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Hraiki v R [2019] NSWCCA 140
Hughes v R [2013] NSWCCA 129
Hurst v R [2017] NSWCCA 114
Hutchinson v R [2014] NSWCCA 317
JM v R; [2014] NSWCCA 297; 246 A Crim R 528
Johnston v R [2017] NSWCCA 54
Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
Kerr v R [2016] NSWCCA 218
LB v R [2013] NSWCCA 70
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Matthew v R [2014] NSWCCA 185
Mitchell v Regina [2006] NSWCCA 72
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Obeid v R [2017] NSWCCA 221
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Power v Regina [2002] NSWCCA 244
R v Brown [2012] NSWCCA 199
R v Campbell [2014] NSWCCA 102
R v Ehrlich [2012] NSWCCA 35
R v El Hani [2004] NSWCCA 162
R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
R v Hawker [2001] NSWCCA 148
R v Martin [2005] NSWCCA 190
R v Medd (a pseudonym) [2016] NSWCCA 216
R v Sappideen [2018] NSWDC 238
R v Van Ryn [2016] NSWCCA 1
R v Woodman [2001] NSWCCA 310
R v XX [2009] NSWCCA 115
R v XX [2017] NSWCCA 90
Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Regina v Joseph Sukkar [2006] NSWCCA 92
Regina v Swadling [2004] NSWCCA 421
Robinson v R [2017] NSWCCA 315
Sharma v R [2017] NSWCCA 85
Siwek v R [2017] NSWCCA 178
Subramaniam v R [2013] NSWCCA 159
Thi Lan Nguyen v R [2009] NSWCCA 181
TL v R [2017] NSWCCA 308
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Woods v R [2018] NSWCCA 261
Z v R [2014] NSWCCA 323
Zhao v R [2016] NSWCCA 179

Category: Principal judgment
Parties: PC – Applicant
Regina – Respondent Crown
Representation:
Counsel:
T Game SC/A Cook – Applicant
E Balodis – Respondent Crown
Solicitors:
The Law Practice – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/96392; 2014/351208; 2015/177272; 2015/213082
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010) (NSW), order that any information tending to reveal the identity of the applicant not be disclosed. The order was made on the grounds that the order was necessary to protect the safety of the applicant. The order was to extend throughout the Commonwealth.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 238

Date of Decision:

2 February 2018

Before:

ML Williams SC DCJ

File Number(s):

2014/96392; 2014/351208; 2015/177272; 2015/213082

JUDGMENT

BATHURST CJ: I agree with Hoeben CJ at CL.
HOEBEN CJ at CL: Before the appeal commenced, the Court made a suppression order in the following terms: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), order that any information tending to reveal the identity of the applicant not be disclosed. The order was made on the grounds that the order was necessary to protect the safety of the applicant. The order was to extend throughout the Commonwealth.

Offences and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Williams SC on 2 February 2018 in the District Court at Sydney.
The applicant pleaded guilty to 11 offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (the Act). A further ten offences of the same kind were taken into account on sentence by way of three Forms 1.
The maximum penalty for an offence contrary to the Act is imprisonment for 10 years.
The applicant was sentenced to an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years, commencing 28 November 2014 and expiring 27 November 2026. The earliest day on which the applicant will become eligible to be released on parole is 27 November 2022.
In summary, the applicant obtained large sums of money from 21 victims whom he had befriended by falsely representing that he was going to invest money on their behalf in sophisticated investment opportunities with promised high returns. The total amount of money obtained by the applicant was in the order of $4.6 million of which approximately $3.6 million remains unaccounted for.
Details of the offences including the indicative sentences are set out in a table marked Annexure “A” attached to this judgment.
The aggregate sentence was the product of his Honour allowing for a reduction of 25 per cent for the utilitarian value of the applicant’s early pleas of guilty and an additional 10 per cent for assistance that the applicant had provided to the authorities. The non-parole period represented 66.7 per cent of the head sentence, reflecting a finding of special circumstances.
The applicant seeks leave to appeal against the aggregate sentence on the following grounds:

Ground 1 – The sentencing judge erred in failing to assess the objective seriousness of the offences

Ground 2 – The sentencing judge erred in failing to allow a sufficient discount for assistance provided to the authorities

Ground 3 – The sentence imposed was in all the circumstances manifestly excessive

FACTUAL BACKGROUND AND SENTENCE PROCEEDINGS

The applicant had previously been convicted of a number of fraud offences and was sentenced on 8 July 2005 by his Honour Judge Bell to a term of imprisonment of 8 years with a non-parole period of 5 years and 6 months, commencing 12 May 2004. The applicant was released to parole on 11 November 2009 and his sentence expired on 11 May 2012.
This offending began in the last few months of the applicant’s parole period and continued after expiration. The applicant was arrested on 31 March 2014 and granted bail. He committed a further series of offences and his bail was revoked on 28 November 2014.
Four offences were committed during the parole period (victims Cole, Panagopoulos, Joseph and Smith). There were 12 offences committed after the expiration of the parole period but before his arrest (victims Kalouche, Langley, Gan, Makrakis, Zanella, Ware and Knox, Wen, Hewitt, Martin, Busuttil and Walsh). Five offences were committed while he was on bail after his arrest (victims Doble, Smith, Panigiris, Antonini and McRae).
The agreed facts were set out comprehensively in a 74 page document. His Honour dealt with those agreed facts as follows in the sentence judgment:

[The applicant] defrauded his friends of about $4.6 million of which $3.6 million approximately remains missing and there is no evidence at all as to where it has gone or what he did with it. He is 37 years of age, and as Mr Lloyd QC accurately summarised his offending in submissions, he was a big noter who showed false trappings of wealth to people and befriended them, got them to invest large amounts of money and then told lies as to why their investments could not be repaid.
Some of the offences before the court today were committed while he was on parole and some were committed while he was on bail having been arrested for the earlier offences for which he stands for sentence today. When I say “on parole”, I refer to the fact that on 8 July 2005 His Honour Judge Bell imposed a sentence of eight years imprisonment with a five year and six months non-parole period to date from 12 May 2004 for a series of fraudulent offences, mostly of much less serious amounts of money than involved in the present case. At that time Bell DCJ said:
“At the outset I stress that it is difficult to fully appreciate this young man’s confident presentation and his ability to express himself without actually seeing him. His skills in communication and presentation are of an order that would be the envy of many members of the legal procession”
His Honour went on to say:
“His conduct involved the presentation of himself as a person of importance. He utilised that presentation to obtain cash from his victims. The cash he obtained was in large measure spent by maintaining a lavish lifestyle. He then fraudulently dealt with funds by seeking to take them form the accounts of some of his victims and depositing them into account of other victims. His conduct raised much false expectation of profit in his victims, and that expectation was not only not realised but they lost their cash as well”.
…
“The offender is an intelligent, articulate and well presented young man. His manner of speech is both engaging and persuasive.”
The sentence that Bell DCJ imposed was reduced by 20% to take account of the utilitarian value of pleas of guilty.
Having been released on parole on 11 November 2009, his parole was to expire on 11 May 2012, and as Mr Lloyd QC put it, it was not until the last few months of his parole period that he commenced the series of offences which lead to him appearing today. As optimistically as Mr Lloyd could put it was that he had been able to get by for about almost two years on parole without offending.

...

