R v Kearns
[2003] NSWCCA 367
•1 December 2003
CITATION: REGINA v KEARNS [2003] NSWCCA 367 HEARING DATE(S): 1 December 2003 JUDGMENT DATE:
1 December 2003JUDGMENT OF: Spigelman CJ at 1; Dunford J at 78; Hidden J at 79 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - corporate fraud - alleged apprehension of bias where trial judge presided over separate trials of two accused where corporate victim of fraud identical - no impact on impartiality of trial judge - effect of delay in process of investigation - sentencing - where trial judge sentencing under distinct Commonwealth and State regimes - where interconnecting sets of sentences - application of principle of totality. LEGISLATION CITED: Corporations Act 2001 (Cth) s 1401
Corporations Law 1991 (Cth) ss 232, 596, 1317BA, 1317FA
Crimes Act 1900 ss 178BA, 178BB
Crimes Act 1914 (Cth) ss 16A, 16G, 19AB
Crimes (Sentencing Procedure) Act 1999 s 21ACASES CITED: Balic (No 2) (1994) 75 A Crim R 515
Johnson v Johnson (2000) 201 CLR 488PARTIES :
Regina (Respondent)
James Gordon Kearns (Appellant)
FILE NUMBER(S): CCA 60270/03 COUNSEL: E Fullerton SC (Respondent)
H Dhanji (Appellant)SOLICITORS: Commonwealth Director of Public Prosecutions (Respondent)
Patrick Grimes & Co (Appellant)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): DCZ2538 LOWER COURT
JUDICIAL OFFICER :Dodd DCJ
60270/03
Monday 1 December 2003SPIGELMAN CJ
DUNFORD J
HIDDEN J
1 SPIGELMAN CJ: On 2 December 2002, the Appellant was found guilty by a jury on each of nine counts in an indictment alleging breaches of ss232(6) and 1317FA(1) of the Corporations Law 1991 or ss178BA and 178BB of the Crimes Act 1900.
2 On 18 December 2002, the Appellant was sentenced to terms of imprisonment in respect of each count, ordered to be served partly consecutively and partly concurrently, resulting in an overall head sentence of six years, with an effective non-parole period of four and a half years.
3 The Nambucca Group of Companies carried on a business in Macksville in northern New South Wales raising funds by the issue of debentures and investing those funds by the provision of mortgage finance and the purchase and development of property in the community. Business was transacted through a series of interrelated companies of which Nambucca Investments Pty Limited (“Nambucca”) and Lawnkin Pty Limited (“Lawnkin”) were two.
4 By the nature of its activities Nambucca obtained funds from investors who entrusted their savings to the corporate group. The ability of such investors to obtain a return on their capital and, indeed, to obtain the return of their capital, in accordance with the terms upon which they entrusted their funds to the financial intermediary, depended on the honesty of those in control of the companies. The faith that investors have in the honesty of corporate controllers enables such transactions to occur.
5 The maintenance of that faith is of vital significance to the economic affairs of this nation. For that reason, and also by application of general principles of the criminal law against fraudulent conduct, default on the part of corporate controllers is regulated by the criminal law.
6 In the context of the Nambucca group, the Appellant and an associate, Mr Damien Parkes, were prosecuted and convicted of a range of offences of this character. Parkes was convicted in a separate trial, but the circumstance that the trial judge was the same as in the case of the Appellant has given rise to the ground of appeal against conviction.
7 In the case of corporate fraudsters, greed is usually a sufficient explanation. Nevertheless, the need for money takes particular forms in corporate life. The Crown case against the Appellant was that at the relevant time – the offences were committed between late 1994 and early 1995 – the particular motivation of the Appellant arose from his obligations in a joint venture in a New Zealand financial services group known as the Equitable Group of Companies, of which the parent was Equitable Investments Limited, and an ambition he harboured of taking control of that Group.
8 A prominent New Zealand family, through a corporate vehicle, held 70 per cent of the shares in Equitable Investments Limited and Snoco Limited (controlled by the Appellant) held 30 per cent of the shares. Under the joint venture, additional funds had to be subscribed by each of the parties, including an amount on the part of the Appellant and his company which was to make a contribution of $300,000 by 30 September 1994, and $200,000 by late December 1994.
9 It was the Crown case that the amounts transferred by the Appellant to New Zealand, which are the subject of two counts, to which I will refer below, were so transferred in order to discharge his obligations under the agreement. The Crown produced evidence in order to establish that, without access to these funds, the Appellant would have been in default under the agreement.
