R v Strano

[2002] NSWCCA 531

CITATION:	R v Strano [2002] NSWCCA 531 revised - 19/02/2003
FILE NUMBER(S):	CCA 60141/02
HEARING DATE(S):	17/12/02
JUDGMENT DATE:	17 December 2002
PARTIES :	Regina Raymond Dominic Strano
JUDGMENT OF:	Sheller JA at 1, 100, 102; Wood CJ at CL at 2; Sully J at 101

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0013
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

COUNSEL :	G J Bellew (Crown) S J Odgers SC
SOLICITORS:	Commonwealth Director of Public Prosecutions D J Humphreys
CATCHWORDS:	CRIMINAL LAW - appeal against severity of sentence - make false statement with intent to obtain financial advantage - plea of not guilty.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	De Simoni v The Queen (1981) 147 CLR 383 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 1994 CLR 610 Postiglione v the Queen (1997) 189 CLR 295 Regina v Corner NSWCCA 19 December 1997 Regina v Edwards (1996) 90 A Crim R 510 Regina v El Rashid NSWCCA 7 April 1995, Regina v Moffatt, VCCA 15 December 1992 Regina v Petrovic (1998) VSCA 1995 Regina v Phelan (1993) 66 A Crim R 446 Ryan v The Queen [2001] HCA 21
DECISION:	See paras 91 - 99

- 21 -IN THE COURT OF

60412/02

SHELLER JA
WOOD CJ at CL
SULLY J

Tuesday 17 December 2002

Regina v Raymond Dominic Strano

Judgment

1 SHELLER JA: In this matter the Court is in a position to give judgment now, and I will ask Justice Wood to give the first judgment.

2 WOOD CJ AT CL: The applicant, Raymond Dominic Strano, seeks leave to appeal against the severity of a sentence imposed by her Honour Judge Hock in the District Court on 15 March 2002.

3 On 24 October 2001 a jury found him guilty of seventeen counts of making a false statement with intent to obtain a financial advantage contrary to s 178BB of the Crimes Act 1900 (New South Wales) an offence for which the maximum available penalty is imprisonment for five years.

4 Judge Hock sentenced him to an overall sentence of eight years with a non parole period of five years. That sentence effectively commenced on 25 October 2001, so that the head sentence was due to expire on 24 October 2009. The non parole period was directed to expire on 24 October 2006.

5 The sentence was comprised by a series of fixed terms in relation to sixteen of the seventeen counts, which were grouped as follows:

(a) Group One: Counts 1, 2, 4, 5 and 7, fixed terms of twelve months commencing 25 October 2001.
(b) Group Two: Counts 8, 9, 11, 13, 14 and 15, fixed terms of two years commencing 25 April 2002.
(c) Group Three: Counts 12, 16, 17, 18 and 19, fixed terms of three years commencing 25 April 2003.

6 Additionally, in relation to the count which I will refer to as that incorporated in group four, namely count 20, a sentence was imposed of imprisonment for three years six months with a non parole period of six months, each commencing on 25 April 2006.

7 It can be observed that the ratio of the overall non parole period to the head sentence was one of 62.5 percent.

FACTS

8 The Crown case was that the applicant, an investment adviser, carried on business between August 1995 and June 1997 under the names Retirement Advisory Services Pty Limited and Retirement Health and Life Style Planning from premises in Bondi Junction. He acted in that capacity as an agent for George Balos to induce members of the public, on promises of returns varying between four and twelve percent per quarter, to invest money with him.

9 Upon accepting the funds for investment from those investors who were introduced by the applicant, Balos would enter into a loan agreement whereby the investor would pay to him money on the basis of what was referred to as a ninety day call loan. These agreements described Balos as either G Balos of Commodities International or G Balos of British Marine Bank. There was no legitimate business being carried on by Balos under either name.

10 It was the applicant’s practice to consult with potential investors at his office or at their homes, or in some cases at a retirement village. They were variously asked to provide a cheque and to sign a loan agreement, which the applicant witnessed. Balos then executed this agreement and returned it to the investor. The investors’ cheques were deposited into a number of bank accounts operated by Balos.

