R v Arundell
[2003] VSCA 69
•4 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 120 of 2002
| THE QUEEN |
| v. |
| DAVID ANTHONY ARUNDELL |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, AJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 April 2003 | |
DATE OF JUDGMENT: | 4 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 69 | |
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Criminal Law – Sentence – Obtaining property by deception – Theft – Defrauding the Commonwealth – Whether appellant properly sentenced as “continuing criminal enterprise offender” – Sentencing Act 1991, Part 2B discussed – Qualifying offences committed before enactment came into effect – Not retrospective operation – Correctly sentenced as “continuing criminal enterprise offender” on third offence – Appellant’s motive for committing offences – Relevance for sentencing – Manifest excess – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr D. Grace, Q.C. | Zygmunt Zayler |
PHILLIPS, C.J.:
I have had the advantage of reading the judgment of Vincent, J.A. in draft form. I agree with his Honour’s conclusions and I would subscribe to his reasons therefor.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court sitting at Melbourne on 6 May 2002 to 13 counts of obtaining property by deception, one count of theft (count 6) and one count of defrauding the Commonwealth (count 13).
After hearing a plea in mitigation of penalty, on 14 May 2002 he was sentenced to imprisonment for each offence as follows:
Count 1 - 36 months
Count 2 - 36 months
Count 3 - 48 months
Count 4 - 36 months
Count 5 - 36 months
Count 6 - 24 months
Count 7 - 36 months
Count 8 - 36 months
Count 9 - 36 months
Count 10 - 48 months
Count 11 - 48 months
Count 12 - 48 months
Count 13 - 24 months
Count 14 - 36 months
Count 15 - 48 months
His Honour directed that six months of the sentence imposed on each of counts 5, 6, 7, 9, 11 and 12 were to be served cumulatively upon each other and all other sentences. This created a total effective sentence of seven years' imprisonment in respect of which a non-parole period of five years was fixed.
Having been granted leave to do so, he now appeals against the individual sentences, the total effective sentence and the non-parole period.
In support of these contentions, reliance has been placed upon a number of grounds, namely:
"1.That the learned sentencing judge failed to give proper and full effect to the principles of totality of sentence applicable in the circumstances of this case.
2.That the learned sentencing judge placed too much weight on general deterrence and insufficient weight to the prospects of rehabilitation in coming to the ultimate sentence in this case.
3.That the sentence imposed by the learned sentencing judge was oppressive in all the circumstances of this case.
4.That the sentence imposed by the learned sentencing judge was manifestly excessive, taking into account all the circumstances of this case.
5.The learned sentencing judge erred:
(a)in sentencing the appellant as a continuing criminal enterprise offender on count 3 or, alternatively, on counts 3, 10 and 11; and
(b)as a result of that error, in sentencing on those counts as if the maximum penalty applicable were twenty years' imprisonment when in fact it is ten years' imprisonment.
6.The learned sentencing judge erred:
(a)in concluding that '[i]t is not to the point that [the appellant] did not dissipate the funds which were not [his] to use in gambling or in pursuit of a high life'; and
(b)in failing to give any weight to the fact that the appellant did not commit the offences to pursue a high life but rather to 'relieve financial pressure [he was] experiencing in other business activities … and to alleviate some financial burdens of other clients'."
The Background
The appellant, a chartered accountant and taxation agent had among his clients two companies, Albedor Holdings Pty.Ltd. and Albedor Industries Pty. Ltd. They were part of a group of companies ("Albedor") in which members of the Keurntjes family held the principal interests. The appellant's professional relationship with this group commenced in about 1989. In his sentencing remarks, the sentencing judge said of this association:
"You provided Albedor for many years with a conventional range of accountancy services, including overseeing financial systems and records, preparation and lodgement of taxation returns, advising about taxation and related matters, and financial management. Your office was the registered office for Holdings and Industries.
