Porcaro v The Queen
[2015] VSCA 244
•9 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0116
| GIUSEPPE PORCARO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2015 |
| DATE OF JUDGMENT: | 9 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 244 |
| JUDGMENT APPEALED FROM: | DPP v Porcaro (Unreported, County Court of Victoria, Judge Lacava, 15 May 2015) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Dishonesty offences – Ponzi scheme involving over $4.7million – Offending occurred over a period of almost 7 years – Breach of trust involving many victims – Offending perpetrated under cloak of legitimacy and authority offered by the applicant being a law clerk in a law firm – Whether total effective sentence of 8y 6m with non-parole period of 5y 6m is manifestly excessive – Whether the judge erred by sentencing the applicant as a continuing criminal enterprise offender on one charge – Amendment to Record of Orders – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Chadwick QC | Hymans Solicitors |
| For the Crown | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA:
Introduction
Giuseppe Porcaro, the applicant, was a law clerk. Between February 2002 and December 2008, he committed a large number of offences of dishonesty.
On 8 May 2015, he pleaded guilty in the County Court to fifty separate offences charged in two indictments. In the manner we will later set out, on 15 May 2015 the judge sentenced the applicant to a total effective sentence of eight years and six months’ imprisonment, and fixed a non-parole period of five years and six months’ imprisonment.
The applicant sought leave to appeal against sentence on two grounds as follows:
1. The learned sentencing Judge erred by sentencing the applicant as a continuing criminal enterprise offender on charge 9 when it was not open to him to do so. Correction of the records of Court with regard to charge 9 is sought.
2. The non parole period and total effective sentence are manifestly excessive in that:
(a) as a result of his Honour having formed the view of the applicant that,
‘In my view, having regard to your background and limited education and work experience, by working with Angeleri, you were engaging in work that was way out of your league. You had neither the qualifications or experience to either say “no” or to stop. Once the deception was underway, you went along with it as it spiralled out of control.’
his Honour did not give sufficient weight to this finding; and
(b) his Honour placing insufficient weight upon the opinion of Jeffrey Cummins, Consulting Clinical and Forensic Psychologist, that the applicant was suffering symptoms of an adjustment disorder with mixed anxiety and depressed mood at the time (he) offended. The adjustment disorder developed in response to work related financial stress.
For the reasons that follow, we would refuse leave to appeal.
The Indictments and the sentences imposed
The applicant’s pleas were entered on two indictments.
There were 49 charges on the first indictment as follows:
· obtaining property by deception:[1] 33 charges[2] (charges 1, 2, 4, 5, 6, 7, 8, 11, 12, 14, 15, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 39, 40, 43, 44 and 46);
[1]Crimes Act 1958, s 81. The maximum penalty is imprisonment for 10 years, or, for a continuing criminal enterprise offence, imprisonment for 20 years.
[2]The indictment’s Summary of Statement of Offence incorrectly recorded charge 9 (a charge of attempt to obtain property by deception) and charge 16 (a charge of obtaining financial advantage by deception) as being charges of obtaining property by deception.
· obtaining financial advantage by deception:[3] 10 charges (charges 3, 13, 16, 30, 37, 41, 45, 47, 48 and 49);
· attempting to obtain property by deception:[4] 3 charges (charges 9, 10 and 38); and
· theft:[5] 3 charges (17, 25 and 32).
[3]Crimes Act 1958, s 82(1). The maximum penalty is imprisonment for 10 years, or, for a continuing criminal enterprise offence, imprisonment for 20 years.
[4]Crimes Act 1958, s 81 and s 321M. The maximum penalty is imprisonment for 5 years.
[5]Crimes Act 1958, s 74. The maximum penalty is imprisonment for 10 years, or, for a continuing criminal enterprise offence, imprisonment for 20 years.
The second indictment contained one charge of making a false document.[6]
[6]Crimes Act 1958, s 83A. The maximum penalty is imprisonment for 2 years.
