R v Hare

[2007] NSWCCA 303

New South Wales
Court of Criminal Appeal

CITATION:	R v HARE [2007] NSWCCA 303
HEARING DATE(S):	24 September 2007
JUDGMENT DATE:	25 October 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Adams J at 33; Harrison J at 34
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – s5D appeal against sentence – obtaining a financial benefit by deception – share trading scheme – fraudulent representations made to induce victims to invest money – matter re-listed for magistrate to put into effect the finding of special circumstances – evidence of respondent’s son’s negative reaction to respondent being in custody – whether sentence manifestly inadequate
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Hawkins (1989) 45 A Crim R 438 MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372 Pearce v The Queen (1998) 194 CLR 610 Pont (2000) 121 A Crim R 302 R v Burrell [2007] NSWCCA 79) R v Hernando [2002] NSWCCA 489
PARTIES:	The Crown (Appl) Gregory Jordy Hare (Resp)
FILE NUMBER(S):	CCA 2007/3220
COUNSEL:	G Rowling (Crown/Appl) H Dhanji (Resp)
SOLICITORS:	Director of Public Prosecutions (Appl) Legal Aid Commission of NSW (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/1029
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ
LOWER COURT DATE OF DECISION:	30 March 2007 14 May 2007

2007/3220

McCLELLAN CJ at CL
ADAMS J
HARRISON J

THURSDAY 25 OCTOBER 2007

R v HARE, Gregory Jordy

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent in relation to 14 charges of obtaining a financial benefit by deception contrary to the provisions of s 178BA of the Crimes Act 1900. The maximum penalty for each offence was imprisonment for a term of 5 years. The sole ground of appeal is that the sentences imposed are manifestly inadequate.

2 The respondent pleaded guilty to the offences which were described in the following terms:

“That on various dates between 17 June 2003 and 7 December 2005, at Northbridge, Winston Hills and Castle Cove, he dishonestly obtained a financial benefit from each of Nick Ross, Steven Armbrister, Keith Logan, Gerald Steinmann, Tim Kamsler, and Simon Kelly;
(i) Count 1: On 17 June 2003, $50,000 from Nick Ross;
(ii) Count 2: On 11 August 2003, $100,000 from Steven Armbrister;
(iii) Count 3: On 19 August 2003, $50,000 from Nick Ross;
(iv) Count 4: On 18 December 2003, $549,722 from Nick Ross;
(v) Count 5: On 3 August 2004, $15,000 from Keith Logan;
(vi) Count 6: On 23 September 2004, $30,000 from Keith Logan;
(vii) Count 7: On 19 November 2004 $10,000 from Gerald Steinmann;
(viii) Count 8: On 1 December 2004, $211,500 from Nick Ross;
(ix) Count 9: On 16 March 2005, $250,000 from Nick Ross;
(x) Count 10: On 11 August 2003, $30,000 from Steven Armbrister;
(xi) Count 11: On 27 October 2005, $100,000 from Tim Kamsler;
(xii) Count 12: On 7 December 2005, $30,000 from Tim Kamsler;
(xiii) Count 13: On 8 December 2005, $35,000 from Simon Kelly; and
(xiv) Count 14: On 30 September 2005, $30,000 from Steven Armbrister.”

3 At the same time as he was sentenced for count 4 the respondent asked his Honour to take into account pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999, 12 further offences of obtaining a financial benefit by deception from Nick Ross.

4 On 30 March 2007 the sentencing judge taking into account the further offences sentenced the respondent as follows:

“(a) For Count 1: a fixed term of imprisonment for 4½ months commencing on 8 June 2006 and expiring on 23 October 2006;
(b) For each of Counts 2 and 3: concurrent fixed terms of imprisonment for 9 months commencing on 8 August 2006 and expiring on 7 March 2007;
(c) For Count 5: a fixed term of imprisonment for 6 months commencing on 8 October 2006 and expiring on 7 April 2007;
(d) For Count 6: a fixed term of imprisonment for 6 months commencing on 8 December 2006 and expiring on 7 June 2007;
(e) For Count 7: a fixed term of imprisonment for 6 months commencing on 8 February 2007 and expiring on 7 August 2007;
(f) For Count 10: a fixed term of imprisonment for 9 months commencing on 8 April 2007 and expiring on 7 January 2008;
(g) For Count 8: a fixed term of 15 months commencing on 8 June 2007 and expiring on 7 September 2008;
(h) For Count 9: a fixed term of 15 months commencing on 8 September 2007 and expiring on 7 December 2008;
(i) For Count 11: a fixed term of 12 months commencing on 8 December 2007 and expiring on 7 December 2008;
(j) For each of Counts 12, 13 and 14: concurrent fixed terms of imprisonment for 9 months commencing on 8 February 2008 and expiring on 7 November 2008; and
(k) Taking into account the offences that she was asked to take into account, for Count 4: a non-parole period of 21 months commencing on 8 June 2008 and expiring on 7 March 2010 and a parole period of 15 months commencing on 8 March 2010 and expiring on 7 June 2011.”