10 It was the Crown case that the Appellant was able to obtain effective control of the Nambucca Group by deceiving those in a position to confer such control. Those persons were prepared to concede control because the management of Nambucca was divided, and the future direction of the group was being debated at Board level in the Group. The Crown case was that the Appellant deceived the stakeholders in the Nambucca Group into believing that he had the authority to commit the Equitable Group to the purchase of control of Nambucca and that he was representing the interests of the new corporate owner by assuming control of the Nambucca Group during an escrow period.
11 Eventually, he became a director and exercised control more directly. It was during that period of control, the Crown contended, that he was able to improperly obtain the funds both from the Nambucca Group and for the Nambucca Group.
12 One of the means by which the Appellant was said by the Crown to exercise control of a relevant character was by his appointment as trustee for the debenture holders. This was a role which he assumed as and from 29 September 1994. The Crown case was that his assumption of control of other activities of the Nambucca Group arose by reason of his false representation that the Equitable Group had offered to buy all the shares in the Nambucca Group, and on that basis, he held signed share transfers from the previous controlling shareholders during an escrow period. During that period he was also appointed to act as the solicitor for the Nambucca Group.
13 The first four counts on the indictment allege that the Appellant had made improper use of his position as an officer of named companies within the Nambucca Group by causing each such company to pay four separate amounts to his own corporation Snoco Limited; namely, $50,000, $50,000, $13,342.27 and $51,577.73 at various times between 23 December 1994 and 13 February 1995. Each of those occasions were said to contravene ss232(6) and 1317FA(1) of the Corporations Law 1991, as taken to be included in the Corporations Act 2001 (Cth) by s1401 of that Act. These counts are conveniently referred to as the first, second, third and fourth “officer count” respectively.
14 The fifth count on the indictment was that on 30 September 1994, he dishonestly obtained from Lawnkin Pty Limited, one of the Nambucca Group of Companies, either for himself or Snoco Limited, two valuable things; namely, bank cheques dated 30 September 1994 in the amounts of $100,000 and $200,000 respectively, and that he did so by deception; namely, by falsely representing that the Equitable Group of Companies had agreed to take over the Nambucca Group. This was said to be an offence contrary to s178BA of the Crimes Act 1900 and is referred to as “the Lawnkin count”.
15 The sixth to ninth counts on the indictment allege dishonest conduct contrary to ss178BB and 178BA of the Crimes Act 1900 by which money was obtained from investors for the Nambucca Group. These moneys were used to provide funds for the activities of Nambucca, including the Appellant’s own salary, but also to keep the Nambucca Group of Companies afloat.
16 Three of the counts related to the investments by Mr and Mrs Forbes, residents in the area, who were seeking a safe haven for their investment. One count relates to obtaining of funds from Mr and Mrs Bohannon, who were also residents of the area.
17 The Crown contended that contrary to section 178BB of the Crimes Act 1900, the Appellant on or about 8 March 1995 made a statement, known by him to be a false or misleading, in order to obtain a sum of $130,000. The nature of this statement was that the amount to be invested by the Forbes couple would be guaranteed by Equitable, that Equitable would take over Nambucca and that the Equitable Life Insurance Company prospectus would apply to the investment. This is referred to as “the first Forbes count”.
18 The Crown case was that on 18 May 1995, contrary to s178BA of the Crimes Act, the Appellant dishonestly obtained a cheque in the sum of $30,000 by deception, namely, by falsely representing that the said sum would be invested in an Equitable super fund and that money invested in Nambucca was guaranteed by Equitable, and that Equitable and Nambucca were “one and the same”. This is referred to as “the second Forbes count”.
19 Further, the Crown asserted that on 18 May 1995, the Appellant made a statement which he knew to be false or misleading in a material particular, with intent to obtain for Nambucca the sum of $88,717.56. The statement was that the money invested in Nambucca was guaranteed by Equitable and that Equitable and Nambucca were then “the same”. This is referred to as “the third Forbes count”.
20 The other count on the indictment was also based on s178BA of the Crimes Act 1900. The Crown alleged that the Appellant dishonestly obtained for Nambucca Investments Pty Limited a cheque in the sum of $20,000 by an act of deception; namely, by falsely representing to Mrs Bohannon that the sum would be invested pursuant to a prospectus of Equitable Life Insurance Company Limited, to the purchase of insurance bonds. This is referred to as “the Bohannon count”.
21 In the course of the trial the Appellant put in issue a number of matters. He disputed his appointment as trustee for debenture holders and denied he had assumed control of Nambucca. He also denied that he was the author of certain communications.
