Pollock v The State of Western Australia - [2011] WASCA 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: POLLOCK -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 133

CORAM: MARTIN CJ
McLURE P
MAZZA J

HEARD: 6 DECEMBER 2010

DELIVERED : 15 JUNE 2011

FILE NO/S: CACR 43 of 2010

BETWEEN: KEVIN TREVOR POLLOCK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HEENAN J
File No  :INS 82 of 2008

Catchwords:

Criminal law - Appeal against sentence - Large scale commercial fraud - Sentencing after retrial

Legislation:

Corporations Act 2001 (Cth)
Criminal Appeals Act 2004 (WA), s 41(4)
Criminal Code (WA), s 409(1)(d)
Sentencing Act 1995 (WA), s 76

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr D G Staehli SC

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Giglia v The State of Western Australia [2010] WASCA 9
Gilmore v The Queen (1979) 1 A Crim R 416
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
McPharlin v The Queen (Unreported, WASCA, Library No 970665, 10 October 1997)
Pak v The Queen (Unreported, WASCA, Library No 950407, 11 August 1995)
R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
R v Chen [1993] 2 VR 139
R v Kite (Unreported, WASCA, Library No 950659, 1 December 1995)
R v McKay [2007] NSWSC 275; (2007) 61 ACSR 470
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
R v Sivandran (Unreported, WASCA, Library No 960154, 22 March 1996)
R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
Sabau v The State of Western Australia [2010] WASCA 3
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Skipworth v The State of Western Australia [2008] WASCA 64
Stickland v The State of Western Australia [2005] WASCA 115
The State of Western Australia v Fleming [2010] WASCA 162
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527
The State of Western Australia v Pollock [2010] WASC 56
Trompler v The State of Western Australia [2008] WASCA 265
Turner v The Queen [2002] WASCA 189
Vagh v The State of Western Australia [2007] WASCA 17
Williams v The Queen (No 2) [1982] WAR 281

MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza J, with which I agree.
McLURE P: I agree with Mazza J.
MAZZA J: This is an appeal against sentence. The appellant was convicted, after a trial lasting 11 days before Heenan J and a jury, of nine charges of fraud, contrary to s 409(1)(d) of the Criminal Code (WA). This was, in fact, the appellant's second trial. His first, before McKechnie J and a jury, resulted in the same convictions. Those convictions were subsequently quashed by the Court of Appeal and a retrial was ordered: The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527.
The charges for which the appellant was convicted were set out in the indictment as follows:
1.Between 25 August 1999 and 31 August 1999 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $405,000 paid by that bank in respect of a hire purchase agreement entered into between that bank and Westgroup Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
2.Between 25 August 1999 and 31 August 1999 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $405,000 paid by that bank in respect of a hire purchase agreement entered into between that bank and Westgroup Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
3.Between 25 August 1999 and 31 August 1999 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $405,000 paid by that bank in respect of a hire purchase agreement entered into between that bank and Westgroup Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
4.Between 22 September 2000 and 26 September 2000 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $302,500 paid by that bank in respect of a hire purchase agreement entered into between that bank and MM Developments Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
5.Between 13 February 2001 and 16 February 2001 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $198,000

paid by that bank in respect of a hire purchase agreement entered into between that bank and All Terrain Aust Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
6.Between 13 February 2001 and 16 February 2001 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $198,000 paid by that bank in respect of a hire purchase agreement entered into between that bank and All Terrain Aust Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
7.Between 14 May 2001 and 17 May 2001 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $478,500 paid by that bank in respect of two hire purchase agreements entered into between that bank and Westgroup Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
8.Between 4 June 2001 and 7 June 2001 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $176,000 paid by that bank in respect of a hire purchase agreement entered into between that bank and Westgroup Pty Ltd contrary to section 409(1)(d) of the Criminal Code.
9.Between 25 June 2001 and 27 June 2001 [the appellant] with intent to defraud, by fraudulent means, caused a detriment to National Australia Bank Limited ('that bank'), namely $434,500 paid by that bank in respect of three hire purchase agreements entered into between that bank and MM Developments Pty Ltd contrary to section 409(1)(d) of the Criminal Code.