The agreed facts upon which the sentencing proceeds are set out in a 74 page document which is a very comprehensive summary of the offending but, as Mr Lloyd concedes, remarks on sentence should necessarily contain only a summary of the facts rather than a repetition of the facts and he is content to a certain extent with the outline of the offending summarised in the Crown’s written submissions.
In short, the offender obtained substantial sums of money from 20 victims purporting that he was going to invest that money on their behalf in sophisticated investment opportunities with an extraordinarily large guaranteed return and he did this by persuading victims through his false and misleading representations and conduct, putting himself forward as highly educated, able to access funds in large quantities, the owner of multiple pieces of real estate, an experienced financial trader, investor and businessman having been employed by well-known financial organisations and being advised by various expert professionals in their own fields. This deceit caused the victims to believe that he was capable and experienced in the field of investment and lead them to believe that he was genuine.
The victims were all known to him by either holding employment within his supposed companies or businesses or through an evolved friendship. The aim of the fraud was that he would offer an investment to the victims based on their personal situations, tell them that it was an investment that he had been offered by well-known financial institutions and it was a one‑off opportunity, and to prove the supposed genuineness of the investment he provided an algorithm to victims as to how the investment would make large sums of money and gave them financial documents to indicate that he was an investor who was receiving very large returns. To further bolster the confidence of the victims he said he would match the amount of money that they were going to invest, and once they agreed to invest they were directed to deposit their moneys into his accounts. To deceive the victims that their investment was growing in value he sent emails from various financial organisations and experts that reflected maturing investments at very high returns. Further, he initiated emails that purported to be from accountants who would raise an issue of a tax fee to be paid on the investment set by the Australian Taxation Office, and once the victims believed it was time to withdraw their investment funds the offender initiated many delaying tactics, including fabricating communications that purported to represent his lawyer and financial advisor. He never intended to invest their moneys and the investments did not exist.
He clothed himself with the apparent respectability of employment by Platinum Asset Management, a large and well known fund manager operating in the public space and he asserted that he was a portfolio manager with them and held a Bachelor of Science with honours from the University of Sydney, Master of Laws and a Master of Science from New York University, an MBA from NCA and a PHD from the University of New South Wales. They were all false. He also said that he was employed by Goldman Sachs, and that was also false. He boasted about his wealth and access to funds which he used to encourage and deceive investors. The same modus operandi had been utilised in the offences committed in 2001 to 2003 which were dealt with by Judge Bell. He established a number of bank accounts in 2009, 2010 and 2013. He represented to his victims that he owned or he was purchasing several valuable pieces of real estate, including in Wallaroy Road, Woollahra, Macquarie Street, Sydney, Golden Sheaf Hotel in Double Bay, Glenview Street, Paddington, Sutherland Street, Paddington, Victoria Avenue, Bellevue Hill, Whale Beach Road at Palm Beach and Esther Street at Surry Hills, and these were judged as a symbol of the wealth created by the offender but again this was all false and he never owned any of those properties.
A condition of his parole was that he must not engage in any activity, paid or unpaid, involving the control of money or assets of other people or organisations and the offences that were committed while on parole were clearly in breach of that condition. A condition of his bail imposed on 31 March 2014 was that he must not engage in any paid or unpaid activity involving the control of money or assets of other people or organisations.”
1. His Honour took into account the victim impact statements on the basis that they set out the type of consequences one would expect from offending of this kind. His Honour also took into account the applicant’s own description of the effects of his offending on the victims in his letter to the Court. On that issue, his Honour observed:
He has had over three years in custody in maximum security to reflect on his actions and the impact they have had on the victims and he recognises finally the devastating consequences of the loss of what was probably life savings, in many cases for relatively young people. He recognises that his actions and deceitful behaviour stole their hopes and dreams and shattered the lives and impacted the wider family networks of the victims. ... and recognises that the financial losses that he has caused will be felt for eternity. He is sure that they have affected all facets of his victims’ life including their personal, professional and emotional spheres.”
1. In addition to the letter to the Court, the evidence for the applicant comprised two psychological reports and an affidavit from his solicitor summarising some of his experiences in custody. The applicant did not give evidence. As a result, his Honour treated the history set out in those documents with some caution except where they contained admissions by the applicant. It was common ground that his letter to the court contradicted parts of the histories recorded by the psychiatrists.
2. His Honour found that the applicant had a privileged upbringing, having been born on the northern beaches and having attended Sydney Grammar School. As a result, he was given all the opportunities, contacts and family support required to fashion a comfortable life. His Honour noted that in his letter to the Court the applicant said:
... “I can’t blame my upbringing. I can’t blame my parents who sacrificed everything for myself and my younger brothers” ...”
1. His Honour specifically noted that the applicant did not blame drug or alcohol addiction for his offending (contrary to what he had told Mr Watson-Munro). His Honour accepted that the applicant was solely to blame for his actions and for the behaviour which caused such devastating and disastrous consequences for many of his victims.
2. His Honour gave little weight to the applicant’s assertion in the letter that he had made numerous attempts to raise capital to pay back the victims. His Honour found that:
... Given his background and his circumstances the prospect of him raising capital to pay back $3.6 million can be confidently put at close to zero. For a man with no apparent security, equity or source of income, his expression of an intention to make an effort to come to sort of arrangement with his victims on his release in many years is a hollow expression.”
1. Nevertheless, his Honour accepted that the letter did demonstrate some remorse and regret and that the applicant was genuinely sorry for having caused the pain and suffering which he had.
2. His Honour found:
... that his record of previous convictions is a matter which should be taken into account, not as aggravating the objective seriousness of the matter but as disentitling him to any leniency that might be afforded to an offender with no prior record. Mr Lloyd accepted that each offence whether a principal offence or one taken into account on a Form 1 was an objectively serious matter and that concession is clearly soundly based in the evidence.
The submissions for the offender conceded that each of the offences revealed a high order of deception. ...”
1. His Honour rejected the Crown’s submission that the offending involved a significant breach of trust so as to give rise to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). His Honour also rejected the Crown submission that the substantial loss of money constituted an aggravating factor under s 21A. His Honour found that a substantial financial loss was an inherent feature of any offence under this type of legislation. His Honour rejected the Crown submission that these were multiple offences so as to constitute an aggravating factor under s 21A(2)(m) of the Sentencing Act. His Honour did so because he found:
... that that is an inappropriate submission in this case because the aggravating factor is concerned with a situation where a single offence contains a number of allegations of criminal acts and does not apply in the current case where each offence relates to an individual victim and each offence will be the subject of a separate sentencing. Similarly, I think it is at risk of double counting if one were to regard planning or organised criminal activity as an aggravating factor, as the facts of these offences appear to me to demonstrate that planning is an inherent feature of the offence of fraud, as is the fact that the offending was committed for financial gain.”
1. There was no issue between the parties that the applicant was entitled to a discount of 25 per cent for the utilitarian value of his plea of guilty. In relation to whether a further discount should be allowed for providing assistance to the authorities pursuant to s 23 of the Sentencing Act, his Honour said:

... In closed court I heard evidence and read confidential affidavits prepared by senior officers of the Australian Federal Police and the New South Wales Police. It is inappropriate of course to refer to the contents of those affidavits and the oral evidence in these remarks which may be the subject of publication, and I have in accordance with customary practice returned the confidential affidavits to the respective police officers.
I take into account the matters set out in s 23, to which Mr Lloyd quite correctly took me, and it is true that the offender has provided some significant assistance as set out in that evidence. In my view, the further discount which should be provided in the exercise of my discretion under s 23 is 10% for past assistance so that a total discount of 35% would be applied to the term of imprisonment.”
1. His Honour found that there was little solid evidence to support the proposition that the applicant had favourable prospects of rehabilitation. His Honour noted that senior counsel for the applicant referred to his remorse and contrition, as demonstrated by his early pleas of guilty, and that he had placed himself at some risk by reason of the matters which were the subject of the s 23 application. In those circumstances, his Honour assessed the prospects of rehabilitation as “guarded”.
2. His Honour found special circumstances because of the applicant’s need for counselling, his relatively young age and the fact that there would be a degree of notional accumulation in the sentencing process.
3. His Honour took into account the principle of totality and in particular, the advisability of a sentencing court taking a last look at the total sentence to see whether it looked wrong. His Honour particularly noted the need to consider totality in fraud cases, given that most of them involved multiple offences, and that the application of the totality principle must not result in a blanket assessment for each offence.
4. His Honour set out his conclusions as to totality as follows:
I must, of course, have regard to Pearce v The Queen (1998) 194 CLR 61 when considering questions of totality and accumulation, and the indicative sentences should indicate to the victims of the crime and the public at large the level of seriousness with which the Court regards the individual offences. I have regard to R v XX (2009) 195 A Crim R 38 where Hall J set out a number of passages concerning totality, including the familiar citation from Howie J in Cahyadi v The Queen (2007) 168 A Crim R 41. I accept the Crown submission that the three distinct groups of criminality, namely, offences committed while on parole, while on bail or in-between those two periods should not be considered simply concurrently as within each group, there were separate victims.”

THE APPEAL

Ground 1 – The sentencing judge erred in failing to assess the objective seriousness of the offences

The applicant submitted that there were fundamental flaws in the sentencing process adopted by his Honour in that he:

failed to determine the facts relevant to sentencing;

failed to make any or any proper assessment of the objective gravity of the offending; and

placed undue weight on the applicant’s prior offending such that he was punished twice for those offences.

In relation to (1) above, the applicant submitted that it was necessary for his Honour to summarise precisely and carefully the facts giving rise to each offence and set out his factual findings in respect of each offence. The applicant submitted that his Honour had failed to find facts relevant to the indicative sentences and to apply to the facts as found, the relevant law and sentencing principles.
The applicant submitted that his Honour’s failure to advert to the factual circumstances of each individual offence meant that he had, in effect, failed to provide adequate reasons for his decision. The applicant submitted that his Honour had erred when he found that it was “unnecessary to delve into the details of each particular date and amount of repayment” (sentence judgment [15]).
The applicant submitted that a proper assessment of objective seriousness of an offence required more than a bare recitation of the facts and a reference to the objective circumstances of the offending. The applicant was critical of the observation made by his Honour during the sentence proceedings when he said that he did not need to “ascribe a ... level of objective seriousness in terms of any scale of high, medium or low or whatever” because s 192E(1)(b) offences under the Act did not attract standard non-parole periods pursuant to Div 1A of Pt 4 of the Sentencing Act.
In support of that proposition, the applicant relied upon the following observations by Simpson J (as her Honour then was) in R v Campbell [2014] NSWCCA 102 (Hall J agreeing):

