R v Hutton

[2004] NSWCCA 60

CITATION:	Regina v Anthony Kendall Hutton [2004] NSWCCA 60
HEARING DATE(S):	8 March 2004
JUDGMENT DATE:	19 March 2004
JUDGMENT OF:	Sully J at 1; Simpson J at 75; Sperling J at 76
DECISION:	Leave granted to appeal against sentence; Appeal against sentence upheld to extent only of quashing the non-parole period of 25 months fixed by primary sentencing Judge; Fixed in lieu a non-parole period of 18 months to date from 6 June 2003 and expire on 5 December 2004
LEGISLATION CITED:	Financial Transaction Reports Act 1988 (C'th) Justices Act 1902 (NSW) Crimes Act 1914 (C'th)
CASES CITED:	Tickle Industries Pty Limited v Hann & anor. (1974) 130 CLR 321 at 331 Reg v Thomson and Houlton (2000) 49 NSWLR 383
PARTIES :	Regina Anthony Kendall Hutton
FILE NUMBER(S):	CCA 60411/03
COUNSEL:	M. Bracks - Crown M. Ramage QC - Appellant
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown William O'Brien Solicitors - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0360
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

60411/03

SULLY J
SIMPSON J
SPERLING J

19 March 2004

REGINA v ANTHONY KENDALL HUTTON

Judgment

1 SULLY J: On 12 April 2002 the applicant, Mr. Hutton, pleaded guilty in the Local Court to 21 charges, each of which alleged an offence contravening section 31(1) of the Financial Transaction Reports Act 1988 (C’th), (hereinafter “the Financial Transaction Act”).

2 Section 31(1) provides:

“A person commits an offence against this section if:
(a) the person is a party to 2 or more non-reportable cash transactions; and
(b) having regard to:
(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:
(A) the value of the currency involved in each transaction;
(B) the aggregated value of the transactions;
(C) the period of time over which the transactions took place;
(D) the interval of time between any of the transactions;
(E) the locations at which the transactions took place; and
(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;
it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:
(iii) would not give rise to a significant cash transaction; or
(iv) would give rise to exempt cash transactions.”

3 The following definitions, contained in section 3 of the Financial Transaction Act, are relevant to the construction and operation of section 31(1) of that Act:

“ non-reportable cash transaction means a cash transaction:
(a) to which a cash dealer is a party; and
(b) that is not a significant cash transaction or is an exempt cash transaction.”
“ significant cash transaction means a cash transaction involving the transfer of currency of not less than $10,000 in value.”

4 A contravention of section 31(1) attracts upon conviction a statutory maximum penalty of imprisonment for 5 years.

5 The applicant’s pleas having been entered, he was remanded in accordance with section 51A of the Justices Act 1902 (NSW) to the District Court for sentence. He stood in due course for sentence before her Honour Judge Latham at the Downing Centre District Court on 6 June 2003. Her Honour passed sentences structured as follows:

· Counts 2 and 6: Imprisonment for 12 months on each count.

· Counts 1, 4, 5, 7, 8, 9 10, 11, 14, 15, 18 and 21: On each count, imprisonment for 12 months.

· Counts 3, 12, 16, 17 and 20: On each count, imprisonment for 12 months.

· Counts 13 and 19: On each count, imprisonment for 18 months.

6 Her Honour partially accumulated the head sentences so as to produce an effective head sentence of imprisonment for 3 years and 6 months. Her Honour set a single non-parole period of 2 years and 1 month.

7 The applicant now applies for leave to appeal against what he asserts to be the manifestly excessive severity of those sentences of imprisonment.

8 Seven grounds of appeal were notified and argued at the hearing of the application:

“1. The total sentence imposed was defective;
2. The sentencing Judge erred in partly and fully accumulating the sentences;
3. The total sentence imposed was unduly harsh and severe;
4. The sentencing Judge erred in failing to give sufficient credit for the plea;
5. The sentencing Judge erred in failing to make allowance for the applicant’s voluntary cessation of criminal activity;
6. The sentencing Judge erred in making an adverse finding against the applicant that was not open on the evidence; and
7. The sentencing Judge failed to properly or sufficiently take into account the applicant’s subjective circumstances.”