You prepared tax returns for Holdings, Industries and other corporate entities in Albedor. You would take the tax returns to the business premises of Albedor, and present them to members of the Keurntjes family, all directors of the companies. You would also prepare estimates of tax liability for the various entities. You would ask the directors to consider the tax returns and, if they were in order, to sign and return them to you, together with a cheque for the tax you had calculated.
Albedor did this, and it was the faith which Albedor and the members of the Keurntjes family had developed in you which led to them doing so."[1]
[1]T.74.
The circumstances relating to the commission of the various offences are set out for present purposes in the summary of evidence with which the Court has been provided.[2] It reads in part:
[2]There was no complaint in the proceeding with respect to the accuracy of this summary.
"The Extent of the Fraud
The funds involved in the counts relating to the Albedor Company cheques (all counts except 6 and 13) involved the misappropriation of $1,000,612.36 of company funds. The fraud on the Commonwealth resulted in the Australian Taxation Office issuing a refund that amounted to $75,124.88. Finally, the Appellant stole $11,597.00 of monies belonging to Albedor Industries Pty Ltd. In total, these crimes involve frauds and theft amounting to $1,087,334.24.
Count 13 - Defrauding the Commonwealth
The circumstances of this offence are succinctly covered in the Appellant's Record of Interview. In essence he admitted that during 2001 he had prepared and lodged an amended Taxation Return in relation to Albedor Holdings Pty Ltd. The return itself contained deliberately false information calculated to induce the Taxation Office into believing that the company's actual liability was less than originally stated and indeed it was successful in achieving that objective.
The Appellant further admitted that the funds that had originally been made available to meet the tax liability '… had been used by me fraudulently or incorrectly and so the company was left with a tax debt. At the time my intention was to clear the tax debt as much as I could to try and save my arse and I paid some money and lodged an amended return to reduce the amount of tax that had to be paid.'
The Appellant agreed that his actions had resulted in a reassessment of the apparent taxation liability of the company and the Australian Tax Office issued a refund cheque in the amount of $75,124.88. When asked what knowledge the company or anyone else associated with it had of his activities he replied 'None whatsoever.'
When asked what had become of those funds the Appellant explained that he had used $75,000 of the refund to clear a debt to the Albedor Group relating to a security they were keen to enforce but which the Appellant did not want to have enforced. In essence, he paid them with their own funds because, as he said, he expected other monies to become available for the purpose but they were three weeks late in arriving.
ALBEDOR HOLDINGS PTY LTD - COUNTS 1-5, 7-9 and 14
(a) Fraud relating to reputed tax payments
In the case of Albedor Holdings Pty Ltd, counts 1, 2, 3, 4, 5, 7, 8, 9 and 14 relate to the drawing of National Bank cheques on the company account with the specific intention that they were to be employed in meeting the Company's taxation liabilities from time to time. Those liabilities were advised to the company by the Appellant and the cheques were drawn accordingly based on his advice and representations. The particulars of the false representations are contained in the various counts.
Count 1 24 December 1997 $204,345.00
Count 2 12 June 1998 $51,086.00
Count 3 6 November 1998 $51,086.00
Count 4 24 December 1999 $35,770.00
Count 5 10 June 1999 $34,485.00
Count 7 1 September 1999 $34,485.00
Count 8 27 December 1999 $34,485.00
Count 9 26 May 2000 $23,553.24
Count 14 30 November 2000 $23,130.00
The cheques numbered 128 for $204,345.00 and 289 for $23,553.24 (counts 1 and 9) were deposited into the business account of DAVID ARUNDELL & CO. The funds represented by the former cheque number 128 (count 1) were divided into thirteen different amounts, and applied in favour of various entities and areas in which the appellant had an interest.
The funds represented by cheque number 289 (count 9) were utilised to clear a cheque for $43,185.70, which the appellant drew on his trust account. The payee of that cheque has not been identified.