Many of the charges on the first indictment were continuing criminal enterprise offences. By virtue of s 6H of the Sentencing Act 1991, a continuing criminal enterprise offence is one set out in Schedule 1A of the Act; and a continuing criminal enterprise offender includes an offender who is found guilty of three or more continuing criminal enterprise offences. Section 6I provides that a continuing criminal enterprise offender ‘is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment 2 times the length of the maximum term prescribed for the offence or 25 years, whichever is the lesser’.
The applicant was sentenced as a continuing criminal enterprise offender on 32 charges – charges 1, 3, 5, 7, 8, 9, 11, 12, 13, 14, 15, 17, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 32, 33, 35, 37, 39, 41, 42, 43, 44 and 46. For practical purposes, that meant that the maximum penalty available on each charge was imprisonment for 20 years.
With respect to the first indictment, save for the three charges of theft (charges 17, 25 and 42), the sentencing judge imposed an aggregate sentence of seven and a half years’ imprisonment. On charge 17 the judge imposed a sentence of three years’ imprisonment; and on each of charges 25 and 42, he imposed a sentence of two years’ imprisonment. The charge of making a false document on the second indictment attracted a sentence of two years’ imprisonment. The sentences are summarised in the following table:
Indictment C11081969.3 Charge Offence Sentence Cumulation 2, 4, 6, 10, 19, 22, 31, 34, 36, 40 Obtaining property by deception 7 ½ years Aggregate sentence 1, 5, 7, 8, 9,[7] 11, 12, 14, 15, 18, 20, 21, 23, 24, 26, 27, 28, 29, 32, 33, 35, 39, 43, 44, 46 Obtaining property by deception: continuing criminal enterprise offence 16,[8] 30, 45, 47, 48, 49 Obtaining financial advantage by deception 3, 13, 37, 41 Obtaining financial advantage by deception:
continuing criminal enterprise offence
10, 38 Attempt to obtain property by deception 17 Theft: continuing criminal enterprise offence 3 years Concurrent 25, 42 Theft: continuing criminal enterprise offence 2 years Concurrent Indictment D10330467 1 Making a false document 2 years 12 months Total effective sentence 8 years and 6 months’ imprisonment Non-parole period 5 years and 6 months’ imprisonment Pre-sentence detention 7 days Section 6AAA declaration 12 years’ imprisonment with a non-parole period of 8 years Other orders Compensation orders were made with respect to 23 victims for a total sum of $4,266,815.30. [7]Charge 9 was in fact a charge of attempting to obtain property by deception. The judge incorrectly sentenced the applicant on charge 9 for the completed offence (and as a continuing criminal enterprise offence). The first ground of appeal is concerned with the sentence on this charge.
[8]Charge 16 is a charge of obtaining financial advantage by deception. On the Summary of Statement of Offence on the face of the indictment it was erroneously stated to be a charge of obtaining property by deception.
The offending
It is necessary to describe briefly the applicant’s offending.
With respect to the first indictment, the offending making up the 49 charges spanned a period from about 13 February 2002 to approximately 23 December 2008. On the second indictment, the charge included offending between 1 October 2007 and 30 October 2008.
The prosecution alleged that the applicant and Denis Angeliri (‘Angeliri’) — a now disgraced former legal practitioner — met when they worked together in the legal department at Norwich Union (‘Norwich’). Angeliri was a qualified solicitor, and was head of the legal department. They both left Norwich around 1990, and the applicant joined Angeliri at his legal firm, Angeliri & Co, as a legal executive.
Angeliri established and operated a conglomeration of companies. Money was transferred between the various companies as directed by Angeliri. The principal companies were Euroquest Corporate Pty Ltd (‘Euroquest’) — set up under another name in 1988 — and Australian Motor Finance (‘AMF’).
The applicant became a director of Euroquest on 26 April 1991. His principal role was to source investors for Euroquest. He obtained the investors principally from clients of Angeliri & Co, and from relatives, friends and acquaintances. The applicant managed the investors, encouraged investment and often personally paid interest to the investors in cash.
In essence, the prosecution case in relation to the charges on the first indictment was that the applicant offered properties as security against money that was ‘invested’, but the properties either did not exist, or the applicant had no right to offer them as security. Some of the documents used by the applicant — Loan Agreements and Debt Purchase Agreements — contained false information and false signatures.