9 It is convenient to consider, first, Ground 1 which raises a discrete and preliminary proposition of law; secondly, Grounds 4, 5, 6 and 7, each of which alleges a particular defect in the sentences; thirdly and finally, Grounds 2 and 3, each of which raises a question concerning the overall effect and the internal structuring of the sentences passed by the learned primary Judge.

10 At the proceedings on sentence there was tendered by the Crown, and without objection from the applicant, a 9 page statement of facts that had been prepared for the purpose by an officer of the National Crime Authority.

11 It thus appears that between 5 November 1998 and 7 April 2000 the applicant conducted 299 cash transactions, each of which was less than $10,000 in value. Each transaction involved the remitting of funds to overseas bank accounts. The details of those transactions, as related respectively to the 21 charges preferred against the applicant, can be tabulated as follows:

Count	Date from	Date to	No. of Transactions	Beneficiary	Total cash remitted in Australian dollars)
1	05-Nov-98	09-Nov-98	11	Beresford Investments, Vanuatu	99,739.32
2	25-Nov-98	25-Nov-98	2	Beresford Investments, Vanuatu	13,950.00
3	17-Dec-98	18-Dec-98	18	Beresford Investments Vanuatu	161,489.32
4	04-Jan-99	04-Jan-99	13	Beresford Investments, Vanuatu	125,635.00
5	11-Mar-99	12-Mar-99	11	Beresford Investments, Vanuatu	99,425.00
6	30-Mar-99	30-Mar-99	4	Treasure Chest, Vanuatu	36,400.00
7	22-Apr-99	23-Apr-99	11	Treasure Chest, Vanuatu	94,425.00
8	03-May-99	06-May-99	14	Treasure Chest, Vanuatu	124,250.00
9	20-May-99	21-May-99	14	Beresford Investments, Vanuatu	124,250.00
10	08-June-99	08-June-99	11	Beresford Investments, Vanuatu	103,425.00
11	22-June-99	25-June-99	13	ER DevelopmentVanuatu	118,675.00
12	03-Aug-99	05-Aug-99	18	ER Development Vanuatu	168,050.00
13	27-Sep-99	30-Sep-99	33	Pucci, Switzerland	308,164.98
14	12-Oct-99	12-Oct-99	11	Pucci, Switzerland	99,425.00
15	28-Oct-99	28-Oct-99	11	Pucci, Switzerland	99,425.55
16	03-Dec-99	03-Dec-99	19	Pucci, Switzerland	178,918.98
17	24-Jan-00	25-Jan-00	21	F.N.C. GBM, Switzerland	198,817.60
18	27-Jan-00	27-Jan-00	11	Ida Ronen Israel	99,424,98
19	15-Feb-00	18-Feb-00	26	Motek, Israel	238,795,01
20	20-Mar-00	21-Mar-00	16	Motek, Israel	149,079.99
21	07-Apr-00	07-Apr-00	11	Tmuna, Israel	99,395.00
Totals	299	2,741,160.73

12 Each of these transactions was conducted personally by the applicant. For that purpose he attended various bank branches in Sydney, and there conducted cash transactions using various names and particulars. Those names and particulars are as follows:

Name	Address	Phone
Tony Hilton	16 Balfour Road, Rose Bay 7 Latimer Road, Rose Bay	9363 8411 9416 0396 9416 0394 9363 0053
A. Hilton	28 The Avenue, Rose Bay	9363 4098
T. Hilton	27 Latimer Road, Rose Bay 25 Tryon Road, Lindfield	9363 4788 9419 2466 9344 9557 9363 4097
Tony Howe B. Adams	28 The Avenue, Rose Bay	9363 4098 9363 8411
26 Balfour Road, Rose Bay
A. Howe	16 Victoria Road, Bellevue Hill
Brian Adams Bryan Adams	16 Tryon Road, Lindfield 27 Tryon Road, Lindfield	9416 2344 9416 2267
Tony Hamilton	27 Latimer Road, Rose Bay	9363 4097
Tony Wilton Tony Wolton	27 Latimer Road, Rose Bay	9363 4097

13 The statement of facts details various surveillance operations undertaken by the authorities in respect of the applicant; and various other forensic matters linking the applicant to some or all of the relevant cash transactions. It is not necessary to traverse at this point that detail.