The funds represented by the remaining cheques were eventually paid to the Australian Taxation Office through various Australia Post Offices utilizing the electronic tax payment facility operated by Australia Post on behalf of the A.T.O. These were deliberately diverted by the Appellant and applied to meet the taxation liabilities of a number of entities that were in no way associated to the Albedor Group but with which the appellant was either associated or had an interest. In some of these cases the funds were used to make payments of tax due by clients that he represented as tax agent. A large proportion of the amounts obtained as the result of these frauds ultimately reached the A.T.O. - but none of it was credited against the liabilities of the Albedor Group.
In order to succeed in these frauds documentation was fabricated by the Appellant and provided to Albedor Holdings Pty Ltd. These included documents purportedly issued by the Australian Taxation Office in the form of Income Tax Instalment Payment Reminder Notices relating to the tax liability of the company. They falsely represented that payments previously made by the company had been credited against its tax liability. They also led the company to believe that the tax liability specified in the notices was correct and that further payments were necessary and, when made, would be applied in reduction of its liability for tax.
The cheques subsequently drawn on the Company's National Australia Bank account are the subject of these counts.
ALBEDOR INDUSTRIES PTY LTD
(b) Fraud relating to reputed tax payments - Counts 10 & 15
(c) Theft - Count 6
Three cheques issued by the company are involved in these counts. The methodology of the fraud differed little in its execution from that involved in the case of Albedor Holdings Pty Ltd.
Count 6 10 June 1999 $61,597.00
Count 10 26 May 2000 $51,911.12
Count 15 30 November 2000 $56,276.00
In the case of Count 10 (cheque 5837) the Appellant fraudulently obtained a cheque representing some $51,911.12. The proceeds were converted by the Appellant to his own use. During the course of his interview it was suggested by him that the funds may have been applied in the direction of a body known as Team Spirit Sports Management.
The proceeds of the remaining two cheques were eventually to find their way to the A.T.O. through the Australia Post payment facility. However, so far as cheque 6207 was concerned (count 15), none of these funds were applied in favour of the company. Instead they were utilised to defray the tax liabilities of organisations unconnected with Albedor Industries Pty Ltd and with which the Appellant had some form of association or in which he maintained an interest. In some instances payments were made to meet the tax liabilities of other clients for whom he acted as tax agent.
Count 6 relates to the theft of $11,597.00. On 10 October 1999 a cheque numbered 5246 in the amount of $61,597.00 had been drawn and provided to the Appellant in order to meet perceived tax liabilities. Exactly $50,000.00 of these funds were paid by the appellant to the A.T.O. to defray the company's tax liability. The balance of these funds was converted to other uses similar to those previously mentioned and represents the theft of $11,597.00.
ALBEDOR HOLDINGS PTY LTD - COUNTS 11 & 12 - Investment in ING Bank
The Albedor Group possessed a cash reserve that was available for investment purposes and it sought the advice of the appellant early in the year 2000. Cheques totalling $400,000 drawn on the company's National Australia Bank account were provided to the Appellant for the specific purpose of investment on behalf of Albedor Holdings Pty Ltd. The funds were to be placed into an account with a financial institution known as ING Mercantile Mutual Bank for investment purposes. The investment was to be 'at call' but otherwise to attract an interest rate of 6.25% per annum calculated daily and payable monthly in arrears. The appellant did not invest the funds as required and used them for purposes of his own."
The Grounds
I propose to deal with the grounds in the order in which they were argued before us.
Ground 5
In 1997 a new set of provisions, Part 2B, was inserted into the Sentencing Act 1991. It related to a class of offender designated as a "continuing criminal enterprise offender". The relevant provisions read:
"6G. Application of Part
This Part applies to a court in sentencing a continuing criminal enterprise offender for a continuing criminal enterprise offence.
