R v Wall

[2002] NSWCCA 42

CITATION:	R v Wall [2002] NSWCCA 42
FILE NUMBER(S):	CCA 60528/01; 60679/01
HEARING DATE(S):	22/2/02
JUDGMENT DATE:	2 April 2002
PARTIES :	Regina Peter Vincent Wall
JUDGMENT OF:	Meagher JA at 1; Wood CJ at CL at 2; Bell J at 93

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0010
LOWER COURT JUDICIAL OFFICER :	Acting Judge Stewart

COUNSEL :	R F Sutherland SC (Crown) J Ireland QC with P J D Hamill
SOLICITORS:	S E O'Connor (Crown) P Moloney
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - appeal against conviction out of time - false and misleading statements - Corporations Law - lease with Council - false assertion of compliance with prerequisite allotment of shares.
LEGISLATION CITED:	Corporations Act 2001 Corporations Law Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act (NSW) Criminal Appeal Act 1912 Customs Act 1901 (Cth)
CASES CITED:	Ashbury v Reid (1961) WAR 49 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky [2001] NSWCCA 332 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 He Kaw Teh v The Queen (1985) 157 CLR 523 House v The King (1936) 55 CLR 499 Jones v The Queen (1997) 191 CLR 439 Kennedy v Sykes (1992) 24 ATR 546 Lowndes v The Queen (1999) 195 CLR 665 Malvaso v The Queen (1989) 168 CLR 227 Pereira v DPP (1988) 63 ALJR 1 The Queen v De Simoni (1981) 147 CLR 383 R v Allpass (1993) 72 A Crim R 561 R v Baker [2000] NSWCCA 85 Regina v Boag (1994) 73 A Crim R 35 Regina v Brehoi [1999] NSWCCA 113 R v Buckett (1995) 7 A Crim R 302 R v Giam (1999) 104 A Crim R 416 R v Haddad (1988) 33 A Crim R 400 R v Hannes [2000] NSWCCA 503 R v Holder and Johnston (1983) 3 NSWLR 245 Regina v KCH [2001] NSWCCA 273 Regina v Lawrence [1980] 1 NSWLR 122 Regina v Liberti (1991) 55 A Crim R 120 Regina v Natesan and Subramaniam (1996) 88 A Crim R 444 R v Nifadopoulos (1988) 36 A Crim R 137 R v O'Donahue (1988) 34 A Crim R 397 R v Papazis (1991) 51 A Crim R 242 R v Phelan (1993) 66 A Crim R 446 R v Phil Kim Phieu Lam (1990) 46 A Crim R 402 Regina v Ross NSWCCA 20 April 1994 R v Tait (1979) 46 FLR 386 Regina v Tannous (1987) 10 NSWLR 303 R v Young [1999] NSWCCA 275 Spies v The Queen (2000) HCA 43 Thorneloe v Filipowski [2001] NSWCCA 213 Yorke v Lucas (1985) 158 CLR 661 Wong and Leung v The Queen (2001) 76 ALJR 79
DECISION:	Application to extend the time to file an appeal against conviction dismissed; Crown appeal allowed; Orders made by lower Court quashed; Respondent sentenced to community service for 300 hours.

- 34 -IN THE COURT OF

60528/01
60679/01

MEAGHER JA
WOOD CJ at CL
BELL J

Tuesday 2 April 2002

Regina v Peter Vincent Wall

Judgment

1 MEAGHER JA: I agree with Wood CJ at CL.

2 WOOD CJ AT CL: On 19 April 2001 the respondent/applicant (hereafter referred to as the “the respondent”) was arraigned in the District Court on an indictment containing three counts of making false or misleading statements contrary to s 178BB of the Crimes Act 1900 (NSW), and a fourth count of being knowingly concerned in the making of a false and misleading statement contrary to s 5 of the Crimes Act 1914 (Cth), and s 1308(2) and s 1311 of the Corporations Law. The respondent pleaded not guilty to each count and stood his trial before a jury and Acting Judge Stewart. On 29 May 2001, the jury returned a verdict of guilty on the fourth count, but were unable to reach agreement in respect of verdicts on the other 3 counts. The offence for which the respondent was to be sentenced carried a maximum penalty of 2 years imprisonment and a fine of $10,000.

3 On 13 July 2001, without proceedings to a conviction, his Honour discharged the respondent upon his giving security in the sum of $10,000 by recognizance to comply with the condition that he be of good behaviour for a period of 2 years commencing on 13 July 2001. Such a sentence was authorised by s 19B(1) of the Crimes Act (Cth). By notice dated 9 August 2001, the Crown appealed under s 5D of the Criminal Appeal Act against what is asserted to be the inadequacy of this sentence.

Annexure A

4 The respondent belatedly seeks leave to extend the time in which to lodge an appeal against conviction. That application was filed on 9 October 2001, following an earlier adjournment of the proceedings, which had been listed on 4 October 2001, for hearing of the Crown appeal against sentence. As finally settled, the respondent wishes to advance submissions to the effect that:

“ (a) the trial judge failed to direct the jury adequately with respect to the constituents of an offence pursuant to s 5 of the Crimes Act 1914;
(b) there was no evidence adduced by the Crown with respect to any participation by the (respondent) in the preparation or lodgement of … the return dated 24 July 1995 lodged by Mr Harris with the Australian Securities Commission.”

5 The charge in respect of which the respondent was found guilty by the jury was as follows:

“that the respondent on or about 24 July 1995 at Wauchope, New South Wales, contrary to Sections 1308(2) and 1311 of the Corporations Law and Section 5 of the Crimes Act 1914, was knowingly concerned in the commission of an offence by Russel Gordon Harris (Harris) against section 1308(2) of the Corporations Law, namely in a document lodged with the Australian Securities Commission, being a notification of Allotment Form 207, the said Harris made a statement which was false and misleading in a material particular, namely that 908,400 one dollar shares in Timberland Community Enterprises Limited had been allotted for cash, when that number of one dollar shares in that company had not been allotted for cash knowing the statement to be false and misleading.”

A. FACTS

6 The alleged offence arose during 1995 in the course of the respondent’s dealings with the Hastings Municipal Council in respect of a tender for the lease of a theme park known as Timbertown. The Council had previously administered the park but wished to obtain capital investment in the enterprise from private sources.