On 18 March 2010, Heenan J sentenced the appellant as follows:
Count 1 3 years and 4 months
Count 23 years and 4 months (concurrent)
Count 33 years and 4 months (concurrent)
Count 42 years (cumulative upon counts 1, 2 and 3 but for 1 year only and concurrent for the remaining 1 year)
Count 52 years (cumulative upon counts 1, 2, 3 and 4, for 1 year, concurrent for the remaining 1 year)
Count 62 years (concurrent with count 5)
Count 72 years (concurrent with counts 5 and 6)
Count 82 years (concurrent with counts 5, 6 and 7)
Count 92 years (concurrent with counts 5, 6, 7 and 8)
Heenan J's sentencing remarks are detailed and comprehensive: The State of Western Australia v Pollock [2010] WASC 56.
The total effective sentence imposed upon the appellant was 5 years and 4 months' imprisonment. The appellant was made eligible for parole.
McKechnie J, at the earlier trial, imposed different sentences. On counts 1 to 3, he sentenced the appellant to 3 years and 4 months' imprisonment suspended for 24 months. On the remaining counts, he imposed a global fine of $60,000.
The sentences imposed by McKechnie J were the subject of a State appeal. However, because the appellant's appeal against conviction was upheld, the Court of Appeal found it unnecessary to deal with the State appeal against the inadequacy of the sentence.

The grounds of appeal

Leave has been granted to appeal against the sentences imposed by Heenan J on the following grounds:
Ground 1: The Learned Sentencing Judge erred in law in concluding that there was a basis for departing from the re‑imposition of the sentences imposed upon the [appellant] upon his conviction of the identical offences at his first trial.
Ground 2: The Learned Sentencing Judge erred in failing to apply, or adequately apply, the principle of double jeopardy in the exercise of his sentencing discretion.
Ground 3: Each of the sentences imposed upon the [appellant] was manifestly excessive, in that it was outside the range of sentences open to be imposed by the Learned Sentencing Judge in the proper exercise of his sentencing discretion, having regard to all of the circumstances of the offences and of the [appellant].
Particulars
(i)In respect of counts 1-3, suspended terms of imprisonment ought to have been imposed.
(ii)In respect of counts 4-9, monetary penalties were appropriate in all of the circumstances; if there were to be sentences imposed, those sentences ought to have been considerably less than those which were imposed and wholly suspended.
Ground 4: The Learned Sentencing Judge erred in failing to give sufficient weight to mitigatory factors.
Particulars
(i)Delay between commission of the offences and imposition of the sentence;
(ii)The fact that the [appellant] was being sentenced for the second time in relation to the offences;
(iii)Cooperation in the administration of justice during the trial;
(iv)That the [appellant] had led a highly productive life, and was of good reputation and standing in the community;
(v)That he was a man devoted to family and business;
(vi)That he had no relevant prior convictions.
Ground 5: The total overall sentence of five years and four months breached the totality principle of sentencing in all of the circumstances of the offences and of the [appellant].

Heenan J's sentencing remarks

No challenge has been made to any of Heenan J's factual findings, which I summarise below. It was not suggested by the parties that there was any material difference in the factual circumstances of the offending before Heenan J and McKechnie J.
From before August 1999 until March 2003, the appellant was effectively the managing director of a group of companies collectively referred to as the 'Pollock Group'. That group included all the companies referred to in the charges, namely Westgroup Pty Ltd, MM Developments Pty Ltd and All Terrain Aust Pty Ltd. The activities undertaken by the companies were diverse, but most, if not all, of the companies needed and used, in the course of their businesses, heavy machinery, bulldozers, crushers, loaders and comparable equipment: The State of Western Australia v Pollock [2010] WASC 56 [5].
All major decisions, and especially all major financial transactions, were referred to and decided upon by the appellant. Heenan J accepted that the appellant was 'directly and knowingly concerned in each of the transactions which are the subject of the several convictions' [9].
The Pollock Group banked with the National Australia Bank Ltd (NAB) on a large scale. Various loans and other types of financial accommodation were provided by NAB to the Pollock Group. These advances were secured by interconnecting charges in the form of debentures, mortgages and other securities. The acquisition of some machinery was funded through hire purchase agreements with one or other of the Pollock Group companies and was often guaranteed by one or more of the appellant's brothers, personally or by associated companies. It appears that all the assets of the group companies were subject to floating charges granted to NAB [10].
In March 2003, NAB appointed joint receivers to all the companies in the Pollock Group. The receivers reported that as at 27 March 2003, NAB was owed $10.35 million. By 26 September 2009, that sum had been reduced to $565,116 [11]. In due course, the appellant was made bankrupt. Various investigations were undertaken into the affairs of the Pollock Group. Following from those investigations, the appellant was charged with the offences for which he was later convicted.

