R v Institoris

[2002] NSWCCA 8

Reported Decision: (2002) 129 A Crim R 458

New South Wales

Court of Criminal Appeal

CITATION:	R v Institoris [2002] NSWCCA 8
FILE NUMBER(S):	CCA 60271 of 2001; 60399 of 2001
HEARING DATE(S):	4 October 2001
JUDGMENT DATE:	15 February 2002
PARTIES :	REGINA v ROBERT INSTITORIS
JUDGMENT OF:	Mason P at 1; Levine J at 2; Howie J at 76

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0123
LOWER COURT JUDICIAL OFFICER :	Kinchington J

COUNSEL :

R Sutherland S.C.
(Crown)

C Loukas
(Respondent)

SOLICITORS:

Commonwealth Director of Public Prosecutions
(Crown)

Mark Rumore
(Respondent)

In Person
(Appellant)

CATCHWORDS:

Crown appeal on inadequacy of sentence - counterfeiting - gravity of offence - general deterrence - no settled range of sentences

LEGISLATION CITED:

Crimes (Currency) Act 1981 (Cth)

CASES CITED:

Dinsdale v The Queen (2000) 74 ALJR 1538
Everett v The Queen (1994) 181 CLR 295
Gilson v The Queen (1991) 172 CLR 353
Griffiths v The Queen (1977) 137 CLR 293
Hammoud (2000) 118 A Crim R 66
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447
Lowndes v The Queen (1999) 195 CLR 665
Malvaso v The Queen (1989) 168 CLR 227
Oliver (1980) 7 A Crim R 174
Pearce v The Queen (1998) 194 CLR 610
Queen v Alpass (1993) 72 A Crim R 561
R v Holder & Johnston (1983) 3 NSWLR 245
R v Tait (1979) 46 FLR 386
Regina v Baker [2000] NSWCCA 85
Regina v Hart [1999] NSWCCA 204
Regina v Vachalec (1981) 1 NSWLR 351
Regina v Thompson & Coulton [2000] 15 A Crim R 105
The Queen v Anthony Frank Howard [1986] 82 Cr. App. R. 262
The Queen v Bugeja [2001] NSWCCA 196
The Queen v Eddy Grant (Court of Criminal Appeal (Victoria), unreported, 27 June 1994)
The Queen v G R Beeforth (Court of Criminal Appeal, unreported, 24 November 1995)
The Queen v M K T Joon (Court of Criminal Appeal, unreported, 8 April 1994)
The Queen v Rohde & Ors (1985) 17 A Crim R 166
The Queen v Smith (1987) 44 SASR 458
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64

DECISION:

By majority 1. Crown appeal allowed 2. Respondent appeal dismissed. Sentence on Count 12 quashed and in lieu respondent sentenced to 5 years imprisonment to commence on 29 May 2004; non-parole period of 5 years and 6 months to date from 29 May 2000 and expire on 28 November 2005, the date upon which respondent is eligible for release to parole

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60271 of 2001

60399 of 2001

MASON P

LEVINE J

HOWIE J

15 February 2002

REGINA v ROBERT INSTITORIS

Judgment

1 MASON P: I agree with Howie J.

2 LEVINE J: The respondent appeals against the severity of sentences imposed upon him in the District Court on 12 April 2001 by his Honour Judge Kinchington Q.C. The Crown appeals on the basis of asserted inadequacy of those sentences.

3 On 6 June 2000 the respondent pleaded guilty, relevantly, to 12 counts relating to counterfeit money. Six counts were laid under s 8 of the Crimes (Currency) Act 1981 (maximum penalty 12 years) – sell counterfeit currency; three counts under the same section – dispose of counterfeit currency. One count was laid under s 11 of the same Act (maximum penalty 10 years) – being knowingly concerned in buying implement to make counterfeit money; two counts were laid under s 6 of the same Act (maximum penalty 14 years) – being knowingly concerned in making counterfeit money.

4 The learned Sentencing Judge imposed the followings sentences: In respect of Count 12 (knowingly concerned in the making of counterfeit $50.00 notes), the respondent was sentenced to imprisonment for 6 years with a non parole period of 4 years and 6 months. With respect to Count 10 (knowingly concerned in the making of counterfeit $100.00 notes), he was sentenced to imprisonment for 5 years and 6 months with a non-parole of 4 years and 6 months. With respect to Counts 1, 6 & 7 (disposing of counterfeit money), he was sentenced to a fixed term of 3 years in each case. With respect to Counts 2, 3, 4, 5, 8 & 9 (selling counterfeit currency), he was sentenced to 4 years in each case. In respect of count 11 (being knowingly concerned in buying an instrument with the intention of using it in connection with the making of counterfeit currency), he was sentenced to imprisonment for 4 years.

5 Each sentence was to date from 29 May 2000 and run concurrently. The respondent had been arrested and charged on 7 May 1996 and had initially spent 11 days in custody and was then in custody from 29 May 2000 part of which was whilst serving a sentence for another unrelated offence.

Facts Based Upon Statement of Crown Case

6 The respondent’s activities essentially involved two separate counterfeiting schemes – one for $100 notes of the old non-polymer paper style and the other for $50 notes of the current polymer type with a partly clear “window” in them. Four co-offenders filled subsidiary roles: Robert Charadia, Gregory Beeforth and two brothers, Eddie and Hussein (Harry) Shaitley. His Honour found that the respondent was “pivotal” in each case to the successful implementation of the two schemes.

7 In early 1994 the respondent became acquainted with Robert Charadia who ran a business from the farmhouse on his property repairing computers and closed circuit television equipment.

8 Later that year the respondent was introduced to Gregory Beeforth who at the time was an escapee from Cessnock Gaol. Beeforth showed the respondent some counterfeit non polymer $100 notes, the colour of which was not realistic. The two discussed producing better quality counterfeit $100 notes and the equipment needed to improve the quality of these notes. The respondent indicated that he knew a source who could provide money for the purchase of computer equipment needed for the production of counterfeit money. He would also arrange somewhere for Beeforth to stay. (Count 10 in the indictment relates to the respondent’s involvement with Beeforth and others from this time onwards).

9 Shortly after, the respondent introduced Beeforth to Charadia as “Greg” and arranged with Charadia for Beeforth to stay in other premises that were vacant on Charadia’s property. Charadia was told that Beeforth was up from Melbourne to sort out some legal matters as a result of a divorce. Neither Beeforth nor the respondent disclosed to Charadia their proposed counterfeiting activities. A weekly rental was fixed and paid. Over a number of days in early November 1994 Beeforth purchased a computer, a scanner and a colour stylus printer. The respondent was present at the purchase of some of this equipment and also drove Beeforth to some of the stores. On one of the purchase invoices Beeforth provided the respondent’s home number as a phone contact. The respondent helped Beeforth to unpack the computer, scanner and printer when they returned to the house on Charadia’s property.