11 Investors were given a choice by Balos of receiving monthly interest payments or of receiving a payment of accrued interest at the cessation of term. Such limited payments as Balos did make, in accordance with the investors election, were inconsistent with any form of income bearing investments, comprising isolated monthly interest payments and a limited number of lump sum repayments of capital.

12 The charges of which the applicant was found guilty related to the representations which he had made to certain individual investors, regarding the nature of their investments, and in particular the fact that the investment was being made through the British Marine Bank or Commodities International. The total amount of moneys involved in the charges of which the applicant was found guilty was $973,024.

13 It is appropriate to deal with each group of counts separately so as to have an understanding of the criminality involved.

Group One

14 Count One: As framed, this count related to the applicant’s statement, in or about May 1995, to one Ann Westron that Commodities International was a large company which was accepting deposits in Australia, investing money and performing well. This statement was false in that there was then no company of that description in existence.

15 In brief summary, this offence was committed in circumstances where Miss Westron, who had been an existing client and an investor in Lumley Life Insurance, was invited by the applicant to a meeting at his office. Once there, he advised her that she should transfer the monies which she held with Lumley Life Insurance into Commodities International, telling her that it was a “very big prospectus company and was going very well”. She complied by providing, in September 1995, a cheque in the amount of $55,442.51.

16 Count Two: This count related to the applicant’s statement in August 1995 to one Wendy Chaseling that Commodities International was a company managed by George Balos which was engaged in property development, which statement was also false in that there was then no company or other entity trading under such name.

17 The circumstances in which this offence occurred may also be briefly noted. The applicant had managed investments, for some time, on behalf of Miss Chaseling’s mother and had visited her in August 1995 at her nursing home. Miss Chaseling, who had been present on that occasion, asked the applicant’s advice in relation to an investment which she wished to make herself in an amount of $20,000. The applicant advised her that she should invest with Commodities International, a company which he said was “in property development” and “as safe as money in the bank”.

18 A loan agreement was then produced and completed by the applicant in the name of George Balos of Commodities International. Miss Chaseling signed this in his presence and handed the applicant a cheque for the amount in question.

19 Count Four: This count related to the statement made by the applicant to one Dawn Martin that there existed in Israel a bank named British Merchant Marine Bank, which was affiliated with the Macquarie Bank in Sydney. This statement was also false in a material particular in that there was no such bank in existence.

20 In this instant the applicant suggested to Miss Martin that she invest a sum of $100,000 with Commodities International, claiming that the money would go to “the British Merchant Marine Bank”, which “was affiliated with the Macquarie Bank” and was “an overseas investment in Israel”.

21 While not committing herself at that time, she later received a property settlement arising out of some family law proceedings in the amount of $250,000. Of this sum she paid $50,000 to the applicant by way of a cheque payable in favour of Perpetual Trustees.

22 Count Five: This count related to the applicant’s statement, on or about 4 March 1996, to one Narelle Chaseling that a company or companies in the Perpetual Trustees Australia Limited group traded under the name Commodities International, which statement was also false in a material particular in that none of the companies mentioned were then carrying on any such business.

23 Narelle Chaseling, in this instance, telephoned the applicant on 4 March 1996 in order to advise him that her sister, Wendy Chaseling, the victim of count two, wished to invest further funds. The applicant instructed her the cheque should be made payable to Perpetual Trustees. Being aware that a prior cheque had been made payable to Commodities International, Narelle Chaseling asked the applicant to explain the change. He replied, “It is now Perpetual Trustees trading as Commodities International”. Miss Chaseling then provided the applicant with a cheque made payable to that company in the sum of $35,000.

24 Count Seven: This count related to a statement made on 2 April 1996 to Mary Dunk to the effect that George Balos carried on under the name of Commodities International, a business of receiving deposits and making investments in gold, silver, oil and mining, which statement was also false in a material particular in that George Balos did not then carry on any such business.

25 Miss Dunk was a person who had previously invested money with Lumley Insurance. In July 1995 she approached the applicant with a view to investing a further sum of $3,000 in that group. The applicant advised her that she should remove her money from the Lumley Group and “put it into the Balos one”, which he stated, “Was in mining, gold and silver and that sort of thing… was very good, but all to do with minerals and metals”. She did so, handing over $11,000 in cash to the applicant.