Counts 1 to 3 - the IMAP offences

On 31 August 1999, Westgroup Pty Ltd entered into three separate hire purchase agreements with NAB to hire three new 1999 Samsung front‑end loaders. The purchase price for each of these machines was $405,000.
Each machine was the subject of an invoice or proposed contract of sale from a machinery supplier known as IMAP, dated 31 August 1999. Each invoice specified that the machinery to be sold to NAB was for delivery to Westgroup Pty Ltd, and identified the front‑end loader by make, model (SL330 front‑end loader), serial number, engine number and the year of manufacture - 1999 [23].
The three invoices were submitted to NAB, and in due course the three hire purchase agreements were executed on behalf of Westgroup Pty Ltd. Although the hire purchase agreements were not executed by the appellant personally, the appellant was aware and approved of the provision of the IMAP invoices to NAB, and the hire purchase agreements. On the strength that the machines existed and were to be delivered to Westgroup Pty Ltd, NAB paid a total of $1,215,000. Unusually, the money was not paid by NAB to IMAP. Rather, NAB arranged for the money to be credited to the account of another Pollock Group company, Soil and Garden Suppliers Pty Ltd. Between 31 August 1999 and 3 September 1999, almost all of the moneys were disbursed from that account in various ways.
None of the three Samsung front‑end loaders were ever seen or inspected on behalf of NAB. In fact, none of the machines were ever imported into Australia, nor were they available for sale, nor were the IMAP invoices genuine. The appellant knew that no such machines were delivered or would be delivered. NAB, believing the invoices to be genuine, was induced to pay a total of $1,215,000, without obtaining ownership of the goods the subject of the hire purchase agreements [38] and [42].

Counts 4 to 9 - the Curran offences

Curran Holdings Pty Ltd (Curran) was a supplier of second‑hand or refurbished machinery. There was a long history of machinery sales or supplies from Curran via third‑party financiers to one or more of the Pollock Group companies [55].
Pollock Group companies themselves owned machines which were unencumbered. Sometimes, a Pollock Group company which owned a piece of machinery would sell it to Curran, who would then offer to sell the same piece of machinery to a financier who would, in turn, either hire or lease back the piece of machinery to the same or another Pollock Group company. Curran would, in each case, issue the financier with an invoice. The financier would then pay the purchase price to Curran, who would in turn remit that money to the original Pollock Group company [63]. The appellant agreed to pay Curran $1,000 per transaction of this kind.
What differentiated the six transactions the subject of counts 4 to 9 from the usual transaction involving Curran, is that in each offence, with the appellant's knowledge and at his direction, a false Curran invoice was prepared on Curran stationery for the apparent sale of actual equipment, then owned by one or more of the Pollock Group companies, to NAB. On each occasion, NAB, believing the invoice to be genuine, entered into a hire purchase agreement with the relevant Pollock Group company and paid the purchase price to Curran. Curran, in turn, paid the money to the Pollock Group.
NAB officers testified that the bank would not have paid out under each of the six hire purchase agreements had it known that the invoices were not genuine [69]. The amounts of money paid are as follows:
Count 4:$302,500
Count 5:$198,000
Count 6:$198,000
Count 7:$478,500
Count 8:$176,000
Count 9:$434,500
The total sum defrauded as a result of these offences was $1,787,500.
Unlike the offences the subject of counts 1 to 3, each of the Curran offences involved an item of machinery which actually existed and was in the possession of a Pollock Group company.
Heenan J analysed the effect of the Curran Holdings transactions. Although complicated, he found that NAB in fact acquired title to each machine the subject of the hire purchase agreements referred to in counts 4 to 9, although not through Curran [74]. Later, the receivers took possession of the machines the subject of the six false Curran invoices and they were subsequently sold and the proceeds of sale were credited to the debts owed by the various Pollock Group entities to NAB.

Findings as to loss

The receivership of the Pollock Group was long and involved. Ultimately, Heenan J was unable, on the evidence before him, to make any definite finding as to the existence or quantum of any financial loss to NAB [108].
Heenan J found that this was not a factor of major significance. His Honour put it this way at [110]:
In this case, although it is not possible to determine whether there were in the end losses sustained by NAB due to these particular transactions, and if so how great they were, that is only because of the complexity of the ultimate insolvency of the Pollock Group. There was, however, much delay and difficulty in the recoveries which NAB actually achieved. The level of deception was serious, the magnitude of the financial obligations which were entered into by NAB on the faith and the reliability of the information which had been supplied to it were also great and, as I observed before, the consequences of the fraud were to put the bank's interests in jeopardy and uncertainty for quite some time.

Findings as to the seriousness of the offending

With respect to counts 1 to 3, his Honour said:
What is important is that these frauds resulted in NAB acting to its detriment and advancing large sums of money which were applied, at the direct knowledge of [the appellant], for purposes not disclosed or contemplated by the bank. In my view, each of these is a serious fraud and its implementation shows planning, attempts at subtlety and deception, and a degree of deliberation and dishonesty which are all very serious. I consider each to be a very serious fraud and one which strikes at the heart of commercial retail finance [49].
As to the offences the subject of counts 4 to 9, his Honour said:
For these reasons, I have reached the view that each of the six offences of fraud, the subjects of counts 4 to 9 in the indictment, constitutes a serious fraud. It was deliberate, contrived and in respect of a substantial financial transaction. It placed NAB in a position of potential jeopardy as to title but, most significantly, it involved serious dishonesty in the course of a major commercial transaction. The commercial activities of banks, finance institutions and large companies work to a large degree on trust and, if people were dishonest, the expense of more thorough investigations, more extensive scrutiny and cross-referencing would add another layer of complexity, cost and delay to the administration of a financial system in which a premium is placed on speed and efficiency. Equally, if fraud of this kind reached major proportions, the cost of supplying credit would inevitably increase (because of losses inevitably caused by fraud), and the entire community would suffer. Honesty is not only desirable, expected and required by law, but it conduces to improved and more comprehensive availability of credit, and to speed and efficiency in the financial world. All these advantages are threatened by frauds of this kind [79].