... the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA. In respect of offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, two "legislative guide posts" are to be observed - the maximum sentence prescribed, and the standard non-parole period.
A “legislative guide post” is an instrument of measurement. Standing alone, it is meaningless. It is used to measure the relevant features of a particular instance of a crime against (in the case of the maximum penalty) a worst case: see Markarian, [30]-[31]; (in the case of the standard non-parole period) an offence in the mid-range of objective seriousness.
Objective seriousness is a relative concept. That the legislature has prescribed a maximum penalty of 25 years for an offence against s 112(3) reveals that the legislature sees such offences (measured against other offences) as serious - other than a penalty of life imprisonment, 25 years is the longest maximum sentence contained in the Crimes Act. That is what the sentencing judge referred to in the first of the passages extracted above. For sentencing, it is also necessary that the particular offence be assessed against other instances of such offences. This is often done instinctively, by sentencing judges with the benefit of experience of other such offences.”
1. Relying upon that statement of principle, the applicant submitted that the sentencing judge erred in concluding that because s 192E offences did not attract standard non-parole periods his Honour did not have to consider and assess the objective gravity of the offences. The applicant submitted that his Honour’s remarks on sentence fell short of what was required, in part because his Honour thought it was appropriate to rely on “only a summary of the facts rather than a repetition of the facts” and that it was “unnecessary to delve into the detail” of each particular offence but most significantly because the sentencing judge neglected to consider and assess the objective seriousness of each individual offence.
2. The applicant submitted that objective seriousness was only fleetingly referred to in the sentence judgment in the context of discussing the manner in which his prior offending could be taken into account upon sentence (sentence judgment [24]). The applicant submitted that the failure of the sentencing judge to consider and assess the objective seriousness of each offence led to the imposition of an aggregate sentence that failed to apply the principle of proportionality stated in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 (at 486) viz “that a sentence should not exceed that which is appropriate to the gravity of the crime considered in light of its objective circumstances”.
3. The applicant submitted that the sentencing judge did not make any findings of fact in relation to the individual matters for which the applicant was being sentenced, which in turn prevented any meaningful consideration of the objective seriousness of the offending. The applicant submitted that because his Honour did not advert to any circumstance that increased the objective gravity of the offences, the basis upon which his Honour concluded that the offending was objectively serious was not revealed. The applicant submitted that the fact that his Honour did not disclose how his conclusion as to objective seriousness was reached meant that his Honour had given little, if any, consideration to the matter.
4. The applicant submitted that notwithstanding his Honour’s indication that he only took into account the applicant’s criminal history as a matter disentitling him to leniency, it was apparent that his Honour’s overriding concern was the applicant’s prior criminal history, the applicant’s weak subjective case and the absence of mitigating subjective features.
5. In oral submissions, the applicant submitted that it was necessary to provide an explanation of how the indicative sentences were arrived at and why some indicative sentences were higher than others. He submitted that no indication was given as to what specific matters his Honour had regard such as the amount of money involved, the attachment of Form 1 offences or a combination of both.
6. The applicant submitted that this failure to explain the basis upon which indicative sentences were formulated had led to actual error when it came to setting out the indicative sentences.
7. The applicant submitted that the sentences indicated for the offending against Richard Gan and Tiffany Doble involved actual error because their start point before the application of the 35 per cent discount would have been 10 years 9 months and 10 years respectively. The error arose because the maximum penalty for an offence against s 192E(1)(b) was 10 years.
8. The applicant submitted that this failure to explain how the indicative sentences were arrived at and the basis upon which they differed, one from the other, had led to identifiable error in the sentence judgment. The applicant submitted that in accordance with the decision in Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 (Kentwell) he would have to be resentenced. This was because two of the indicative sentences, which played a part in the formulation of the aggregate sentence, had been shown to be erroneous.

Consideration

As his Honour appreciated, there is no standard non-parole period set for the offences contrary to s 192E(1)(b). The requirement to assess the objective seriousness of an offence does not place an obligation upon a sentencing judge to classify the objective seriousness of a particular offence by reference to some scale (Sharma v R [2017] NSWCCA 85 at [63]).
What is required is that a sentencing judge “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed” Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]. While some assessment of objective gravity is necessary as part of the sentencing process, this does not give rise to an obligation to provide elaborate reasoning in the circumstances of a particular case: Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [143]; DV v R [2017] NSWCCA 276 at [220].
In Gal v R [2015] NSWCCA 242, Beech-Jones J (Bathurst CJ and Price J agreeing), having considered a contention that the sentencing judge failed to address the objective seriousness of the offences, said:

Nothing in this judgment is meant to suggest that a sentencing judgment must dwell upon either the facts of an offence or their objective seriousness at any length. Instead, at a minimum such reasons should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct.”
1. In Hurst v R [2017] NSWCCA 114 at [105], Hoeben CJ at CL (Price J and Lonergan J agreeing) said:
There is no doubt that an assessment of the objective seriousness of an offence forms an important part of the reasoning process leading up to the imposition of a sentence. That having been said, where a sentencing judge has made it clear from his or her findings that the judge regards the offence as serious, little more is required.”
1. In R v Van Ryn [2016] NSWCCA 1, the issue addressed by this Court was that the sentencing judge gave no indication at all about the view he formed as to the objective seriousness of the offences, all but two of which attracted standard non-parole periods. This was in circumstances where the parties had made conflicting submissions to the sentencing judge about the objective seriousness of individual offences.
2. In the present case, the facts of the offences were set out in a document, entitled “Facts re [the applicant]”, which was tendered as part of the Crown Bundle (Exhibit A). The document was 74 pages long. The facts as set out in the document were not in dispute. While the sum of money defrauded from each victim was different for each offence, the modus operandi adopted by the applicant was similar. It was against that background that the following exchanges, between the sentencing Judge and Senior Counsel appearing for the applicant, took place:

“LLOYD: ... Well then, the amount that appears not to have been paid back is around 3.6 million. There's no doubt and I wouldn't say otherwise, that the offending behaviour is obviously, objectively serious, both in relation to the quantum of loss, the degree of planning and the resulting loss to the investors. ...” (2.2.2018, T15.7)

“LLOYD: ... . I have no problem with the description of the offending in its objective seriousness as outlined in the Crown's submissions on the first four pages, where the system of fraud adopted is articulated by my friend quite fairly.” (2.2.2018, T16.7)

“HIS HONOUR: All right. So Mr Lloyd, you are content for me to adopt the outline of summary on pages 1 through to 4, rather than reciting the gory detail of 74 pages?

LLOYD: Your Honour, I didn't bring the case with me but the summary of facts for sentencing purposes is supposed to be a summary, not a recitation of the whole prosecution brief, which this effectively is, but I think my friend has quite usefully in those first four pages properly summarised the case. I'm not requiring your Honour to go through in any detail the details in the statement of facts. I’m sure my friend’s not either.

HIS HONOUR: There’s no standard non parole period, so I don’t have to ascribe a -

LLOYD: No.

HIS HONOUR: ... level of objective seriousness, in terms of any scale of high, medium or low or whatever but you still acknowledge that the objective seriousness of each offence is of a high level, don’t you?

LLOYD: They're all objectively serious. There can be no doubt about that. I wouldn't argue otherwise. ...” (2.2.2018, T16.31-17.2)

The reference to the “outline of summary on pp 1-4” in the above exchange was a reference to an “outline” of the offending set out on pp 1 to 4 of the Crown’s written submissions on sentence dated 13 December 2017. The contents of the four pages were largely reproduced in his Honour’s sentence judgment at [11]-[12]. At [14] of his reasons, his Honour set out a table which included details of the names of the individual victims and the amounts of money defrauded from each.
As the applicant has accepted, his Honour made express reference to the objective seriousness of the offences in his sentence judgment. At [24] of that judgment his Honour said:

... Mr Lloyd accepted that each offence whether a principal offence or one taken into account on a Form 1 was an objectively serious matter and that concession is clearly soundly based in the evidence.”
1. It is clear from the sentence judgment and from the sentence hearing on 2 February 2018 that his Honour undertook an assessment of the objective seriousness of the offences. This was done in circumstances where senior counsel, who appeared on behalf of the applicant, acknowledged that each offence was objectively serious. The manner in which his Honour summarised the facts in his sentence judgment was done with the express approval of senior counsel who said “I’m not requiring your Honour to go through in any detail the details in the statement of facts”. It can therefore be inferred from the indicative sentences that his Honour undertook an assessment of the seriousness of each individual offence. There was no issue that the offending conduct of the applicant was serious.
2. On this issue, the applicant is bound by the way in which his legal advisors conducted the sentence proceedings on his behalf. In particular, he is bound by their concession that there was no need to repeat the 74 pages of agreed facts in circumstances where an appropriate and unchallenged summary of the agreed facts was available.
3. The amount of detail of the offending which a sentencing judge has to include in his or her judgment depends very much upon the particular facts of the case. Here, the essential facts were identified by his Honour, i.e. the number of offences, the amounts involved and in general terms, methodology used by the applicant to defraud his victims. Nothing more was required. If his Honour had set out the facts of each individual offence, it would have added nothing to the judgment and may well have obscured his Honour’s analysis of the facts and principle.
4. Moreover, there is no general rule which requires a sentencing judge to comprehensively set out each and every fact associated with the offending. In many cases, this would be quite impractical. One only has to have regard to Social Security fraud matters, which often involve many hundreds of offences for the impracticality of such an approach to be clear. The same can be said of offences which comprise a number of rolled up charges, such as that which occurs in drug supply matters. The brief summary of the facts by Spigelman CJ in Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [1] and [2] is a good example. I am satisfied that the approach which his Honour adopted when reviewing the factual background to the offending was well open to him and did not in any way disadvantage the applicant. On the contrary, a detailed focus on the facts surrounding each individual offence would only have highlighted the objective seriousness of the offending.
5. The error in the sentence judgment is that although his Honour made findings as to the seriousness of the offending generally, he did not, in his consideration of the indicative sentences specify what matters he took into account to distinguish the more serious offending from the less serious. Although it was not necessary to go into considerable detail, it was necessary for his Honour to reveal the methodology which he used so as to allow an understanding of how his Honour arrived at the indicative sentences.
6. The necessity of carrying out that exercise in the context of imposing an aggregate sentence was made clear by R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) in JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]-[40]. There his Honour listed a number of settled propositions concerning the approach to be taken by a sentencing judge in setting an aggregate sentence.
...
Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a “cascading or ‘stairway’ sentencing structure” when the principle of totality requires some accumulation of sentences ...