10 Within a short time the respondent indicated to Beeforth that he was not happy with him staying at Charadia’s property. The respondent transported Beeforth and the computer equipment to a caravan park at Bringelly. The respondent paid expenses and told Beeforth the caravan park location was safer and closer to his home which was at 15 Telford Street Leumeah. Beeforth had only been at Charadia’s property four days. Once he left, there was no further contact between Charadia and Beeforth.

11 A few days later, at the caravan park, the respondent provided Beeforth with a genuine $100 note for further experimentation purposes. The respondent also provided $1,000 in genuine currency for the purchase of a computer program, Coral Draw, needed for the reproduction of the notes. [Count 11] Beeforth later purchased this program from a Harvey Norman Computer Store.

12 Over the next couple of weeks the respondent called on Beeforth regularly to check on Beeforth’s progress. As the counterfeiting quality had improved, on some of these occasions Beeforth was able to provide the respondent with counterfeit $100 notes capable of being sold. The respondent told Beeforth that he need about $3 million in counterfeit currency. Towards the end of this period the respondent stopped providing Beeforth with money for living expenses. About mid December 1994 Beeforth packed up the computer equipment in the original boxes and left the caravan park leaving the equipment behind. Beeforth took some counterfeit $100 notes with him. A week later the caravan was broken into and the computer equipment taken. In late December 1994 Beeforth was arrested still with some of the counterfeit $100 notes in his possession. On his arrest Beeforth was unable to identify the respondent by full name or exact address as he had only known him as “Rob” from around the Leumeah area.

13 During 1995 Eddie Shaitley met the respondent and sometime later introduced him to his brother, Hussein (Harry) Shaitley. The Shaitleys never met Beeforth or Charadia. From time to time there were discussions between Eddie Shaitley and the respondent about counterfeit money. The potential supply of counterfeit money was disclosed by Harry Shaitley to the National Crime Authority and both Shaitleys became registered informants.

14 On 8 February 1996 at 30 Kelly Street, Austral, the respondent handed Eddie Shaitley a counterfeit $100 note as a sample of the numerous counterfeit notes available for purchase [Count 1].

15 On 12 February 1996, the NSW Crime Commission provided $3,300 in genuine currency as “buy money” to enable the purchase of counterfeit $100 notes from the respondent. On that date, at his home, the respondent sold 95 counterfeit $100 notes (face value $9,500) to Eddie Shaitley for $3,300 in genuine currency [Count 2].

16 On 26 February 1996 the respondent took Harry and Eddie Shaitley to Market Street Appin. The respondent was given $10,500 in genuine currency as payment for a total of 300 counterfeit $100 notes (face value $30,000). The respondent made a telephone call and then left the Shaitleys for a short time returning later and delivering at that time 250 counterfeit $100 notes (face value $25,000). He explained that the balance had yet to be manufactured [Count 3].

17 On 2 March 1996, at Canley Vale, the respondent handed Harry Shaitley 27 counterfeit $100 notes (face value $2,700) being a further delivery of the purchase arranged on 26 February 1996 [Count 4].

18 On 3 March 1996 at Canley Vale, the respondent provided Harry Shaitley 23 counterfeit $100 notes (face value $2,300) being the final delivery of the purchase arranged on 26 February 1996 [Count 5].

19 On 5 March 1996 at his home, the respondent provided Harry Shaitley with one counterfeit $100 note as a sample of the recently completed batch of counterfeit $100 notes now available [Count 6].

20 Shortly after a fishing trip, the respondent discussed the possibility of producing counterfeit currency using a computer and colour printing equipment [Count 12 relates to the respondent’s involvement with Charadia and others from this time onwards]. The respondent offered to show Charadia how to produce counterfeit currency. He also offered to provide Charadia with a computer and printer.

21 In April 1996 the respondent arranged for computer equipment to be delivered to Charadia. The hard drive and printer were in their original boxes and other equipment included a keyboard, mouse, monitor, scanner, some software manuals and cables. Amongst the boxes delivered there were also partially printed $100 notes. Charadia’s counterfeit currency activities using this equipment were limited to the production of counterfeit $50 polymer notes. At no time did he produce $100 notes. The hard drive of this computer was later found to contain files relating to the production of counterfeit $50 polymer notes and also files relating to the production of $100 non polymer notes. Beeforth later identified the computer equipment and some of the hard drive files as the ones involved in his counterfeiting of $100 notes with the respondent.

22 Because Charadia was to produce counterfeit $50 polymer notes the colour printer provided to him and previously used in the production of non polymer counterfeit $100 notes was not adequate. He advised the respondent to purchase a laser printer. The respondent asked Charadia to obtain a loan in Charadia’s own name to finance this purchase and promised to pay the repayments each month. Charadia then purchased a laser printer.

23 Over a number of weeks using this equipment, Charadia manufactured counterfeit $50 notes, some of which were discarded because of their poor quality. There was also a problem attempting to insert the clear plastic window, characteristic of polymer notes and introduced by the Reserve Bank into Australian currency subsequent to the printing of non-polymer $100 note type (without a window) that Beeforth was attempting to reproduce with the respondent. On occasion Charadia left the respondent alone in the room at Charadia’s farmhouse that was set up for the counterfeiting.

24 On 26 April 196 at Liverpool, the respondent provided Harry Shaitley with one counterfeit $50 note as a sample of the counterfeit $50 polymer notes now available for purchase [Count 7]. Prior to this date the respondent had only sold or provided counterfeit $100 notes to the Shaitleys.

25 A decision was made by the National Crime Authority to continue to make purchases from the respondent of $50 counterfeit polymer notes in an attempt to locate the equipment being used to produce the notes. By early May 1996 Charadia had produced numerous counterfeit $50 notes of saleable quality on the equipment at his farmhouse. At this time the respondent collected a batch of these notes (about $20,000 face value). He also instructed Charadia to produce more counterfeit $50 notes of better quality.

26 On 3 May 1996 the respondent took Harry Shaitley to the vicinity of Yerrinbool, Harry Shaitley handed the respondent $7,000 in genuine currency as payment for counterfeit polymer $50 notes. The respondent left Harry Shaitley and returned a short time later with 396 counterfeit polymer $50 notes (face value $19,800) [Count 8].