14 At all material times the applicant was married to, and is still married to, one Helena Rule. She was at all material times a practising chartered accountant. She has herself been dealt with for offences contravening the Financial Transaction Act; and it will be necessary to consider later herein some aspects of those proceedings against her.

15 On 29 March 2000 the applicant had a telephone conversation with a particular associate about the service that he and his wife were offering to selected clients. The conversation was intercepted lawfully. During the conversation the applicant stated, in effect:

· That he and his wife had various means of taking money off-shore “without getting one’s fingerprints on it”; and

· They checked that funds sent off-shore had in fact arrived safely at their intended off-shore destinations; and

· That they charged a fee for their services, the amount of the fee varying according to how much activity there was in the particular case.

16 The applicant did not give evidence at the proceedings on sentence. He did not place before the sentencing Judge a full and frank disclosure of the sources from which the relevant funds had come; whether the client(s) had disclosed any, and if so what, reason for wishing to send the funds off-shore; whether he himself had entertained any, and if so what, understanding of the true purpose(s) of the transactions which he was facilitating; and what were the actual fees charged by him and his wife in respect of the 299 transactions that were embraced by the 21 charges brought against him. (In connection with this last point, the applicant interjected during the course of the hearing of his application, and to the effect that he had disclosed in his relevant income taxation returns the amount of the fees thus earned by him. As to that suggestion, it is not possible to say more than that no such evidence was placed before the sentencing Judge; and no application was made to this Court for leave to adduce the evidence in connection with the hearing of the application.)

17 It is now convenient to turn, against the foregoing general background, to a particular consideration of the individual grounds of appeal.

Ground 1

This ground is based upon the requirements of section 16F of the Crimes Act 1914 (C’th) which provides:

“(1) Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period, including, in particular, an explanation:
(a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and
(b) that, if a parole order is made, the order will be subject to conditions; and
(c) that the parole order may be amended or revoked; and
(d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.”

18 Learned Senior Counsel for the applicant submitted that the requirements of section 16F are mandatory; and that a failure on the part of a sentencing Judge to comply strictly with the requirements of the section renders any sentence passed by that Judge a nullity.

19 Section 16F is found in Part 1B of the Crimes Act. Part 1B deals generally with the sentencing, the imprisonment and the release of Federal offenders.

20 Division 1 of Part 1B deals with matters of interpretation and is of no present moment.

21 Division 2 of Part 1B deals with general sentencing principles. The Division stipulates a number of things which must be taken into account by a sentencing Judge in the course of reasoning to a conclusion as to what sentence ought justly to be passed in the particular case.

22 Division 3 contains a miscellany of provisions concerning the structuring of sentences of imprisonment. Specific provisions are made, for example, about such practical issues as the commencement date of a Federal sentence; as to adjustments to be made to a Federal sentence in a case where the sentence will be served in a State in which sentences of imprisonment are not subject to remissions, (the notorious, and now repealed, Section 16G); and cumulative, partly cumulative or concurrent sentences. Two of the sections which make up Division 3, namely sections 16F and 19A, are included in a group of sections described generically as: “Division 3 – Sentences of Imprisonment”. It is, however, the case that sections 16F and 19A do not have, strictly speaking, anything at all to do with the process of determining a sentence in a particular case. The two sections are, rather, facultative in senses which have to do, not with the pre-determination of a sentence, but with the post-determination of a sentence.

23 If the argument now advanced for the applicant be correct, then a sentence which was wholly unassailable in terms of its basic reasoning and structure would become wholly invalid should the sentencing Judge overlook the requirements of sections16F; or purport to comply with section 16F but without following with pedantic exactness each and every one of the steps nominated in, relevantly sub-section (1). Such a proposition entails some odd consequences.