When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order ...
The indicative sentences must be assessed by taking into account such matters in Part 3 or elsewhere in the Crimes (Sentencing Procedure) Act as are relevant: s 53A(2)(b).

There is no need to list such matters exhaustively, but commonly encountered ones in Part 3 include aggravating, mitigating and other factors (s 21A); reductions for guilty pleas, facilitation of the administration of justice and assistance to law enforcement authorities (ss 22, 22A and 23); and offences on a Form 1 taken into account (Pt 3 Div 3). Commonly encountered matters elsewhere in the Act are the purposes of sentencing in s 3A, and the requirements of s 5 as to not imposing a sentence of imprisonment unless a court is satisfied that there is no alternative and giving a further explanation for the imposition of any sentence of 6 months or less.

It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a “blanket assessment” by simply indicating the same sentence for a number of offences is erroneous ... It has been said that s 53A(2) is “clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges” ...
The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality ...
One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence ... A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise ...

...

...
The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence ...
Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive ...
A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved ...”
1. By reference to pars 3, 4 and 6 above, it is clear that his Honour did not carry out the individual assessment of the indicative sentences as was required by the aggregate sentence regime. It follows that it was not possible to determine by reference to what criteria his Honour calculated the indicative sentence in respect of each offence. This led to error in the indicative sentences for the offending against Mr Gan and Ms Doble of the kind referred to in Kentwell. It follows that Ground of Appeal 1 has been made out in respect of the failure by his Honour to identify the criteria taken into account when calculating the indicative sentences. In reaching that conclusion, it is appreciated that this was not the way in which the matter was put in written submissions but the ground of appeal is broad enough to encompass the error which was identified in oral submissions.
2. Had the applicant amended his grounds of appeal, as was foreshadowed in the course of argument, a ground raising a failure to give adequate reasons might have been made out. In any event, Ground of Appeal 1 has been made out for the reasons set out above.

Ground 2 – The sentencing judge erred in failing to allow sufficient discount for assistance provided to the authorities

Section 23 of the Sentencing Act provides:

“23 Power to reduce penalties for assistance provided to law enforcement authorities

A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters –

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must –

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.”
1. The applicant accepted that s 23(1) conferred a discretion, but not an obligation on a sentencing judge to proffer a discount when assistance has been provided: R v XX [2017] NSWCCA 90 at [31]. The applicant also accepted that the discount had to be applied to the starting point of each indicative sentence and that there should be no explicit discount applied to the aggregate sentence. PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [76] per Button and Adams JJ; TL v R [2017] NSWCCA 308 at [102]-[103] per Davies J (Hoeben CJ at CL and Adamson J agreeing).
2. The applicant accepted that the court’s ability to apply a discount for assistance, having regard to the 25 per cent discount allowed for the guilty plea, is limited by the requirement that the indicative penalties imposed for the offences are not unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). The applicant submitted that in the present case the application of a greater discount for his assistance would not result in unreasonably disproportionate indicative sentences.
3. The applicant submitted that discounts for assistance in the order of 10 per cent were applied to cases where assistance was assessed as of limited value. The applicant referred to the following cases to establish that proposition.
4. In R v El Hani [2004] NSWCCA 162, the applicant received a combined discount of 25 per cent for his plea and assistance. The sentencing judge’s discount of 12.5 per cent for assistance was found to be within his discretion on the basis that it involved “very limited intelligence provided to the police about the present and past criminality of his co-offenders”.
5. In R v Medd (a pseudonym) [2016] NSWCCA 216, a successful Crown appeal against sentence, the Court considered that a discount of 10 per cent for the “limited assistance” provided by the respondent would have been appropriate.
6. In Hughes v R [2013] NSWCCA 129, it was held that a discount of 10 per cent ought to have been given for the applicant’s “limited assistance”.
7. In Regina v Joseph Sukkar [2006] NSWCCA 92 (Sukkar) Howie J said at [5] (McClellan CJ at CL agreeing):

“In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.”

The applicant accepted in the present case that no evidence was led about the consequences flowing from the applicant’s provision of assistance to police, namely whether or not he would suffer harsher conditions in custody, or the extent of the personal risks involved. The applicant did not submit that the time in custody would be more onerous than the general prison population but submitted that providing assistance to authorities has the potential to put a person who is in the custodial system at risk.
The applicant submitted that in all of the circumstances of the assistance, the sentencing judge erred in failing to allow a sufficient discount for the assistance provided to the authorities.

Consideration

As is usual in the such matters, it is not possible for the detailed nature of the assistance to be described or analysed. There was, however, before the Court two sets of documents – one from the State Police and one from the Federal Police. The contents of those documents was known to both parties. Some indication of the nature of the assistance was given in the transcript of the proceedings on sentence.
As the applicant accepted, a court’s power to reduce penalties for assistance provided to law enforcement authorities is governed by the provisions of s 23 of the Sentencing Act. The power is subject to the constraints stated in s 23(3) that “a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence”.
In a matter such as this, minds might well differ as to the value of assistance given. In this case, his Honour having considered the provisions of s 23 determined to allow a discount of 35 per cent, comprising 25 per cent for the utilitarian value of an early plea of guilty and 10 per cent for the assistance provided. That assessment was made in the exercise of a judicial discretion. In Hutchinson v R [2014] NSWCCA 317 at [32] Fullerton J (Hoeben CJ at CL and Adamson J agreeing) said:

“In Ehrlich, Basten JA at [6], citing R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248, emphasised that the appointment of a discount for assistance involves a broad discretionary exercise. It is neither a rigid or mathematical exercise, nor an exercise where some notional "tariff" might be discernible from other cases. In the judgment of Johnson J in Ehrlich at [63], his Honour also emphasised that the challenge to the discretionary judgment that is engaged when a discount for assistance is under challenge must be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499.”

See also R v XX [2017] NSWCCA 90 at [60].

This Court has observed that the combined discount for both a plea of guilty and assistance to authorities should not normally exceed 50 per cent. In Z v R [2014] NSWCCA 323 McCallum J said at [27]:

“The view has been expressed and endorsed in this Court that, in general, a single, combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50 per cent: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3] per Howie J; Simpson J agreeing at [1]; at [53] per Buddin J. Buddin J ventured the view that a combined discount exceeding 50 per cent should be reserved for an exceptional case (at [53]).”

This Court has also stated on numerous occasions that discounts for pleas and assistance of more than 40 per cent should be granted very exceptionally, if at all, in a case where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions than the general prison population: Sukkar; R v Ehrlich [2012] NSWCCA 35; LB v R [2013] NSWCCA 70 at [62]; Haouchar v R [2014] NSWCCA 227 at [37]; Robinson v R [2017] NSWCCA 315 at [39].
In this case the sentencing judge indicated that having regard to the matters set out in s 23 of the Sentencing Act accepted that the applicant had provided some significant assistance as set out in the confidential affidavit. It was conceded on behalf of the applicant, there was no evidence regarding any consequences that would flow to the applicant by reason of the assistance. There was also a lack of timeliness as to the assistance.
As was recently observed by this Court in Hraiki v R [2019] NSWCCA 140 at [16] in a case where it was asserted that the discount for assistance did not properly reflect the value of the said assistance “the determination of the appropriate discount was one involving an evaluative judgment and a discretionary determination”. In the present case, the application of a 10 per cent discount on account of the applicant’s past assistance to authorities was within the proper exercise of his Honour’s discretion. The assistance provided was of a limited kind. It follows that there was no House v The King (1936) 55 CLR 499; [1936] HCA 40 error in his Honour allowing a 10 per cent discount for the applicant’s assistance.
This ground of appeal has not been made out.

Ground 3 – The sentence imposed was in all the circumstances manifestly excessive

The applicant noted that the offence of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Act was created by the Crimes Amendment (Fraud Identity and Forgery Offences) Act 2009 (NSW) which, inter alia, repealed and replaced the fraud provisions in the Crimes Act. The new fraud provisions were contained in Pt 4AA which came into effect on 22 February 2010. The applicant submitted that s 192E(1)(b) corresponded to certain of the repealed provisions, i.e. ss 178BA, 178C, 178A, 184 and 176A. The applicant noted that all offences under Pt 4AA were to be dealt with summarily unless the prosecutor or the accused elected otherwise.
The applicant submitted that in Baumer v The Queen [1988] HCA 67; 166 CLR 51 (Baumer), the High Court indicated that some adjustment would be required to the range of sentences formerly considered appropriate, where a new offence had a higher maximum term than that which was applicable to a similar offence in similar circumstances before the creation of the new offence.
The applicant submitted that it followed from that reasoning that the appropriate starting point for sentencing in cases of fraud under s 192E was a consideration of the offences committed before 22 February 2010.
The applicant relied on a number of cases, which were said to be comparable to the facts of this case, and which therefore provided an appropriate range against which the aggregate sentence in this matter could be assessed as to its appropriateness. Those cases were: Zhao v R [2016] NSWCCA 179 (Zhao); Matthews v R [2014] NSWCCA 185 (Matthews), Johnston v R [2017] NSWCCA 53 (Johnston), Woods v R [2018] NSWCCA 261 (Woods), Siwek v R [2017] NSWCCA 178 (Siwek).
The applicant submitted that an analysis of these cases showed that the aggregate sentence in this case was manifestly excessive.
The applicant also relied upon what was said to be comparable cases before the commencement of Pt 4AA. Those cases were: Subramaniam v R [2013] NSWCCA 159 (Subramaniam), Mitchell v Regina [2006] NSWCCA 72 (Mitchell), Power v Regina [2002] NSWCCA 244 (Power). The applicant relied upon the reasoning in those cases and the approach of this Court when making a finding of manifest excess.
The applicant submitted that while the indicative sentences themselves were not amenable to appeal, the indicative sentences in this case were patently erroneous and it was his contention that this error infected the aggregate sentence ultimately imposed.
The applicant submitted that it was inappropriate to indicate a sentence in excess of 5 years for an offence that would have been charged under s 178BA in the old regime and which did not feature a breach of trust (or abuse of a position of trust or authority) as a circumstance of aggravation. The applicant submitted that it was also relevant to take into account that only one of the undiscounted indicative sentences would have been less than 5 years.
The applicant accepted that while the indicative sentences were themselves manifestly excessive, it was still necessary to consider whether this error infected the aggregate sentence ultimately imposed. The applicant submitted that a consideration of the law on concurrence and accumulation demonstrated that this had occurred.
The applicant submitted that the approach to be applied in determining whether sentences should be served concurrently or cumulatively was set out by Simpson J in R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at 67:

“Whether or not to accumulate sentences imposed in relation to multiple offences is in the end an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offence (pointing the other way). There will be many cases in which sentencing judges might take different views but no other view could be said to be wrong.”