5 The sentencing judge found special circumstances. The aggregate non-parole period fixed by her Honour for all of the offences was 3 years and 9 months and the total parole period was one year and 3 months. The total sentence was a term of 5 years.

6 On 14 May 2007 her Honour relisted the matter. The transcript records her Honour as saying:

“I listed Matter because I realised when I got the remarks to correct that I hadn’t put into effect my finding of special circumstances and so I would like to well, I propose unless I am persuaded to the contrary to amend the sentence to reflect my finding of special circumstances. Do either of you wish to be heard about that?”

7 Both the prosecutor and counsel for the respondent told her Honour that they did not wish to be heard. Her Honour then proceeded to vary the sentence imposed on count 4 by reducing the non-parole period from 21 months to 16 months. This had the effect that the aggregate non-parole period was reduced from 3 years and 9 months to 3 years and 3 months with the total sentence remaining the same.

8 After her Honour had announced the varied sentence she was asked by the prosecutor whether her Honour had previously particularised the basis of the finding of special circumstances. Her Honour said that she had and repeated the paragraph from her remarks on sentence which said:

“I consider it desirable to vary the statutory ratio and extend the period of parole because of the offender’s very real need for supervision upon his release, drive, alcohol, gambling and mental health issues and the hardship occasioned to his son Lachlan by his absence.”

9 The jurisdictional basis for her Honour’s decision to vary the sentence is not clear. Although it was suggested that s 43 of the Crimes (Sentencing Procedure) Act 1999 would authorise the variation this is not immediately apparent. It may be that a slip has occurred or that the order not having been perfected the proceedings could be reopened (R v Burrell [2007] NSWCCA 79). However, it is unnecessary to resolve this question the Crown conceding that there was jurisdiction in the present case.

10 The Crown did not appeal against the initial sentence. It was only after the non-parole period was varied that on 24 May 2007 the Director of Public Prosecutions signed a notice of appeal under the provisions of s 5D of the Criminal Appeal Act. This was almost 2 months after the original sentences were imposed.