7 The respondent was the Chairman of the Board of Directors of a public company, Timbertown Community Enterprises Limited (TCEL). This was a company incorporated in March 1995 specifically for the purpose of bidding for the Timbertown lease. It was made up of a number of local investors who were interested in securing management of the park in the hands of local interests. Negotiations with the Council were primarily conducted by the respondent in his capacity as chairman of the board.

8 The Council was concerned that the successful tenderer would have sufficient funds to enable the re-opening of the park and its successful operation in the future. It was estimated that funds in the order of $700,000 would be required for this purpose. TCEL sought to obtain the necessary funds by a public subscription for shares at one dollar each. The respondent introduced a man named Trevor Bell into TCEL. He was said to have had connections with a finance company which was involved in other community corporate ventures and which would be able to finance investors in TCEL. At his instigation a round robin scheme was adopted as a result of which shares were allocated to corporate investors without payment of capital funds.

9 The first three counts on the indictment related to representations concerning the funds which TCEL had available to it. The existence of these charges can be placed to one side, in view of the fact that the jury were unable to agree upon verdicts. The respondent’s case is to be considered in the light of the particular offence of which he was convicted, although within the evidentiary context which led to its commission: The Queen v De Simoni (1981) 147 CLR 383 at 392.

10 The Council resolved to offer the lease to TCEL subject to the fulfilment of a number of preconditions, including that the company have a minium paid-up share capital of $700,000, that a certified copy of the share register be provided to the Council, and that the issue of shares and the signing of the lease occur simultaneously. The Australian Securities Commission (ASC) issued an interim “stop” order in relation to the original prospectus and a replacement prospectus was issued on 29 July 1995. Paid-up shares were reallocated accordingly. At this time the amount of actual cash available to TCEL was in the order of $300,000.

11 The solicitors for the Council wrote to TCEL’s legal representatives stipulating that prior to the execution of the lease they had to sight written evidence that the company had available to it cash totalling at least $700,000. As a consequence of these requirements, a letter was provided by Harris, the accountant, to the Council, bearing the date 24 July 1995, advising untruthfully that he held nearly $800,000 in his trust account as representing properly subscribed funds for the purchase of the lease. There was evidence at the trial of the respondent that, in relation to this false letter, the respondent had said to Harris “I owe you one”.

12 It was also a prerequisite to TCEL entering into the lease that various documents be provided showing compliance with conditions imposed by the ASC. In purported conformity with these requirements, a copy of a Minute of a meeting of directors, which had been signed by the respondent as Chairman, was also provided to the Council. It included the following advice:

“ Allotment of shares: It was resolved to allot shares in the company totalling $907,800 each of $1.00 and that the secretary be authorized to sign the Notice of Allotment of Shares form 207 to the Australian Securities Commission.
Funds: It was resolved that the subscription funds be transferred to the company’s bank account. ”

13 Further to finalising the purchase, Mr Harris, the company’s accountant, lodged a Notice of Allotment of Shares dated 24 July 1995 with the ASC. It was this Notice that was the subject of the charge in respect of which the jury found the respondent guilty. The respondent was to be sentenced on the basis that he had been found to have been knowingly concerned in the making of a false and misleading statement by Harris, to the effect that 908,400 one dollar shares in TCEL had been allotted for cash.

14 The falsity of the material provided by Mr Harris in securing the lease by TCEL, including this particular statement, was exposed in 1997 when the company experienced cash-flow problems and was unable to continue to operate the park. It was later liquidated.

15 The provision of the Notice to the Australian Securities Commission, it may be observed at this stage, involved more than a procedural formality. Without it there would have been no lease and the company would have been wound up.

16 Proceedings were commenced against the respondent and Harris in late 1999. Harris pleaded guilty before a Magistrate to three offences pursuant to s 178BB of the Crimes Act and to one offence pursuant to ss 1308(2) and 1311 of the Corporations Law. He was sentenced by his Honour Judge Gibson QC to a total of 500 hours community service, 250 hours of that being in respect of the offence under the Corporations Law. Harris had been given a discount of 35% based upon his pleas of guilty and his undertaking to give evidence against the respondent. The sentencing judge noted that the discount for the pleas of guilty resulted in a non-custodial sentence being imposed.

B. SUBJECTIVE CIRCUMSTANCES

17 Shortly after the jury delivered its verdict on the fourth count, defence counsel sought and obtained an adjournment of the sentencing proceedings so that a pre-sentence report could be obtained.

18 On the adjourned hearing date the pre-sentence report was tendered. Under the heading “Offending Behaviour” it stated:

“ Mr Wall contends that his offence resulted solely from signing a document without checking its contents. While he accepts responsibility for having done so he denies any other complicity. ”

The writer then went on to indicate that the respondent had expressed embarrassment and regret that this actions should result in his appearance before Court, given that his motivation for involvement in the project was for the betterment of the community.

19 The report concluded that the respondent was assessed as suitable for community service, that he was not recommended for periodic detention because of the distance from his home to the detention centre, and that supervision did not appear warranted if the court considered that a bond was an appropriate sentencing option.

20 Otherwise, it was shown that the respondent had been born in September 1946. He had no prior convictions and there was a large amount of evidence led both at the trial and on sentence attesting to his good character and involvement in community work. The Crown did not, and does not now, contend that the respondent was otherwise than a person of impeccable character and good standing in the community in which he lives, who had been involved over many years in a number of community organisations.

21 The respondent’s wife gave evidence that, as a result of some poor investments, his assets had been depleted and they were relying substantially upon a disability support pension. There was evidence that he had undergone neck surgery in 1991, and that, although he has some restrictions to his activities and at times needs to wear a neck brace, he was able to perform light work. However, his condition, it was said, might deteriorate over time. It was also shown that he suffered from hypertension, peptic ulcers and reflux. There was also some evidence as to the poor physical health of the respondent’s wife, but the sentencing judge expressly did not take that matter into account.

C. EXTENSION OF TIME TO APPEAL

22 As I have observed, the verdict of the jury was returned on 28 May 2001, and the respondent was sentenced on 13 July 2001. The Crown appeal was lodged on 9 August 2001, and that appeal was listed for hearing on 4 October 2001.

23 On that day, the court was informed that the respondent sought an adjournment for the reason that not all of the transcript was available, and for the further reason that he wished to consider whether he had any grounds himself for an appeal against conviction. The proceedings were then adjourned, although with the clear indication given by Mason P with whom Levine and Howie JJ agreed, that the onus was:

“very firmly upon the respondent… to :
(a) make up his mind; and
(b) put his own house in order to prosecute any appeal that he may be advised to bring and do (so) at the same time as the hearing of the Crown appeal against sentence.”