24 First, there is this simple practical consideration: at what precise point does the alleged nullity become effective? Is it the point at which the sentencing Judge, sentence having been passed, directs the removal of the prisoner from the Court and into the custody of the Correctional Services authorities? Or is it the point at which the Judge, the prisoner having been removed after the passing of sentence, formally adjourns the Court? Or is it the point at which the prisoner is actually removed from the precincts of the Court so as to prevent his being called back urgently by the sentencing Judge, the Judge either having reminded himself, or having been reminded by others, of the requirements of section 16F? Why, in any event, could the Judge not bring the prisoner back on some subsequent day in order to fulfil the requirements of section 16F? And if that be a possibility, then what are the practical temporal limitations upon the Judge’s taking that course?

25 Secondly, there is a more fundamental conceptual problem with what is now submitted for the applicant. As previously pointed out, if the applicant’s present submission be correct, then it does not matter that the sentence in fact passed is wholly unexceptionable in its underlying reasoning and structure. A mere inadvertence in the matter of complying with section 16F would be sufficient to render that sentence, otherwise impeccable, a complete nullity.

26 The short answer to that proposition is to be found, in my opinion, in the following principle of statutory construction, taken from the judgment of Barwick CJ in Tickle Industries Pty Limited v Hann & anor. (1974) 130 CLR 321 at 331:

“It is, in my opinion, a sound rule of statutory construction that a meaning of the language employed by the Legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the Legislature.”

27 The point now taken by the applicant, when tested by the application to it of that principle of statutory construction, cannot, in my opinion, be accepted.

28 I would not uphold Ground 1.

Ground 4

29 It is submitted for the applicant: first, that he was entitled to a discount of 25% in consideration of his early pleas of guilty; secondly, that the learned sentencing Judge, if intending to give less than 25% discount was obliged to set out a detailed process of reasoning justifying her Honour’s particular conclusions; and thirdly, that it ought to be inferred from the relevant remarks on sentence that her Honour wrongly took into account in diminution of what was otherwise due to the applicant, her Honour’s perception that the Crown case had been an overwhelming one.

30 These propositions are submitted, of course, to be justified by the decision of the Court of Criminal Appeal in Reg v Thomson and Houlton (2000) 49 NSWLR 383.

31 What her Honour actually said on the topic is this:

“Whilst the pleas came at the earliest opportunity, it was an overwhelming Crown case. The offender had been under extensive surveillance and his fingerprints were identified on 24 transfer documents for transfers between 5 November 1998 and 15 February 2000. In those circumstances, his pleas carry with them very little in the way of contrition. He is entitled, however, to a measure of leniency for the fact of the pleas.”

32 There are four formal guidelines established by the decision in Thomson and Houlton. Only the second and third of them are here relevant:

“(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 – 25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.”

33 In a case of the present kind it is important not to lose sight of certain elements in the process of reasoning which led Spigelman CJ, delivering the principal judgment of the Court of Criminal Appeal, to formulate the guidelines quoted above. The following particular aspects of that reasoning are particularly relevant in the present case.

34 First, and to quote paragraph 153 of the judgment of the Chief Justice:

“The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.”

35 Secondly, and to quote paragraph 159 of his Honour’s judgment:

“It is also pertinent to state that a discount of 10 – 25 per cent is not a range within which trial judges may exercise a discretion that will not be subject to appellate review. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not on the range appropriate for pleas in the full variety of circumstances.”

36 Thirdly, and to quote from paragraph 162 of his Honour’s judgment:

“The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally.”

37 It is, in my opinion, a fair inference that in the present case the learned sentencing Judge did not consider it appropriate to quantify with mathematical precision the discount which, in the event, her Honour had been persuaded to allow the applicant by reason of his early pleas of guilty. In that respect her Honour was exercising a discretion that is expressly reserved to sentencing Judges by the plain terms of guideline (ii).

38 It is, in my opinion, quite misconceived to take a simple reference to “an overwhelming Crown case”; to look at that reference in isolation; and thereupon to deduce from it a process of reasoning which has somehow deprived the applicant of something to which he was entitled. The fact is that there was an overwhelming Crown case. Such a consideration, plainly, cannot simply expunge in a case of the present kind any entitlement to a discount in recognition of early pleas of guilty. It is, however, necessary to give practical effect to that proposition in a way that reflects practical common sense. It is not, in my opinion, practical common sense, and it is not otherwise correct in principle, to discount, more or less automatically, at the upper level of 25 per cent in a case where to do so would be to produce an end result that a reasonable mind might regard as disproportionately lenient to the objective criminality of the particular offending.