It is sufficient for present purposes to provide an overview of the applicant’s offending, rather than rehearse the particular conduct founding each of the individual 49 charges. An adequate précis of the essentials of the offending embraced by the charges on the first indictment was provided in the judge’s reasons for sentence as follows:
The offence of obtaining property by deception focuses upon the offender dishonestly telling lies in order to induce another person to hand over property, in the belief that what he or she is being told by the offender is the truth.
The offence of obtaining a financial advantage by deception is similar. In this offence the offender, by dishonestly telling lies, induces another person to give to him or her a financial advantage that the offender would not otherwise be entitled to, such as the use of money or a credit in an account, or a loan.
At the heart of both of these kind of offences is the dishonest telling of lies by the offender. That means the offender knows that he or she is telling lies and for that reason knows that he or she has no legal entitlement whatsoever to whatever property or financial advantage that might be obtained. In all cases, the victims believe that what they are being told by the offender is true and in reliance on what they may have been told, they hand over property or a financial advantage to the offender.
These offences are thus offences committed by con artists, people who have no hesitation in lying and taking people down for whatever they can get out of them. Often the victim will be induced by lies that promise that the victim is investing in a legitimate business arrangement and that money invested by them is secure and will return an above market interest rate. Such false representations make such investments sound both attractive and safe to the victim and the victim places complete trust in the offender so that the offence is usually committed in breach of trust. That is what happened here.
In each of the obtaining offences on the deception indictment, [the applicant] lied to the relevant victim and induced money or a financial advantage from them. [The applicant] told them that money or a financial advantage given to [him] would be invested and secured in a way that [he] knew at all times to be utterly false. By this means, over the period of nearly seven years of offending, [the applicant] obtained money or financial advantage to a total of $4,731,816.29, of which $3,648,003.79 has not been recovered. …
This was a classic Ponzi scheme, where money obtained from some of [the applicant’s] victims was used to repay or pay interest to others. The unrecovered money was lost by the victims in Charges 1, 6, 15 to 18, 20 to 31 and 33 to 49. The money lost appears to have been channelled to various speculative business ventures controlled by Angeleri, and principally to a business known as ‘Australian Motor Finance’, an elaborate corporate structure set up by Denis Dalmo Angeleri, a now disgraced former legal practitioner and businessman and others to finance sub-prime borrowers with loans to purchase second-hand cars. Although entirely legitimate, that business was never adequately funded and probably never made a profit and was probably technically insolvent within a short time of the start of its operations. There is no evidence [the applicant] had detailed knowledge of the affairs or parlous state of Australian Motor Finance.
As to the three theft charges, Charges 17, 25 and 42, they each also involved large amounts of money, which [the applicant] simply took from the lawful owners, without permission, knowing [he] had no legal entitlement to do so. The elements of the offence of theft differ from the elements of the other charges. However, I accept these offences should be treated as having occurred in the context of the Ponzi scheme [the applicant was] operating and taken into account in arriving at an appropriate total effective sentence. For this reason, the sentences I impose on the theft charges will be served concurrently with the aggregate sentence I will impose on the deception charges.
As to the offending on the second indictment, it seems that, whilst working at Norwich in the 1990s, Angeliri met Michael O’Brien (‘O’Brien’), who was working for a small finance company, Australian Trade Credit Limited (‘ATC’). In 2000, Angeliri and O’Brien formed Australian Motor Finance Corporate Pty Ltd (‘AMFC’) and Australian Motor Finance Ltd (‘AMFL’), and they began to develop a business in sub-prime motor finance. Funding was obtained from various sources, and AMFL wrote its first legitimate loan in 2003. At relevant times, Angeliri was the Managing Director of AMFL and a director of AFMC, and O’Brien was a director and Company Secretary of AFML.
Between 2003 and 2009, Angeliri and O’Brien carried on a business of providing finance to purchasers of second-hand motor vehicles. AFMC was the financier of the loans as trustee for the banks funding them. The applicant’s role was limited to the manufacture of fraudulent documents, under the direction of Angeliri, which were used to deceive auditors during routine audits by the banks.