24 On 9 October 2001, a notice of application for an extension of time to appeal was filed, along with a notice of appeal which, somewhat unhelpfully, specified the grounds of appeal as those “to be provided upon grant of legal aid”.

25 An application had in fact been made to the Legal Aid Office, on 3 October 2001, in relation to an appeal against conviction. It was refused on 26 October 2001.

26 A limited grant of legal aid was made on 20 December 2001, after a successful appeal to the Legal Aid Review Committee, for the purposes of obtaining advice as to the merits of a conviction appeal. The initial advice given by counsel was that, although there were several matters which were potentially arguable, they were not such as to provide a likelihood of intervention by the Court.

27 As a consequence, the Registrar was informed at a call over, on 18 February 2002, that the respondent would appear in person in relation to the conviction appeal. Otherwise, he was to be represented by counsel in relation to the Crown appeal. A document in the handwriting of the respondent, which ostensibly, although in a somewhat incomprehensible way, identified the matters upon which he wished to rely, was served upon the Crown that day, although not filed in this Court.

28 Subsequently, Senior Counsel who appeared before us to argue the application on 22 February 2001, indicated that there was an arguable ground which he was prepared to pursue on behalf of the respondent, on a pro bono basis.

29 While no grounds of appeal have been formally filed, it appears from an affidavit sworn by the respondent’s solicitor, and handed to the Court during the course of the hearing on 22 February 2002, that the matters which counsel sought to argue were the two grounds earlier noted. Also annexed to that affidavit were some written submissions concerning them.

30 In response, supplementary submissions have now been provided by the Crown, which had not been given the benefit of seeing the respondent’s submissions until the morning of 22 February 2002. Although invited to provide an additional submission in relation to the second ground of appeal, which involved a submission that the verdict was unreasonable or could not be supported upon the evidence, no such submission has been supplied by the respondent, beyond that contained in the affidavit.

31 The first matter calling for determination is whether, in the circumstances outlined, the respondent should be granted an extension of time to appeal against his conviction.

32 In Regina v Lawrence [1980] 1 NSWLR 122, Nagle CJ at CL and Yeldham J said at p 148:

“ On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. See for example R v Sunderland, R v Tyrell, and R v Waterhouse. This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed. This was the view expressed by Street CJ in R v Sunderland, and we think it is a proper view.” (References omitted).

33 As Greg James J observed in Regina v Brehoi [1999] NSWCCA 113 at para 15 the burden which rests upon an applicant in relation to an application of this kind, will be “harder to discharge the longer any suggested matter impugning the integrity of the plea and known to the applicant is allowed to lie”.

34 To be taken into account in that respect is the well accepted principle of finality, noted in decisions such as Regina v Liberti (1991) 55 A Crim R 120 and Regina v KCH [2001] NSWCCA 273 at para 31. Additionally, it is appropriate to have regard to any difficulties which are likely to be occasioned to the Crown, if a retrial is sought some time after proceedings were understood to have been brought to a finality, during which the intending appellant has sat by, without seeking to enforce his rights which he must have known he had.

35 It is true that s 10(3) of the Criminal Appeal Act confers an unfettered discretion on the Court to extend the time where it is just, under the circumstances, that such an order be made. Inevitably that requires that attention be given to whether or not there is, in the circumstances of the particular case, room for concern that there may have been a miscarriage of justice: see R v Young [1999] NSWCCA 275 per Smart AJ (with whom Studdert and Dunford JJ agreed) at paras 35 to 37 and 48; see also R v O’Donahue (1988) 34 A Crim R 397. This is because the existence of a reasonable misgiving as to whether an applicant received a fair trial according to law, will very often constitute the exceptional circumstance which would overcome the fact of delay.

36 Finally, as a matter of clear legal principle, I observe that since it is the appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating that fact: Regina v Boag (1994) 73 A Crim R 35 at 37. To the extent to which this depends upon a resolution of matters of fact, he bears the onus of establishing the necessary facts: Regina v Ross (NSWCCA 20 April 1994).

37 The delay in the present case is not extreme, although in view of the strong protestations of innocence which the respondent maintains, it is difficult to understand why he did not lodge an immediate appeal, or why he waited until the eve of the Crown appeal to do anything about it. That period of inactivity remains unexplained. In relation to the subsequent period, that is between 4 October 2001 and 22 February 2002, it may be accepted that the respondent made reasonable efforts to pursue the rights which he claimed to possess, and that once he had an indication that there were arguable grounds, his legal advisors did attempt to pursue the matter.

38 It remains necessary, however, for the respondent to show that there is room for the existence of reasonable concern as to a miscarriage of justice in his case. Inevitably this requires some consideration of the proposed grounds for appeal.

(a) The Summing Up

39 In relation to count 4, his Honour emphasised, early in the summing up, that the expression “concerned” meant “involved” (Summing Up p9), a concept which he distinguished from being troubled or entertaining anxiety. A little later, he pointed out that the question for the jury was “did the accused act in a way that showed that he was knowingly concerned in the commission of” the offence which had been committed by Harris? (Summing Up p 27). He also made it clear that the Crown case on all counts was, in part, a circumstantial case (Summing Up p 27/28).

40 At a luncheon adjournment, in the course of the summing up, counsel for the respondent stated that the defence case, and the issues which arose, related to the submission that the relevant document had been “sent without (the respondent) seeing it”, and that he had placed “reliance upon the accountant” (Summing Up p 33). His Honour then directed the jury that this was the way in which the defence case was put (Summing Up p 36).

41 When directing the jury as to the first 3 counts, his Honour made it clear that the real issue was whether the Crown had proved that the accused (the respondent) knew that the statements which had been made were false or misleading. That knowledge he said must be “actual knowledge”, as to which he gave the following direction:

“ Knowledge is a state of mind and, as with any other state of mine (sic), it may be established by any evidence of words or acts on the part of the accused which point to or identify that state of mind. You can arrive at a decision that he had a state of mind, that he had knowledge, because that can be established by the evidence of words or acts on his part. ” (Summing Up p 39-40).