Group two

26 Count Eight: This count related to a statement made in June 1996 to Robyn Sargent that there existed a business carried on under the name of Commodities International Investments which was underwritten by an insurance company, and which was associated with a company or companies in the Perpetual Trustees Australia Limited Group, which statement was also false in that there was then no business of any such description.

27 Miss Sargent had been introduced to the applicant upon his visit to her parents to arrange some investments for them. Through a divorce settlement she had received a sum of money, and asked the applicant for his advice as to its investment. His recommendation was that she invest with Commodities International, and he asked for a cheque to be provided, made payable to Perpetual Trustees, which he said was associated with the Perpetual Trustee Group. She handed over a cheque for $60,000.

28 Count Nine: This count related to a statement made in July 1996 to Julie Duell and John Duell that there existed a wholesale and commercial bank named British Marine Bank, which was part of the British Marine Insurance Company, which made investments in Australia. These investments, he said, were totally backed by Government Bonds. Such statement was false in that there did not exist any bank of such description.

29 In 1996 Mr and Mrs Duell had taken up residence at an aged care facility, Pine Needles Retirement Estate. They had consulted the applicant, after a seminar at that facility, in which he had been a guest speaker. They informed him that they wished to invest $125,000 following the sale of their previous residence, due to Mr Duell’s diagnosis of a terminal tumour of the brain, and their subsequent move to the facility.

30 The applicant recommended an investment in the British Marine Bank, saying that it was a “wholesale and commercial bank and part of the British Marine Insurance Company”, and that “it made investments in Australia which were totally secured and backed by Government Bonds”. Such statement was false in a material particular in that there was no such bank.

31 Count Eleven: This count related to a statement made in about October 1996 to John and Regina Smith that there existed a bank named British Marine Bank, the head office of which was in Trafalgar Square in London, which statement was false in that there was then no such bank.

32 Mr and Mrs Smith had also attended the seminar which had taken place at Pine Needles Retirement Estate. The applicant gave them a business card, and on being contacted in October 1996 by Mr Smith, he returned to the retirement estate and discussed investment options with him.

33 Mr Smith informed the applicant that he had invested $50,000 with Bankers Trust. To this the applicant responded with advice that the money would be better invested with British Marine Bank. This he stated was “a well known bank with a head office in Trafalgar Square, London”. Mr and Mrs Smith were apparently convinced by this representation, and signed a loan agreement which was completed by the applicant. They then posted a cheque in the amount of $50,000 to him.

34 Count Thirteen: This count related to a statement made in October 1996 to Raymond Lillington that George Balos was the principal of a bank named British Marine Bank which was a subsidiary of the British Marine Insurance Company, which statement was again false in that George Balos was not the principal of any such bank.

35 Mr Lillington had also been sufficiently unfortunate to attend the seminar at Pine Needles Retirement Estate in 1996. He met with the applicant later on 2 October 1996 at which time the applicant advised him to invest money with the British Marine Bank. Mr Lillington handed the applicant a cheque for $18,000 after signing a loan agreement prepared by him.

36 Mr Lillington inquired about the identity of Mr Balos, to which the applicant replied that he was “the principal of British Marine Bank, a very clever investor”.

37 Count Fourteen: This count related to a statement made in December 1996 to Raymond Lillington that there existed a bank named British Marine Bank which was accepting deposits in Australia and which was as safe as any bank in Australia. That statement was again false in that there was then no bank of that description.

38 In December 1996 Mr Lillington had contacted the applicant, requesting investment of a further $20,000, which had been taken from an investment which he had previously placed with the ANZ Bank. A loan agreement was prepared by the applicant and signed, after which Mr Lillington handed over the cheque for $20,000.

39 During the course of this transaction Mr Lillington said words to the effect, “Ray, you are sure this is safe, because this would just about wipe us out”, to which the applicant replied, “It is as safe as any bank here”.

40 Count Fifteen: This count related to a statement made in December 1996 to Dawn Levy that there existed in London a bank named British Marine Bank, with branches throughout Europe, which was approved by the Australian Securities Commission to receive investments, which statement was again false in that there was no such bank.

41 On 23 December 1996 Miss Levy had been informed by the applicant that the British Marine Bank was “a very large bank in London” with “branches throughout Europe”, and it was thus suitable for the investment of the proceeds of her late brother’s estate, namely some $131,000.