27 The respondent visited Charadia frequently and inspected the quality of the counterfeit $50 notes produced. The respondent also attempted to insert the clear plastic window on several of the notes Charadia produced. After some experimentation a partial solution was found to the problem of the windows falling out. This method involved the purchase of numerous sheets of adhesive transparencies and different coloured ink. A few days later the respondent collected a further batch of counterfeit $50 notes from Charadia’s farmhouse (face value about $35,000).

28 On 7 May 1996 the respondent met with Harry Shaitley at Rossmore. The respondent was handed $9,000 in genuine currency and sold Harry Shaitley 584 counterfeit polymer $50 notes (face value $29,200) [Count 9]. A short time later, the respondent was arrested in possession of the $9,000 in genuine currency.

29 Of the total amount of counterfeit currency known to have been manufactured, there were at least 1,500 counterfeit $100 notes (face value $150,000) [ Count 10] and at least 2,800 counterfeit $50 notes (face value $140,000) [Count 12] produced that were of saleable quality. Counterfeit notes with a total face value of $88,750 were sold or disposed of by the respondent during the relevant period and subsequently seized by the authorities [Counts 1-9]. However not all of the counterfeit currency has been recovered. A total of $29,800 in genuine currency was provided to the respondent for the purchase of the counterfeit currency of which only $9,900 was recovered at the time of his arrest on 7 May 1996.

30 On 7 May 1996, synchronised with the arrest of Institoris, was the arrest of Charadia and the search of the Yerrinbool property. The equipment mentioned above used in the manufacture of the counterfeit Australian notes was seized. Also found in the counterfeiting room were the boxes containing the partially printed counterfeit $100 notes and other equipment, such as a guillotine, paper off cuts, hand books, etc. On examination by a computer expert, the serial numbers on the counterfeit $100 and $50 notes were found stored on the hard drive of the computer seized from Charadia’s property. This was later identified by Beeforth as the one he had purchased and operated to manufacture the counterfeit $100 notes. Fingerprint analysis was conducted on the counterfeit notes both purchased from the respondent and seized at Charadia’s premises. The respondent’s fingerprints were identified on a number of the counterfeit notes as well as on the wrapping paper found around some of the bundles of the counterfeit currency.

31 In relation to the co-offenders, Beeforth pleaded guilty to a number of offences including escape lawful custody and making, uttering and having in possession counterfeit money. On appeal he was sentenced to 4 years 8 months with a non-parole period of 3 years 6 months. Charadia pleaded guilty to making and having in possession counterfeit money. He was sentenced to 3 years imprisonment to be released after 12 months upon entering a recognisance for the remaining 2 years; the sentence was reduced for assistance to the authorities. Eddie Shaitley pleaded guilty to charges of possessing and uttering counterfeit money and was sentenced to 8 months imprisonment reduced for assistance. Harry Shaitley pleaded guilty to a supply methylamphetamine charge and was sentenced to three years periodic detention.

32 The Crown submits that none of the co-offenders was involved in the schemes to the extent of the respondent and no question of parity arose. No question of parity was argued. The learned Sentencing Judge found that the respondent was a “principal” and “driving force” behind the schemes and that Beeforth and Charadia were less culpable than Mr Institoris.

33 The history of the proceedings is not without importance especially in terms of the weight to be attached to the plea in accordance with the usual principles. In essence the District Court proceedings from about mid 1999 involved a series of claims by the respondent that he was too ill to stand trial followed by adjournments and the calling of evidence by the Crown to disprove those claims. Various delays continued after the pleas of guilty which his Honour referred to. There has been no dispute by the Crown that the respondent suffered sarcoidosis. Indeed Dr Barnes was the specialist engaged by the Crown who provided that diagnosis as early as July 1999 but also was of the opinion that the respondent was fit for trial.

34 After an adjournment to allow for that examination by Dr Barnes, the case was listed for trial on 14 February 2000. (This was the third occasion the matters were set down for trial). The trial did not proceed. An application by the defence to adjourn the trial because of the respondent’s ill-health was refused but the date was changed to 29 May 2000. The respondent’s general practitioner, Dr Vago, gave evidence that the respondent was too ill for trial. The Crown subpoenaed the respondent’s specialist, Dr Peters, who said he was fit for trial and Ainslie-Wallace DCJ ordered the trial to proceed.

35 On 29 May 2000 the trial did not proceed. On this occasion it was said that the respondent was too ill for trial as he had been hospitalised after collapsing on the way to Court. On a number of occasions the respondent has gone to hospitals and been admitted by casualty general practitioners, who after hearing reference to sarcoidosis, admitted the respondent while they contacted Dr Peters. On this occasion an arrest warrant was issued, executed at the hospital and at a bedside Court before Sides DCJ the respondent was refused bail. (The Sentencing Judge ordered all sentences to date from this day). His trial was ordered to commence on 5 June 2000. A bail application was made on 2 June 2000. Once again Dr Peters was subpoenaed by the Crown to give evidence before Williams DCJ on 2 June 2000 that the accused was fit for trial. His Honour refused bail and confirmed the trial date for three days later.

36 On 5 June 2000 the respondent’s trial did not proceed. The respondent did not appear from custody and a message from the prison indicated medical staff had not permitted the respondent to leave the prison. The next day the Crown arranged for Dr Varga, the medical officer at Long Bay Prison (not to be confused with Dr Vago, the respondent’s general practitioner), to give evidence on 6 June 2000. Dr Varga said the respondent was fit for trial and that he had been told by the respondent the case was listed for mention only the day before. As a result, Goldring DCJ ordered the trial to commence before him at 2pm on 6 June 2000. Before 2pm the respondent’s lawyers contacted the Crown and proposed that if Counts 13 and 14 in the indictment were no longer the subject of proceedings (2 minor drug offences) the respondent would plead guilty to the current offences (Counts 1-12) and Count 15, the other drug offence. The Crown agreed to this course and the pleas of guilty resulted. An application for bail was ultimately refused on 9 June 2000 Goldring DCJ. Eventually the matter came on for sentence on 21 August 2000 but did not proceed on that day. After a number of listings sentence proceedings commenced before Kinchington DCJ on 11 September 2000 and continued with some further delays in the sentencing process mainly caused by the respondent and referred to by the Sentencing Judge.