42 His Honour then went on to direct the jury in relation to the count which is of relevance for present purposes, in the following terms:

“ In relation to count 4, putting it shortly, the Crown must prove that the accused was knowingly concerned in the offence committed by Russell Harris with respect to the lodging of the Notice of Allotment of Shares with the ASC. Being knowingly concerned in something involves two things. The first is that the accused was concerned – that meaning involved – in what led up to the lodging of the document – which was false, it is open to you to find – and secondly, that concern or involvement in the lodgement was done in a knowing way. That is to say he knew that that the document which was to be lodged contained a statement which was false or misleading. Exhibit AS is the document in question.” (Summing Up 40-41).

43 After giving this direction his Honour summarised the evidence which was of relevance for the count, including that concerning the meeting of directors which had been held on 24 July 1995, at which the respondent had been present, and the minutes for which had been signed by him. Reference was made to the contents of those minutes, and of exhibit AS, particularly the section which stated the total number of shares which had, purportedly been issued for cash. His Honour continued:

“ Members of the jury, the Crown’s case is, as I understand it, that by taking part in the meeting on 24 July, by signing the minutes of that meeting, and then knowing, as the Crown says he must, that these shares were said to be cash shares, and there were none issued as non-cash shares, that the accused was knowingly concerned in this offence committed by Mr Harris.
To be knowingly concerned in something in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence. Merely to stand by with knowledge and do nothing is not to be concerned with it. But to wait or to stand by with knowledge with a view to doing something to facilitate it or to do something connected with that offence would amount to being knowingly concerned in it.
Those things must be done before or during the commission of the offence, by Harris in this case. You must be implicated or involved in the sense of having something to do with the offence and the offence includes all that is incidental or proximate to it.” (Summing Up p 44).

44 Later in the Summing Up his Honour gave a conventional direction in relation to circumstance proof, and as to the drawing of inferences (Summing Up pages 49 to 51 and at 95), before going on to identify the circumstance upon which the Crown relied in order to establish the matters which it had to prove, concerning knowledge and involvement on the part of the respondent.

45 No question was raised by counsel at trial as to the sufficiency of the directions of law concerning the fourth count. Nor was objection taken to his Honour’s summary of the way in which the defence case was put, in which it was also made clear that the respondent asserted that he believed that the agreements to subscribe capital were the same thing as cash paid, or paid up capital, and that he had placed reliance on the specialist advisers.

46 In substance the complaint made in relation to the summing up concentrates on the use of the words “you must be implicated or involved in the sense of having something to do with the offence.” (Emphasis added). This, it was submitted, did not accord with the direction which had been given, and held to be appropriate by Kennedy J with whom Wallwork J agreed in Regina v Natesan and Subramaniam (1996) 88 A Crim R 444.

47 There the trial judge had given a direction in relation to a count of being knowingly concerned in the commission of offences by a company, involving respectively the import and export of certain therapeutic goods. In relation to the element of being “knowingly concerned”, his Honour had said (at 448-449):

“ The final element of each count that the Crown must prove against each accused is that he or she was knowingly concerned in the commission of each offence. That is knowingly concerned in the sense of participating in or having some part to play in the commission of the offence. Knowingly concerned means that the accused must have done whatever he or she did knowing that the acts constituting the offence were or were going to be committed.
In this regard it is not necessary for the Crown to prove that a particular accused knew all of the details of the offence that was going to be committed. For instance the Crown does not have to prove that an accused knew the precise date on which an export was to take place nor the precise quantity of the therapeutic goods that were going to the be exported or imported. It is enough if there is knowledge that an export was going to take place and that it would involve the therapeutic goods of the general description of those in fact exported or imported.
In summary, for either of the accused to be guilty of any count the Crown must satisfy you beyond reasonable doubt, firstly, that the offence alleged in that count was committed by Galeshka and, secondly, that the particular accused was knowingly concerned in the commission of that offence in the sense that he or she participated in it or participated in some way knowing of the essential matters that constituted the offence.”

48 In the course of his reasons for judgment, Kennedy J reviewed a number of authorities which had examined the degree of connection necessary to establish an offence of aiding and abetting (usually defined by statute in terms of being directly or indirectly concerned in the commission of the principal offence), as well as those which had dealt with various statutory offences expressed in terms of the offender being “knowingly concerned” in some prohibited act.

49 In relation to those cases which charged aiding and abetting, it was noted that in Ashbury v Reid (1961) WAR 49, Virtue J, delivering the judgment of the court, said (at 51):

“ Some of the many meanings of the word ‘concerned’ to be found in the Oxford Dictionary are: 'to be in a relation of practical connexion with’, ‘to have to do with, to have a part in’, ‘to be implicated or involved in’, and ‘to have to do with something, especially something culpable’, and we think that this is the sense in which the word is used in this section. The question which a court should ask itself in determining whether an act or omission on the part of an individual comes within the terms of s 54 is whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connexion between him and the offence.”

50 His Honour then noted that:

“ in Giorgianni (1995) 156 CLR 473; 16 A Crim R 163, which was concerned with s 351 of the Crimes Act 1900 (NSW), dealing with aiders and abetters, it was said by Gibbs CJ (at 482; 169-170), that numerous cases accepted that the general principle is that a person can be convicted as a secondary party only if he had knowledge of the essential circumstances. Mason J (at 493; 177) adopted the observation of Cussen ACJ in Russell [1933] VLR 59 at 67, where, having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony, he said:
‘ All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in a second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.”
There need not, Mason J indicated, exist any agreement or consensus between the principal in the second degree of secondary participant and the principal offender: see also, Wilson, Deane and Dawson JJ at 500; 182-183.”

51 In relation to these cases where there was an additional element of knowledge to be proved, reference was made to Yorke v Lucas (1985) 158 CLR 661, where Mason ACJ, Wilson, Deane and Dawson JJ confirmed that “there can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention”; and to Regina v Tannous (1987) 10 NSWLR 303.

52 In Tannous, the Court was concerned with a charge brought under s 233B(1)(d) of the Customs Act 1901 (Cth). There, Lee J, with whom the other members of the court agreed, said (at 308-309):

“ I agree with counsel for the appellant when he submits that a mere state of mind which merely amounted to the appellant being interested in or concerned ‘about’ the venture, for whatever reason, would not be sufficient to constitute the concern of which the section speaks. The ‘concern’ to which the section speaks is not a concern personal to the appellant in the sense of being in his mind, but it is a concern which can be demonstrated objectively by reason of his association, whatever it may be, with the importation. It must be shown that he is ‘concerned in’ not just ‘concerned about the importation’. A father, learning that his son had made arrangements to import narcotic drugs into this country, might well be anxious about, interested in, or concerned abut the fact and he might evidence that anxiety, interest or concern to others. But he would not be guilty of the offence of being knowingly concerned merely from his knowledge of the importation and his state of mind arising therefrom. Before he could be convicted under the section he would have to do something to connect himself with or involve himself in the importation.”