6H. Definitions for purposes of this Part
(1) In this Part -
"continuing criminal enterprise offence" means an offence referred to in Schedule 1A;
"continuing criminal enterprise offender" means an offender who is found guilty of -
(a)a continuing criminal enterprise offence and who in another trial or hearing or more than one other trial or hearing had been found guilty of 2 or more relevant offences;
(b)2 continuing criminal enterprise offences and who in another trial or hearing had been found guilty of a relevant offence;
(c)3 or more continuing criminal enterprise offences;
"relevant offence", in relation to a continuing criminal enterprise offence, means a continuing criminal enterprise offence of which an offender has been found guilty within the period of 10 years before the date on which the later offence was committed.
(2)For the purposes of the definition of "relevant offence" in sub-section (1), if an offence of which an offender has been found guilty was committed between two dates, the offence was committed on the earlier date.
6I. Increased maximum penalty for CCE offences
(1)A continuing criminal enterprise offender is liable, for a continuing criminal enterprise offence, to a maximum term of imprisonment of 2 times the length of the maximum term prescribed for the offence or 25 years, whichever is the lesser.
(2)This section has effect despite anything to the contrary in this or any other Act.
6J. CCE offender status to be noted on record
(1)A court that sentences a continuing criminal enterprise offender for a continuing criminal enterprise offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for a continuing criminal enterprise offence."
Schedule 1A of the Act encompassed the offences in counts 3, 10, 11, 12 and 15. On each of these counts, (obtaining property by deception contrary to s.81(1) of the Crimes Act 1958 where the property obtained is $50,000 or more), a sentence of imprisonment of 48 months was imposed; whereas on all other counts of obtaining property by deception, sentences of 36 months were handed down.
When opening the matter before his Honour the prosecution stated:
"Your Honour, the penalties in respect of all of these matters, save one for reasons I will come to in a moment, are a maximum of 10 years. Your Honour, by virtue of the plea to count 11, upon conviction, Your Honour, that plea will attract the provisions of the continuing criminal enterprise offender in the Sentencing Act under s.6(i). The effect of that is to double the penalty available or 25 years, whichever the lesser, in this case it's 20 years.
Your Honour, all of those counts relate to amounts of money exceeding $50,000 which is the prerequisite set out in Schedule 1A of the Sentencing Act in relation to these types of offences." [3]
[3]T.2.
It is to be noted that the prosecutor made no submission with respect to the specific offences that would attract the increased maximum penalty. Nor was any comment made by either the learned sentencing judge or counsel appearing for the applicant concerning this aspect.
At the end of the plea, the matter was mentioned again, on this occasion, by counsel for the appellant who informed the sentencing judge[4] that:
[4]T.72.
"I don't really wish to say anything. It's what I'm suggesting, you treat it as a package."
His Honour responded:
"Yes, I follow that."
Again nothing was said with respect to the counts that were affected.
I understand that the reference to a "package" was directed to an earlier submission by counsel in the course of the plea that there were a number of considerations to which regard must be had in the determination of an appropriate sentence and "All of these things, Your Honour, go into the package"[5] I interpret that remark as advancing the proposition that the increased maximum penalty applicable to a person designated as a continuing enterprise offender for a relevant offence was simply one of them. In other words, counsel submitted that it did not automatically follow that, because the provision was applicable, an increased sentence had to be imposed.
[5]T.66.
When sentencing the appellant the sentencing judge stated:
"For each of the offences of obtaining property by deception in counts 3, 10, 11, 12 and 15, by reason of Part 2B of the Sentencing Act, the maximum penalty is imprisonment for 20 years.[6]
…
I also direct that pursuant to s.6J of the Sentencing Act there be entered in the records of the Court that I have sentenced you in respect of counts 3, 10, 11, 12 and 15 as a continuing criminal enterprise offender within the meaning of that Act."[7]
[6]T.73.
[7]T.85. Whatever view was adopted in relation to identification of the offences that were to be regarded as "continuing criminal enterprise offences", it is evident that there was at least one and that a declaration was required.