22 Furthermore, he also asserted that certain other people, including Damien Parkes, had conspired against him to fabricate allegations of deception to ASIC to camouflage their own involvement in the collapse of the Nambucca Group. He asserted that these others had been actively involved in the management of the Nambucca Group. He further asserted that they had prepared for ASIC what he described as a “cut and paste” forgery, setting out the alleged terms and conditions of a takeover purportedly signed by the Appellant as director of the Equitable Life Insurance Group of New Zealand.
23 These were matters which were resolved against the Appellant by the jury verdict.
The Conviction Appeal
24 In the event, there is one ground of appeal concerning the conviction and that turns on the coincidence to which I have already referred, that the trial judge had also been the trial judge in the prosecution of Parkes.
25 Damien Parkes was the principal of a company known as Austwide Capital Limited (“Austwide”) through which Parkes offered his services as a finance broker. It was Parkes who had introduced the Appellant to those from whom he had acquired the control of the Nambucca Group.
26 The Crown case against Parkes was that he became involved in day-to-day management of Nambucca’s affairs as and from 29 September 1994. Thereafter he gave instructions to a bookkeeper and the administrator of the debenture and loan books of the company and to those who were the signatories to company bank accounts. With respect to counts one to five on the indictment against the Appellant, that is, the four “officer counts” and the “Lawnkin count”, Parkes was the conduit between the Appellant and those from whom the funds were obtained.
27 As and from January 1995 Parkes’ involvement with Nambucca ceased, when the Appellant, on the Crown case, took an active role in day-to-day operations of the Nambucca Group of Companies.
28 On 15 November 2000, Parkes stood trial in the District Court on seven counts pursuant to section 596(b) of the then Corporations Law. Each count alleged that in December 1994, as an officer of either Nambucca or Lawnkin, Parkes defrauded the company by causing cheques in varying amounts to be transferred to one of Parkes’ own creditors. The total amount defrauded was $162,500. On 14 December 2000, a jury returned guilty verdicts on all counts. The trial judge was his Honour Judge Dodd, who was also the trial judge in the case of the Appellant.
29 The Crown contended that it was never part of the Crown case that Parkes was complicit in the criminal conduct alleged against the Appellant. There was no evidence that Parkes knew that the Appellant had obtained control of Nambucca by falsely representing Equitable’s interest in the acquisition of shares in Nambucca. Furthermore, it was no part of the Crown case at the Parkes trial that the Appellant had any knowledge of, or involvement in, the perpetration of the frauds for which Parkes was found guilty.
30 In effect, the Crown case was that they each acted independently of the other, notwithstanding the fact that the corporate victim was the same and that the context in which the respective offences were committed was their joint association with Nambucca.
31 As I have indicated, there is only one ground for the conviction appeal. It was originally put to the trial judge, that his Honour should disqualify himself from hearing the case on the basis of a reasonable apprehension of bias. That bias was said to arise, as I have indicated, from the fact that his Honour had previously presided at the criminal trial of Damien Parkes.
32 The Appellant contended, and still contends, that a number of witnesses had given evidence before Judge Dodd and the jury in the Parkes trial. The role and activities of the Appellant had arisen frequently in the course of that evidence. Indeed, in Judge Dodd’s summing up in the Parkes trial, the Appellant’s involvement with the Nambucca Group was frequently referred to - according to the Appellant’s submissions - on 61 occasions.
33 The Appellant contends that his Honour’s involvement, even as a presiding judge in a jury trial, gave rise to a reasonable apprehension of bias. It was submitted that as his Honour had heard the alleged fabrications of Parkes and of those whom the Appellant contends are his co-conspirators, i.e. fabricated allegations against the Appellant, in a trial where those allegations against the Appellant were uncontested, that fact may have prejudiced the trial judge.
34 The fact that the trial judge’s role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R 515 at 520, where their Honours said:
- “Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.”
35 The test for disqualification on the grounds of bias is now well established in Australia and has been set out in Johnson v Johnson (2000) 201 CLR 488 at 492 to 493:
- “.... [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias .... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide .... the test is objective ... two things need to be remembered: the observer is taken to the reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.”
36 As I have indicated, in a jury trial the matters which a judge is required to decide include the admissibility of evidence and also the formulation of a summing up. If there is a conviction, he or she must sentence the person so convicted. These are more limited matters than those which arise in the course of a judge-alone trial. Specifically, however, they do not include the determination of issues of credit.