53 Finally, his Honour noted that in Kennedy v Sykes (1992) 24 ATR 546, Nathan J in the Supreme Court of Victoria had said, in relation to the expression “knowingly concerned” (at 551):

“ It is obvious that where a person plays an essential part in the venture of deception or to mislead, no matter how slight or momentary that part may be, and whether by action or inaction that person becomes ‘concerned in’ the venture. I have already observed that phrase is preceded by an adverb ‘knowingly’. In my view, and having had recourse to the authorities, this requires the Crown to establish that the person involved in the venture was aware of its misleading or deceptive character or objective. It does not require proof that the actor be aware of all the mechanical details of the venture or the identity of all the participants. If he or she is aware of the general nature of the transaction, that the part played by him or her whether by positive act or omission will assist the misleading or deception then, in my view, the requirement of being knowingly concerned in is satisfied.”

54 It may be additionally observed that the various decisions cited by his Honour are on all fours with the principles expressed in He Kaw Teh v The Queen (1985) 157 CLR 523; Pereira v DPP (1988) 63 ALJR 1, where the Court confirmed that the question “remains one of actual knowledge” and that such knowledge may be inferred from circumstantial evidence; R v Haddad (1988) 33 A Crim R 400 at 295; R v Nifadopoulos (1988) 36 A Crim R 137; R v Phil Kim Phieu Lam (1990) 46 A Crim R 402 where Gleeson CJ while noting that the expression “concerned” is one of general import, observed that two standard dictionaries gave as a synonym for it the word “involved” – that being the expression used by Stewart ADCJ in the present case: and R v Buckett (1995) 7 A Crim R 302 at 306 per Hunt CJ at CL.

55 In my view, his Honour’s summing up sufficiently dealt with the matters established by this line of decisions. Inter alia he emphasised that the Crown had to prove actual knowledge on the part of the respondent, there being no suggestion that suspicion would suffice, or that the test was other than subjective. Further, he made it plain that being concerned meant being “involved” in a way having a “practical connection with the offence and all that is involved in (it)”. When the words “having something to do with the offence” were used in the final sentence of the charge, they could only have been sensibly understood in the context of the explanation which had preceded that sentence, in particular in the context of the observation that “concerned” meant something which had a “practical connection” with the offence committed by Harris.

56 In my view the summing up was entirely sufficient in this respect, and I would refuse leave to extend the time for lodging of an appeal to raise this ground.

(b) Verdict Unreasonable

57 It was accepted, both at trial and on the application before us, that Harris had committed the offence relating to the lodgement of the notification of share allotment, to which he had pleaded guilty. However, it was submitted at trial, and again by counsel appearing for the respondent before us, that there was insufficient proof that he had been knowingly concerned in that offence.

58 While it was accepted that the respondent had taken part in the Director’s meeting which had authorised the preparation of that notification, it was submitted that there was no evidence to show that the authority then given was to complete and lodge the document in the way in which that was done by Harris. In essence, it was put that it had been left open to him as to the way in which he should complete it, and that if he elected to do so in a way that was false and misleading, then the terms of the minutes of the Directors meeting (Exhibit AR) were insufficient to demonstrate that the respondent had been knowingly involved or connected in that act. Put another way, it was argued that there was no causal connection shown between any authority given at the meeting, and the lodgement by Harris of a notification that was false and misleading.

59 Somewhat peripherally, it was also put that the inability of the jury to agree of the other counts suggested that the jury had not focused upon this aspect of the case.

60 In my view this submission is totally devoid of merit. It fails to take into account that the Crown case for count 4 did not depend solely upon the minute. Its case was a circumstantial case, from which the inferences as to what it was that the respondent intended that Harris should do, and what was the state of his knowledge, were to be drawn.

61 In this regard, it was common ground that:

(i) the Council required, as a precondition to granting the company the leases, that there be $700,000 or so in capital which had been raised by it and that was immediately available to it, to support the venture;

(ii) the deadline which it had set for it to be so satisfied, was 24 July 1995;

(iii) at the Directors meeting that day, which was attended by the respondent, and the minutes for which he signed, a resolution was passed to allot 907,800 shares in the company, each of $1, and to transfer the “ subscription funds ” to the Company’s bank account. A further resolution was passed authorising Harris “ to sign the Notification of Allotment of Shares Form 207 to the Australian Securities Commission ”;

(iv) the notification dated 24 July 1995 which was signed and certified as correct by Harris, which was lodged with the Commission on 1 August 1995, recorded an allotment of 902,800 shares, for each of which $1 had been paid in cash;

(v) in fact, by 24 July 1995, only $77,924 had been received and held in Harris’ trust account by way of subscriptions for shares in the company (a further $258,595 being deposited to the account on the following day).

62 The only sensible understanding of the Directors’ resolution was that a return would be lodged in accordance with the agreed allotment of shares. However had the Crown case depended on the minutes alone, a question might have remained open for consideration as to whether the resolution which had been framed was one requiring that the shares be fully paid up, with consequent ramifications for the notification which was lodged.

63 The answer to that question was, in my view, resoundingly answered in the affirmative, leaving no other rational inference open, when the entirety of the Crown case came to be considered. In this regard, whilst the various circumstances enunciated by his Honour were relevant for the other charges, so were they also relevant for this charge. Considered as a whole, they established the importance for the Council of it being satisfied that at least $700,000 was immediately available to the company in cash, having been raised by shareholder subscriptions, rather than promised or pledged; and that this was then evidenced by sufficient proof, including the notice of allotment (Exhibit AS), a copy of which was certified by Harris in the presence of a Justice of the Peace and lodged with the Council, and a further copy of which (with some amendments) was later lodged with the Commission (Exhibit AAV).