The appellant's personal circumstances

The appellant was born on 11 December 1951. He was, at the time of his offending, 48 to 50 years of age. At the time he was sentenced, he was 58 years old.
References tendered on the appellant's behalf spoke highly of his capacity for hard work and showed that he had, over time, built up a substantial and diversified business. Many spoke highly of his personal qualities. According to the referees, the appellant lived modestly, concentrating on family obligations, but devoting most of his activities towards his business. Heenan J acknowledged the submission that a significant period had elapsed since the commission of the offences and that the appellant had lived 'productively and respectably' during that period [92].

His Honour noted that the appellant had a minor, but stale history of dishonesty offences. More recently, during the insolvency of the Pollock Group, he had been convicted of minor offences under the Corporations Act 2001 (Cth). His Honour did not consider the record to be demonstrative of any absence of good character at the time the offences were committed, or since [94].
His Honour noted that, as a result of the appellant's convictions, he will be subject to an automatic disqualification from managing any corporation for a period of five years.
His Honour also noted that the appellant had made admissions in the course of his trial that facilitated the proof of various factual matters. His Honour said that while credit had to be given for these admissions, they were not, in his view, anything more than a realistic acceptance of facts for which irrefutable evidence could have been adduced if required. His Honour said:
These admissions in the conduct of the case allowed the trial to focus, predominantly, on the essential issues in contest, but that is really no more than should customarily occur [93].
His Honour found that the appellant had no significant remorse for his offending [122].