37 At the sentence proceedings the Sentencing Judge became “keenly aware” of the strength of the Crown case when evidence was called because of a dispute by the respondent about the facts in the Crown case. Among other witnesses Beeforth and Charadia gave evidence on oath adhering to their statements in the Crown Brief of Evidence and the involvement of the respondent in the offences.

The Offence of Counterfeiting

38 The offences under the Currency Act, in my view, are particularly insidious in their very nature. The trick or deceit practised upon the community by the manufacture and uttering of counterfeit banknotes is immediately damaging and potentially disastrous. The achievement of the criminal objective, founded in greed, requires (as in this case) a determination from the outset to employ modern technology and experimentation. The objective is calculated to abuse every member of the community. Everyone should be free to conduct day-to-day affairs without concern about the integrity of this country’s currency.

39 It is perhaps fortunate that Courts in this State and elsewhere are not called upon to deal with offences of this kind with frequency.

40 Nonetheless when a person is convicted of offences of this kind historically Courts have dealt with offenders with severity. That “severity” has been reflected in the imposition, almost as a matter of course, of custodial sentences. As Brooking J said in The Queen v Rohde & Ors (1985) 17 A Crim R 166 at 173:

“The community must protect its currency. Forgery of bank notes is by no means a prevalent offence … but this state of affairs may not continue if the crime is not severely punished when it is committed. The need to deter others overshadows other considerations. The potential rewards for the counterfeiter are great and the potential damage to the community is even greater. Put forged notes into circulation, and confidence in the currency is at once destroyed. Further, crime is spawned and public and private loss, direct and indirect, and inconvenience are suffered. Ordinary people, suspecting that they have given good money for bad, are tempted to become criminals by passing the note. If there were no receivers, there would still be some thieves stealing for their own use, but if there were no utterers, there would be no counterfeiters, for the forged note is useless, unless it can be passed. And so uttering bad notes goes hand in hand with making them. Both are very serious crimes”.

41 This statement has been referred to, as has the decision as a whole variously in The Queen v M K T Joon (Court of Criminal Appeal, unreported, 8 April 1994); The Queen v G R Beeforth (Court of Criminal Appeal, 24 November 1995, unreported) and by his Honour the Sentencing Judge in this matter.

42 In England a similar approach can be understood to be taken: in The Queen v Anthony Frank Howard [1986] 82 Cr. App. R. 262 the Lord Chief Justice said at 263:

“It is a trite observation made in these cases, but nevertheless correct, that the issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless.
It follows therefore that this type of offence is one which in nearly every case will require a custodial sentence and Mr Swift has not dissented from the view that this was such a case. The reason for the custodial sentence is first of all to punish the wrongdoer, the secondary reasons are to deter the wrongdoer himself from committing the same sort of offence in the future – that perhaps does not figure very largely in this case because it is very unlikely that this man will offend again – but much more important, it is to indicate to others who are minded to make cheap and easy profit by the acceptance of counterfeit notes, that it simply is not worth the candle. If they do chose to have counterfeit notes, and particularly large quantities of them, they are going to get some considerable punishment”.

43 It can be seen that important considerations in the disposition of sentencing of counterfeiters is the need for general deterrence. It can be seen that generally a custodial sentence is imposed.

44 What was not advanced in this appeal (as was not advanced in Joon) was that there exists any established range of sentences or “tariff”. This is evidenced by the series of District Court sentences to which reference is made in the written submissions. The absence of any clear range or tariff was said by Priestley JA in Joon to lead to the Sentencing Judge having a wide discretion (p 10). What I understand his Honour there to be saying is that the discretion that always exists in terms of its “width,” and as affected by s 16A of the Crimes Act (Cth.) cannot be, in the usual way and in a principled way, informed by reference to any established range or tariff.

45 Further, some attention was paid during the course of oral submissions as to the notion of the “worst category of case” in relation to these offences. It is clear from the facts that modern technology was available to the respondent. A substantial amount of money was involved; in relation to the $100 notes they were described by Counsel for the Crown as “impeccable”. Of its very nature, as I have said, counterfeiting is an insidious and very dangerous offence to the community as a whole. I see, however, no point in relation to this appeal in seeking to discriminate between this case and another based upon the quantum of counterfeit money, its quality and the like. The focus is upon the gravity of the offence embarked upon, in this instance in a very sophisticated way. That minds may differ as to determining the degree of seriousness of the offence is illustrated by the decision of the Court of Criminal Appeal of Victoria in The Queen v Eddy Grant (27 June 1994) where, at p 3, Crockett ACJ noted “in mitigation” that only $5,400 of Australian currency had been uttered. His Honour went on to remark that the face value of the Australian notes seized in that case of $164,950 was, in relevant terms, not a “large” sum. Southwell J arrived at a view of the seriousness of the offence which put it somewhat lower than the learned Sentencing Judge in that case.

46 I would regard this as a “serious” case, indeed a “very serious” case given the sophistication, the two schemes and the amount of money involved. Save for that I am not assisted by reference to either to the “economy not collapsing” or by itself the quality of the counterfeit currency.

Crown Appeal - Principles

47 First it can be said that the normal restriction upon appellate review of the exercise of a discretion (House v The King (1936) 55 CLR 499 at 505) applies to Crown appeals against sentence; Dinsdale v The Queen (2000) 74 ALJR 1538. The Court of Criminal of Appeal must recognise the importance of the discretion exercised by the Sentencing Judge and cannot merely substitute its own opinion as to the appropriate sentence for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; the Court will only intervene where error is shown (R v Tait (1979) 46 FLR 386 at 388). Appeals by the Crown should be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234 and unless there is a patent error of principle identified, it would be exceptional for the Court to interfere: Regina v Baker [2000] NSWCCA 85 per Spigelman CJ at para 19.

48 An appeal by the Crown against sentence is concerned with establishing matters of principle, for the “governance and guidance of Courtshaving the duty of sentencing convicted persons”: Griffiths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310, this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing; Everett v The Queen (1994) 181 CLR 295 at 299. The Court of Criminal Appeal has a discretion to refuse to intervene even if error has been shown and should have regard to the double jeopardy that a convicted person faces as a result of the Crown appeal: Queen v Alpass (1993) 72 A Crim R 561 – the relevant principles are set out in the judgment of the Court at 562-3. A sentence imposed by the Court of Criminal Appeal as the consequence of a successful Crown appeal will generally be less than that which should have been imposed by the Sentencing Judge and will generally be towards the lower end of the appropriate range of sentence (R v Holder & Johnston (1983) 3 NSWLR 245 at 256; Bynsdale (supra) at para 62).