64 Inter alia the following evidence makes it crystal clear that the respondent knew and understood the requirements of the Council, and in particular its requirement that the company demonstrate that it had the requisite funds available in cash:

(i) the letter to the Council (Exhibit Y) which was signed by the respondent, and dated 6 June 1995, which confirmed the information supplied to a meeting of the works committee that day (attended by the respondent) including the fact that the capital subscriptions to the prospectus, at that date were $635,722;

(ii) the evidence given at the trial by Messrs Harris, Axam, Harrison, Cooper, Gilbert and Ms Poole, some of whom made a contemporary note, that the respondent had informed the meeting that day that there were sums held in the order of $550,00 to $600,00 in cash ;

(iii) the letter dated 13 June 1995 (Exhibit AD) also signed by the respondent, to the Council, advising “ that as of this morning our subscribed capital is approximately $700,000 ” (Emphasis added);

(iv) the evidence of Messrs Harris and Cooper that, at a meeting on 13 June, at the Council Chambers, the respondent again said that the company had $650,000 in cash in the trust account;

(v) the letter dated 14 June 1995 to the respondent from the Council (Exhibit AF) confirming the conditions upon which the Council had resolved, on 13 June 1995, to offer the company the Timbertown lease, which involved a condition “ that the Company have a minimum paid up share value of $700,000 and a certified copy of the Share Register be provided to Council ” (Emphasis added);

(vi) the replacement Prospectus which was signed on 19 July 1995 by five directors of the company, including the respondent, (Exhibit AAH), in which it was stated that “ there is only one class of share and all shares rank equally ”, and that “ the lease requires that the company have issued shares to 700,000 minimum paid up capital ”; while the application attached to the prospectus provided for the tender of payment in full of $1 each per share.

(vii) the letter sent by the Council’s solicitors to the company’s solicitors dated 21 July 1995 (Exhibit AN), which specified that, in addition to registration of the replacement prospectus, and confirmation in writing by subscribers to the earlier prospectus, that they wished to remain as subscribers under the new prospectus, the Council would require, at the time of execution and exchange of lease documents, inter alia, the following:

“ (a) confirmation that the subscribers have subscribed in compliance with the terms of the Prospectus;
(b) a certified copy of that section of the Company Accountant’s Trust Account confirming that the sum of $700,000 minimum is held on account of share subscription in the Company together with a letter from the Company’s Accountant confirming that the monies in the said Trust Account Ledger are held on trust for Timbertown Community Enterprises Limited;
(c) a certified copy of the Minutes of the Directors Meeting which approved and authorised the share issue in compliance with the Prospectus. The minutes should inter alia confirm compliance with the ‘positive confirmation’ condition imposed by the ASC, confirm the allotment of shares in accordance with the subscription for a minimum of $700,000 in paid up share capital, confirm the execution of the tendered Share Register, confirm the execution of the tendered ASC Form re share allotment, that the ASC Form re share allotment be handed to the Company Solicitor for immediate lodgement with the ASC, and authorise the Company Accountant to transfer the subscription monies from his Trust Account to the Company;
(d) a certified copy of the Share Register;
(e) a certified copy of the ASC Form re share allotment;
(f) a written undertaking from yourself confirming that you will lodge the ASC Form as to share allotment forthwith”. (Emphasis added).


(vii) In cross examination the respondent acknowledged an awareness of these conditions, from which concession it may properly be inferred that he had seen this letter;

(viii) the letter, dated 24 July 1995, from Harris to the Council (Exhibit AQ) which confirmed that he held in his trust account “ the sum of $793,780 representing properly subscribed funds for the purchase by various parties in (the company) in accordance with its proper prospectus ” and that such funds were “ held in trust for ” the company;

(ix) Harris’ evidence to the effect that he had prepared this letter after a meeting, at which the respondent had been present, during which he had specifically questioned the respondent as to how they were going to satisfy the Council of its requirements when they had in fact less than $300,000 in the trust account, and that he had shown the letter to the respondent who had replied “ I owe you one mate ”;

(x) the evidence from Mr Axam that the respondent was present at the meeting with the Council, on 24 July 1995, at which the documentation was exchanged, involving the minutes of the Directors meeting (Exhibit AR), the notification of share allotment (Exhibit AS), and the letter from Mr Harris (Exhibit AQ);

(xi) the evidence of other directors, mainly Messrs Ylias, Lewis and Chegwidden (who became a director later, but who had attended several meetings before taking up that position) that it had been made clear that what was required was “ cash paid up ”, and that the respondent had confirmed, at those meetings, that the funds required were actually held;

(xii) the utter incredulity, bordering on the epithet “ preposterous ”, attributed to it by Counsel for the Crown, of the respondent’s attempt to suggest that there was some distinction between “ paid up capital ” and “ paid in full ” on the one hand, and “ paid in cash ” on the other hand, a matter which could only have reflected very badly on his credibility.

65 There were other background circumstances placed before the jury setting the matters outlined in the full context, from the time of the initial expression of interest by the respondent and by the company, and including the subsequent negotiations. It is not necessary to refer to them, although they only add weight to the inevitable, and only rational inference which was available, concerning the respondent’s knowledge and involvement in the offence committed by Harris.

66 Whatever may have been the case in relation to the respondent’s knowledge prior to 13 June 1995, that being the ”closing date” for the 3 counts in respect of the which the jury could not agree, the requirement of Council, and the knowledge of what was needed in terms of capital actually paid up, was unquestioningly clear between that date and 24 July. In those circumstances nothing can be gained from the jury disagreement on the other 3 counts.

67 The case is certainly not one of a perverse verdict, nor, given the different considerations and arguments which arose in relation to the other counts, is the present a case where there is any room for concern that the jury had a doubt, let alone a reasonable doubt, as to the proof of the elements of count 4. Indeed, a verdict of acquittal on this count would have been perverse.

68 In all of these circumstances I am satisfied that there properly was evidence to establish the fourth count, and that it could not be seriously argued that the verdict was not one which was reasonably supported by the evidence, as the test for that ground of appeal is now to be understood: Jones v The Queen (1997) 191 CLR 439 and R v Giam (1999) 104 A Crim R 416.

69 Being quite unpersuaded that there was any risk of injustice, or that any reasonable argument can be raised in support of an appeal against conviction, I would refuse the application to extend the time for filing an appeal.

D. APPEAL AGAINST SENTENCE

70 The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act 1914. Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

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

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

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

71 As I have observed, Acting Judge Stewart sentenced the respondent in accordance with the power conferred by s 19B of the Crimes Act (Cth). That section provides as follows:

“ 19B . Discharge of offenders without proceeding to conviction

(a) a person is charged before a court with an offence against the law of the Commonwealth; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, cultural background, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i) that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii) that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs---by specified instalments as provided in the order; and
(iii) that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
…

(a) the person shall have such rights of appeal on the ground that he was not guilty of the offence or offences concerned with which he was charged as he would have had if the court had convicted him of the offence or offences concerned; and
(b) there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offences concerned as there would have been if:
(i) the court had, immediately before so dealing with him, convicted him of the offence or offences concerned; and
(ii) the manner in which he is dealt with had been a sentence or sentences passed upon that conviction.”