37 Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant.
38 I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge’s mind, in terms of his or her conduct in the second trial.
39 These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.
40 This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer.
41 In my opinion, the appeal against conviction should be rejected.
The Statutory Provisions
42 Before turning to the appeal against sentence, it is relevant to note the relevant statutory offences. Section 232(6) of the Corporations Law provides:
- “An officer or employee of a corporation must not, in relevant circumstances, make improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the corporation.”
43 By s1317BA, s232(6) is classified as a civil penalty provision. By s1317FA(1):
- “A person is guilty of an offence if the person contravenes a civil penalty provision …”
in the circumstances set out in that section.
44 These sections of the Corporations Law 1991 are taken to be included in the Corporations Act 2001 (Cth), and the pre-existing liability under the former corporation legislation regime is taken to have arisen under the new legislation, by force of s1401 of the Corporations Act 2001.
45 The two sections of the Crimes Act 1900 under which charges were laid were ss178BA and 178BB which provide:
- “178BA Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for five years. …
- 178BB Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes .... any statement ... which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular, and is made with reckless disregard as to whether it is true or false or misleading in a material particular shall be liable to imprisonment for five years.”
46 I should also note that the maximum penalty applicable under the Corporations Law is, in each case, five years imprisonment.
47 In his remarks on sentence, Dodd DCJ made the following observations:
- “Each of the nine offences, by virtue of the jury’s verdict, involve deliberate dishonesty. In each case deliberate deceit has been practised. The fraudulent behaviour can be seen by virtue of the terms of the counts taken together to have extended over a substantial period in a variety of forms. The fraud in each case can be properly characterised as having been committed for your own personal advancement. In respect of the first five counts, the money was used for your direct personal advancement. In respect of the first five counts, the money was used for your direct personal benefit in terms of your activities in relation to the Equitable Group of companies. The $300,000 referred to in the fifth count went to the Equitable Group of companies as a last minute payment in respect of a capital call made by that group of companies at the instigation of Mr Spencer. The last four counts resulted in an indirect personal benefit to you in the way I have previously indicated.”
48 His Honour had earlier said that, by 1995, when the Appellant had been appointed director and was in operational control of the Group, he made certain representations to Mr and Mrs Forbes and Mr and Mrs Bohannon to the following effect:
- “You made those misrepresentations (as found by the jury) in order to obtain for Nambucca Investments Pty Limited funds for that company’s general purposes, including providing funds for your salary which you were then drawing from the Nambucca companies, and in order to keep the Nambucca Group of companies afloat in terms of meeting other payments.
- Mr and Mrs Forbes and Mr and Mrs Bohannon were residents in the area who were seeking a safe haven in which to invest their respective spare funds. They had no intention of investing in risky investments. On the contrary, they desired the safest of investments, and in the case of Mr and Mrs Forbes, they had absolutely no intention of investing their money in Nambucca Investments Pty Limited in any form.”
His Honour also said:
- “These offences have involved in each case a breach of trust. In the case of the counts relating to company affairs, including count five, they could not have been committed except for your position in relation to the companies as director or as effective director by virtue of your control of the companies, as I have previously described, and the extraordinary position of also in effect being the trustee for debenture holders and, in certain crucial respects, the solicitor for those companies.
- In respect of counts six, seven, eight and nine, in each case you relied upon your position as a solicitor and in fact obtained instructions from the victims to act as their solicitor in respect of various aspects of the proposed investments. No effective security was provided in respect of any of the amounts obtained despite the attempt to characterise the transactions at various times as genuine investments.”
49 His Honour described the offences as serious. He noted that the community has come to realise that fraud offences, including those committed in respect of corporations, were “on a par with other examples of what I collectively refer to as stealing”. His Honour added:
- “In particular, instances of fraud illustrated by counts six, seven, eight and nine, bring great personal distress and hardship to the victims.”
These were the three Forbes counts and the Bohannon count.
50 His Honour also noted that debenture holders of the Nambucca Group of Companies obtained no return on their investments when the group collapsed. His Honour said:
- “Although whether they would have done so had your frauds not been committed in respect of the companies is uncertain, but at least another approximately $500,000 or so may have been available at an earlier stage and may have provided the ongoing funds to prevent a complete collapse.”
51 His Honour went on to note that the offences were committed deliberately, were entirely of the Appellant’s “own design” and that no-one else profited by the commission of the offences. He noted that the Appellant had no criminal record and that other than by the commission of those offences, the Appellant was entirely of good character. Indeed, his Honour noted that he gave the jury the full direction in respect of good character at trial. His Honour referred to the character evidence that had been called.