The applicant submitted that it was held in Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41 that the critical issue was whether the sentence for one offence could comprehend and reflect the criminality of another. If it could, the sentences ought to be concurrent. If not, they should be cumulative. Conversely, the applicant submitted that where offences committed during the course of a single episode were of a completely different nature and each individually involved significant or extreme gravity it was likely that accumulation would be necessary to address the criminality.
The applicant submitted that the decision in Regina v XX [2009] NSWCCA 115 at [52] was helpful in deciding whether to impose a concurrent or cumulative sentence. The applicant submitted that in that case their Honours noted that there was no general rule that would determine this question but there were several considerations which should be taken into account.

the question of accumulation is discretionary. A court should determine the appropriate sentence for each offence and then determine the total sentence which properly reflects the totality of the criminality involved.

It is not infrequent that concurrent sentences will be imposed where the offences arise out of one criminal enterprise, however, this proposition is not inflexible.

Whether sentences should be concurrent or cumulative when the offences arise out of one episode or one criminal enterprise is to be determined by the principle of totality and the factors relevant to the application of that principle.

The essential question when applying the principle of totality is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. Where it can the sentences ought to be concurrent.

Determining if the sentence can reflect the criminality of the other offence “calls for the identification and evaluation of relevant factors pertaining to the offences”. These will include the nature and seriousness of each offence.

The applicant submitted that the Court should accept his contention that fraud offences that are not aggravated by an abuse of a position of trust or authority, should seldom attract penalties in excess of 5 years. The applicant submitted that each of the indicative sentences was manifestly excessive and that the only way to prevent this from infecting the aggregate sentence would have been to make them wholly concurrent. The applicant further submitted that a significant degree of concurrency was justified because the offences represented a single episode of criminality and were connected in that they all formed part of the Ponzi scheme.
The applicant submitted that the offences which he committed did not approach the upper end of the range of objective seriousness, notwithstanding the fact that there were few subjectively mitigating factors.
The applicant submitted that that while his criminal record disentitled him to any leniency which might otherwise have been afforded to a person without his criminal history, good character generally assumes little significance in more serious cases of fraud. This was because such crimes were usually only able to be committed because of the previous good character of offenders who had been placed in a position of trust.

Consideration

In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] (Markarian); Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [59] (Hili); Book v R [2018] NSWCCA 58 at [54]-[56].
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34] (Barbaro). Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R [2017] NSWCCA 221 at [443]. There will be a range of possible sentences that could be imposed without error; AB v The Queen [1999] HCA 46;198 CLR 111 at [128].
In respect of the approach to be taken to a ground of appeal alleging manifest excess in the case of an aggregate sentence, Bathurst CJ said in Kerr v R [2016] NSWCCA 218 (at [114]):

As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
1. It is submitted on behalf of the applicant that the appropriate starting point for sentencing in cases of fraud under s 192E is a consideration of sentences imposed for offending before 22 February 2010 when s 192E came into effect. The applicant relied upon the decision in Baumer. In Baumer the High Court (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ) considered the proper construction of s 154 of the Criminal Code (NT), describing the section (at [7]):
Section 154 of the Code is an unusual section. As Maurice J. observed, it is not specifically aimed at driving. It casts a wide net, so as to cover all acts or omissions endangering the life, health or safety of any member of the public where the risk ought to have been clearly foreseen and the act or omission avoided. The offence so created can therefore cover an enormous range of conduct from the comparatively trivial to the most serious. The maximum penalties prescribed are to be seen and applied in that light.”
1. In the passage of the judgment relied upon by the applicant, the High Court observed at [13]:
The applicant's conviction exposed him to liability to imprisonment for a maximum term of eleven years. This is a higher maximum term than the term which was applicable to a similar offence in similar circumstances prior to the enactment of the Code in 1983. The change, therefore, required some adjustment to the range of sentences that would formerly have been considered appropriate. This is so, notwithstanding the variety of dangerous acts that may be embraced within the section. As we have noted, some of these offences could attract far more serious consequences than the ordinary case of culpable driving and this consideration could have the effect of limiting the impact of the higher maximum on the latter kind of offence.”
1. Importantly, the High Court noted at [14]:
In the present case, therefore, the task of the sentencing judge was to evaluate the circumstances of the offence in their entirety, including the influence of alcohol, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of eleven years and to the possible range of offences to which it applied.”
1. It is quite clear that nothing was said by the High Court in Baumer which would dictate that the appropriate starting point for sentencing in cases of fraud under s 192E was a consideration of the offences which existed before 22 February 2010. Moreover, the provisions in Pt 4AA have now been in force for over 10 years.
2. The increase in the maximum penalty for fraud offences from 5 years to 10 years reflected the seriousness with which the Parliament viewed this kind of offending. In the Second Reading Speech for the Bill to enact the amendments, the Attorney General said:

“The Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 amends the Crimes Act 1900 to introduce three new parts. The first updates the crime of fraud and increased the maximum penalty for this crime to 10 years, doubled from 5 in the current law.

…

The new fraud offences I am introducing are technologically neutral, and will ensure that criminal conduct now and well into the future can be caught. The bill also doubles the maximum penalty for fraud form five to ten years, demonstrating how seriously we take the issue…” (Hansard, Legislative Council, 12 November 2009)

The applicant submitted that fraud offences should not approach the maximum penalty of 10 years imprisonment where they do not feature an abuse of a position of trust or authority as a circumstance of aggravation under s 21A(2)(k) of the Sentencing Act. There is no authority cited to support that proposition. Moreover, it is wrong to regard the presence or absence of an aggravating feature as a matter which must necessarily produce a particular outcome in the sentencing process: Thi Lan Nguyen v R [2009] NSWCCA 181 at [36].
The offending in this case involved very large sums of money and affected twenty one different individuals as victims. This was not fraud carried out against an institution but against individuals whom in many cases the applicant had befriended and by means of meticulous preparation and planning created a scenario where these persons believed they could make a safe investment. The callous way in which the applicant acted towards these people involved a fundamental betrayal of friendship. As was noted by his Honour, the effects of the fraudulent conduct on many of the individuals involved the destruction of their dreams and any plans for the future. When considering both the indicative sentences and the aggregate sentence, there was the fact that $3.6 million out of $4.6 million remained unaccounted for at the time of sentence.
The applicant relied on a number of previous decision of this Court. Before addressing each of the comparable cases, the utility of engaging in such an exercise should be considered. The High Court in Hili at [53]-[54] and Barbaro [40]-[41] observed that the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. What is important is the unifying principles which other sentences should reveal and reflect if those sentences are to be relevant.
This Court has stated on a number of occasions that in sentencing offenders for fraud offences, far greater assistance is gained from general sentencing principles than by reference to statistics or the sentences imposed in previous cases because of the enormous variation in objective and subjective circumstances involved: Johnston; R v Martin [2005] NSWCCA 190 at [56] (Martin), Regina v Swadling [2004] NSWCCA 421 at [29], [54]; R v Woodman [2001] NSWCCA 310 at [22]-[24]; R v Hawker [2001] NSWCCA 148 at [17]-[18].
In Zhao the applicant entered a late plea of guilty to one count of fraud contrary to s 192E(1)(b). She asked that a further charge be taken into account on a Form 1. The fraud was practised upon a company registered in California and was described as “a complex fraud conducted over a period of months which resulted in a benefit to the applicant of US$730,733.39 (count 1) and US$190,224.28 (Form 1)” (Zhao at [10]). The applicant was sentenced to a head sentence of 3 years with a non-parole period of 20 months. The applicant was a relatively young woman with a young child. She had no prior criminal convictions. The appeal was dismissed. It is difficult to see how that case is of any relevance to this case.
In Matthews the applicant pleaded guilty to two offences contrary to s 192E(1)(b) and asked that two further offences be taken into account on a Form 1. The facts involved the applicant using charge cards in other people’s names to purchase goods from stores in a shopping centre. The applicant was sentenced to a total effective sentence of 2 years and 7 months with a non-parole period of 2 years. The value of the goods obtained was just over $1,200 and the offending was described as “unsophisticated and involved very little planning”. The applicant’s criminal history included many offences of dishonesty and disentitled the applicant to leniency. The offences were committed when the applicant was on parole. However, this Court noted that while s 192E applied to offences involving millions of dollars the applicant’s offending involved a relatively small amount of money. The sentence imposed upon the applicant was disproportionate to the criminality and the appeal was allowed. Again, it is difficult to see any similarity between that case and the one presently under consideration.
In Johnston the applicant pleaded guilty to a single count contrary to s 192E(1)(b). The applicant was employed as a senior accountant by a mining company. Over a three year period the applicant prepared 156 false invoices which were paid by the company into accounts controlled by the applicant. The total amount defrauded was $1,257,847.25. The funds were dissipated in gambling. The applicant paid the company $250,000 in consideration of a release from further liability. The applicant was 40 years old at the time of sentence and had no prior criminal record. The applicant was sentenced to a head sentence of 6 years 6 months with a non-parole period of 4 years, after allowing a 25 per cent discount for the early guilty plea.
On appeal, Johnson J (Bathurst CJ and Fagan J agreeing) observed (Johnston at [67]):