Heenan J's treatment of the sentences imposed by McKechnie J

There was no dispute, either before Heenan J or this court, as to the principles which a sentencing judge must apply when a successful appellant is convicted after retrial. It has not been suggested that Heenan J misstated these principles.
Based on authorities such as R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 457 ‑ 475; Gilmore v The Queen (1979) 1 A Crim R 416; Williams v The Queen (No 2) [1982] WAR 281, 283 ‑ 284; R v Chen [1993] 2 VR 139; and Stickland v The State of Western Australia [2005] WASCA 115 [26] ‑ [29], those principles are as follows.
Where a successful appellant is convicted after retrial, the judicial officer resentencing the offender must exercise his or her own sentencing judgment and discretion. In doing so, the sentencer must have regard to what is sometimes called 'the rule of restraint' (although it is in truth not a rigid rule) that ordinarily a successful appellant should not receive a heavier sentence than he or she received at the original trial. A sentencer may impose a heavier sentence if the facts disclosed at the retrial are different or the sentence originally imposed was manifestly inadequate. Where it is said that the sentence imposed at the original trial was manifestly inadequate, it may be relevant that the sentence imposed at that trial was the subject of a prosecution appeal which was 'derailed' by the successful appeal against conviction.
The policy underlying this approach is not difficult to see. If an offender ended up worse off after a successful appeal, the perception might arise that the offender was being punished for pursuing his right to appeal. Further, if sentences were commonly increased after a successful appeal, appeals would be stifled. This would not be in the public interest because the appellate process is an important means of exposing, remedying and preventing, in the future, errors in criminal proceedings.
On the other hand, if, at the retrial, facts came to light that were not before the court at first instance, which exposed the offending as more serious, there should be no reason why the original sentence should stand. Moreover, if the original sentence was demonstrated to be manifestly inadequate, it would be wrong to allow it to remain.
His Honour observed that the sentences imposed by McKechnie J after the first trial did not go unchallenged. However, the appellant's successful appeal against conviction had 'derailed' the State's appeal against sentence.
The approach that his Honour took to his task was expressed by him in these terms:
In support of his submissions that more severe sentences should now be imposed following these convictions, counsel for the State has set out, in the extensive and helpful written submissions filed (17 February 2010) details of the grounds of appeal filed on behalf of the State against the sentences imposed by McKechnie J after the first trial, together with detailed submissions in support of those grounds of appeal. I have, of course, had regard to those submissions, but I do not consider that I can or should attempt to determine these controversies as if I were, in some way or another, participating in the determination of an appeal against those sentences. Rather, I consider that I should give close and careful attention to the sentences which were imposed and the reasons adopted for imposing those sentences and to consider whether or not, in my own view, it has been established that those sentences were manifestly inadequate. Unless I did reach a positive conclusion that the sentences were manifestly inadequate, I would not be justified in imposing any greater penalty or sentence but that exercise has to be undertaken with the appreciation that the responsibility for sentencing this offender for these convictions now rests upon me, and must be undertaken in the light of the evidence received at the second trial and other evidence adduced in the sentencing process.
I should not depart lightly from the considered view of another experienced Judge. The formation of an opinion whether or not the original sentences were manifestly inadequate or inappropriate must, inevitably, be tied up to a significant degree and perhaps overlap with the decision which would, in other circumstances, have had to be made by the Court of Appeal on the sentencing appeal. Nevertheless, I am not determining any sentencing appeal but the question of whether or not the original sentence was inappropriate or inadequate clearly has a close affiliation with whether or not I consider it is likely that that appeal, had it been necessary for it to have been resolved, would have been successful and more severe sentences imposed. In this respect, I must turn to the general pattern of sentencing for offences of fraud, insofar as any such pattern is disclosed by the precedents, and also to the reasons given for the original sentences imposed after the first trial [84] ‑ [85].
With respect to the general pattern of sentencing for offences of fraud, his Honour rightly observed that there is no generally appropriate type of sentence for fraud or stealing because the circumstances and the seriousness of these offences can differ widely. His Honour was referred by counsel for the State to a number of cases involving convictions for fraud where significant sums of money were involved. In all of the cases his Honour cited, immediate and lengthy terms of imprisonment were imposed. His Honour referred to Turner v The Queen [2002] WASCA 189; Pak v The Queen (Unreported, WASCA, Library No 950407, 11 August 1995); McPharlin v The Queen (Unreported, WASCA, Library No 970665, 10 October 1997); R v Sivandran (Unreported, WASCA, Library No 960154, 22 March 1996); R v Kite (Unreported, WASCA, Library No 950659, 1 December 1995); Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176; and Skipworth v The State of Western Australia [2008] WASCA 64. His Honour was also referred to decisions from other jurisdictions, including R v McKay [2007] NSWSC 275; (2007) 61 ACSR 470; R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284; and R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548, 577. His Honour said that in those cases judicial observations were made about the need for appropriate penalties, including sentences of immediate imprisonment for instances of white collar crime, in order to advance general deterrence, notwithstanding the previous good character of the offender and a relatively low risk of reoffending [89]. His Honour was aware that the maximum penalty for each offence was 7 years' imprisonment [114].
His Honour accepted that a suspended term of imprisonment is a serious penalty and should not be used only in cases where considerations relating to rehabilitation are prominent, nor should it be restricted to exceptional circumstances. His Honour acknowledged that s 76 of the Sentencing Act 1995 (WA) contemplates that sentences of imprisonment may be suspended, even in respect of a serious offence which would otherwise warrant a term of imprisonment for five years.
In arriving at his decision to impose immediate terms of imprisonment upon the appellant, Heenan J, after expressly referring to R H McL v The Queen and Williams v The Queen (No 2), said:
I consider that immediate terms of imprisonment for these offences are necessary and unavoidable. I have reached these conclusions after giving what I hope is due deference to the different approach taken by the first learned sentencing judge but I consider that immediate terms of imprisonment should be imposed because the seriousness of the offences in their particular setting is such that only imprisonment can be justified, and also because the proper protection of the community, including its reliance upon well accepted and established methods of commercial finance require this. A reliable, secure and dependable system of commercial finance for a community is part of the essential structure of society and must be vindicated and protected in the collective interests of the members of society generally [116].
His Honour said that he considered that the period of imprisonment imposed by McKechnie J of 3 years and 4 months for each of counts 1, 2 and 3 was correct, but he did not consider that it was appropriate to suspend the terms of imprisonment. His Honour expressly referred to the correct two‑stage approach mandated by Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, in reaching this decision.
His Honour declined to reduce the sentences because of the 7 month period which had elapsed between the imposition of the suspended sentences by McKechnie J on 4 November 2008 and the date on which the convictions were quashed by the Court of Appeal, 3 June 2009. Heenan J declined to impose a discount for this period because '[t]here was … no suggestion that [the appellant's] liberty, in any tangible or practical sense, was restricted or his freedom of action curtailed by that period during which the suspended sentences stood' [118].
With respect to counts 4 to 9, his Honour said:
Again, after considering the principles set out in R H McL v The Queen (supra) and giving full consideration to the reasons given by [McKechnie J] … I consider that sentences of immediate imprisonment for these offences are warranted. They represent a succession of serious frauds, they were planned and deliberate, they were designed to deceive and to take advantage of a relationship built up with the bank over time and they were successful until eventual discovery in the course of the insolvency of the Pollock group of companies. They strike seriously at the heart of commercial dealing and the integrity of our commercial financing and credit systems. There is no scope for misunderstanding or mistaking the position and there does not appear to be any significant remorse. That [the appellant] himself did not personally profit does not seem to me to be particularly significant. The offences were committed for commercial advantage and the advantage was for the corporate group which constituted and reflected in large measure his own interests. Having said that, they were not as blatant or as serious as the IMAP offences because the machinery and equipment the subject of the hire purchase agreements did in fact exist but they showed a persistent pattern of seriously dishonest conduct [122].
His Honour then imposed the sentences referred to in [5].