49 Finally, in the context of this being a Commonwealth appeal, I would add what was stated by Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64, 15 November 2001 as to the requirement that effect be given to Pt 1B of the Crimes Act (Cth.). Their Honours said:

“71. The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence": s 16A (1). Standing alone, the reference to imposing "a sentence ... of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender's prior criminal history. But s 16A (1) does not stand alone. To the extent that the matters identified in s 16A (2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only "the nature and circumstances of the offence" but also matters such as the degree to which the offender has shown contrition, the offender's "character, antecedents, cultural background, age, means and physical or mental condition" and "the need to ensure that the person is adequately punished for the offence". What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence”.

50 Their Honours have succinctly stated the obligations of the sentencing judge in relation to Commonwealth offences and thus have usefully provided a backdrop, as-it-were, for an appellate Court considering a sentence for a Commonwealth offence against the inadequacy of which the Crown appeals.

51 As the Crown pointed out the Sentencing Judge “became keenly aware” of the strength of the Crown case when evidence was called because of a dispute by the respondent of certain of the facts. Messrs Beeforth and Charadia gave evidence on oath adhering to their statements in the Crown brief and the involvement of the respondent in the offences. I hasten to add that the respondent, having pleaded guilty, was perfectly entitled to contest issues of fact relevant to the determination of the extent of liability and thus sentence and was not, thereby to be taken as to be amenable to any greater sentence. His Honour did not purport to go down that path.

52 From the Remarks on Sentence and Reasons for Sentence his Honour referred to a number of matters. As to the objective criminality, he found that the forging of bank notes is an extremely grave offence and that the respondent was a principal and driving force in the two schemes with which his Honour was concerned and was “pivotal” to their successful implementation; he recruited others and was involved in financing both operations. Beeforth and Charadia were less culpable than the respondent.

53 As to subjective matters his Honour noted the respondent’s criminal history involving as it did convictions for dishonesty offences, drug offences, assault and hinder investigation dating back to 1980. There was before his Honour a Pre-Sentence Report noting drug problems and what is described as disregard for authority by the respondent since his mid-teens despite an apparently stable upbringing.

54 His Honour found that the pleas of guilty were an expression of remorse and contrition although in the face of an extremely strong Crown case.

55 As to the respondent’s medical condition (sarcoidosis) his Honour found that it would require ongoing medical treatment, it was currently under control and significantly that the prison medical authorities would be able to look after the respondent (notwithstanding some reference to a possibility of a need for a lung transplant). Indeed, his Honour found the respondent’s state of health did not place him under a greater burden by reason of custody.

56 In the course of his Reasons and Remarks on Sentence his Honour made express reference to Rohde’s case and in the context of the respondent’s health to The Queen v Smith (1987) 44 SASR 458 and King CJ’s well known statements in relation to the part to be played by the state of the offender’s health.

57 In relation to the plea, his Honour expressly noted that the delay in the sentencing process was in the main caused by the respondent himself. His Honour considered the provisions of s 16A of the Crimes Act 1914 (Cth.) and in particular, general and specific deterrence. Further, in addition to the attention his Honour paid to the provisions of Pt 1B of the Crimes Act 1914, his Honour noted especially s 16G namely, the non-availability of remissions upon a sentence to be served in New South Wales.

58 His Honour had before him written submissions for the Crown that conform essentially with the submissions underlying its appeal. Those submissions contained an analysis of Rohde’s case and a summary of five sentences imposed in the District Court of New South Wales over the period September 1993 to September 1994 in counterfeiting cases involving a variety of facts and thus, a variety of outcomes.

59 It is the Crown’s expressly stated position that although no specific error can be demonstrated on the face of his Honour’s reasons the sentences are manifestly inadequate given the seriousness of the offences and the range of sentences said to have been demonstrated in less serious cases involving offences under this legislation. The Crown points to three matters in support of its case that, error not having otherwise been disclosed, the sentences nonetheless are manifestly inadequate.

60 The first is the deterrence factor. The Crown submits that in this case high sentences were called for because of the type of offences and the major role played by the offender. His Honour erred, it is said, in fixing sentences that in effect resulted in imprisonment for a maximum period of 6 years with a non-parole period of 4 years 6 months (after the s 16G allowance). This is especially clear, it is submitted, given his Honour’s identification of the level of the respondent’s criminality as the “driving force” and being “pivotal” to the two schemes, the operation of which were brought to an end only by the intervention of the authorities. It is said that given the respondent’s persistent ongoing criminality and his continued involvement of others in the schemes the sentences were not adequate particularly, it is said, in the light of the need to deter others from similar activity. With the availability of co-offenders to give evidence against him, the strength of the Crown case was extremely high. The sentences, in all the circumstances, are submitted to be “far too lenient”.

61 The Crown in its written submissions advanced the proposition that in relation to counts 10 and 12 (knowingly concerned in the making of a counterfeit currency) being the essence of the two schemes should have attracted “cumulative sentences” with an appropriate non-parole period. This was not raised in the sentencing proceeding before his Honour and leaving everything else aside I would consider it inappropriate, upon coming to a conclusion that there was a need for intervention, that that structure of sentencing be imposed.

62 When one considers the material before his Honour and especially his Honour’s noting every single factor to which the Crown refers and taking into account his Honour’s experience which must be respected in these matters, on its face, by itself in relation to this head, the Crown submissions, in my view, cannot succeed.

63 The second basis of attack is in relation to the pleas of guilty. It is said that too much of a discount appears to have been given by the learned Sentencing Judge. There is no question that his Honour acknowledged the strength of the Crown case and indeed, upon reading the Reasons for and Remarks on Sentence there is no question that his Honour was sensible of the respondent’s role in the delay of the disposition of the pleas.

64 Whilst the decision of this Court in Regina v Thompson & Coulton [2000] 115 A Crim R 105 points to the non-application of those principles to Commonwealth offences in the context of those appeals (p 130) the principles articulated can be used as a guide. Indeed, in The Queen v Bugeja [2001] NSWCCA 196 at para 24 it was held that the same discount should apply to Commonwealth matters. Insofar as the Crown alleges that the dispute by the respondent of the Crown facts resulted in the expense of calling witnesses in some cases from custody, which dispute was ultimately resolved in the Crown’s favour, as a relevant factor in determining the weight to be given to the plea, as I have already remarked, it would be inappropriate to penalise the respondent in the context of the weight to be given to his plea by reference to his testing of certain factual aspects of the Crown case. It is a matter that deprives him of otherwise available components in mitigation.