72 The section confers a general discretion on the court. The scope and manner of its application was recently considered by this Court in Commissioner of Taxation v Baffsky [2001] NSWCCA 332. It was there held that the application of the section should be approached in two stages: first, the identification of one or more of the factors identified in s 19B(1)(b); secondly, the determination, having regard to the factors identified, is whether one of the conclusions in the section is reached. It was further held that s 16A(2) of the Act identifies the matters that must be taken into account in exercising the second stage of the discretion.

73 Before the discretion can be exercised one or more of the matters referred to in the section must reasonably support a finding that it is inexpedient to inflict any punishment, or to reach any of the other conclusions for which the section provides: Cobiac v Liddy (1969) 119 CLR 257 at 276; Commissioner of Taxation v Baffsky at paras 23–25. Acting Judge Stewart did not indicate precisely what matter it was within the section which meant that it was inexpedient to impose any more than a nominal punishment. None of the matters to which his Honour referred in any detail in his remarks was, in my view, reasonably capable of supporting such a finding. At the conclusion of his remarks his Honour simply repeated the ritualistic formula:

“ I am of the opinion having regard to your character, antecedents, age and health that it is inexpedient to inflict any punishment other than a nominal punishment ”.

That is not a sufficient statement of the reasons justifying the exercise of the discretion under s 19B.

74 The Crown submits that his Honour erred, in so far as he:

(a) underrated the seriousness of the offence;

(b) overrated the seriousness of the punishment which he imposed;

(c) failed to give effect to the policy behind the legislative creation of the offence;

(d) failed to give effect to the element of general deterrence; and

(e) failed to appreciate the importance of the imposition of a conviction.

75 It must be said, with due respect to his Honour, and with an appreciation of the fact that the sentencing remarks were given ex tempore, that his Honour’s reasons contain a number of inconsistencies and non-sequiturs.

76 In relation to a Crown submission, in opposition to the matter being dealt with under s 19B, his Honour observed, at various points in his remarks upon sentence:

“ The Crown Prosecutor argues against this course. She submits – and up to a point she is right – that the objective criminality of this offence is high. A lot of people did lose a lot of money as a result of what occurred and the accused is not one of them. There are pointers in his direction that if he did not do this for material gain he did it for kudos. I observe that the prisoner was not then and is not now an innocent abroad. He has had, and had at the time, considerable business experience one way and another, but he fell in with Mr Trevor Bell who had concocted what can only be described as a scheme aimed at cheating.
…
..Unfortunately, this prisoner was part and parcel of Mr Bell’s machinations and committed the offence with which I am now dealing knowingly with a substantial degree of criminality.
…
..It is true that this offence involved a breach of trust.
…
..It is also true that even today the prisoner is still trying to argue that he did nothing wrong and that he was acting for the good of the community. That is rubbish. He did something very wrong, knowing it was wrong,..
…
..the prisoner did what he did, not openly but knowingly and he has been convicted by the jury for doing it ..”

77 The Crown submission under complaint (a) above is that, despite these statements (which it would accept as correct) concerning the seriousness of the respondent’s offence, his Honour then downplayed it, when he referred to the s 178BB counts as the three more serious of the charges. I do not believe that there is any merit in this particular argument when the reference to the differing seriousness of the two categories of offences is read in context. It seems to me that his Honour was referring somewhat bemusedly to the inability of the jury to come to the conclusion concerning these the matters which were, if only for the reason that they carried a markedly higher maximum penalty, notionally more serious than the count upon which the respondent was convicted.

78 The force in the complaint, in my view, is rather that, having regard to these findings, it is impossible to see how his Honour could have formed the view that a discharge under s 19B was an appropriate sentence to reflect the objective seriousness of the offence. Even having regard to the maximum penalty prescribed and the fact that the matter might have been dealt with by a magistrate, it is clear that his Honour could not have thought that the offence was either “of a trivial nature” or ”one that has been committed under extenuating circumstances” when determining to apply s 19B.

79 Quite to the contrary, his Honour appropriately identified the offence committed by the respondent as a dishonest criminal act involving a serious breach of trust, which had been committed with a full appreciation of its nature. Although the offence did not require proof of any fraud on the part of the respondent, or of a loss occasioned to any person as a consequence of his act, in determining whether to apply the discretion in s 19B, his Honour was entitled to take into account, as he did, the monetary loss resulting, at least indirectly, from the respondent’s criminal conduct: Thorneloe v Filipowski [2001] NSWCCA 213.

80 Unless there was some exceptional mitigating circumstance arising from the respondent’s subjective circumstances, the sentence imposed, itself, is indicative of error in light of his Honour’s assessment of the respondent’s criminality. I cannot however see anything in his Honour’s remarks or in the evidence, which would support his finding that “this is a sentence of a severity appropriate in all the circumstances of the offence” in compliance with the obligation imposed by s 16A(1) of the Crimes Act.

81 The Crown’s argument in relation to (b) above is based upon the following observation made by his Honour:

“ My view is that a dismissal of this charge under s 19B on condition that he be of good behaviour for a period is in effect, at least as serious punishment as one of community service. I say that for three reasons: (1) The community at large and his community in particular will know that he has been placed upon a good behaviour bond for committing an offence of dishonesty. (2) That ignominy is not going to go away even though no conviction will be recorded. Despite the fact that no conviction is recorded, it is and will remain a blot on his escutcheon which he will have to wear figuratively for the rest of his days..

.. I do not agree this is nominal punishment… ”

82 Elsewhere his Honour had said that:

“ A dismissal of this charge under s 19B on condition that he [the respondent] be of good behaviour given effect in reality a more serious punishment than one of community service .”

His Honour did not go on to indicate the third reason for his assessment of the seriousness of the punishment.

83 In my view, it cannot be seriously maintained that a discharge without conviction can ever be regarded as “at least as serious a punishment as one of community service”, let alone as a more serious punishment, regardless of what conditions may be imposed on the accompanying recognisance.