52 He noted other personal details of the Appellant, his age and his family circumstances. He noted that his interests in the Equitable Group of Companies had been transferred, effectively, with no consideration to the Appellant himself. The interest was valued at $1 million and approximately half was paid to persons who had financed the Appellant into the acquisition of his interest in the Equitable Group. The balance, being of approximately half a million dollars, had been paid to the liquidator of the Nambucca Group as a settlement of a claim made on behalf of that Group from the money that the Appellant had taken from the companies in the Nambucca Group. He noted that that amount of $500,000 could be regarded, at least in some manner, as restitution to the Nambucca Group.
53 His Honour also noted the health of the defendant and that he had a stroke two years before the date of sentence. He referred to the medical evidence that was before him. His Honour noted inter alia that there may be some increased risk of suffering a second stroke if the Appellant were sent to prison.
54 Nevertheless, his Honour concluded that only a sentence of full time custody was appropriate in the circumstances of the case. His Honour referred to the factors mentioned in s16A of the Commonwealth Crimes Act 1914. His Honour also referred to the provisions of s21A of the Crimes (Sentencing Procedure) Act 1999 with respect to the offences against the Crimes Act 1900.
55 His Honour noted that the element of general deterrence, although not referred to in s16A, had to be taken into account. His Honour concluded that, in his opinion, upon release the Appellant would not offend again. He referred to the need to take into account s16G of the Commonwealth Crimes Act, and also noted that the appropriate ratio after the Commonwealth offences, between the non-parole period and the head sentence, was, subject to other factors, approximately 60 per cent to two-thirds.
56 With respect to each of the four officer counts, his Honour determined that an appropriate penalty would be a term of three years, to be reduced to two years after a s16G reduction. He applied a non-parole period of two-thirds, resulting in a term of one year and four months. His Honour partially accumulated the four counts with the result that the sentence imposed on an overall basis was five years, with a three year non-parole period. His Honour was entitled to do this by s19AB of the Commonwealth Crimes Act 1914.
57 With respect to the Lawnkin count, his Honour imposed a fixed term of two years, which was made entirely concurrent with the officer counts.
58 With respect to the first Forbes count, under s178BB of the Crimes Act, his Honour imposed a term of three years, which was partly concurrent and partly cumulative, with the overall result that there would be a sentence of six years imprisonment with a non-parole period of four and a half years.
59 With respect to the Bohannon count, he imposed a penalty of one year fixed imprisonment, and with respect to the second Forbes count, he fixed a term of two years. In each case they were wholly concurrent with the other offences.
60 As I have indicated, the overall effect and structure of the sentences was a term of imprisonment of six years with an effective non-parole period of four and a half years. The way his Honour imposed the sentences was to make the State offences, other than the Lawnkin count, entirely cumulative upon the effective non-parole period for the four officer counts.
61 In the course of dealing with the first Forbes count, his Honour indicated that his intention was to impose a term of imprisonment of three years and a non-parole period of one and a half years, which is a relationship of 50 per cent to the head sentence; that is to say, less than the presumptive ratio of 75 per cent for sentences in relation to State offences. On this point his Honour said:
- “If I need to find special circumstances in order to set that non-parole period, I do so by virtue of your age, by virtue of your prior good character, by virtue of my finding that you are not likely to re-offend and, having regard to the principle of totality in respect of all of these offences.”
62 His Honour did not repeat these remarks, but plainly intended them to apply, with respect to the third Forbes count, for which he imposed an identical sentence as for the first Forbes count.
63 His Honour treated the offences under the Corporations Law (and now the Corporations Act) as distinct from the offences committed against the Forbes couple. The offence committed against the Bohannon couple was made entirely concurrent with the sentences imposed on the first and third Forbes counts.
64 In my view, his Honour was entitled to approach the matter in this way. The victims were relatively distinct. The effects of the offences against the corporate group were borne, to a substantial degree, by the debenture holders and, no doubt, secured and unsecured creditors. This constituted a distinct phase of criminality with quite different victims. It was subsequent to that phase that the Appellant, once he had assumed day-to-day operational control of the Nambucca Group, proceeded to commit the offences with acquired funds for the Nambucca Group.
65 In my opinion, his Honour was entitled to approach his sentencing task on the basis that he was sentencing for two different, distinct groups of offences which overlapped internally, but did not, in substance, overlap with each other. Nevertheless, the principle of totality, to which his Honour referred to in the passage that I have quoted, was of significance prior to determining the final effective head sentence and effective non-parole period.