65 Again, upon consideration of this discrete ground of the Crown’s complaint, it cannot, in my view, be said upon a reading of the Remarks on Sentence that his Honour did not take into account every single factor to which the Crown refers.

66 The final matter relates to the consideration of the respondent’s health. It is contended for the Crown that the accepted ill-health of the respondent was not a factor that should have resulted in any significant discount in the sentences. It is argued that the respondent’s medical condition was a subjective feature in his favour but that the Sentencing Judge was bound to strike a balance between that factor and the very serious nature of the offence. It is, of course, well established that a respondent’s psychological and medical condition may increase the hardship of a sentence and may therefore be taken into account in deciding what sentence is appropriate; that consideration is limited by the necessity of maintaining proper standards of punishment (Regina v Hart [1999] NSWCCA 204). Again, his Honour made express reference to these considerations and indeed, to the role of the prison authorities in the management of the respondent’s medical condition (see Regina v Vachalec (1981) 1 NSWLR 351).

67 It is desirable at this point to set out two further passages from the judgment of Gaudron, Gummow and Hayne JJ in Wong:

“54. … it is evident in cases like House v The King and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons …”

68 As to the approach generally to the sentencing exercise, their Honours said:

“75. It [the ‘two stage approach to sentencing’] departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”.

69 For myself, I can state my view that I would not have imposed the sentences which his Honour did. I am of the view that the sentences fairly can be characterised as lenient. This however is not the test. Upon my consideration of the material before his Honour and especially upon my consideration of his Honour’s Reasons for and Remarks on Sentence, whilst I am of the view that the sentences are lenient, I am unable to infer that in some way there has been a failure on the part of his Honour properly to exercise the discretion which the law reposed in him. I am not persuaded a substantial wrong has in fact occurred notwithstanding the view I have otherwise formed that my conclusion would have been different. I am not persuaded that the nature of the sentences individually in relation to each count and in their totality when considered in relation to the offences and the circumstances addressed by his Honour were such as to afford convincing evidence that in some way the exercise by the learned Sentencing Judge of his discretion has been unsound or otherwise miscarried.

70 When one considers the statements of principle extracted from Wong above and places against them his Honour’s sentencing exercise, I can come to no conclusion other than that this is not a case, on a principled basis, for this Court’s intervention.

71 As I trust I have made clear, the offences to which the respondent pleaded guilty and was sentenced are unusual but serious in their criminality for the reasons, for example, expressed by Brooking J in Rohde. In the context of all the matters the Sentencing Judge must take into account it has to be stated in relation to this offence that deterrence is of particular significance; it can be stated that a custodial sentence would be applicable otherwise than in the most exceptional circumstances. I am of the view that the sentences in the District Court in the series of cases to which the learned Sentencing Judge was referred, as was this Court, cannot provide any “range” or “tariff” and that offences under the Currency Act are peculiarly ones which will require attention to the specific circumstances in a given case taking into account, as I have stressed, the gravity of the crime.

72 Thus, I am of the view that the Crown appeal cannot succeed.

73 The respondent sought leave to appeal against the severity of the sentences imposed. In this component of the appeal he appeared in person (he was represented only in relation to the Crown appeal).

74 Essentially, Mr Institoris complained of his custodial conditions given his medical condition. I certainly attended to what Mr Institoris said and noted the contents of affidavits sworn 4 October 2001 and the accompanying documentation. Nothing that the respondent to the Crown appeal said has persuaded me that his Honour’s sentence was manifestly excessive, that there was any error or that there has occurred any event that warrants intervention after the date of its imposition.

75 Accordingly, I propose the following orders:

1. As to Mr Institoris’ application, leave to appeal be granted but that the appeal be dismissed.

2. As to the Crown appeal, that that appeal be dismissed.

76 HOWIE J: I have received the very great advantage of reading in draft the judgment prepared by Levine J. I gratefully adopt his Honour’s summary of the facts, his review of the approach to be adopted in sentencing for offences against currency and the principles that govern this Court’s power to review a sentence where there has been an appeal by the Crown. However, I would make three observations on those matters discussed at length by his Honour.

77 Firstly, although Brooking J in Rohde (1985) 17 A Crim R 166 referred to uttering and counterfeiting as both being very serious crimes, the offence of making counterfeit notes should generally be regarded as the more serious of the two. When Rohde was decided, the maximum penalty prescribed for counterfeiting and uttering were the same, 14 years imprisonment. The relevant provisions of the Crimes (Currency) Act 1981 (Cth) now prescribe a more severe maximum penalty for counterfeiting than for disposing of, or selling, counterfeit currency which fact indicates that the legislature views the former offence to be more serious than the latter offences. Further, it would generally be the case that greater criminality would be involved in making counterfeit notes than merely receiving and disposing of them. In the passage in Rhode following that quoted by Levine J, Brooking J stated at 174:

“Forging Australian bank notes is an offence of such gravity as ordinarily to call for a substantial custodial sentence, notwithstanding prior good character. Moreover, the forger who sets out to produce large quantities of bank notes can expect to receive a substantial custodial sentence in all but the most exceptional of circumstances, and previous excellence of character and other mitigating considerations personal to the offender, can only in highly unusual circumstances save him from such a sentence. ”

78 Secondly, the amount of currency is a relevant consideration in an assessment of the criminality involved in the particular offence before the court, but it is only one of the considerations. For example, in my view, there would be little mitigation in the fact that the counterfeiter was apprehended before he or she had the time to produce a great quantity of counterfeit notes notwithstanding that he or she had the material, intention, expertise and equipment to do so. In other words the criminality of the offence cannot simply be determined by the amount of currency produced or its face value. Whether the amount of forged currency produced should be considered as a matter of mitigation depends upon all the facts of the particular case. So too the quality of the counterfeit currency may be a matter relevant to an assessment of the criminality of the offence, although I doubt that there is much to be said by way of a reduction in the otherwise appropriate penalty that the offender was incompetent in carrying out the criminal enterprise embarked upon. The quality of the notes, however, may be relevant to a consideration of the sophistication of the particular instance of the offence, the resulting criminality and the potential harm arising from the offence.