Facts

11 I have taken the following account of the facts from the sentencing judge’s remarks:

“(a) In August 2002, when he employed by Investec Bank Ltd as a financial banker, the respondent was approached by Nicholas Ross and Keith Logan for Finance to establish a national helicopter rescue programme. Although the venture did not proceed, Ross and Logan kept in friendly contact with the respondent.
(b) Count 1:
After the respondent had left the employ of Investec Bank Ltd in December 2002, in June 2003 he contacted Ross and told him he had done so. He told Ross that he had bought gold options worth $100,000 and offered Ross a one half interest for $50,000. On 17 June 2003 Ross decided to invest with the respondent and paid him $50,000 by cheque. The respondent deposited the cheque in a bank account held jointly with his wife and converted the proceeds for his personal use; he did not buy gold or gold options with them.
(c) Count 2:
The respondent had met Steve Armbrister in 1998 when their sons were in the same year at school; the families became close and socialised together on a weekly basis.
Armbrister understood that the respondent was involved in investment banking while he was employed at Investec Bank Ltd and the respondent had told him that he had left Investec Bank Ltd to engage in day trading at home. On numerous occasions in 2002 and 2003 the respondent offered Armbrister an opportunity to purchase gold options.
As a result of those offers, on 11 August 2003 Armbrister paid the respondent $130,000 by cheques for the purchase of gold options. The respondent withdrew the funds and converted them for his personal use. He did not buy gold or gold options with them. He used $60,500 of them to pay to Ross as a return on his initial investment made on 17 June 2003.
(d) Count 3:
In mid-August 2003 the respondent told Ross that Ord Minnett, brokers, had offered him $100,000 worth of gold futures and asked him if he was interested in going fifty - fifty with him in the purchase of them. Believing that he had recently received a return on his original investment, and after the respondent had said that he would finance the other half, Ross decided to invest and on 19 August 2003 paid the respondent $50,000 for the purpose of investing in gold options. The respondent converted that sum to his own use and did not purchase any gold options. Ross believed that he was entering a business relationship with the respondent and asked him to put the terms of that relationship into a partnership agreement for them both to sign. On 1 September 2003 Ross and the respondent signed a document entitled "Memorandum of Understanding", dated that day, which the respondent represented to Ross had been drawn by a Sydney law firm. From then on Ross and the respondent communicated on a daily basis to discuss strategy for trading in gold futures and. on many occasions the respondent sent Ross a summary of transactions that: he purported to have undertaken on their behalf.
(e) Count 4:
In late 2003 the respondent told Ross that he had been offered a large number of gold options and asked if Ross was interested in funding half. Ross decided to invest the return on the sale of his house with the respondent in gold and gold options. The respondent told Ross that he had sold a property and that he had received a profit of about $400,000 on its sale. Believing that they would be making equal contributions, Ross sent the respondent $549,722 by cheque. The respondent converted that money to his personal use.
On 24 December 2003 the respondent sent Armbrister $160,225, as a purported return on his investment out of moneys received by him in October and November 2003 from the sale of properties.
Between 23 April 2004 and 30 June 2004 Ross spoke to the respondent about setting up their relationship as a company so that they could keep relevant paperwork up to date and improve tax benefits, and the respondent said that he would set up a company in the name of NRGH Nominees Pty Ltd and open a bank account for it. Ross signed documents prepared by the respondent purportedly for this purpose.
In June 2004 Ross expressed a concern to the respondent that should the respondent die, he might have difficulty in retrieving what he believed to be his share of the trading profits and on 30 June 2004 the respondent sent Ross a copy of a letter which he said he had sent to Messrs Minter Ellison, solicitors, about amending his will in favour of Ross. He sent no such letter and Messrs Minter Ellison did not hold his will at the time.
(f) Count 5:
In August 2004 after speaking to Ross about the profit that Ross thought he was making from gold trading, Keith Logan decided to invest money in the respondent and spoke to him at Neutral Bay about participating in the scheme. The respondent told Logan that he could invest $15,000 to purchase gold for which he claimed to have options. Logan transferred $15,000 to the respondent's bank account which the respondent used for its own purposes.
(g) Count 6:
On 23 September 2004 at a meeting at Neutral Bay, Logan paid the respondent $30,000 by cheque asking that it be invested in the share trading portfolio of Ross and the respondent. The respondent used the money for his own personal use.
(h) Count 7:
From about 1998 the respondent and Gerald Steinmann were acquainted through the respondent's sons being in bands of which Steinmann was bandmaster; Steimmann believed that the respondent worked in the investment industry, and on regular occasions the respondent and Steinmann discussed business matters.
In October 2004 the respondent told Steinmann that he was making money investing for himself and other people and offered Steinmann the opportunity to be involved in his investment scheme.