McKechnie J's sentencing remarks

McKechnie J described the appellant's overall offending as displaying 'quite a high degree of dishonesty' and as 'persistent'. He described the IMAP counts as constituting 'grave frauds' which could only be met with terms of imprisonment.
His Honour acknowledged a number of mitigating factors including:
(a)the appellant's general good character;
(b)the cooperative way he conducted his case at trial; and
(c)the time which had elapsed between the commission of the offences and trial (although, as to this, his Honour said that the mitigatory effect was 'limited').
His Honour acknowledged that it was 'a very rare case where crimes such as these are not visited with a sentence of immediate imprisonment'.
His Honour's reasons for imposing suspended imprisonment orders for the IMAP offences were:
(a)the 'somewhat unusual nature of the frauds and their effect on the bank';
(b)that the appellant had not apparently benefited from the frauds and that the money obtained had been 'ploughed back' into his businesses;
(c)that the appellant had not offended in the period since the offences were committed; and
(d)that the imposition of a suspended period of imprisonment is not regarded by the law as a light penalty.
With respect to the Curran offences, McKechnie J imposed a global fine, stating 'in each case the bank did in fact gain title to the machinery but nevertheless its economic interest was put at risk'.

The parties' submissions in this appeal

The appellant submitted that Heenan J failed to find that McKechnie J's sentence was manifestly inadequate. It was asserted that in the absence of such a finding there was no basis for the imposition of different sentences. Alternatively, if Heenan J found that the sentences at first instance were manifestly inadequate, he erred in arriving at that conclusion.
It was submitted that, having regard to all of the circumstances of the case, and having regard to the operation of the double jeopardy principle, the combination of suspended imprisonment orders and fines imposed by McKechnie J were an appropriate exercise of the sentencing discretion and should not have been interfered with. If Heenan J was justified in imposing more severe sentences, the sentences he imposed were individually manifestly excessive and, in combination, offended the totality principle. His Honour also failed to give sufficient weight to a number of mitigating factors.
The respondent submitted that Heenan J did, in effect, find that the sentences imposed at first instance were manifestly inadequate, and that he was right to so characterise them. The respondent submitted that Heenan J's sentences were not individually manifestly excessive and, in combination, they did not offend the totality principle. Finally, his Honour did not fail to give sufficient weight to any mitigating factor and, in any event, an allegation of a weighting error is not an independent ground of appeal.

Merits of the appeal

Ground 1 - did Heenan J err by concluding that there was a basis for departing from McKechnie J's sentences