79 Thirdly, although, as Levine J points out, there is no tariff available for this type of offence and this feature has been said to confer a wide discretion on a sentencing judge when dealing with such matters, normal sentencing principles required Kinchington DCJ to measure the criminality in the present offences against the maximum penalties prescribed by the legislature, bearing in mind that the maximum penalty is appropriate for the worst category of offence falling within the scope of activity proscribed by the various sections under which the respondent was charged: Veen v The Queen(No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. This maximum penalty will indicate the policy of the legislature with respect to the offence: Oliver (1980) 7 A Crim R 174, and prima facie indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364. The discretion of the sentencing judge in the present case was thus circumscribed by the seriousness with which parliament considers these offences and the importance of general deterrence. The maximum penalty prescribed for the two most serious offences which the respondent faced, being knowingly take part in the making of counterfeit notes was, 14 years imprisonment, Crimes (Currency) Act 1981, s 6. The maximum penalty prescribed for the least serious offence was 10 years imprisonment, Crimes (Currency) Act 1981, s 11.

80 I agree with Levine J that the appeal lodged by Mr Institoris should be dismissed. It is entirely without merit. As his Honour has stated, the sentences imposed by Judge Kinchington were lenient. The only question that arises on a consideration of those sentences is whether they were so lenient as to be manifestly inadequate.

81 Levine J has determined that, notwithstanding the seriousness of the offences committed by the respondent to the Crown appeal and the need for a sentence for such offences to reflect general deterrence, the sentences imposed were not manifestly inadequate and, there being no other error asserted by the Crown, its appeal should also be dismissed. Unfortunately, I cannot concur with his Honour’s conclusion as to the outcome of the Crown appeal because I do not come to the same view as his Honour on the adequacy of the sentences imposed to reflect the criminality involved in the offences committed. In my respectful opinion the error by the sentencing judge is revealed in the structure of the sentences imposed for the various offences committed by the respondent. I believe that the structure of the sentences, and thus the overall sentence imposed, fails to a very significant extent to reflect the total criminality revealed in the facts of the offences before the court.

82 Put simply, I am of the opinion that the sentencing judge erred in failing to add any significant punishment for the offences involving the production and distribution of the counterfeit $100 notes to the sentences imposed in respect of the offences relating to the counterfeit $50 notes. In other words there should have been sentences imposed for the two distinct criminal enterprises in which the respondent was involved which were at least partly cumulative. The failure to structure the sentences imposed in that way has resulted in an overall sentence that is manifestly inadequate.

83 There is no suggestion in the present case that the respondent played other than a pivotal role in two separate schemes to produce and counterfeit Australian currency. The sentencing judge described them as “two separate criminal enterprises”. The first of those schemes involved the man Beeforth in the production of $100 non-polymer notes. This enterprise commenced in late 1994. Production of the notes continued until December 1994 and the respondent was distributing them in March 1996. The offences arising from this scheme were as follows: counts 1 to 6, which concerned selling or disposing of counterfeit $100 notes; count 10, which alleged that the respondent was knowingly concerned in making counterfeit notes; and count 11, which related to the purchase of the software program used to make the notes.

84 The second scheme concerned the production and distribution of counterfeit $50 polymer notes. It commenced in April 1996 with the production of the notes by Charadia which production continued until May of that year. The distribution by the respondent of the notes to Shaitley took place over April and May 1996. The offences arising from this enterprise were as follows: counts 7 to 9, which related to the disposal or sale of the counterfeit notes; and count 12 which alleged that the respondent was knowingly concerned in making counterfeit notes.

85 Although the two enterprises were separate acts of criminality committed by the respondent, they were clearly related in that the same computer equipment was used to produce both the $100 and $50 notes and the recipient of at least some of the two types of notes was the same. But there was a significant gap between the two productions of the counterfeit notes and different persons were involved in each production. Each of the two enterprises involved the active and substantial involvement of the respondent in serious criminal activity over a significant period of time and each enterprise, if considered separately, would have warranted a substantial prison term being imposed upon the respondent.

86 The overall sentence to be imposed for the first enterprise had to take into account not only the respondent’s pivotal role in the production of notes of the highest denomination of Australian currency but also the fact that he arranged and carried out the sale of a large number of counterfeit notes in a commercial transaction for profit. This was not an isolated act of criminality on the part of the respondent, even disregarding the second enterprise, as the respondent had a record for dishonesty and other offences dating back to 1980.

87 On the other hand the sentencing judge was required to have regard to the provisions of ss 16A(1) and 16A(2) of the Crimes Act 1914 as to the matters to be taken into account when determining the appropriate sentences to be imposed for each of the offences. Two significant matters that mitigated the punishment to be imposed upon the respondent were his pleas of guilty and the discount provided by s 16G for the lack of remissions in this State. There was of course the subjective features to be considered, the most significant of which was the state of the respondent’s health.

88 The application of the principles in Pearce v The Queen (1998) 194 CLR 610 required the sentencing judge in respect of the offences relating to the first criminal enterprise to;

“….fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality” at [45].

89 The sentences imposed by his Honour for the offences relating to the production and distribution of the counterfeit $100 notes were as follows:

Count 10: Imprisonment for 5 years 6 months with a non-parole period of 4 years and 2 months;
Counts 1 and 6: Imprisonment for 3 years;
Counts 2, 3, 4, and 5: Imprisonment for 4 years;
Count 11: Imprisonment for 4 years.

All of the sentences were concurrent and to commence from 29 May 2000.

90 Thus his Honour determined that the appropriate overall punishment for the criminality involved in the first criminal enterprise was five years 6 months. It also appears that his Honour was of the view that the whole of the criminality involved in this enterprise could be encapsulated in the sentence imposed for the offence involving the counterfeiting of the notes. I doubt the correctness of that view in light of the seriousness of the offences involving the sale or disposal of the notes, but I am prepared to act upon the basis that this was a decision that was within his Honour’s discretion.

91 In sentencing for the offences involved in the second criminal enterprise his Honour was entitled to take into account that the offences may not have been as serious as those involved in the first enterprise because, in my view, the denomination of the notes manufactured is a relevant consideration. However, the offences were more sophisticated than the production of the earlier notes because of the difficulty caused by the need to insert the clear window. As with the first criminal enterprise, the second group of offences involved a substantial and pivotal involvement by the respondent in the production of the counterfeit notes and the sale by him of the notes as a commercial transaction. In determining the appropriate sentence his Honour was bound to take into account the subjective and objective matters referred to in the relevant provisions of the Crimes Act and the discount for the pleas of guilty and the absence of remissions.

92 His Honour sentenced the respondent in respect of the matters falling within the second enterprise as follows:

Count 12: Imprisonment for 6 years with a non-parole period of 4 years and 6 months;
Count 7: Imprisonment for 3 years;
Counts 8 and 9: Imprisonment for 4 years;

All of the sentences were concurrent and to commence from 29 May 2000.