On 3 November 2004 by e-mail the respondent sent Steinmann an outline of his current financial trading portfolio and asked Steinmann if he wished to invest. On 19 November 2004 Steinmann paid the respondent $10,000 by cheque as an investment in the share portfolio. The respondent did not purchase options with the money.
(i) Count 8:
On 1 December 2004, as a result of a conversation with the respondent, Ross sent him a cheque for $211,500 for the purpose of investing in further share options. The respondent converted the money for his own use and did not purchase shares with it.
On 15 December 2004 the respondent deposited in Logan's account $5,000 obtained from other victims of his fraudulent activity.
(j) Count 9:
In late 2004 the respondent and Ross discussed the possibility of cashing in their superannuation schemes and depositing the proceeds in the NRGH and Nominees trading account. Ross believed that the proposal was to provide the share trading scheme with extra liquidity for share purchases.
On 14 February 2005 Ross sent the respondent $250,000 from his superannuation fund by cheque payable to NRGH Nominees Pty Ltd. Since there was no bank account in that name, the cheque could not be deposited; the respondent asked for a further cheque for the same amount, and Ross provided it to the respondent. Ross understood that the respondent would use the funds to invest in share purchases. The respondent deposited the cheque in a sub account of the personal account of the respondent in the name of the respondent and NRGH Nominees Trading which was set up on 31 March 2005 with an initial deposit of that cheque. The respondent converted the money for his personal use and did not purchase shares with it.
(k) Count 10:
On 29 September 2005 the respondent left messages on Armbrister's telephone asking to speak to him. On 30 September 2005 the respondent told Ambrister that he had an investment opportunity in the oil options and asked Armbrister if he wished to contribute. He told Armbrister that he would have to provide the funds by 2 p.m. that day and that the scheme involved a guarantee.
Armbrister paid the respondent $30,000 in cash and by cheque. The respondent did not buy oil or oil options with the money.
(1) Count 11:
In about 2006 Tim Kamsler met the respondent through their sons being in the same class at school. Kamsler understood that the respondent was a successful market trader and they spoke about the stock market and trading in gold share. The respondent had told Kamsler that he was involved in investing shares, futures and options with Ross.
On 26 October 2005 respondent left a message on Kamsler's mobile phone asking if he would like to invest in gold options, which, if not taken up, would lapse that day. The respondent told Kamsler that the return was about 30% over a six to seven week period with the options maturing into mid-December 2005.
Kamsler agreed to invest $100,000 and on 27 October 2005 forwarded a cheque for $100,000 to the respondent for that purpose. During a discussion about the investment later that day the respondent told Kamsler that he had enabled Armbrister, known to Kamsler, to purchase his dream home; he asked Kamsler not to speak to Armbrister because Armbrister wanted to keep the trading scheme confidential. The respondent did not purchase options of gold with the money.
(m) Count 12:
On 7 December 2005 the respondent sent a message to Kamsler asking him if he had any more spare cash and that he had more options for a one week period with a maturity date of 14 December 2005.
Kamsler agreed to invest $30,000 and at the request of the respondent deposited that sum in the account of Graeme Hare, the respondent's father. The respondent converted the proceeds to his own use.
(n) Count 13:
In December 2003 Armbrister introduced Simon Kelly, a self-employed computer technician, to the respondent and over two years Kelly went often to the respondent's home to service and repair his electronic equipment.
Kelly understood from the respondent that he had retired after a successful career in finance. The respondent told Kelly that he was trading from home and making money from gambling on horses and had helped many people out of financial difficulties.
On 7 December 2005 at his home, the respondent offered Kelly a copper option contract expiring in one month with a "built-in upside of approximately 35%" he told Kelly that he was going to insure the options to ensure that no loss could be incurred and that he had a capital gains loss that could be applied.
Kelly told the respondent that he had $35,000 to invest and the respondent told him he needed the answer by four o'clock the following day. The respondent told Kelly that he would take whatever share was left of the $100,000. On the following day Kelly told the respondent that he would invest in it. The respondent told Kelly that he would get Ord Minnett to email him a copy of the contract.
At the request of the respondent Kelly deposited $35,000 into the account of the respondent's father. The respondent converted the money to his own personal use and did not purchase copper or copper options.
(o) Count 14:
On 23 December 2005 the respondent telephoned Armbrister and told him that he had an investment opportunity in gold and guaranteed him a return on whatever he invested when the market reopened in the New Year; he told him that he would get his money back in January with a profit of 50% and that he needed cash by 2 p.m. that day.
That day Armbrister drew $10,000 in cash and paid it to the respondent for the purpose of the best in gold. The respondent did not buy gold options with it.”