Sentence Appeal
66 On this appeal, Mr Dhanji, who appeared for the Appellant, identified two particular matters to which he directed his submissions. A number of other matters had been raised in the grounds of appeal, although not elaborated upon in any manner in the written submissions.
67 In his oral submissions, Mr Dhanji elaborated on two only of those matters. The first matter was the effect of delay. He noted that the offences had been committed during the period of 1994 and 1995. However, the information was filed only in May of 1999. He drew attention to the fact that the Appellant had changed his position in a particular respect. In the middle of 1998, at a time when he thought that the Nambucca matters were not being pursued, he had acquired a new legal practice at Jindabyne, and this, in some way, constituted reliance of a character that should be seen as an unfairness arising from delay.
68 In the present case, I do not see that the delay was of such an order of magnitude as to conclude that any significant unfairness arose of a character that needed to be identified and adverted to by the trial judge in the sentencing task. There was a process of investigation by the Australian Securities Commission that continued for some years prior to the laying of charges. The period of some three and a half years for the process of investigation and determination of which charges could be pursued does not, in the circumstances, appear to me to be so excessive as to constitute a factor that requires to be taken into account in the exercise of the sentencing discretion.
69 Although his Honour did not refer to this delay in the course of his remarks on sentence, in my view he made no error in failing to do so, even it be assumed that his Honour did not take into account this matter in any way.
70 The second matter upon which reliance was placed was what was said to be the inappropriateness of the ratio between the non-parole period and the head sentence. That is to say, on an effective basis, the relationship was 75 per cent and reflects, in this global sense, the State presumptive ratio. Mr Dhanji submitted that the predominant offences were in fact the Commonwealth offences, to which his Honour purported to apply the ratio of 60 per cent, which is within the range regarded as appropriate when sentencing for Commonwealth offences.
71 His Honour had made a finding of special circumstances in the case of the State offences, which had the effect of varying the ratio to 50 per cent which respect to each of the State offences considered separately. There were offences for which a non-parole period was not imposed at all. It was submitted that his Honour ought to have regarded the Commonwealth ratio of 60 per cent as the correct approach to adopt when undertaking the sentencing task of sentencing under two distinct regimes, on the basis that, in some way, the Commonwealth offences were the more significant offences.
72 He also submitted that his Honour made a finding of special circumstances in the context of the State offences, but that finding was not reflected in any way in the ratio between the effective head sentence and the effective non-parole period. Accordingly, his Honour either failed to have regard to this matter when determining the overall ratio, or should have implemented his intention in some manner, at least moving closer to the ratio usually regarded as appropriate for sentencing of Commonwealth offences.
73 The approach to be taken to the sentencing task when one has to accommodate two distinct regimes is not an easy one. A similar problem arises with respect to sentencing, even under one regime, for disparate offences tried together, but which are related to each other. This Court should be slow to analyse the particular statements made by a sentencing judge. The judge must accommodate the need to assess separately imposed sentences for each particular offence under different regimes, and the application of the principle of totality, to give appropriate recognition to the effects of the overall sentences imposed in the light of the overall criminality disclosed in the particular trial, on the one hand.
74 In my view, his Honour was correct to approach the task on the basis that he had to completely distinguish the two sets of offences. He approached the task of sentencing for the Corporations Law offences on the basis of the Commonwealth sentencing regime, and he approached the task for the sentencing for the State offences, other than the Lawnkin offence, which was entirely encompassed within the Corporations Law offences, on the basis of the State sentencing regime. This his Honour did and was entitled to do.
75 His Honour expressly referred to the principle of totality in terms of looking at the interconnection of the two sets of sentences he proposed to impose. The victims, as I have said, were different; each phase of criminality was distinctive; and the nature of the offending was distinctive in the two sets of offences. In my view, it was appropriate for his Honour to impose sentences for the State offences that commenced on the expiration of the non-parole period for the Corporations Law offences.
76 I am unable to see that the individual offences were in any way outside the range of permissible discretion. On the basis of the application of the principle of totality, in my view the ultimate effective result, both in terms of head sentence and non-parole period, was also within the range of the legitimate exercise of the sentencing discretion, after the application of the principle of totality.
77 In my opinion, the appeal should be dismissed.
78 DUNFORD J: I agree.
79 HIDDEN J: I agree.
80 SPIGELMAN CJ: The order is as I have indicated.
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