In his reasons for sentence, the judge summarised the offending as follows:
[Angeleri and O’Brien] each pleaded guilty to fraud charges concerning an elaborate fraud on both the National Australia Bank and the Adelaide Bank Limited between 2003 and 2008. During that time, hundreds of false loans were submitted to the banks, who financed them in the belief they were legitimate. The proceeds of the false loans which exceeded [$24 million], went to prop up [AMFC] financially, or were used to repay or service false loans earlier obtained. [AMFC] was subject to external audit and the elaborate system set up by O’Brien and Angeleri managed to avoid detection by external auditors for many years.
[The applicant’s] role in relation to the charge of making false documents over the year between 1 October 2007 and 30 October 2008, was to assist in the cover up, by preparing false documents to be placed on fictitious files created to reflect legitimate dealings with fictitious borrowers. When these files were examined by auditors, they were duped.
[The applicant’s] offending in the charges on the deception indictment was at a high level for this kind of offending. It was sophisticated, planned and prolonged and involved substantial amounts of money. It involved deceiving many people into handing over money or financial securities, which they had put away for later life and your offending involved breach of trust. [the applicant] knew that the victims that [he was] dealing with placed their trust and reliance in the truth of what [he was] telling them and [he] knew that the representations that [he was] making were a pack of lies. That is why [his] offending is of a high level.
[The applicant’s] offending in making the false documents was also very serious, although I am satisfied that in relation to the affairs of [AFMC], [he was] but a bit player, in whom others more deeply involved knew they could rely upon to assist.
Ground 1 – Sentence on charge 9
As we have mentioned, charge 9 was a charge of attempting to obtain property by deception, but was incorrectly described on the Summary of Statement of Offence on the face of the indictment as a charge of obtaining property by deception. Both in the judge’s reasons for sentence, and in the signed Record of Orders, charge 9 was described as the completed offence, rather than an attempt, and the judge purported to sentence the applicant as a continuing criminal enterprise offender on that charge.
In the written case, the applicant’s counsel originally had contended that attempting to obtain property by deception is not a continuing criminal enterprise offence, since it is not listed in Schedule 1A of the Sentencing Act 1991. Thus, so it was argued, the applicant was incorrectly sentenced as a continuing criminal enterprise offender on that charge. Counsel did not put, however, that the purported error vitiated the exercise of the sentencing discretion. Instead, it was submitted that the Court should, pursuant to s 412 of the Criminal Procedure Act 2009, correct the record.
Although the respondent conceded that charge 9 was incorrectly described in the Summary of Statement of Offence as the completed offence rather than an attempt; that the applicant purportedly was sentenced for the completed offence rather than the attempt; and that the judge purported to sentence the applicant as a continuing criminal enterprise offender; the respondent’s counsel submitted that the offence of attempting to obtain property by deception was in any event properly to be regarded as a continuing criminal enterprise offence. Upon the hearing in this Court, counsel for the applicant conceded that these submissions were correct.
The issue is not free from difficulty. In our view, however, the respondent’s submission that an attempt to obtain property by deception is a continuing criminal enterprise offence should be accepted.
As we have observed, s 6H(1) of the Sentencing Act 1991 provides that a continuing criminal enterprise offence ‘means an offence referred to in Schedule 1A’.
Although item 1(d) of Schedule 1A specifies that an offence of obtaining property by deception under s 81(1) of the Crimes Act 1958 is a continuing criminal enterprise offence (‘where the value of the property obtained is $50 000 or more’), there is no express reference to an attempt to obtain property by deception. Item 2, however, provides that any Schedule 2 offence within the meaning of the Confiscation Act 1997 is a continuing criminal enterprise offence, ‘where the value of the property in respect of which the offence is committed is $50 000 or more’.
Turning to Schedule 2 of the Confiscation Act 1997, item 2(f) specifies the offence of obtaining property by deception where ‘only one offence is charged and the value of the property in respect of which the offence is committed is $50 000 or more’. Although item 2 does not specifically refer to an attempt to commit the offence, item 5 specifies an offence of attempting to commit any offence in the circumstances referred to in item 2.[9] Thus, so it seems to us, item 5 picks up an attempt to obtain property by deception.