84 Nor do I understand how it could be said that the order made resulted in something more than nominal punishment. The fact that the offender has been required to enter into a recognizance with a condition to be of good behaviour may result in his being liable to punishment, but it does not of itself impose any form of punishment. A requirement that an offender undertake community work is a recognised form of punishment, which puts the offender to inconvenience, and reinforces both punitively and publicly the important element of deterrence. It is a non-custodial alternative to a sentence of full time imprisonment, see s 8 of the Crimes (Sentencing Procedure) Act (NSW) which applies to federal offenders by reason of s 20AB of the Crimes Act (Cth). As such it has considerable more force than a disposition which involves the imposition of a bond without the recording of a conviction.

85 Complaints (c) to (e) can be dealt with together. The Crown submits that his Honour failed to appreciate the purpose of s 1308 of the Corporations Law, the need for general deterrence, and the significance of recording a conviction in the case of the appellant. His Honour stated that he agreed with the Crown Prosecutor’s submission that the primary purpose of the section is protective. His Honour went on to say:

“ ..but I take the view as I have already indicated, that the public will best be protected by placing this man on a bond to be of good behaviour, the protection lying in the fact that if he is not, he will be brought back before me and can expect no mercy.”

86 I put to one side the fact that this remark has to be considered in the context that his Honour saw little likelihood that the public needed to be protected from the offender, because his Honour took the view that it was unlikely he would re offend. However, the purpose of the section is to protect the public from the effects of false or misleading information being provided to the Commission. That objective will be seriously undermined unless there is a significant element of general deterrence reflected in the sentence imposed for a breach of the section such as that committed by the respondent, in particular because of the position he held in the company, and because of the need to ensure that information supplied to the Commission is available to creditors, investors and shareholders, and is accurate and reliable. There is no reference in his Honour’s reasons, either explicitly or implicitly, to general deterrence, and it can only be assumed that it was overlooked or considered to be of no relevance. That it is relevant for sentencing for a Commonwealth offence is well established: see Commissioner for Taxation v Baffsky at para 93.

87 In the context of white collar crime of this sort, there is another good reason for recording a conviction, since that would have imposed a limitation upon the respondent’s ability to commit another similar offence. He would have been disqualified from managing a corporation for the period specified by s 206(B) of the Corporations Law, now the Corporations Act 2001, a right which he had clearly forfeited by his breach of trust and act of dishonesty as an office holder of a public company. Although s 206B is not intended as a means of exacting further punishment, the recording of convictions in such cases has been recognised as having a particular significance (R v Hannes [2000] NSWCCA 503), by reason of the restrictions to which they give rise, and also by reason of the need for general deterrence. In this regard it may be noted that in Spies v The Queen (2000) HCA 43, Gaudron J observed:

“ ..members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach the criminal or company law do not escape conviction.”

88 On behalf of the respondent it was argued that it was within his Honour’s discretion to take the course he did having regard to what was described by counsel as an exceptional case. The matters which were said to make the case exceptional were as follows:

(a) The delay of six years since the commission of the offence;

(b) The state of the respondent’s health and his age; and

(c) The public nature of the offence, the intention the respondent had of advancing community interests, his record for community work, the absence of personal gain and his reliance upon others.

89 I find that none of these matters, whether taken individually or together, amount in any way to an exceptional case, notwithstanding that the discretion is not circumscribed by a need to find exceptional circumstances. In this regard, I consider that:

(a) The delay was due principally to the delay before the offence was discovered and to the fact that the applicant pleaded not guilty. Delay in the prosecution of white-collar crimes is not unusual and the fact that they are so difficult to discover and successfully prosecute is one of the reasons why general deterrence is so important;

(b) The respondent’s health was a matter which may have been relevant to the form of sentence that should have been imposed but I cannot see how it was relevant to a determination that it was inexpedient to inflict any punishment or only a nominal punishment. Although the respondent’s health had deteriorated somewhat over the period since the offence, it was not a significant matter justifying either alone, or in combination with other matters, the exercise of the discretion under the section; and

(c) There was nothing in the circumstances in which the crime was committed which the respondent could properly call in aid as a mitigating circumstance. His Honour’s findings of fact are in conflict with such a submission. A deliberate and serious act of dishonesty by a person holding office in a public company is hardly mitigated by the fact that he believed himself to have been acting in the community interest, or that he had a record of community work.

90 The fact that a verdict and judgment has been attained by the Liquidator of TCEL against the Respondent in the sum of $80,000 together with interest and costs, is also not a matter which the respondent can call in aid. This was not a case of voluntary reparation, there is no evidence as to whether the judgment will be met, and in any event the considerations noted by Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 446 at 448 apply.

91 In my view the appeal against sentence should be allowed. Notwithstanding double jeopardy and the residual discretion, I would convict the respondent and sentence him to a period of community service. The sentencing judge, in my view, should have imposed a sentence of full time imprisonment, but that sentence would not now be appropriate. There would be no disparity with the co-offender in such a sentence, having regard to the fact that Harris pleaded guilty and gave assistance to the Crown.

92 The orders I propose are that:

(1) the application to extend the time to file an appeal against conviction be dismissed;

(2) the Crown appeal be allowed;

(3) the order of Stewart ADCJ be quashed; and

(4) in lieu thereof the respondent be sentenced to community service for 300 hours.

93 BELL J: I agree with the orders proposed by Wood CJ at CL for the reasons which his Honour gives.

- 2 -

IN THE COURT OF
CRIMINAL APPEAL

060528/01

REGINA (COMMONWEALTH) v PETER VINCENT WALL

Addendum

1 THE COURT: in order to complete the order previously made, the Court nominates the Port Macquarie Local Court as the supervising court. Additionally it orders that the respondent present himself at the Probation and Parole Service at Port Macquarie within 48 hours of the making of this order.

2 It is also necessary that there be some explanation given to Mr Wall as to the effect of the order.

3 We do that by indicating that it requires you to perform 300 hours of Community Service; that you perform that work in a satisfactory manner; that you comply with any reasonable direction of the assigned officer or supervisor; and that you inform the assigned officer of any change in your place of residence.

4 We also indicate to you that in the event of there being any failure, without reasonable cause or excuse, to comply with the Community Service Order, then that would constitute a further offence under the Act for which a fine could be imposed, not exceeding 2.5 penalty units. Alternatively, the Court could deal with you for the offence as though this order had not been made, that is to substitute some other form of sentence in relation to the matter which gave rise to the community service order or, alternatively, it could take no further action.

5 So there are circumstances whereby, as a result of further offences or failure to comply, action could be taken to revoke the order and to substitute some other form of sentence or alternatively, as indicated, to treat a non-compliance as an offence.

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