This ground captures the appellant's main contention in this appeal.
There is nothing in the submission made on behalf of the appellant that Heenan J did not make a finding that the sentences imposed by McKechnie J were manifestly inadequate. While Heenan J did not do so in those precise terms, a fair reading of his sentencing remarks as a whole clearly reveals that is what, in substance, he found: see [85], [116] and [122].
The real question to be decided is whether such a finding was correct. If it was, according to the rule of restraint, Heenan J would have been justified in departing from McKechnie J's sentences. If the finding was wrong, Heenan J would not have been so justified.
Whether Heenan J was correct involves this court deciding for itself whether the sentences imposed by McKechnie J were manifestly inadequate.
It is as well to begin consideration of this ground with some fundamental propositions.
The imposition of a sentence involves the exercise of a discretion which will not be interfered with unless error is demonstrated. That error may be express or it may be implied from the end result. Manifest inadequacy is an example of implied error. It is a conclusion that the sentence imposed was so unreasonable or unjust that some substantial error occurred, although it is not possible to discern what that error is. It may be that the wrong kind of sentence was imposed, or that, where a term of imprisonment is imposed, the term is too short. Manifest inadequacy is not established merely because someone else sentencing the offender would have imposed a different sentence.
To determine whether a sentence is manifestly inadequate, the sentence must be examined from the perspective of the maximum sentence prescribed by law for the relevant offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, the standards of sentencing customarily observed with respect to the offence, and the personal circumstances of the offender: The State of Western Australia v Fleming [2010] WASCA 162 [18].
The maximum sentence for fraud is 7 years' imprisonment.
The circumstances of each offence were plainly serious. The IMAP offences, in particular, involved a high level of criminality. The transactions were fictitious and involved the creation of forged documents. NAB was completely deceived. As a result, $1.215 million of its money was put at risk.
The Curran offences were less serious (to the extent the machinery the subject of each invoice at least existed), but nevertheless involved significant criminality. Each offence concerned a substantial amount of money, and collectively resulted in NAB parting with $1,787,500. Again, false invoices were created to effect the frauds which were designed to, and did, deceive the bank.
In an overall sense, the appellant's offending was persistent, calculated and far from isolated. It took place over a period of almost 2 years, and resulted in NAB being defrauded of $3,002,500. It is no exaggeration to describe the appellant's offending as a large‑scale systematic fraud on NAB.
Although there was no evidence that the appellant directly received any of the money which was defrauded, companies with which he was associated benefited from that money. While it is unclear what final losses, if any, were sustained by NAB, at the very least its money was put at risk. Further, any recovery was long and complicated.
This was a case where general deterrence had to be the dominant sentencing consideration. The borrowing of money from banks and other financial institutions is an everyday and necessary activity of commerce. Lenders are entitled to expect that a borrower will act honestly and that the information and documentation provided to it in support of an application for finance will be truthful and genuine. If a lender was required to check the honesty and accuracy of statements made, or the genuineness of the documentation presented to it by a prospective borrower, the cost, speed and efficiency of doing business would be adversely affected, to the detriment of the general community. The appellant's offending struck at the heart of the commercial financing and credit systems. Courts must do what they can to stop the type of behaviour engaged in by the appellant in this case. When such behaviour is established, significant penalties will generally follow.
I turn to consider the standards of sentencing customarily imposed. The purpose is to provide a yardstick with which to compare the sentences imposed by McKechnie J, in order to see whether they were broadly consistent with other cases. I am mindful that each case must be determined on its own circumstances, and that the facts of other cases vary considerably. Further, cases decided in the past do not fix the boundaries within which the sentencing discretion must be exercised. In other words, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [54]; and Sabau v The State of Western Australia [2010] WASCA 3 [18].

There is no generally appropriate type of sentence for fraud. This is because the offence can be committed in widely varying circumstances: Skipworth v The State of Western Australia [12]. That said, it is clear that in serious cases of fraud and stealing involving substantial sums of money, decided at appellate level in this State over the last 16 years, only terms of immediate imprisonment have been imposed. The relevant cases were analysed by Steytler P in Hladin v The State of Western Australia [37] ‑ [44], and by Pullin JA in Skipworth v The State of Western Australia [47] ‑ [50]. There is no need to set out those analyses here. There is no case that I have been able to find, and none was cited, in which frauds of a magnitude and type committed by the appellant have resulted in the imposition of a suspended sentence and/or fines.
With respect to the appellant's personal circumstances, they were favourable to him. Having acknowledged this, the weight that can be afforded to this factor must be moderated, in light of the need to provide general deterrence.
I do not overlook the relevant sentencing principles with respect to suspended imprisonment. Those were succinctly stated by McLure P in Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [9], where her Honour said:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing.
With respect to McKechnie J, I can see no basis for the imposition of suspended terms of imprisonment for the IMAP offences. I do not see what was unusual about the nature of the frauds which would somehow have made the appellant less culpable. I will not repeat what I have already said about the criminality of the appellant's conduct. That conduct involved, in my opinion, a high level of criminality which militates against the imposition of suspended sentences. McKechnie J was, to some extent, influenced by the absence of evidence that NAB ultimately lost any money as a result of the frauds. While that is a matter of some relevance, it must be balanced against the fact that a very large amount of the bank's money was put at risk.
The absence of direct personal gain was not a significant matter in this case. The money obtained from NAB was used to benefit the appellant's businesses. In any event, fraudulent behaviour cannot be justified by a desire to ensure the financial viability of a business.
The absence of offending between mid‑2001 and trial is of little relevance when compared to the sustained and substantial nature of the appellant's offending in the period between 1999 and 2001.
The appellant did not plead guilty. That, of course, cannot be held in any way against him. However, no mitigation could be given for his pleas.
The serious nature of the appellant's offending and the need to provide general deterrence made the imposition of suspended sentences on counts 1, 2 and 3 inappropriate. The only appropriate sentencing option was the imposition of immediate terms of imprisonment.
With respect to the global fine imposed on the Curran offences, even accepting that they were less serious than the IMAP offences, that penalty too was also inappropriate. Once again, because of their seriousness and the need to provide general deterrence, the only appropriate penalty was the imposition of immediate terms of imprisonment.
For these reasons, I have concluded that the sentences imposed by McKechnie J were, with respect, manifestly inadequate. Heenan J did not err in coming to this conclusion. It is evident from Heenan J's sentencing remarks that he gave proper and careful consideration to the rule of restraint, but nevertheless decided, correctly, in my view, that he should not be bound by the sentences imposed by McKechnie J. Ground 1 has not been made out.