42 The applicant stated that the “investment was approved by the Australian Securities Commission” and that she should make out a cheque payable to Perpetual Trustees, as they were acting as trustee for the bank.

Group three

43 Count Twelve: This count related to a statement made in October 1996 to Julie Duell and John Duell to the effect that George Balos was the principal of a business formerly named British Marine Bank, which was undergoing a name change to Commodities International, and which invested funds deposited with it in property and shares in a totally safe manner, which statement was false in that George Balos was not then the principal of any such business.

44 On another visit by the applicant to Mr and Mrs Duell, on 1 October 1996, at the Pine Needles Retirement Estate, he learned that Mr Duell had $225,000 to invest, and required a steady income of $1,000 per month. The applicant advised Mr Duell to invest the funds with the British Marine Bank. The applicant stated that the money would be invested in property, shares and trust funds in a manner which he described as being “totally secure”. He reassured them that they would not lose money.

45 Two loan agreements were prepared on this occasion, one in the name of Julie Duell in the sum of $10,000 and the other in joint names, in the amount of $215,000. The name George Balos of Commodities International was again used.

46 Mrs Duell questioned this name and was advised by the applicant that the British Marine Bank was undergoing a name change, and that for this reason the prospectus was unavailable, being currently at the printer. He assured them not to worry and said that he had “years of experience of dealing with them”. As was his usual practice, he evidenced the signing of the agreements and received the monies.

47 Count Sixteen: This count related to a statement made on or about 3 February 1997 to Dawn Levy that George Balos was the representative in Australia of the British Marine Bank, a statement which was again false in that George Balos held no such position.

48 Upon receiving the applicant’s advice, in December 1996, regarding the investment of monies obtained from her brother’s estate, Miss Levy attended at the applicant’s office on 3 February 1997 with a bank cheque in the amount of $100,000 made payable to Perpetual Trustees. Upon an inquiry by Miss Levy as to why a loan agreement was required, the applicant stated that the “bank had not been set up” and “this was the only legal way they could do it”. He explained that Balos was the “bank’s representative in Australia”.

49 Count Seventeen: This count related to a statement made in March 1997 to Carole Jeanette Bryden that there existed a bank named British Marine Bank owned by George Balos, which was false as there was no such bank in existence.

50 On 5 March 1997 Miss Bryden gave the applicant a cheque in the sum of $100,000 made payable to Perpetual Trustees, following his visit to her home. This had occurred in response to the applicant’s advice to her to invest money with the British Marine Bank, which he said was coming to Australia. He stated that he had known George Balos “for many years”, and that he was “the owner of the British Marine Bank in England”.

51 Count Eighteen: This count related to a statement made on or about 11 April 1997 to Ann Westren that Commodities International was a business working together with a company or companies in the Perpetual Trustees Australia Group, which statement was false in that there was then no person or entity carrying on business in the name of Commodities International or which was working or in any way associated in business with the Perpetual Trustees Group.

52 Miss Westren, having previously been a client of the applicant, had met him again in 1997 seeking to invest an additional amount of $140,000, being the proceeds from the sale of a property which she had owned in Winston Hills. The applicant’s representations included the investment of this sum with the company. He asked her to make the cheque payable to Perpetual Trustees because they were “acting with Commodities International”.

53 Count Nineteen: This count related to a statement made to Peter Fenton and Susan Fenton that there existed a bank named British Marine Bank, which was long established in England, had branches throughout Europe, was intending to commence business in Australia, and was using a shelf company, Commodities International, to set up its business in Australia. This again was false in a material particular in that there was no such bank of that description.

54 Mr and Mrs Fenton had attended the applicant’s office in June 1997 to discuss investments with him. The applicant showed them a gold embossed statement which bore the name British Marine Bank and showed addresses in London, Zurich and Sydney.

55 The applicant stated it was a “very big bank” which had been “around for a very long time”, and that it “intended to commence business in Australia”. He said Commodities International was “a shelf company that was used by the British Marine Bank to set up the bank here in Australia”.

56 The applicant prepared a loan agreement, however Mr and Mrs Fenton, who were the son in law and daughter of another victim, Dawn Levy, wisely elected not to invest any money at this time.