12 The further matters which the respondent asked her Honour to take into account when sentencing for count 4 were a further 12 occasions when the respondent dishonesty obtained monies from Nick Ross totalling over $850,000 by representing to him that he was making investments in which he invited him to participate, whereas in fact he was making no such investments and was applying those sums for other purposes.

13 The total amount by which the victims were defrauded was approximately $2 million. The respondent used part of the money obtained from his victims for the purpose of repaying monies received by him from others and at the same time telling them that the payments were returns upon their investments. The sentencing judge found that the emotional impact of the losses upon the victims would have been devastating. Her Honour found that counts 4, 8 and 9 involved a degree of planning that increased their objective seriousness.

14 In May 2005 the respondent told Ross that they should conclude their dealings in gold and that as a result of their profitable trading they would receive $28 million to share between them. On 23 May 2005 the respondent and Ross had a celebratory dinner and in mid-May 2005 after discussing the matter with the respondent, Ross ordered two Porsche cars for himself and his fiancée to be paid for out of the NRGH Nominees Pty Ltd account. After purchasing them Ross found that the account contained insufficient funds. The respondent sent a cheque to the vendor of the cars which released them to Ross. The cheque was dishonoured and the respondent pretended to attempt to pay the vendor for them. The vendor never received money from the respondent and Ross and his fiancée paid for them out of moneys available to them.

15 On 12 August 2005 Ross discovered that there were no accounts at Westpac Banking Corporation in the name of “NRGH Nominees Pty Ltd.” On 16 August 2005 as a result of civil action taken by Ross, the respondent’s assets were frozen and on 14 December 2005 the respondent, who was present, was made bankrupt in the Federal Court of Australia. Between 16 December and 22 December 2005 the respondent drew cheques in favour of Logan, and Kamsler, each of which was dishonoured. Count 14 was committed by him after the date upon which he became bankrupt.

16 The respondent took advantage of friendships made with the victims and obtained from each of them, and especially from Ross, substantial sums of money. He had never traded with Ord Minnett; he did not cause the incorporation of any company called NRGH Nominees Pty Ltd; he used moneys obtained by him from the victims for family and personal expenses and did not make investments as he had said he would.

Subjective circumstances

17 The respondent was aged 37 when he began these criminal activities. He had no prior convictions and the evidence before the sentencing judge disclosed that he had been a hard working family man who was active in the community. Until December 2002 he was employed in an executive position from which he earned approximately $400,000. He left this position when his employer found he was having difficulties servicing his loan which had increased to $1.5 million and was asked to repay it. To meet this obligation he sold all of the property he owned which included his own home. He nevertheless tried to maintain the lifestyle he had enjoyed when he was working.