As has been pointed out on a number of occasions, reference to statistics is of limited value in cases of fraud having regard to the variety of objective and subjective circumstances involved.”
1. When considering the question of manifest excess in that case, it was necessary to have regard to the fact that the plea was to a “rolled up count” involving 56 fictitious transactions and that the offence involved the systematic defrauding of the applicant’s employer in circumstances where he was in a position of trust. The previous good character of the applicant was not a matter of great significance as it was generally only persons of good character who were placed in positions of trust so as to enable such offences to be committed. The applicant had actively pursued courses towards rehabilitation since his arrest and there was a low risk of re-offending. In considering the question of manifest excess it was relevant that the sentencing judge had found special circumstances and adjusted the non-parole period to approximately 61 per cent of the head sentence. Johnson J noted (Johnston at [74]):
…the sentence which on its face appears severe when compared with the maximum penalty, was not in the particular circumstances of the present case unreasonable or plainly unjust.”
1. The appeal was dismissed.
2. In Woods the applicant pleaded guilty to a single count contrary to s 192E(1)(b). The applicant was in charge of payments to subcontractors and defrauded her employer of a total amount of $809,510.07. The offending involved 155 individual transactions carried out between April 2011 and August 2016. The sentencing judge accepted that the applicant was unlikely to re-offend. Apart from driving offences, the applicant had no criminal history. After allowing a 25 per cent discount for an early plea of guilty, the applicant was sentenced to a head sentence of 5 years with a non-parole period of 3 years. The applicant’s sole ground of appeal was that the sentencing judge “erred in failing to give effect to evidence of a mental condition when passing sentence”. The appeal was dismissed.
3. In Siwek the applicant pleaded guilty to four offences contrary to s 178BA(1) and five offences contrary to s 192E(1)(b). He asked that a further three similar offences be taken into account on a Form 1. The applicant worked for a multi-national corporation and utilised his trusted position to divert funds to his own interest. Each count involved a number of transactions. Over a period of nine years, the applicant defrauded his employer of a total amount of $1,716,016.69. He had repaid $450,000 in consideration of deed of settlement and release. The applicant was sentenced to a head sentence of 6 years with a non-parole period of 3 years and 8 months. On appeal, Bellew J (Hoeben CJ at CL and Adamson J agreeing) held:
Not only was the sentencing judge not obliged to specify and apply a discount to reflect the applicant's partial repayment of the monies, it would have been an error in approach for his Honour to have done so. It was apparent from the sentencing remarks that the sentencing judge took that factor into account as part of the applicant’s overall subjective case. ...”

The facts of the offending highlighted the gross breach of trust in which the applicant engaged. Offences committed to feed a gambling addiction will not, generally speaking, be a mitigating factor on sentence. To the extent that the applicant relied on a previous decision, Bellew J noted:

This Court has emphasised on a number of occasions that care must be taken when attempting to draw comparisons between sentences imposed in cases of like offending”, and that "it is important to consider the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case.”
1. The appeal was dismissed.
2. In Subramaniam the applicant pleaded guilty to twenty three offences contrary to s 178BA and three offences contrary to s 193B(2). The applicant was employed as a senior accountant for ING Holdings Australia Ltd. During the period from July 2004 to September 2009, the applicant transferred a total of $45,388,249 to her own accounts or the accounts of others. Funds were used for the purchase of luxury goods and real estate. Some of the funds were given gratuitously to third parties. Goods and property that had been located was seized by ING. In addition, property held by the applicant and her husband, not related to the fraud, was also transferred to ING. The net loss to ING was slightly less than half of the total sum. The applicant was sentenced to an aggregate head sentence of 15 years with a non-parole period of 7 years, after an “overall discount of 30 per cent in recognition of the applicant’s pleas and her extensive co-operation”.
3. On appeal, it was accepted by the Crown that the sentencing judge had erred in the application of s 53A. In re-sentencing the applicant, Latham J, (Emmett JA and Simpson J agreeing) noted:
The scale of the frauds committed by the applicant is breathtaking. The longevity of her conduct and the amount of money fraudulently obtained signifies criminality of a very high order. It must however be acknowledged that the applicant's offending was bizarre in nature. She made no real attempt to disguise the transactions whereby she deposited staggering amounts of money into her own accounts ; she repeatedly purchased the most expensive jewellery and luxury goods from the same retailers and provided them with her work email address ; she made no attempt to use or derive income from any of the property she purchased ; none of the items purchased were used by her, other than as gifts to virtually casual acquaintances ; the "gift" of $1.3 million to a shop assistant was, in itself, peculiar.”
1. The Court found that the applicant’s moral culpability was moderately reduced by reason of her personality disorder. The applicant was entitled to a discount of 25 per cent for her early pleas of guilty and her extensive co-operation with the authorities was found to be testimony to her remorse and contrition. The applicant’s prospects of rehabilitation were sound and there was no purpose to be served by the imposition of a sentence that reflected personal deterrence. General deterrence, retribution and denunciation were of less significance because of the applicant’s personality disorder, although there was still some scope for the sentence to reflect those principles. The applicant was re-sentenced to an aggregate term of 11 years with an aggregate non-parole period of 6 years.
2. In Mitchell the applicant pleaded guilty to 13 counts contrary to s 178BA. The applicant was the National Accountant for the Australian Teenage Cancer Patients Society. Between April 2000 and June 2003, he made 244 unauthorised transfers, totalling $302,099.34, from the accounts of the Society to his own account. The money was used for gambling and overseas trips. In the District Court the applicant was sentenced to an effective head sentence of 8 years with a non-parole period of 5 years. The applicant had no prior criminal convictions. He had a number of favourable subjective features and the sentencing judge accepted that he was remorseful. The applicant’s sole ground of appeal was that the sentence was manifestly excessive.
3. In this Court Latham J, (Sully J agreeing) noted that “the amount of money defrauded is but one factor …. which bears upon the assessment of the offender's criminality.” Other factors identified by the Court included “the length of time over which the offences are committed, whether or not the offender occupies a position of trust, and the sophistication of the method employed to defraud the victim” (Mitchell at [10]). This Court stated that it was preferable to approach the resolution of the appeal by reference to established principles rather than by a detailed comparison between the objective and subjective factors in each of the decisions relied upon by the applicant, and those of the respondent: (Mitchell at [12]). The Court found that the individual sentences were excessive by reference to the maximum penalty and taking into account that the applicant began offending at the age of 46 and that the sentencing judge placed too much emphasis upon personal deterrence: (Mitchell at [15]). The appeal was allowed and the applicant was re-sentenced to an effective head sentence of 5 years with a non-parole period of 3 years 2 months.
4. In Power the applicant pleaded guilty to 39 counts of making a false instrument. Each carried a maximum penalty of 10 years. The offences were committed over a four year period and resulted in the applicant’s employer, the National Bank of Australia Ltd, being defrauded of a total amount of approximately $5.81 million. The money was spent on luxury items. Approximately $1.8 million was recovered. In the District Court, the applicant was sentenced to an effective head sentence of 8 years with a non-parole period of 5 years. The applicant was 40 years old when she commenced offending. She had been employed by the bank for 26 years and was a trusted employee.
5. On appeal, Smart AJ (Greg James J agreeing) observed that the sentencing judge “rightly regarded the criminality as considerable and serious, pointing to the large amounts taken, and expended, the conduct lasting over four years, thirty-nine separate charges, and the offences committed in breach of trust”: (Power at [24]). The applicant was of exceptional prior good character. The sentencing judge accepted that there was little or no prospect of her re-offending so that rehabilitation was not a factor in the sentencing exercise. This Court agreed with the finding of the sentencing judge that some lesser weight should be placed on the principle of general deterrence in view of the applicant’s emotional and psychological state at the time of the offence. This Court held that the non-parole period of 5 years was manifestly excessive. The appeal was allowed and the applicant was re-sentenced to an effective non-parole period of 4 years.
6. The cases referred to by the applicant are illustrative of the enormous variation in objective and subjective circumstances involved in fraud offences. All but two of the cases involved frauds committed by an employee. One case involved credit card fraud. One case involved fraud committed against a single corporation. None of the cases involved frauds committed against a number of individual persons. The harm occasioned in the present case by the applicant’s conduct included financial and emotional harm to a large number of individual victims.
7. Further to what was said in Hili about the dangers of associating consistency in sentencing with numerical or mathematical equivalence, this Court has taken the position that a reference to sentencing statistics is particularly unhelpful in fraud cases because of the enormous variation in objective and subjective circumstances involved and the Court has expressed concern when an attempt is made to compare sentences for a specific offence of dishonesty with other cases involving dishonesty of a different kind (Martin at [56] per Johnson J). Any reference to orders made in previous cases that is not accompanied by a detailed examination of all the circumstances of those cases is likely to lead a sentencing court into error. While information about sentences that have been imposed in other cases can establish a range of sentences that have in fact been imposed, it does not necessarily follow that that range is the correct range. Sentencing courts confronted with fraud matters should examine the whole of the circumstances of previous cases in order to discern “unifying principles” which ought guide the exercise of the discretion.
8. Unlike the present case, only the case of Matthews which was a case of credit card fraud involves offences committed by an offender on conditional liberty. In that regard, it should be noted that a factor which substantially increases the applicant’s moral culpability is that nine of the offences committed by him occurred while he was either on parole or on bail.
9. It follows that the cases referred to by the applicant do not provide any unifying principle that dictates that the subject sentence was manifestly excessive.
10. It also follows that those cases relied upon by the applicant do not establish a range of sentences or a sentencing pattern so as to establish that the aggregate sentence in this case was manifestly excessive. It follows, subject to the reconsideration required by the applicant’s success in Ground of Appeal 1, that the applicant has failed to establish manifest excess, i.e. that the aggregate sentence is unreasonable or plainly unjust.