Group four

57 Count Twenty: This count related to a statement made to Peter Fenton and Susan Fenton that there existed an English Bank named British Marine Bank, deposits with which were secured against the bank’s assets, “mainly real estate in England”, which statement was again false in that there was no such bank.

58 Following upon Mr and Mrs Fenton’s earlier meeting with the applicant, Mrs Fenton somewhat unwisely requested that a copy of the loan agreement be sent to her by facsimile. Upon its receipt Mr Fenton discussed the investment with the applicant, who confirmed that the monies which were to be invested with British Marine Bank were "secured against the bank’s assets” which the applicant said were “mainly real estate in England”. Subsequently Mr and Mrs Fenton forwarded a cheque drawn in favour of Perpetual Trustees for $87,581.98 to the applicant.

59 It has been necessary to set out the facts of each of the counts in order to have some appreciation of the objective criminality involved in the reckless representations made by the applicant to those unfortunate investors who came into his clutches.

GROUNDS OF APPEAL

Ground 1: The sentencing judge erred in that she failed to take into account the fact that the applicant was only charged with and found guilty of making false statements with disregard as to whether they were true, rather than knowing they were false.

60 It was submitted that there can be a significant difference in objective criminality between making a false statement, knowing it to be false, and making such a statement without that knowledge but being aware of the possibility of its falsity and disregarding that falsity.

61 The failure to recognise the difference between these concepts, Mr Odgers SC argued, led the sentencing Judge into error insofar as she made reference to the fact that “the many different assurances offered by” the applicant to the various investors, “demonstrated the premeditation and calculation with which he acted;” insofar as she rejected his explanation that he had been “duped by Mr Balos” and also insofar as she had described his wrongdoing as constituting a “gross breach of trust”.

62 In support of this proposition it was put that it was implicit from the nature of the charges proffered that the applicant had relied upon what Balos had told him, and that while he had suspected what he had been told and passed on may have been false, his criminality lay only in the fact that he had failed to check whether the information so supplied had been true or not.

63 In those circumstances, so it was argued, the findings of fact as to premeditation and as to the applicant not having been duped himself, and the characterisation of his criminality as amounting to a gross breach of trust, were not open on the facts.

64 It may be accepted that, in terms of objective criminality, there can be a real difference between the making of false statements which are known to be false and the making of such statements with a reckless disregard as to whether they are true or not. That is so even though the same maximum penalty is available for each form of offence under s178BB. Whether in any given case the difference in objective criminality is significant will, in my view, depend upon the facts of that case, and in particular upon the nature of the representations made, the degree of recklessness involved and the ambit of the loss occasioned.

65 There is no express indication in her Honour’s judgment to suggest that she overlooked the distinction. Rather she noted, appropriately in my view, that the applicant had held himself out as an adviser who was experienced in the finance industry and who was a person upon whom people could rely for proper advice.

66 He had in fact acknowledged entertaining a suspicion, following his first meeting with Balos, that he had been a “con man” although he said he had altered that view after visiting his business premises where he apparently observed a number of computer terminals, some of which appeared to display information published online of the Bloomberg Investment Service.

67 On his own admission he had failed to pursue any appropriate line of investigation as to the legitimacy of Balos’ operations or as to the various entities which he had claimed to have represented.

68 Any person holding himself out as a financial adviser, and particularly one who offers advice to people who are obviously totally unskilled in financial matters, and who are being promised inflated returns on investments, has a very real duty to exercise care in relation to the advice which is given.

69 Where the breach of that duty involves recklessness to the point of culpability, in accordance with the criminal standard, then the offence created by s 178BB is made out. Having been suspicious of Balos’ honesty it was incumbent upon the applicant to have made some investigation of his track record, and to at least confirm the existence of, and the financial status of, the corporations or entities which he claimed to represent.

70 The opportunities for so doing were obvious, and included inquiries of the Land Tiles Office, ASIC, the Futures Exchange, the Department of Fair Trading, and the Reserve Bank, in relation to the registration of the relevant business, and as to the holding of appropriate licences to act in the capacity which was here in question.

71 In the circumstances of this case the applicant failed dismally on that count, and his criminality in my view was of a very high order. In my view none of the findings made by her Honour were shown to have been other than appropriate.