18 The evidence indicates that the respondent’s difficulties resulted from a cocaine dependency together with an addiction to alcohol and problems with excessive gambling. It was suggested that his addictions had resulted from problems in his marriage and more particularly the stress of caring for a son who suffers from Asperger’s Syndrome. At the beginning of 2006 he was a patient for 5 weeks in the North Side Clinic where he was treated for depression, alcohol and cocaine dependence. He was treated by a psychiatrist who diagnosed the respondent as suffering from a mood disorder, either drug induced or an underlying bipolar mood disorder, and a pathological gambling disorder.

19 The evidence indicated that since his arrest the respondent has stopped using drugs and with professional help had restored his mental health.

20 The sentencing judge accepted that the respondent has good prospects of rehabilitation and is unlikely to reoffend. He pleaded guilty and the sentencing judge allowed a discount of 25% to reflect the utilitarian value of his pleas. He had shown remorse.

21 A significant subjective factor and one which is of particular concern in the resolution of this appeal is the situation of the respondent’s son Lachlan. Aged 13 at the time of sentencing Lachlan suffers from Asperger’s Syndrome. This has resulted, as is not unusual in people with that condition, in Lachlan becoming socially isolated with a variety of obsessive tendencies. He has developed a strong attachment to the respondent. Since the respondent entered custody Lachlan has stopped attending school and has been diagnosed with severe depression and a dissociative disorder. The evidence indicates that these conditions were a reaction to the respondent’s absence. The ideal position for Lachlan would be if he could be with his father. Her Honour treated these circumstances as of sufficient significance to qualify as special circumstances allowing for a reduction of the non-parole period.

Consideration

22 The offences which the respondent committed were of considerable gravity. They were committed against a number of victims with whom he had formed friendships. They were committed over a considerable period of time and involved very considerable sums of money. They involved a complex of falsehoods and misrepresentations created by the respondent. There can be no doubt that the offences justified the imposition of substantial penalties (see Pont (2000) 121 A Crim R 302; Hawkins (1989) 45 A Crim R 438).

23 The sentence which was appropriate for count 4 was required to reflect the further 12 offences which were to be taken into account pursuant to s 33 of the Act. (see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

24 The Crown submitted that the multiplicity of short sentences imposed by her Honour reflect a failure to fix appropriate sentences for each offence as required by Pearce v The Queen (1998) 194 CLR 610. It was submitted that each of the individual sentences was inadequate and by providing the extent of concurrency reflected in the sentences the sentencing judge failed to properly consider questions of cumulation, concurrence and totality. It was further submitted that her Honour failed to have proper regard to the fact that there was more than one victim.

25 It was further submitted that her Honour had given inappropriate weight to the respondent’s subjective circumstances and failed to impose sentences that properly reflected the objective seriousness of the offences.

26 Particular criticisms were made of the sentencing judge’s ultimate determination of the appropriate non-parole period. On the initial sentencing occasion her Honour both found special circumstances but also said “in my view no less a custody component can be imposed in this case.” Notwithstanding that finding, after her Honour had recognised that the sentences which she had imposed did not reflect the finding of special circumstances her Honour varied the non-parole period by reducing it by 6 months.

27 The principles relevant to the determination of a Crown appeal against the inadequacy of a sentence are well known. In MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372 I said:

“This Court has, on many occasions, taken care to emphasise the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 where his Honour said:


‘… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error or latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2001] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons” per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less from that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen para 62.’

Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said:

‘The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.’

In Dinsdale Gaudron and Gummow JJ said:

‘In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been “upon the facts …. Unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance” was the sentence manifestly wrong’.” [22]

28 In the present case in my judgment the sentences which the sentencing judge imposed were below the appropriate range. Each of the offences was serious and deprived the victim of very considerable sums of money. They were committed over a very significant period of time and involved a complex of fraudulent representations designed to obtain monies from people who had placed their trust in the respondent. The objectives of punishing the respondent and deterring others in my view required a more significant sentence. There are decisions which, as would be expected, reflect a variety of sentences imposed for similar offences. I have included as an annexure a table of matters where the sentence imposed has been reviewed by this Court. The repetition of fraudulent acts committed by the appellant and the significant sums of money involved would mean that the appropriate sentence should have been at the higher end of this range.

29 However, there are two factors by which I am persuaded that this Court should not intervene. Firstly, notwithstanding that the respondent was initially sentenced on 30 March it was not until after his sentence had been varied on 14 May that an appeal was lodged. At the time the sentence was varied no submission was made to her Honour which indicated that the Crown was in any way concerned with the sentence which her Honour had imposed and no submission was put in opposition to a reduction of the non-parole period. In these circumstances the respondent was entitled to believe that the sentence which had been imposed and varied would not be challenged. These circumstances significantly increased the burden of the later Crown appeal.