39 I would not uphold Ground 4.

Ground 5

40 The thrust of this ground is that the learned sentencing Judge wrongly failed to give some appropriate consideration to the fact that the applicant had ceased, some 8 months prior to his arrest in February 2001, and voluntarily, the criminal activities in which he had been relevantly involved.

41 The relevance of such a voluntary cessation of criminal activity is, surely, that it warrants a conclusion that the offender has seen the error of his ways; has ceased his antecedent pattern of offending; and ought, therefore, to be sentenced upon the basis that in his particular case specific and personal deterrence is either not a relevant consideration at all, or is, at the most, a minor relevant consideration.

42 The learned sentencing Judge, in her Honour’s remarks on sentence, said:

“I accept that his prospects of rehabilitation are sound and that specific deterrence is of little weight in the sentencing exercise.”

43 In my opinion, that says all that needs to be said by way of indicating that her Honour had correctly allowed for the fact of pre-arrest voluntary cessation of the relevant criminal activities.

44 I would not uphold Ground 5.

Ground 6

45 It is convenient to quote the actual submissions, as they appear in the written submissions of the applicant:

“Not only did the sentencing judge not make a finding in the applicant’s favour that he had voluntarily ceased conducting transactions, or at least a neutral finding, she, from her remarks, appears to have made a finding that he had ceased because he was aware his activities had attracted attention (ROS 3), although this was no part of the material or submissions before her. It is submitted that no such finding could have been appropriately made beyond reasonable doubt.”

46 What in fact her Honour said on the topic is this:

“I note in passing that in so far as the offender ceased his activities after 7 April 2000 and was not arrested until 7 February 2001, the offender was aware in February 2000 that his activities had attracted the attention of, at least, one bank teller at Northbridge who commented upon the amounts of money being sent to Israel.”

47 Her Honour’s observations are expressed, in terms, to be made “in passing”. The comments, when read fairly in context, seem to me to convey nothing more than a perception on her Honour’s part that the voluntary cessation by the applicant of his antecedent and relevant criminal behaviour was not simply some kind of spontaneous moral epiphany; but was, rather, the result of a combination of perceptions and calculations on the part of the applicant, among which perceptions was the entirely justified perception that what he was doing was becoming imprudently risky.

48 To extrapolate from that state of affairs a conclusion that the learned sentencing Judge made a positive, and adverse, finding of fact which could not be supported by the available evidence, is to read far too much into passing and incidental remarks.

49 I would not uphold Ground 6.

Ground 7

50 The submissions made for the applicant point in particular to the applicant’s prior good character; and to the facts that he was unemployed and suffering from depression at the time he began, and subsequently persisted in, his criminal activities.

51 The submissions acknowledge, correctly as I respectfully think, that it cannot be maintained that the learned sentencing Judge was unaware of those particular matters.

52 The proposition, basic to Ground 7, that the sentencing Judge failed to take into account, either properly or sufficiently, the applicant’s subjective circumstances, cannot be established by identifying particular subjective matters which the applicant was entitled to have taken into account, but which the learned sentencing Judge demonstrably failed to acknowledge at all.

53 Insofar as there is any error in the way in which the learned sentencing Judge balanced out the relevant objective and subjective features of the applicant’s case, it seems to me that the error, if demonstrable at all, is demonstrable by reference to latent error manifested on the face of the sentences ultimately passed by her Honour upon the applicant. That aspect of the present application falls to be dealt with in connection with Ground 3.

54 I would not uphold Ground 7.

Ground 2

55 Her Honour was required to set 21 separate sentences and then to consider to what extent those sentences should be made concurrent, cumulative, or partly concurrent and partly cumulative. Her Honour seems to have grouped the 21 offences into 4 groups, each of which is defined by the number of transactions and/or the amount of money actually transferred as a result of those transactions.

56 I see no error of principle in that approach. That approach entailed, indeed, the setting of individual sentences, none of which was manifestly outside the general run of sentencing in matters of the present kind; but to have permitted a thoughtful measure of partial cumulation sufficient to mark the undoubted fact that what was called for was an end result adequate to reflect 21 separate offences embracing 299 separate breaches of the relevant law, those breaches entailing in their turn illegal transfers to overseas destinations of better than 2.7 million dollars.