Error in indicative sentences

Because of the clear error in the indicative sentences set out in respect of the offending against Richard Gan and Tiffany Doble, it is necessary for this Court to take into account the facts relating to all of the offending. If error is revealed in the aggregate sentence, it will be necessary to re-sentence the applicant in accordance with the guidance in Kentwell.
As set out in the factual background, the aggregate sentence was imposed on the applicant in respect of 11 fraud offences to which were attached 10 offences on three Forms 1.
In the matter of Mark Cole, by means of the methodology described at [13] the applicant fraudulently acquired $500,000 from the victim. Two further offences were to be taken into account under the Form 1 procedure. One of those offences involved Sam Panagopoulos as the victim with the amount involved being $80,000. The second matter to be taken into account under the Form 1 was the offending against Natalie Joseph. The amount involved was $107,000. All three offences occurred while the applicant was subject to parole.
By way of mitigation, $390,000 had been repaid to Mr Cole leaving him out of pocket by $110,000. The whole of the $107,000 defrauded from Natalie Joseph was repaid to her. None of the $80,000 which the applicant fraudulently took from Mr Panagopoulos was repaid to him.
Another victim was Shaun Smith. The applicant fraudulently deprived him of $200,000. The applicant was on parole at the time. By way of mitigation, the $200,000 was repaid to Mr Smith.
Another victim was Henri Kalouche. The applicant fraudulently acquired from him $305,000 of which only $81,420 was recovered.
Another victim was Simon Langley from whom the applicant fraudulently acquired the amount of $300,000. Of that amount $150,000 was repaid.
Another victim was Richard Gan from whom the applicant fraudulently acquired the amount of $500,000. Of that amount $82,500 was repaid leaving Mr Gan out of pocket by $417,500. As well as the applicant’s offending against Mr Gan, seven other offences were to be taken into account on a Form 1. Each offence involved a separate victim. In the case of Cassandra Makrakis, $70,000 was fraudulently acquired from her but was eventually repaid. In the case of Wade Zanella, the applicant fraudulently acquired $20,000 which in due course was fully repaid. In the case of Ashley Hewitt, the applicant fraudulently acquired $40,000 of which $30,000 was repaid. In the case of Wanwen Wen, $137,500 was fraudulently acquired by the applicant of which $32,500 was repaid, leaving Mr Wen out of pocket by $105,000. In the case of Barton Ware and Sarah Knox, the applicant fraudulently acquired $42,000 of which nothing was repaid. In the case of Russell Martin, the applicant fraudulently acquired $20,000 of which nothing was repaid. In the case of Russell Martin, the applicant fraudulently acquired $5,000 of which nothing was repaid.
Details of the remaining seven victims were as follows. In the case of Stephen Busutti, the applicant fraudulently acquired $308,912 of which $60,000 was returned, leaving him out of pocket by $248,912. In the case of Brett Walsh, the applicant fraudulently acquired $250,000 of which $20,000 was repaid leaving him out of pocket by $230,000.
In the case of Tiffany Doble, the applicant fraudulently acquired $855,000 of which nothing was repaid. There was also a matter on a Form 1 to be taken into account when sentencing for this offence. The Form 1 concerned Danielle Smith from whom the applicant fraudulently acquired $80,000 of which nothing was repaid. The applicant was on bail when he committed this offence.
In the case of Madeleine McRae, the applicant fraudulently acquired $163,000 of which $11,400 was repaid, leaving her out of pocket by $151,600. The applicant was on bail when he committed this offence. In the case of Vivian Panigiris, the applicant fraudulently acquired $352,000 of which nothing was repaid. The applicant was on bail at the time. In the case of Andreas Antonini, the applicant fraudulently acquired $281,007 of which nothing was repaid. The applicant was on bail at the time.
The facts surrounding all of the offences show that the applicant used a number of different ruses to acquire money and that his deceitful behaviour had the effect of stealing the hopes and dreams of his victims. A particularly unfortunate case is that of Tiffany Doble. She was a young woman from whom the applicant acquired all her savings and caused her to take out a personal loan for $80,000. She then persuaded her parents, who were struggling financially, to advance further moneys which she paid to the applicant. This was in the expectation of receiving an allocation of shares in one of his companies from which regular dividends would be received. As indicated above, none of that money was repaid leading to catastrophic financial consequences for the family.
It is against that background that it is necessary to indicate the sentences which would have been imposed. I have taken as relevant criteria the amount of money initially defrauded, the financial impact of the loss, the extent of any repayment and the attachment of matters on a Form 1. I have taken into account as a matter of aggravation those offences which were committed while the applicant was at conditional liberty.
The two most serious matters are the offences against Richard Gan and Tiffany Doble. In the case of Richard Gan, apart from the loss being substantial it is also necessary to have regard to the seven serious matters set out on a Form 1. In the case of Tiffany Doble, the defrauded amount was the largest by far. The offence was committed while the applicant was on bail and a further offence was to be taken into account on a Form 1. The financial consequences for her family as a result of the loss have been dire. Accordingly, I have indicated sentences for each of them of 5 years.
Applying the above criteria, I find the offending against Mark Cole, Vivian Panigiris and Andreas Antonini to be the next most serious and I indicate sentences of 4 years for each of them.
In the case of the offending against Shaun Smith, Henri Kalouche, Simon Langley, Stephen Busuttil, Brett Walsh and Madeleine McRae to be of similar seriousness and I set an indicative sentence of 3 years and 4 months for each of them.
When one has regard to those indicative sentences and the aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years, it is clear that the aggregate sentence is not out of proportion to the indicative sentences. This is so even though the longest indicative sentences are 5 years. Given the nature of the offending and the number of victims, there was always going to be a need for some accumulation of the indicative sentences even if notionally. As can also be seen, the aggregate sentence also involves a considerable amount of notional concurrency.
While an indicative sentence is not itself amenable to appeal, an “erroneous approach in the indication of the sentence that would have been imposed for the offence may well reveal error in the aggregate sentence reached” (R v Brown [2012] NSWCCA 199 at [17]). However, that is not necessarily so in every case where that occurs. Despite the errors in two of the indicative sentences, the objective seriousness of the offending remains substantial and required an aggregate sentence which adequately takes into account the need for appropriate punishment and denunciation. In all the circumstances, I find that on re-assessment of the indicative sentences and the aggregate sentence that no lesser aggregate sentence is warranted.
In reaching the conclusion, that no lesser sentence is warranted, I have also had regard to:

The applicant stood to be sentenced for 11 serious offences with a further 10 serious offences to be taken into account on three Forms 1.

The total amount of money defrauded by the applicant was very large, i.e. $4.6 million of which approximately $3.6 million was unaccounted for. In the case of each offence, the amount defrauded represented a significant sum to the victims.

The conduct of the applicant involved repeat offending over a period of years, from February 2012 to August 2014. The offending ceased only after the applicant was taken into custody and refused bail.

Each offence was calculated and planned and involved a number of acts on the part of the applicant.

A number of the offences were seriously aggravated by being committed while the applicant was subject to conditional liberty for similar offences thereby significantly increasing his moral culpability for the offending (Frigiani v R [2007] NSWCCA 81 at [24]).

The offences were committed against a large number of victims.

The financial and emotional harm caused the offending was substantial.

General deterrence is an important consideration in sentencing for offences of this type. Given the applicant’s previous offending, there was also a particular need for specific deterrence and protection of the community.

The sentencing judge had appropriate regard to the applicant’s subjective case which was not particularly strong. Even so, the applicant received the benefit of a finding of special circumstances pursuant to which his Honour reduced the aggregate non-parole period to 67 per cent of the aggregate head sentence.

Accordingly, the orders which I propose are:

Leave to appeal granted.

The appeal is dismissed.

HARRISON J: I agree with Hoeben CJ at CL.