30 The other factor is the circumstances of the respondent’s son Lachlan. Those circumstances played a significant part in the ultimate sentence, particularly the non-parole period which her Honour imposed.

31 In my opinion her Honour was correct to have regard to those circumstances when determining the appropriate sentence. Although I am of the opinion that the result which her Honour arrived at was excessively lenient the impact of resentencing and, in particular, increasing the non-parole period would be very considerable on Lachlan. The combination of these matters leads to the conclusion that this is a matter where the discretion of which Heydon JA spoke in R v Hernando [2002] NSWCCA 489 should be invoked and the appeal dismissed.

Order

32 Appeal dismissed.

33 ADAMS J: I agree with McClellan CJ at CL.

34 HARRISON J: I agree with McClellan CJ at CL.

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Section 178BA Crimes Act 1900 Cases

Case	Charge	Other matters taken into account	Sums taken & offence duration	Sentence	Appeal Result	Appeal digest
Itaoui v Regina [2006] NSWCCA 273	9 counts of obtaining a financial advantage by deception, s 178BA Crimes Act 1900	10 similar offences on Form 1 & a further offence of attempt to obtain a benefit by deception	Total of $424,198.52 taken over approx 1 year period	Total effective sentence : 3.5 years (2 year non-parole with an additional term of 18 months.) Count 1: 1 month imprisionment to commence on 12 September 2005 Count 4: 4 months imprisionment to commence on 12 September 2005. Counts 2, 3, 6 and 9: On each count, 12 months imprisionment, non-parole period of nine months: both to commence on 12 September 2005. Count 8: 16 months imprisionment, non-parole period of 12 months: both to commence on 12 September 2005. Count 5: Taking into account the one matter on Form 1: 18 months imprisionment, non-parole period of 12 months: both to commence on 12 March 2006. Count 7: Taking into account the ten matters on the Form 1: 2 years imprisionment, non-parole period of six months: both to commence on 12 March 2007.	Dismissed	Issues: Whether insufficient discount for guilty plea given, error in failing to apply properly s 23(3) of the Sentencing Procedure Act 1999, failure to properly to take into account medical evidence in imposing custodial sentence, error in failing to take into account delay between time of committing of offences and ultimate sentencing. Circumstances: Male; Employed as a legal clerk, Dealt with the firm’s trust account, Misappropriated trust funds, Breach of trust. Held: Applicant given benefit of discount at top of range, Court not satisfied that delay worked unfavourably to applicant.
Regina v Shane Pollard [2006] NSWCCA 405	29 counts of Obtain Money by Deception	In total $92,164.48 taken over a 3 year period	Total effective sentence : 2 years imprisionment (Suspended) On each of 2 offences: 2 years imprisonment, comprising a non parole period of 15 months and balance of term of 9 months On each of the remaining 27 offences: 12 months imprisonment	Dismissed	Crown appeal against inadequacy of sentence. Issues: Whether appropriate weight given to prior good character. Whether court should exercise discretion not to intervene. Circumstances: Male; 36; Guilty plea; Transferred money from employer’s account; Prior good character; Position of trust; Depression. Held: In view of the respondent’s continued employment and genuine intention to reimburse his former employer, the restraint inherent in Crown appeals should be exercised in the circumstances of this case
Mitchell v Regina [2006] NSWCCA 72	13 counts of Obtain Money by Deception, s178BA Crimes Act 1900	Total of $302,099.34 taken over a 3 year period	The total effective sentence : 8 years imprisonment with 5 years non-parole. Counts 1–4 : On each count, a fixed term of 2 years and 5 months’ imprisonment to date from 14 January 2005, expiring 13 June 2007. Counts 5–8 : On each count, a fixed term of 2 years and 5 months’ imprisonment to date from 14 June 2007, expiring on 13 November 2009. Counts 9–13 : On each count, a non-parole period of 2 months to date from 14 November 2009, expiring on 13 January 2010, the balance of the term being 3 years to expire on 13 January 2013.	Sentence Appeal Allowed	Re-sentence: 5 years' imprisonment (non-parole 3 years 2 months) substituted. Issues: Whether individual and total sentences manifestly excessive. Circumstances: Male; 46 at sentence; Guilty plea; Accountant to charity organisation; Made unauthorised electronic fund transfers; Breach of trust; No prior convictions; Remorse. Held: Failure to impose appropriate sentences for individual offences before considering total sentence.
Regina v Kilpatrick [2005] NSWCCA 351	65 charges obtaining money by deception, s178BA Crimes Act 1900	Total of $2,669,243 taken over a 3 year period	Total effective sentence: 7 years imprisonment (non-parole 4 years 6 months) Counts 1-12 in the first group of offences: fixed term of 2years on each count to be served concurrently commencing on 2 April 2004 and expiring on 1 April 2006 Counts 1-49 in the second group: 1 year fixed term on each count to be served concurrently commencing on 2 April 2006 and expiring on 1 April 2007 Counts 50-53 in the third group: concurrent sentences comprising a non-parole period of 18months with a balance of term of 2 years 6 months on each count commencing on 2 April 2007	Dismissed	Issues: Whether reference to multiple victims as aggravating factor erroneous where multiple charges, whether failure to give proper discount for guilty plea and properly apply principles R v Pearce. Circumstances: Male; 37-40; Guilty plea; Group of offenders fraudulently obtained $2.6 million worth of property; Fraudulent use of credit card details; Fraudulently obtained loans from finance institutions; Minor prior convictions. Held: Sentencing judge properly applied principles of proportionality and totality as no lesser sentence warranted in circumstances of case
R v Fell [2004] NSWCCA 235	14 charges of dishonestly obtaining money by deception, s178BA Crimes Act 1900	70 additional offences on the Form 1	Total taken in the 14 offences was $326,324 Total taken in the 70 additional offences was $216,349.50 Over 1 year period	Total effective sentence : 1 year and 10 months imprisionment (Suspended upon entry into good behaviour bond with conditions of supervision and treatment) Counts 1-13: imprisonment for 16 months commencing on 18 August 2003 Count 14: Taking into account 70 additional offences on Form 1, 22 months imprisonment commencing 18 August 2003	Dismissed	Crown appeal against sentence. Issues: Whether sentences not reflective of totality of criminality, Whether finding of 'unacceptable and unexplained delay' not reasonably open and no delay sufficient to warrant significant mitigation, Whether respondent’s psychiatric condition not such as to preclude knowledge of gravity of actions and did not lessen requirement of general deterrence, Whether error in regarding repayment as justifying non-accumulation of sentences given no evidence of sacrifice involved in repayment, Whether error in application of Pearce v R and in failing to partially accumulate sentences. Circumstances: Male; Guilty plea; Fraudulently credited funds into personal account from employer; Stopped offending and confessed out of remorse; Significant repayment of funds; Later diagnosed with psychiatric illness and personality disorder; Steps towards rehabilitation; Likelihood of reoffending reduced by treatment; Abuse of trust; Serious offences; Unacceptable and unexplained delay in institution of legal proceedings; Difficulties with finding employment; No prior criminal record; General and specific deterrence lesser considerations than usual; Community service order, periodic detention or gaol sentence unsuitable due to mental condition. Held: In the circumstances the Court is not persuaded that the sentencing judge exceeded the legitimate bounds of her sentencing discretion.