57 I would not uphold Ground 2

Ground 3

58 It is convenient to begin the discussion of this ground by recalling the objects of the Financial Transaction Act as established, in terms, by section 4 of that Act:

”(1) The principal object of this Act is to facilitate the administration and enforcement of taxation laws.
(2) A further object of this Act is to facilitate the administration and enforcement of laws of the Commonwealth and of the Territories (other than taxation laws).
(3) Without prejudice to the effect of this Act by virtue of subsections (1) and (2), a further object of this Act is to make information collected for the purposes referred to in subsection (1) or (2) available to State authorities to facilitate the administration and enforcement of the laws of the States.”

59 The learned sentencing Judge was obliged to have a proper regard to those declared objectives of the legislation, for the wilful and persistent breaching of which she was required to pass sentence upon the applicant.

60 In giving effect to those declared legislative objectives, her Honour was obliged to give proper weight to the relevant objective criminality of the applicant. Her Honour dealt with that aspect of the applicant’s case in this way:

“Against this background, it is impossible to regard the offender’s criminality as anything other than substantial given the objects of the legislation creating the offence. This was systematically well planned and efficiently executed criminal behaviour by a highly intelligent man of mature years.”

61 It is submitted for the applicant that the learned sentencing Judge probably fell into error “by approaching the offence as one falling in the same category as a Commonwealth tax evasion offence, and believed …. (the applicant) … was ‘cheating the Commonwealth out of revenue’ “.

62 At the proceedings on sentence the following interchange occurred between the learned sentencing Judge and senior counsel for the applicant:

“HER HONOUR: Can I just say, given the level of expertise that your client claimed in the game of bridge, and that he is said to be in the top 4 per cent of the population in terms of his IQ, it’s a bit difficult to swallow the proposition that he thought he was just bending the rules, not breaking them.
[COUNSEL]: It’s not an excuse, obviously can’t be. A lot of people in the community do not appreciate just how serious these offences are. They think they are perhaps avoiding the terms of some of the rigours of our reporting systems, rather than committing any heinous crime. It would be quite horrifying to think they were on a par with rapists.
HER HONOUR: I know that. It falls into the same sort of category, doesn’t it, in terms of Commonwealth tax evasion offences?
[COUNSEL]: Not really because of this. I don’t know how much this has impressed on your Honour when you sentenced Helena Rule, but this is not a money laundering offence. There is such an offence, the prosecution have not chosen to charge him with that. So the foundation of it, while the offence is there to obviously assist the enforcement of the laws of taxation, there is no inference that can be drawn that the money came from crime.
HER HONOUR: I am not suggesting that at all. I am not confusing the two. All I am saying is in light of the comment you make about these offences, they are sentences against the financial system, if you like, which are coming somewhat more into the public gaze in recent times.
[COUNSEL]: Of course, I accept that. …………..”
[T 2/5/03, page 11 (21) – (54)]

63 In the light of those interchanges, I do not see how the present particular submission made for the applicant is maintainable.

64 A further submission is put for the applicant and to the effect:

“that despite apparently accepting the principle in Corbett’s case that with white collar crimes it was appropriate to structure the head sentence to reflect general deterrence while the non-parole period reflected the individual subjective features and was set at a comparatively low figure the judge did not reflect this in the non-parole period that she imposed.”

65 It is, once again, relevant to note some interchanges that occurred at the proceedings on sentence between her Honour and senior counsel for the applicant:

“[COUNSEL]: There is another principle which I could have referred your Honour to. It is sometimes referred to as that principle in Corbett (1991) 52 A Crim R 112, and it really was that, and it has been followed a number of times, even though perhaps it is not was well spelt out there as it might be. Basically, it is that in white collar crimes quite often the sentence is structured so that the head sentence reflects general deterrence
HER HONOUR: Yes, and non-parole period.
[COUNSEL]: And non-parole period reflects the individual characteristics, so I don’t have to make that point.
HER HONOUR: I think that would not be inappropriate in this case, would it. The head sentence can still reflect general deterrence, and the non-parole period can take into account prior good character and his age in order to allow those.”
[T, 2/5/03, at pp 16(50)-17(10)]

66 The propositions thus accepted by the learned sentencing Judge raise, now, two practical questions: first, whether the effective head sentence of 3 years 6 months was manifestly excessive in order to “reflect general deterrence”; and, secondly, whether the effective non-parole period of 2 years 1 month was manifestly excessive for the purpose of taking into account prior good character, age, and other mitigating subjective considerations.