[9]Item 5 reads:
5. An offence of attempting to commit any offence in the circumstances referred to in item 1, 1A, 2, 2A, 2B, 2C (as in force immediately before its repeal by section 41(a) of the Racing and Gaming Acts (Amendment) Act 2004), 3, 8, 9 or 10.
At the time of the relevant repeal (as from 1 July 2004), item 2 was not materially different from its current form.
If the foregoing analysis is correct, the offence in charge 9 — which was committed on 19 April 2004 and involved an attempt dishonestly to obtain the sum of $180,000 — was a continuing criminal enterprise offence.
That is not the end of the matter, however, since it is plain that the judge imposed sentence on charge 9 in the mistaken understanding that the maximum available sentence was 20 years’ imprisonment. In fact, the maximum sentence available on charge 9 was imprisonment for 10 years.[10]
[10]In its practical effect, s 321P of the Crimes Act 1958 provides that the maximum penalty for attempting to obtain property by deception is 5 years’ imprisonment; but, by operation of 6I(1) of the Sentencing Act 1991, the maximum available for a continuing criminal enterprise offence is two times that maximum (that is, 10 years’ imprisonment).
Despite the judge having sentenced on a mistaken belief as to the maximum penalty available on charge 9, the applicant did not submit that the sentencing discretion was re-opened. All that was sought was correction of the record.
To summarise the position:
· the Summary of Statement of Offence on the face of the indictment incorrectly records that charge 9, which is an attempt, is the completed offence of obtaining property by deception;
· the reasons for sentence reflect that the judge sentence on charge 9 in the mistaken belief that it charged the completed offence, and thus that the maximum penalty available was 20 years’ imprisonment, not 10 years;
· the Record of Orders signed by the judge mistakenly refers to charge 9 as a completed offence; and
· the applicant did fall to be sentenced as a continuing criminal enterprise offender on charge 9, albeit both the reasons for sentence and the Record of Orders demonstrate that the judge thought that the applicant’s status as such on that charge related to the completed offence.
In our view, it is appropriate to order that the Summary of Statement of Offence on the indictment, and the Record of Orders, be amended to reflect that charge 9 was an attempt to obtain property by deception.
The applicant, in the written case, submitted that such a course was authorised by s 412 of the Criminal Procedure Act 2009. Whether or not s 412 permits the course urged,[11] it is plain that there is ample power reposing in this Court to correct the sentence without the necessity to allow the appeal. Thus, s 104A(1) of the Sentencing Act 1991 provides that a judge or magistrate may amend a judgment or sentence, or a purported judgment or sentence, if satisfied –
[11]See Ha v The Queen [2014] VSCA 335, [95] (Priest JA).
(a) that it contains—
(i)a clerical mistake; or
(ii)an error arising from an accidental slip or omission; or
(iii)a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or
(iv) a defect of form; or
(b) that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.
And subsection (5A) provides:
(5A)In determining an application for leave to appeal against a judgment or sentence or in determining the appeal, the Court of Appeal may direct the amendment of the judgment or sentence to which the application or appeal relates if satisfied of the matters referred to in subsection (1)(a) or (b), whether the application is granted or refused or the appeal is allowed or dismissed.
Had the judge’s attention been drawn to the foregoing, we have no doubt that he would have made the appropriate amendments.
We would make the orders for amendment that we have foreshadowed.
Ground 2 – Claim that the sentence is manifestly excessive
Ground 2 asserts that the sentence is manifestly excessive. We need not again set out its ‘particulars’.
Counsel for the applicant submitted that the sentence imposed ‘overvalued’ general deterrence and denunciation. He placed reliance on several factors, including that the applicant:
· was aged 53 years, and was previously of good character;
· has the continuing support of his wife and family;
· had limited education;
· was a ‘relatively unsophisticated individual’, who was ‘way out of his league’ and went along with the deception ‘when it was underway and it spiralled out of control’;
· had a limited role which was not reflected in the sentence;
· had suffered great emotional stress; and
· was suffering from symptoms of an adjustment disorder, with mixed anxiety and depressed mood, at the time that he offended.