R v Farlow [2001] NSWCCA 348	12 counts dishonestly obtain money by deception, s178BA(1) of the Crimes Act 1900	13 other counts under s178BA(1) on Form 1	Total of approx $480,970 taken was over 8 year period	Total effective sentence : 4 years imprisonment (non parole 2 years 6 months) Sentence to be served concurrently in relation to each of the 12 counts to commence on 13 October 2000 and to expire on 12 October 2004. Non-parole period in each case of 2 years and 6 months to expire on 12 April 2003	Dismissed	Issues: Whether judge failed to give sufficient weight to guilty plea. Circumstances: Female; 41; Guilty plea; University clerical assistant; Raised cheques on false purchase orders; Breach of trust; No relevant prior convictions; Money used to assist family; Traumatic childhood; 3 year old child with serious health problems. Held: Sentence indicates sufficient discount given although judge failed to indicate specific quantum.
Regina v Tripodina [2001] NSWCCA 136	10 counts dishonestly obtain money by deception, s178BA(1) of the Crimes Act 1900	42 further offences under the same section, s178BA (1)	Total of about $400,000 taken over 2.5 years	Total effective sentence : 6 years 6months with a non- parole period of 4 years 6 months Counts 1-9: fixed term of 2 years and 6 months imprisonment Count 10: taking into account 42 further offences under the same section, s178BA (1), imprisonment for 4 years cumulative upon the sentences imposed on counts 1-9 with a non-parole period of 2 years to commence on 27 April 2003 and to expire on 26 April 2005	Dismissed	Issues: Whether judge erred in imposing cumulative sentences. Circumstances: Male; 38; Early guilty plea; As financial controller defrauded company; No prior convictions; Serious breach of trust; Remorse; Pathological gambling problem; Rehabilitation; Compensation. Held: Cumulative sentences appropriate to adequately reflect total criminality of offences.
R v O’Neill NSW CCA (Unrep) 24/07/96	12 counts of dishonestly obtaining moneys by deception, s 178BA	59 similar offences in a Form 2	Total of $1,063,000, taken over approx 3 years.	Total effective sentence : 10 years' imprisonment (non-parole 6 years and 6 months') The sentencing judge structured the sentence in what he called an overall sentencing package to provide for a minimum term of six and one half years and an additional term of three and one half years.	Dismissed	Issues: Whether sentence manifestly excessive, Whether failure to consider applicant's contrition and gambling addiction, error in accumulation of sentences. Circumstances: Male; 41; Guilty plea; Company payroll supervisor; Obtained moneys using computer accounting procedures; Position of trust; Prior convictions for similar offences; Moneys not recovered; Claimed $20,000 was refunded; Financial burden on company; Objective gravity of offences; Pathological gambler; Psychiatrist suggested offender unlikely to re-offend if ceased gambling; Brief attendance at Gamblers Anonymous; No real assistance for gambling problem sought; Confession; Co-operation with employer. Held: Sentence not outside sentencing discretion based on authority presented by applicant. Open to sentencing judge to accumulate sentences resulting in overall sentence no longer than maximum for single offence.
R v Hawker [2001] NSWCCA 148	9 offences of obtaining money by deception, s178BA Crimes Act 1900	35 Form 1 matters taken into account	Total of $560,000 taken over 4 years	Total effective sentence : 6 years imprisonment with a non-parole period of 3 years and 6 months Counts 1-4: concurrent sentences for fixed terms each of 2 years Counts 5-9: 4 years each to be served cumulatively upon the fixed terms, but concurrently with one another. A non parole period of one and a half years fixed to commence at the expiry of the fixed terms.	Dismissed	Issue: Whether the total sentencing order fell outside the proper range, Whether manifestly excessive Circumstances: Male; Bank employee; Credited home loan with bank and then withdrew funds; No actual funds credited to account; Plea of guilty. Held: In the instant case there were aggravating circumstances due to the amount of money involved in the offence, and the criminality involved was "considerable".
R v Royal [2003] NSWCCA 260	7 counts of obtaining a benefit by deception, s178BA Crimes Act 1900	6 further charges on a Form 1	Total of $348,000 taken within 1 month	Total effective sentence : 3 years 3 months' imprisonment (non-parole 2 years 1 month) Counts 1-7: concurrent terms of imprisonment of 3 years and 3 months with a non-parole period of 3 years and 1 month	Dismissed	Issues: Whether - sentence manifestly excessive given level of applicant's culpability, whether non-parole period inadequate. Circumstances: Female; 24 at time of offence; Guilty plea; Involved in sophisticated system to defraud banks; Used stolen cheques and fictitious names; Subsidiary role; Under influence of primary offender; No prior convictions; Family support; Under influence of another offender; Teacher. Held: Applicant's role significant and sentence adequate given totality of criminality. Any lesser non-parole period would not be fair reflection of applicant's criminality
R v Chan [2000] NSWCCA 345	27 counts of obtain money by deception, s178BA Crimes Act 1900	Total of $578,000 taken over approx 6 months	Total effective sentence : 5 years imprisonment (non parole 3 years) Counts 1-24, 26: a fixed term of imprisonment of 2 years, to date from 18 February 2000 Counts 25 and 27: 3 years, consisting of a minimum term of one year and an additional term of 2 years to commence on 18 February 2002.	Dismissed	Issues: Whether error in finding that prior good character where number of offences committed over long period of time does not have same significance as where isolated offence committed, approach to issue of totality and cumulation of sentences contravened R v Pearce. Circumstances: Serious breach of trust, Early guilty plea; Money used to finance gambling addiction; No prior criminal convictions; Loss of career in bank; Genuine remorse; Co-operation with police; Good prospects of rehabilitation. Held: The sentences imposed did not exceed the upper limit of a sound exercise of the sentencing judge’s discretion.
Regina v Robinson [2000] NSWCCA 556	89 counts obtain benefit by deception, s178BA Crimes Act 1900	Total of $85,131 taken over 1.5 year period	Total effective sentence : 18 months (non-parole period of 2 years and 6 months) Counts 1-88: a minimum term of 18 months commencing on 25 August 1999 and expiring on 24 February 2000, with an additional term of two and a half years to commence on 25 February 2001 and to expire on 24 August 2002. Count 89 (categorised as a discrete matter): Same as above	Dismissed	Issues: Whether sentences manifestly excessive. Circumstances: Female; Mother of 3 children; Clerk; Abused position; Completed cheques by making them payable to cash; Appropriated money; Hardship arising from full time imprisonment of mother; Plea of guilty; Prior dishonesty offences.