Whilst counts 3, 10, 11, 12 and 15 generally involved larger amounts than the other counts, this was not the case in respect of counts 1 ($204,345.00) and 13 ($75,124.88), nor save by reason of the operation of Part 2B was any justification suggested in his Honour's sentencing remarks for the imposition of a sentence which was a third longer on each occasion that that imposed for identical conduct, bearing in mind that the remaining counts involved amounts of not dissimilar magnitude, ranging from approximately $23,000 to $36,000.
Before this Court, counsel for the appellant has argued that his Honour fell into error in two significant respects in his application of Part 2B. First, it was contended that, as the offences covered by counts 1 and 2 were committed prior to the provisions of Part 2B coming into effect on 1 July 1998, those offences could not be taken into account, however the provisions were otherwise applied. What was required before Part 2B became applicable, it was said, was the commission of three continuing criminal enterprise offences after the legislation came into operation. To hold otherwise, the argument proceeded, would give retrospective effect to penal provisions and contravene s.114(1) of the Sentencing Act (1991).[8]
[8]Section 114(1):
"If an Act (including this Act) or subordinate instrument increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.”
Whether approached as a matter of common law, the terms of Part 2B or by reference to s.114(1), there would seem to be no room for doubt that a person can only be sentenced as a continuing criminal enterprise offender for an offence committed on or after 1 July 1998. There is certainly nothing in the language in which the provisions are expressed which could give rise to the suggestion that Parliament intended to set to one side the long accepted principle of the common law incorporated into the Sentencing Act by s.114(1) nor could any such intention be inferred from the legislative policy underlying them. The position is, in my opinion, sufficiently apparent and the principles upon which this conclusion rests are so well recognized and entrenched to require no further discussion or the recitation of authority. It does not follow, however, from its acceptance that any qualifying offence must also have been committed during the period after the enactment come into effect. Indeed that view has not been adopted with respect to other categories of offenders who, by reason of the commission of a requisite number of relevant offences, the legislature has decided should be rendered subject to the operation of a more rigorous sentencing regime.
In making these statements, I am not unmindful of the differences in the provisions concerning serious violent offenders, serious sexual offenders, serious drug offenders serious arson offenders and continuing criminal enterprise offenders. To some extent those differences demonstrate the point. For example, in the case of serious sexual offences, many of the qualifying offences have not existed for many years and in relation to others, their elements have changed. There is no need to dwell upon these differences which can be seen to reflect the disparate forms of offending to which the provisions are applicable. What is evident is that a number of categories of repeat offenders, who in different ways have been perceived as constituting a special risk to the community, have been created. Persons who fall within these categories are regarded as potentially liable to the imposition of a significantly increased maximum term of imprisonment should they continue to offend in relevantly similar fashion.
As the Court remarked in Cowburn[9] with respect to sex offenders:
"It may be thought that among the principal considerations of Parliament in passing the 1993 Act was deterrence - both special and general. If a 'first-time' serial rapist is not to be regarded, throughout the sentencing process, as a 'serious sexual offender', there appears to be nothing in the 1993 Act to act as a general deterrent, except to those who have already been convicted of two serious sexual offences. In our view it is highly likely that Parliament intended to deter a much wider field, by saying to everyone, 'if you commit a series of serious sexual offences you will be dealt with harshly."
I would add that there is clearly a broader notion of the protection of the public also underlying these sets of provisions. Persons who by the commission of the required number of relevant offences have a demonstrated propensity to engage in serious criminal activity of a designated kind have been perceived as constituting a significant threat to the community which is entitled to protection through the sentencing process should they continue to offend.
[9](1994) 74 A.Crim.R. 385 at 392.
It is well recognized that that legislation is not regarded as having retrospective operation merely by reason of the possibility that the incidence or extent of potential liability for future conduct may be dependent upon the occurrence of past events. The sentencing judge in the present matter cannot be seen to have departed from this principle. The provisions in question attach no new legal consequences to facts or events which occurred prior to the commencement of the enactment under consideration in the sense that it interferes with any existing rights, duties or liabilities. They operate prospectively upon offences committed after commencement.[10]
[10]TAC v. Lanson [2001] 3 V.R. 250. See the authorities there cited at 268-9 per Phillips, J.A.