As we have noted, the applicant’s counsel drew attention to a psychological report of Mr Jeffrey Cummins, in which he reported that, in his opinion, the applicant was suffering from ‘symptoms’ of an adjustment disorder, with mixed anxiety and depressed mood, at the time that he offended. Counsel eschewed any reliance, however, on Verdins[12] principles, and could not draw any substantial link — if any link at all — between the applicant’s psychological state and his offending.
[12]R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
Counsel for the respondent pointed to the fact that the applicant had been the principal in a ‘Ponzi’ scheme which continued for a period of seven years, involving a sum well in excess of four million dollars (most of which was not recovered). The offending was attended by a high level of planning, sophistication, endeavour and persistence, warranting a stern sentence in which general deterrence and denunciation were prominent considerations. Counsel emphasised that the offending was protracted; that there were 23 victims in all; and that $3,648,003 was not recovered. He argued that no causal link was demonstrated between the applicant’s psychological state and his offending, and that the psychological assessment that the applicant was suffering from symptoms of an adjustment disorder, with mixed anxiety and depressed mood, at the time that he offended, was based on ‘thin’ material. The respondent’s counsel argued that a lack of prior convictions is a common feature in white collar frauds;[13] pointed to the applicant’s major role in the offending; and submitted that the offending involved a significant breach of trust involving many victims whose savings were decimated. Counsel submitted that the majority of the offences charged were continuing criminal enterprise offences, and the sentence could not be viewed as manifestly excessive.
[13]DPP v Bulfin [1998] 4 VR 114, 131 (Charles JA) (‘Bulfin’); Gianello v The Queen [2015] VSCA 205, [27] (Beach JA).
Whether or not a sentence is manifestly excessive does not admit of sustained argument.[14] When the circumstances of the offence and the offender, and the circumstances in aggravation and mitigation, are intuitively synthesised, either the sentence is plainly excessive or it is not. Synthesising all of the relevant circumstances, we are not persuaded that the sentence is excessive.
[14]Pedersen v The Queen [2013] VSCA 321, [64] (Priest JA).
The judge thought the pleas to be early and to be a demonstration of genuine remorse. He was of the view that it was unlikely that the applicant would re-offend, and was satisfied that the applicant’s prospects of rehabilitation were good. His Honour was also of the opinion that there had been ‘undue delay is disposing of the charges’, which was no fault of the applicant. Not only had the applicant had the charges hanging over his head for three years, but he had not offended in the meantime. These factors, of course, went significantly in mitigation.
But the judge also observed — in our view correctly — that the offending on the first indictment was ‘committed in breach of trust, involving large quantities of money, over an extended period of time’ and involved ‘a high level of planning, sophistication, endeavour and persistence’. Indeed, it seems to us that the conduct of the applicant, in inveigling the victims to invest their money, was perpetrated under the cloak of legitimacy and authority offered to him by being part of a law firm. A very large sum was peculated, the majority of which was not recovered. And self-evidently, the plight of the victims, who lost very substantial sums, cannot be ignored. Sentences passed for this kind of offence must deter other like-minded individuals from committing similar offences,[15] and must adequately mark curial denunciation for such conduct. We would echo the sentiments expressed by Charles JA in Bulfin:[16]
The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. … The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
[15]Bulfin, 132; R v Kinnear[2009] VSCA 104, [24]–[25] (Redlich JA); Yusuf v The Queen[2010] VSCA 266, [27] (Nettle, Harper JJA and T Forrest AJA); Koch v The Queen [2011] VSCA 435, [55] (Maxwell P). See also Hoy v The Queen [2012] VSCA 49; Hemsley v The Queen [2013] VSCA 114; Pedersen v The Queen [2013] VSCA 321.
[16]Bulfin, 131–2.
As to the offending on the second indictment, the applicant might have been a ‘bit player’ when compared to his co-offenders, but his conduct helped to hide a fraud involving $24 million or thereabouts. The individual sentence imposed on the charge on the second indictment, and the cumulation ordered, are both moderate.
In light of the foregoing, in our opinion the applicant has failed to make good the contention that the sentence is manifestly excessive.
Conclusion
The application for leave to appeal against sentence must be dismissed, but we would make orders to effect the amendments to which we have earlier referred.
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