Ground 2: That the sentencing Judge erred in that she failed to take into account three important pieces of evidence in the trial, namely:
(a) the applicant’s testimony that in October 1996 he had invested $5,000 with Balos for his own grandson,
(b) the applicant’s testimony that while he was promised ten percent commission on the $973,000 which he had given to Balos, he actually only received a small amount of money from him, and
(c) the applicant paid $56,000, his life savings, to various investors out of his own money in September 1997 after Balos had told him that his funds had been frozen.

72 To a considerable degree this ground is linked with the first ground, insofar as it is argued that the investments that the applicant had personally placed with Balos, and the receipt by him of only a small proportion of the money which had been promised by way of commission, revealed the nature and extent of the trust which he had held in Balos, and of his reliance upon him.

73 The third matter was said to be relevant so far as it tended to refute the finding that the applicant had only been motivated by greed, as well as the characterisation of his criminality as involving a gross breach of trust. Additionally it was relied upon as a further confirmation of his trust in Balos, so far as he was prepared to forfeit his life savings to make amends, so far as he could, in relation to outstanding interest debts.

74 The applicant cannot, in my view, obtain any real advantage in respect of any one of these matters. The placement of his own investment and the shortfall of the expected commission, if anything, were matters which should have placed him on additional notice to ensure that the advice or information which he continued to give was soundly based.

75 The subsequent repayment of portion of the monies lost was of little significance in relation to the assessment of his objective criminality.

76 For the reasons discussed in Regina v Phelan (1993) 66 A Crim R 446, and also as noted in Regina v Giallussi, restitution can be a mitigating factor where it involves a degree of sacrifice. It can also indicate a degree of remorse where it occurs, as it did in this case, after the defendant became aware of the full consequences of his criminality.

77 On the other hand, it may also represent the inevitable, as again it did here, in view of the applicant’s potential liability for negligent misstatement, or for breach of his duty of care as a financial adviser. It was, in this case, a relevant circumstance that he made such restitution but it was not such in my view as to justify any great leniency.

Ground 3: The sentence is manifestly excessive

78 The applicant relies upon the first two grounds of appeal, as well as the evidence which went to the applicant’s subjective circumstances, in asserting that the overall sentence is manifestly excessive. In summary, the objective circumstances identified related to:

(a) his age of sixty one years,
(b) his prior good character,
(c) the serious medical problems of his wife, although they were not regarded as constituting the highly exceptional circumstance of the kind described in Regina v Edwards (1996) 90 A Crim R 510, and
(d) his prospects of rehabilitation which were expressed as favourable.

79 Each of these matters was expressly mentioned by her Honour, and there is no reason to suppose that they were given inappropriate weight.

80 The applicant’s prior good character could not have been entirely discounted, for reasons similar to those discussed in Ryan v The Queen [2001] HCA 21. Her Honour did not take the approach of totally discounting the factor of good character. Rather, she noted that it was of reduced significance in a matter such as this, an observation which was consistent with the observations of this court in Regina v El Rashid NSWCCA 7 April 1995, and of the Victorian Court of Criminal Appeal in Regina v Petrovic (1998) VSCA 1995; see also Regina v Moffatt, VCCA 15 December 1992.

81 There it was pointed out that, in cases of offending of the present kind, the aspects of character and deterrence are significantly linked in that such offences are more commonly committed by persons of good character, who in substance call in aid their favourable record in order to facilitate the crime. In this regard, their offending is not dissimilar from that which is seen in the case of drug offenders who also seek to call in aid their prior good character in order to escape detection at Customs barriers.

82 In any event the continuation of the applicant’s conduct, over a period of almost two years, discounted its worth to a considerable degree.

83 The present case certainly is not as strong as that seen for example in Regina v Giallussi [1999] NSWCCA 50, where the offender’s dishonesty involved actual knowledge. However, in view of the number of offences involved, the period over which they were committed, the total absence of any attempt by the applicant to establish any real appreciation of the worth of the investments offered, the class of client targeted, most of whom were elderly and/or of limited financial means and who were unsophisticated in business matters, the amount of the monies secured and the obviously inflated and contradictory claims made, the case was one which did call for a significant retributive and punitive element.