Parliament has, through the enactment of Part 2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community. That propensity may become apparent in the case of the commission of a relevant offence on or after 1 July 1998 when regard is had to other similar offences whether committed before or after that date.
The second basis upon which it was contended that his Honour fell into error with respect to the operation of Part 2B related to the manner in which the provisions would operate.
Counsel for the appellant submitted that it was only after the commission of a third qualifying offence and not upon its commission that an offender would be liable to the increased maximum penalty.
In support of this argument, reliance was placed upon a passage in the Explanatory Memorandum of the Confiscation Bill (1997), in which the relevant provisions were contained, when it was introduced before Parliament. It reads:
"Clause 148 provides a new maximum sentence for a person who is found to be a 'continuing criminal enterprise offender'. A continuing criminal enterprise offender is a person who commits a third or subsequent continuing criminal enterprise offence within ten years of having been convicted of at least two other continuing criminal enterprise offences. The offences which may constitute a continuing criminal enterprise offence are listed in clause 149. If a person is being sentenced in relation to a continuing criminal enterprise offence and that person is at that time a continuing criminal enterprise offender, the maximum term of imprisonment which may be imposed in relation to a continuing criminal enterprise offence is two times the length of the maximum term prescribed for the offence (for example, of theft) or 25 years, whichever is the lesser."[11]
[11]At p.53.
In my opinion, the Explanatory Memorandum provides little assistance to the appellant and the contention can be dealt with very briefly. The legislation makes it clear that a person is designated as a continuing criminal enterprise offender upon conviction for a third relevant offence. When subsequently sentenced for that offence, he or she is clearly at that time within the category. Again there is no reason in principle nor is there any justification as a matter of statutory interpretation for not attributing to the words of the provision this obvious meaning and effect.
It follows from what I have said that I do not consider that the learned sentencing judge fell into error in determining that the appellant was to be treated as a continuing criminal enterprise offender when determining the sentences to be imposed on counts 3, 10, 11, 12 and 15.
The more difficult question which arises in this matter is whether the exercise of the sentencing discretion by his Honour miscarried, by what appears to have been, the effecting of an automatic increase in the penalties imposed on those counts as a consequence. As I have earlier indicated, there was no discussion of the manner in which the provisions of Part 2B should apply in the particular circumstance. The sentencing judge did not address the matter in his remarks and the sole basis of distinction between the penalties imposed on the various counts appears to have been whether the amount involved fell on one side or the other of the figure of $50,000. In the absence of any reasons to explain the difference in the penalties imposed, I consider that serious doubt must exist as to whether proper regard was had in the circumstances of the particular matter before the Court in the determination of what, if any, differential was required between the sentences handed down for the offences subject to an increased maximum penalty and those which were not.
Accordingly I am of the view that his Honour may well have fallen into error in this respect and that the sentencing discretion should be regarded as reopened.
Grounds 1 to 4
These grounds raise essentially a complaint that the total effective sentence, the individual sentences imposed and the non-parole period fixed with the various assertions advanced being in the nature of particulars to support this contention.
In his written outline of submissions counsel for the appellant summarized the matter to which the attention of the Court was directed as follows:
"It is submitted that the following factors dictate that it is reasonably arguable that the individual sentences, the total effective sentence and the non-parole period are outside the range properly open in the circumstances:
(a)full admissions to the complainants;
(b)full admissions to police;
(c)co-operation with police;
(d)plea of guilty at the earliest opportunity and early indication of same;
(e)true remorse;
(f)absence of prior convictions;
(g)otherwise positive good character and unlikelihood of committing further offences;
(h)loss of profession and career;
(i)repayment of $430,760.95 and lack of opposition to payment in full of the balance owing to the Company;
(j)absence of profligacy as a motive for offending but, rather, an attempt to relieve financial pressure in his other business activities and to alleviate some financial burdens of other clients;
(k)personal difficulty, depression and associated impairment of judgment at the time of offending;
(l)prospects of rehabilitation.