**********

Annexure “A”: Summary Of Offences

H Number

Date of Offence

Parole/Bail

Victim

Amount

Amount Repaid

Indicative Sentence

Facts Paragraphs

1

H54912667/1 (2 offences taken into account on a Form 1)

22.2.12 – 02.03.12

Parole

Mark Cole

$500,000

$390,000

4 Years

24-86

Form 1: H572799716/2

25.11.11 – 9.02.12

Parole

Sam Panagopoulos

$80,000

1-23

Form 1: H54912667/10

16.03.12 – 28.12.12

Parole

Natalie Joseph

$107,000

$107,000

100-151

2

H54912667/2

16.03.12 – 20.03.12

Parole

Shaun Smith

$200,000

$200,000

3 Years

3 Months

87-99

3

H54912667/3

26.02.13 – 29.04.13

Henri Kalouche

$305,000

$81,420

3 Years

152 - 171

4

H54912667/5

06.05.13 – 08.05.13

Simon Langley

$300,000

$150,000

3 Years

3 Months

228 - 258

5

H54912667/7 (7 offences taken into account on a Form 1)

12.06.13 – 27.06.13

Richard Gan

$500,000

$82,500

7 Years

279 - 299

Form 1:

H54912667/4

02.04.13 – 19.04.13

Cassandra Makrakis

$70,000

$70,000

172 – 187

Form 1:

H54912667/11

15.04.13 – 19.04.13

Wade Zanella

$20,000

$20,000

188 – 204

Form 1:

H582543456/1

01.11.13 – 15.11.13

Ashley Hewitt

$40,000

$30,000

364 – 377

Form 1:

H54912667/6

23.05.13 – 06.06.13

Wanwen Wen

$137,500

$32,500

259 – 278

Form 1:

H58866458/1

03.05.13 – 04.07.13

Barton Ware and Sara Knox

$42,000

205 - 227

Form 1:

H57279716/8

31.07.13 – 05.08.13

Russell Martin

$20,000

378 – 397

Form 1:

H57279716/9

20.08.14

Russell Martin

$5,000

378 - 397

6

H54912667/8

25.07.13 – 02.08.13

Stephen Busuttil

$308,912.35

$60,000

3 Years

6 Months

300 - 333

7

H54912667/9

08.07.13 – 11.07.13

Brett Walsh

$250,000

$20,000

3 Years

3 Months

334 – 363

8

H57279716/5

10.03.14 – 03.07.14

Bail

Tiffany Doble

$855,000

6 Years

6 months

398 – 451

Form 1:

H57279716/6

04.03.14 – 30.04.14

Bail

Danielle Smith

$80,000

452 – 481

9

H57279716/1

28.04.14 – 27.11.14

Bail

Madeleine McRae

$163,000

$11,400

3 Years

4 Months

482 – 533

10

H57279716/7

24.06.14 – 18.08.14

Bail

Vivian Panigiris

$352,000

4 Years

575 – 599

11

H57279716/3

20.09.13 – 13.08.14

Bail

Andreas Antonini

$281,007.50

4 Years

534 - 574

I certify that this and the 46 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court.

Morna Lynch

Associate

Date: 1 July 2020

Decision last updated: 07 September 2020

Medium Neutral Citation:	PC v R [2020] NSWCCA 147
Hearing dates:	29 April 2020
Decision date:	01 July 2020
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Harrison J at [143]
Decision:	(1) Leave to appeal granted. (2) The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – 11 offences of dishonestly obtaining a financial advantage by deception – 10 further offences of the same kind on three Forms 1 – $3.6 million unaccounted for – whether sentencing judge erred in failing to assess the objective seriousness of the offences – whether sufficient discount for assistance to authorities allowed – whether sentence imposed was manifestly excessive – objective seriousness of offences properly assessed – no error in discount allowed for assistance – sentence not manifestly excessive – error in formulation of indicative sentences – requirement to set out basis for differences between indicative sentences – error in formulation of indicative sentences not sufficient to require change in the aggregate sentence – appeal against sentence dismissed.
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010) (NSW) – s 7 Crimes Act 1900 (NSW) – s 192E(1)(b) Crimes Amendment (Fraud Identity and Forgery Offences) Act 2009 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 23 Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited:	AB v The Queen [1999] HCA 46;198 CLR 111 Barbaro v The Queen; Zirilli v The Queen (2014) CLR 253 CLR 58; [2014] HCA 2 Baumer v The Queen [1988] HCA 67; 166 CLR 51 Bland v R (2014) 241 A Crim R 51/ [2014] NSWCCA 82 Book v R [2018] NSWCCA 58 Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41 DV v R [2017] NSWCCA 276 Frigiani v R [2007] NSWCCA 81 Gal v R [2015] NSWCCA 242 House v The King (1936) 55 CLR 499; [1936] HCA 40 Haouchar v R [2014] NSWCCA 227 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Hraiki v R [2019] NSWCCA 140 Hughes v R [2013] NSWCCA 129 Hurst v R [2017] NSWCCA 114 Hutchinson v R [2014] NSWCCA 317 JM v R; [2014] NSWCCA 297; 246 A Crim R 528 Johnston v R [2017] NSWCCA 54 Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 Kerr v R [2016] NSWCCA 218 LB v R [2013] NSWCCA 70 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Matthew v R [2014] NSWCCA 185 Mitchell v Regina [2006] NSWCCA 72 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Obeid v R [2017] NSWCCA 221 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Power v Regina [2002] NSWCCA 244 R v Brown [2012] NSWCCA 199 R v Campbell [2014] NSWCCA 102 R v Ehrlich [2012] NSWCCA 35 R v El Hani [2004] NSWCCA 162 R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 R v Hawker [2001] NSWCCA 148 R v Martin [2005] NSWCCA 190 R v Medd (a pseudonym) [2016] NSWCCA 216 R v Sappideen [2018] NSWDC 238 R v Van Ryn [2016] NSWCCA 1 R v Woodman [2001] NSWCCA 310 R v XX [2009] NSWCCA 115 R v XX [2017] NSWCCA 90 Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Regina v Joseph Sukkar [2006] NSWCCA 92 Regina v Swadling [2004] NSWCCA 421 Robinson v R [2017] NSWCCA 315 Sharma v R [2017] NSWCCA 85 Siwek v R [2017] NSWCCA 178 Subramaniam v R [2013] NSWCCA 159 Thi Lan Nguyen v R [2009] NSWCCA 181 TL v R [2017] NSWCCA 308 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Woods v R [2018] NSWCCA 261 Z v R [2014] NSWCCA 323 Zhao v R [2016] NSWCCA 179
Category:	Principal judgment
Parties:	PC – Applicant Regina – Respondent Crown
Representation:	Counsel: T Game SC/A Cook – Applicant E Balodis – Respondent Crown Solicitors: The Law Practice – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/96392; 2014/351208; 2015/177272; 2015/213082
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010) (NSW), order that any information tending to reveal the identity of the applicant not be disclosed. The order was made on the grounds that the order was necessary to protect the safety of the applicant. The order was to extend throughout the Commonwealth.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2018] NSWDC 238 Date of Decision: 2 February 2018 Before: ML Williams SC DCJ File Number(s): 2014/96392; 2014/351208; 2015/177272; 2015/213082

H Number	Date of Offence	Parole/Bail	Victim	Amount	Amount Repaid	Indicative Sentence	Facts Paragraphs
1	H54912667/1 (2 offences taken into account on a Form 1)	22.2.12 – 02.03.12	Parole	Mark Cole	$500,000	$390,000	4 Years	24-86
Form 1: H572799716/2	25.11.11 – 9.02.12	Parole	Sam Panagopoulos	$80,000	1-23
Form 1: H54912667/10	16.03.12 – 28.12.12	Parole	Natalie Joseph	$107,000	$107,000	100-151
2	H54912667/2	16.03.12 – 20.03.12	Parole	Shaun Smith	$200,000	$200,000	3 Years 3 Months	87-99
3	H54912667/3	26.02.13 – 29.04.13	Henri Kalouche	$305,000	$81,420	3 Years	152 - 171
4	H54912667/5	06.05.13 – 08.05.13	Simon Langley	$300,000	$150,000	3 Years 3 Months	228 - 258
5	H54912667/7 (7 offences taken into account on a Form 1)	12.06.13 – 27.06.13	Richard Gan	$500,000	$82,500	7 Years	279 - 299
Form 1: H54912667/4	02.04.13 – 19.04.13	Cassandra Makrakis	$70,000	$70,000	172 – 187
Form 1: H54912667/11	15.04.13 – 19.04.13	Wade Zanella	$20,000	$20,000	188 – 204
Form 1: H582543456/1	01.11.13 – 15.11.13	Ashley Hewitt	$40,000	$30,000	364 – 377
Form 1: H54912667/6	23.05.13 – 06.06.13	Wanwen Wen	$137,500	$32,500	259 – 278
Form 1: H58866458/1	03.05.13 – 04.07.13	Barton Ware and Sara Knox	$42,000	205 - 227
Form 1: H57279716/8	31.07.13 – 05.08.13	Russell Martin	$20,000	378 – 397
Form 1: H57279716/9	20.08.14	Russell Martin	$5,000	378 - 397
6	H54912667/8	25.07.13 – 02.08.13	Stephen Busuttil	$308,912.35	$60,000	3 Years 6 Months	300 - 333
7	H54912667/9	08.07.13 – 11.07.13	Brett Walsh	$250,000	$20,000	3 Years 3 Months	334 – 363
8	H57279716/5	10.03.14 – 03.07.14	Bail	Tiffany Doble	$855,000	6 Years 6 months	398 – 451
Form 1: H57279716/6	04.03.14 – 30.04.14	Bail	Danielle Smith	$80,000	452 – 481
9	H57279716/1	28.04.14 – 27.11.14	Bail	Madeleine McRae	$163,000	$11,400	3 Years 4 Months	482 – 533
10	H57279716/7	24.06.14 – 18.08.14	Bail	Vivian Panigiris	$352,000	4 Years	575 – 599
11	H57279716/3	20.09.13 – 13.08.14	Bail	Andreas Antonini	$281,007.50	4 Years	534 - 574