Ground 2 - double jeopardy

The appellant's submission on this ground relied in large part upon statements made by Kirby J in his dissenting reasons in R H McL, where his Honour said that the fundamental policy reason for the rule of restraint is found in the principle of double jeopardy, although not in its pure form [141] ‑ [142]. It was submitted that Heenan J should have, but did not refer to and apply that principle as a further and separate sentencing consideration.
As I understand what Kirby J said, he was merely stating his view as to the policy reason behind the rule of restraint. He did not suggest that where a successful appellant comes to be resentenced, the sentencer must have regard to double jeopardy in the same way that this court did prior to the commencement of s 41(4) of the Criminal Appeals Act 2004 (WA). He was saying no more than a sentencer must have regard to the rule of restraint. I do not see any support in Kirby J's reasons for the proposition upon which ground 2 is based, that a sentencer must refer to and apply the double jeopardy principle when resentencing a successful appellant.
This ground has not been made out.

Ground 3 - manifest excess

As framed, this ground alleges that the sentences imposed by Heenan J were manifestly excessive in that the wrong type of sentence was imposed. The appellant alleges that Heenan J should have, as McKechnie J did, on counts 1 to 3, imposed suspended terms of imprisonment, and on counts 4 to 9, Heenan J should have imposed fines.
It follows from my reasoning and conclusions with respect to ground 1, that Heenan J was right to conclude that only immediate terms of imprisonment were appropriate for all of the offences committed by the appellant.
The individual sentences imposed were not, as asserted in the ground, 'outside the range of sentences open to be imposed'. When regard is had to the circumstances of the offending as found by Heenan J, and the cases, being the cases I referred to earlier and those referred to by his Honour, each sentence was within a sound sentencing discretion.
This ground has not been made out.

Ground 4 - failure to give sufficient weight to mitigatory factors

This court has said, on many occasions in the past, that a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32].
A reading of the sentencing remarks reveals that Heenan J referred to and gave weight to each of the matters set out in particulars (iii) to (vi) of the ground. He did not give any weight to (ii), but, for the same reasons I have given on ground 2, his Honour made no error in this regard.
That leaves particular (i), which alleged a failure to take into account delay between the commission of the offences and the imposition of the sentence.
The appellant's written submissions raised, in the context of this ground, the question of whether there was any mitigation to be found in the delay between the time of the commission of the offences and the appellant's first trial. It was submitted that even after taking into account the investigative challenges imposed by white collar offences, the delay was excessive.
The question of whether delay is mitigatory was discussed in Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 by McLure JA [31] ‑ [33], [37], and by Buss JA [57] ‑ [64]. Delay by itself is not mitigatory. Delay, in combination with other relevant sentencing factors, particularly progress towards rehabilitation, may be mitigatory. It may be mitigatory where delay on the part of the prosecution causes the appellant to experience an unnecessarily long 'state of uncertain suspense'.
The reasons for the delay were not explored in the sentencing proceedings before Heenan J. It was not submitted to Heenan J that the delay had caused any unnecessary 'state of uncertain suspense'. His Honour was clearly aware of the delay and accepted that, in the time after the commission of the offences, the appellant had lived 'productively and respectably'. It was only to this limited extent that delay could be mitigating. His Honour was right to treat it in this way. The submission must be rejected.
This ground has not been made out.

Ground 5 - the totality principle

It is submitted that, having regard to the totality principle, his Honour should not have accumulated, to the degree that he did, the sentences he imposed.
The totality principle is well known. It has two limbs. The first limb requires a sentencer, called upon to sentence an offender for a number of offences, to ensure that the aggregation of the appropriate sentences for each offence is a just and appropriate measure of the total criminality involved. The second limb requires a sentencer not to impose a total effective sentence which is 'crushing' on the offender: Giglia v The State of Western Australia [2010] WASCA 9 [43].
The appellant submits that his Honour infringed the first limb of the totality principle. There is no need for me to repeat what I have already said about the seriousness of the appellant's offending. It was of a high order. I have already referred to the need to provide general deterrence. In light of the number of offences and the period of time over which they were committed, some accumulation was justified. His Honour referred to and applied the totality principle. Having regard to all the circumstances of the case, the total term of imprisonment imposed upon the appellant of 5 years and 4 months was a just and appropriate measure of his total criminality.
Ground 5 has not been made out.

Conclusion

Heenan J's treatment of the sentences imposed by McKechnie J was correct. Heenan J took into account all relevant mitigating factors. The sentences he imposed were all within a sound sentencing discretion. The total sentence did not offend the totality principle. The appeal must be dismissed.

Orders

1. The appeal is dismissed.