67 So far as the head sentence is concerned, I am unpersuaded that it is manifestly excessive. Two hundred and ninety nine transactions, each of which was a deliberate and knowing breach of the Financial Transaction Act, and each of which was carried out for financial gain to the offender, constitutes, in my opinion, a pattern of wilful and persistent breaches of the law such as to call for a significant measure of real general deterrence. The Financial Transaction Act is, no doubt, highly inconvenient in many ways and to many people. The Act is, nevertheless, part of the public law of this country, and it is there to be obeyed. If the Act is to have effect according to the plain intent of the Legislature, then it is essential that it be made clear to all concerned that an appropriately severe penalty will be imposed in order to deter, relevantly and to paraphrase the learned sentencing Judge, systematic, well planned and efficiently executed breaches of the Act.

68 Were it not for one particular matter, the detail of which I shall come to presently, I would not have been disposed to interfere with the non-parole period set by the learned sentencing Judge. That period, as set by her Honour, is a little less than 60 per cent of the effective head sentence of 3 years 6 months. In the case of sentences passed in connection with Federal offences, a non-parole period in the range 60 per cent – 66 per cent of head sentence, will not normally be disturbed.

69 There is, however, one matter that has, in my opinion, some particular relevance to the applicant’s case. It concerns an issue of parity with the sentences passed upon the applicant’s wife, Helena Rule, which sentences were affirmed by this Court on 8 April 2003. The present grounds of appeal do not raise in terms a question of parity as between the applicant’s sentences and those passed upon his wife, but I do not think that the Court can simply ignore the issue on that account alone.

70 The two cases are not, of course, identical in their respective particulars. Helena Rule was dealt with on two counts of having been knowingly concerned in the offences which are numbered 20 and 21 in the schedule of the applicant’s offences. The offence which is thus numbered as 16 was recorded on a schedule and taken into account in connection with the sentences passed in connection with the two offences charged. The three offences thus dealt with in the matter of Helena Rule involved in all 46 transactions which took place over a span of 4 months, and which involved unlawful transfers to two accounts of sums totalling $427,393. As has been previously noted, the 21 offences charged against the applicant embraced 299 transactions over a span of 17 months, and entailed the unlawful transfer abroad, and to 8 accounts, of sums totalling $2,741,160.73.

71 Helena Rule was sentenced, effectively, to imprisonment for 12 months; and an order was made for her release at the expiration of 6 months. The applicant’s non-parole period is 25 months. I acknowledge that it would be erroneous to make a simple mechanical comparison of the respective elements in the separate cases of the applicant and of Helena Rule; but I have to say that there seems to me to be, on the face of things, something amiss with a result that burdens the applicant with a non-parole period four times longer than that of his wife.

72 When account is taken of the fact that Helena Rule was at all material times a chartered accountant, and subject therefore to the proper standards of professional probity implicit in such an occupation, whereas the applicant had no such professional qualifications, then in my opinion some reasonable adjustment should be made to the applicant’s non-parole period. I reiterate, however, that it is only because of that consideration of parity that I would interfere at all with the applicant’s non-parole period.

73 To that extent only I would uphold Ground 3.

Orders

74 For the whole of the foregoing reasons, I propose the following orders:

[1] That leave be granted to appeal against sentence;

[2] That the appeal against sentence be upheld to the extent only of quashing the non-parole period of 25 months fixed by the primary sentencing Judge;

[3] That there be fixed in lieu a non-parole period of 18 months to date from 6 June 2003 and to expire on 5 December 2004.

75 SIMPSON J: I agree with Sully J.

76 SPERLING J: I agree with Sully J.

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Last Modified: 03/23/2004