84 Additionally, it was one that needed to firmly reflect the elements of personal and general deterrence, for the reasons discussed in decisions such as Regina v Corner NSWCCA 19 December 1997 and Regina v El Rashid.

85 I am not persuaded that, considered by itself, the sentence was manifestly excessive, or that the statistics kept by the Judicial Commission provide any support whatsoever for that proposition. Considered individually those statistics would in fact suggest that the sentences were well within range.

86 Clearly the case was one which called for an accumulation of sentence in order to reflect the total criminality involved, in accordance with the decision in Pearce v The Queen (1998) 1994 CLR 610. The accumulation had to be significant because of the number of offences involved and the extended period over which they were committed.

87 The extent of that accumulation is relevant for the final submissions of Mr Odgers, to which I will now turn.

Ground 4: Parity

88 The final submission advanced was to the effect that the applicant was entitled to maintain a legitimate sense of grievance when considering the sentence imposed in relation to Leonard John Smith, that is in the sense explained by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v the Queen (1997) 189 CLR 295.

89 That offender, Smith, had performed a similar role in Queensland to that performed by the applicant in New South Wales. However, he had been found to be guilty of intentionally defrauding investors by means of wilfully false pretences and promises. He received an overall sentence of six years with an effective non parole period of three years. His offences accordingly involved knowledge, on his part, that the representations which he had passed on from Balos were false, and that he had performed his role intending to defraud investors with whom he had dealt.

90 Judge Hock expressly had regard to the principles of parity, but distinguished the two cases upon the basis that the applicant’s criminality was the more serious, since it had spanned a greater period of time than had the offences involving Smith, which had been committed over a period of only eight months. Additionally, as she noted, the applicant’s offences involved in round terms an additional $100,000.

91 The Crown advanced two reasons upon appeal in support of a proposition that the criminality of the applicant was greater than that of Smith. First, it was put that his offending had occurred at a time when there was an Australian Securities Commission prohibition order in force preventing him from acting as a representative of a dealer or of an investment adviser.

92 Secondly, it was put that the applicant had expected to receive a personal gain through his ostensible role in “checking” the loan agreements, which had been completed by Smith. This was said to have demonstrated that he had occupied a somewhat higher role in Balos’ operations than had Smith.

93 Neither matter was relied upon by her Honour as justifying the imposition of a greater sentence upon the applicant, and neither seems to me to provide any firm support for the proposition advanced. In fact, reliance upon either of them might invite an infringement of the principle in De Simoni v The Queen (1981) 147 CLR 383.

94 In my view the parity argument has been made good in that the criminality of the two offenders should have been considered to be roughly equal, taking into account the longer period of offending by the applicant and the additional amount of money involved, but balancing that against the greater moral turpitude or mental state of Smith.

95 In order to reflect this conclusion I am of the view that the sentences below should be varied by way of an adjustment of the accumulation involved, so as to result in an overall sentence of six years commencing 25 October 2001, and expiring on 24 October 2007, with an effective non parole period of three years and nine months calculated from 24 October 2001 and expiring on 24 July 2005. So adjusted, the ratio of the overall non parole period to the overall head sentence of 62.5 percent would be retained.

96 I would leave the sentences for the counts which I have included in groups one and two unaltered. I would vary the sentences for the counts involved in group three by substituting, for the fixed terms, sentences of imprisonment, in relation to each count, of three years, to commence on 25 April 2003, with respective non parole periods of one year to commence on 25 April 2003 and to expire on 24 April 2004.

97 In order to comply with s 50 of the Crimes (Sentencing Procedure) Act 1999, I would direct, subject to the sentence next mentioned, that the applicant be released on parole at the end of the non parole period in relation to those counts.

98 I would then vary the sentence for the count involved in group four, that is count twenty, by directing that it commence on 25 April 2004, that is upon the expiry of the non parole period for the sentences in relation to the group three offences, rather than upon 25 April 2006.

99 I would specify a non parole period of one year and three months, similarly to commence on 25 April 2004 and to expire on 24 July 2005, that being the earliest date on which the applicant would be eligible for release upon parole.

100 SHELLER JA: I agree.

101 SULLY J: I also agree.

102 SHELLER JA: The orders of the court will be as announced by Justice Wood.

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