The errors made in the application of the CCE offender provisions [led] the learned sentencing judge to give greater weight to matters such as general deterrence, and less weight to mitigating factors (such as the pleas of guilty), than would otherwise have been the case."
Save with respect to the assertion made concerning "the absence of profligacy as a motive for offending" to which I will return, no argument has been advanced that his Honour failed to take into account any of the considerations listed. Indeed, no such argument would have been sustainable as, in his carefully expressed sentencing remarks, the learned sentencing judge has made it apparent by specific references to all save one of the separate factors listed that he was concerned to attribute proper weight to each of them and there is no reason to doubt that he directed attention.
I am unable to detect any error of commission or omission in those remarks nor, save as I have earlier indicated with respect to the operation of part 2B, can any be discerned from the dispositions at which he arrived.
Ground 3
At one stage in his sentencing remarks, his Honour stated:
"I was told that you have always followed a comparatively modest lifestyle and have not been materially acquisitive. You apparently do not gamble. I was told that you have not used the proceeds of these offences for lavish or extravagant entertainment, recreation or asset accumulation. What you did with the funds was to seek to relieve financial pressure you were experiencing in other business activities of your own, and to alleviate some financial burdens of other clients.
In doing so you either gained or sought to gain financial benefit directly and indirectly It is not to the point that you did not dissipate funds which were not yours to use in gambling or in pursuit of a high life. However you chose to spend Albedor's money, you had no right to do as you did. You did derive, and endeavoured to derive, advantage for yourself in doing so."[12]
[12]T.78.
In this passage, the judge appears to have been responding to an argument advanced by counsel appearing for the appellant that as his client's motivation for engaging in these offences was to secure relief from financial pressures rather than the presence of a desire to use the proceeds for gambling or high living, a less serious view of his conduct should be taken. Whether or not a distinction of this kind can be usefully made for sentencing purposes in a given case will of course depend upon the circumstances of the offence and offender concerned. Whilst the effect upon the victim will remain the same, whatever may be the reason for or pressures underlying the commission of an offence, the motive for embarking upon the activity can assume relevance in a number of different ways. It may bear, for example, upon the genuineness of any expression of remorse, the need for specific deterrence or the prospects of the offender's rehabilitation. Sometimes, but I suspect only in extremely rare circumstances, the presence of extreme financial pressures might mitigate the level of culpability of an individual who breaches the trust reposed in him to the extent and the manner evidenced in the present case.
I do not interpret the sentencing judge's statement as saying anything more than that the appellant could hardly claim any credit for the use to which he put moneys that he had obtained by systematically defrauding clients to whom he
presented himself as a person of integrity because he used it to deal with his own financial problems rather than some other and possibly even less meritorious purpose.
In this context, I would endorse the remarks of his Honour:
"The nature and extent of your offending, both by its duration, which exceeded three years, and its extent, with an aggregate value exceeding $1 million, is of such gravity that no lesser disposition would be adequate. The importance of general deterrence, especially given the betrayal of trust involved and the sustained nature of your offending over a lengthy period, influence the length of your sentence."[13]
[13]T.82
Nevertheless, it follows that by reason of the view at which I have arrived concerning his Honour's application of the provisions of Part 2B of the Sentencing Act that I consider that this appeal should be allowed and the sentencing discretion reopened. As I do not consider that there is on the material before the Court an adequate justification in the present matter for differentiation between the penalties imposed for identical offences on the basis of the variations of the amounts involved, I propose that the sentences imposed on counts 3, 10, 11, 12 and 15 be set aside and that on each count a sentence of 36 months be substituted. Otherwise I would confirm the sentences handed down in the Court below and the orders for cumulation. This would create a total effective sentence of six years' imprisonment in respect of which I propose that a non-parole period of four years be fixed.
CUMMINS, A.J.A.:
I agree with Vincent, J.A.
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