93 His Honour, therefore, determined that the appropriate punishment to reflect the total criminality for the offences in the second enterprise was 6 years imprisonment. Again his Honour determined that the total criminality for the offences committed in that enterprise could be reflected in the sentence for the offence relating to the respondent’s involvement in the counterfeiting of the notes. Again I am prepared to accept that his Honour was entitled to come to that decision. Why it was that his Honour determined that the criminality involved in the production of the $50 notes was more serious than that involving the production of the $100 notes is not clear from his remarks or reasons. It may be that his Honour thought that the offence was aggravated by the fact that it was the respondent’s second venture into counterfeiting currency or it might be that his Honour sought to reflect the greater involvement of the respondent in the actual manufacture of the $50 notes than the $100 notes.

94 But for whatever reason the sentencing judge chose the sentence that he did for count 12, applying the principle set out in Pearce and quoted above, his Honour must have concluded that the totality of the criminality involved in both of these substantial criminal enterprises could be encompassed in the sentences for the second series of offences and reflected by the appropriate sentence for the offence of taking part in the manufacture of the $50 notes. Consistent with this view, for all of the offences arising from the first enterprise his Honour imposed sentences that were to expire before the sentence imposed for count 12. In my respectful opinion, this assessment was erroneous. Notwithstanding that there was some overlap in the criminality displayed in the offences, the criminality involved in the offences relating to the $100 notes could not be encompassed or reflected in the appropriate sentence for the offences involving the $50 notes even if his Honour was correct in his assessment that the criminality arising from that offence was greater than that arising from the offence in count 10. In my view this error led to the overall sentence imposed upon the respondent being unduly and unjustifiably lenient.

95 As Pearce makes clear, a sentencing judge has a duty to determine both the length of each of the terms of imprisonment appropriate for each offence before the court and whether those sentences are to be served concurrently or cumulatively in order to reflect the total criminality of the offences and to avoid double punishment. In fulfilling this duty, the sentencing judge is called upon to make a number of discretionary judgments; Hammoud (2000) 118 A Crim R 66 at [7]. As with all discretionary judgments falling within the general sentencing discretion available to a judge at first instance, this Court should be scrupulous to ensure that it does not interfere with the exercise of discretion in respect of the structuring of sentences unless there is a proper need to do so to achieve justice for the parties. But in the present case it was, in my view, not open to his Honour on the facts before him to determine that the criminality involved in count 12 could comprehend the total criminality reflected in all offences where, as is common ground, the respondent had a pivotal role to play in two quite distinct and serious criminal enterprises each of which warranted a substantial gaol sentence.

96 I acknowledge that, if his Honour imposed a higher penalty for count 12 than count 10 because it was the second time the respondent had engaged in activity relating to the counterfeiting of currency, it would have been inappropriate to accumulate the sentences for count 10 and count 12. To do so might have led at least to a perception that the respondent was being punished twice for having been involved in two distinct criminal enterprises of a similar nature. I accept that in many cases the increased criminality reflected in the commission of a second offence of a similar kind to the first might adequately and appropriately be addressed by an increased sentence for the second offence and then the imposition of concurrent sentences. That will be so where the total criminality of the two offences does not merit cumulative sentences and there is no other policy consideration or sentencing principle requiring that the sentences be made cumulative. But I do not believe that, on the facts of the present case, it was open to his Honour to reflect the total criminality involved in the two substantial and separate criminal enterprises by an increase of six months to the sentence he believed was appropriate to reflect the criminality for the first enterprise alone.

97 The Crown has argued in this Court that his Honour erred in not cumulating sentences for counts 10 and 12. Levine J has noted that such a submission was not made before the sentencing judge and considers that it would not be appropriate to interfere simply to alter the structure of the sentences. With respect I cannot agree with that conclusion.

98 There was no requirement for the Crown to have positively sought cumulative sentences before the District Court. Nor is there any unfairness arising to the respondent from the failure of the Crown to make such a submission. Provided that the Crown places proper material before the sentencing judge on which he or she can determine the appropriate sentences to be imposed, there is no duty upon the Crown to address every sentencing principle that may have to be considered by the sentencing judge in determining what should be the appropriate overall sentence or how the sentences should be structured to achieve that result. There is no suggestion that in the present case the Crown did, or omitted to do, anything that has resulted in a sentence that, in my view, is manifestly inadequate.

99 Nor is this a case where the Court is being asked to interfere merely to alter the structure of the sentence because it may not be technically correct or appropriate but where there cannot be any complaint made about the final outcome; but cf Pearce v The Queen at [49]. In my view the structure of the offences reveals an error by his Honour in his assessment of the totality of the criminality revealed by the offences committed and which has resulted in a sentence which is so inadequate to address the objective criminality involved that this Court is required to take the rare step of intervening at the behest of the Crown.

100 In determining whether this Court should intervene and re-sentence the respondent I take into account the principle of double jeopardy inherent in a Crown appeal. I also take into account material placed before us as to the present state of the respondent’s health. The sentencing judge came to the view, appropriately on the material before him, that the respondent’s medical condition would not result in imprisonment being significantly more onerous for him than for other prisoners to the extent that the otherwise appropriate sentence should be reduced on that account alone.

101 The history of this matter reveals that the respondent sought to use his illness to frustrate the criminal justice system and that delays in the completion of the proceedings were due to his attempts to exaggerate the effect of his condition on his ability to stand trial. This conduct leads to little confidence being placed upon material emanating from the respondent as to his present condition and its affect upon his imprisonment. However, the Crown did not seek to cross-examine him on the material he presented and I am prepared to accept it at face value. The respondent’s complaints are largely matters to be addressed by the prison administration. Even so I accept that, by reason of his current condition and the likelihood of it deteriorating over the lengthy period he must serve in custody, some consideration should be given to his medical condition in determining what sentence should now be imposed. In particular, I would reduce what would be the otherwise appropriate non-parole period in recognition of the medical evidence and the likely deterioration of the respondent’s health over time.

102 The sentence I would now impose has been significantly reduced from that which I believe should have been imposed upon the respondent because of the prisoner’s medical condition and double jeopardy.

103 I would allow the appeal and as a consequence propose the following orders. The sentence for count 12 should be quashed and in lieu the respondent is to be sentenced to 5 years imprisonment. That sentence is to commence on 29 May 2004. There is to be a non-parole period of 5 years 6 months to date from 29 May 2000 and to expire on 28 November 2005, the date upon which the respondent is eligible to be released to parole.

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