Roberts v The Queen - [2022] SASCA 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ROBERTS v THE QUEEN
[2022] SASCA 36
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
28 April 2022
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY
COURTS AND JUDGES - JUDGES - CONTROL OF COURTROOM - UNDUE INTERVENTION BY JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against conviction and appeal against conviction.
The applicant was convicted by a jury of 75 counts of dishonestly obtaining a financial advantage from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).
Between December 2002 and April 2006, the applicant lodged falsified claims for diesel fuel under the Commonwealth Government’s Diesel and Alternative Fuels Grants Scheme and received rebates from the Australian Taxation Office totalling $3.8 million. Claims were made by the applicant on behalf of three road haulage companies and the monies received through rebates were transferred to his own personal accounts. These companies did not, at any stage, engage in any legitimate business activities or purchase fuel. Rather, they were sham companies set up using falsified information and identities for the sole purpose of making fraudulent claims under the scheme.
In August 2005, the Australian Taxation Office commenced an audit of the applicant’s businesses’ claims. Following a lengthy audit and investigation, charges were laid in July 2016, and the matter proceeded to trial in February 2021.
The applicant seeks permission to appeal against his conviction on five grounds. He complains that the trial judge made comments during his summing-up which were unfairly favourable to the prosecution case or pejorative of the defence case (Grounds 1 and 2), did not adequately summarise the defence case (Ground 3), intervened in an excessive and unfair manner in the course of the trial (Ground 4), and erred in his direction in relation to discreditable conduct evidence adduced at trial (Ground 5).
The applicant was granted permission to appeal on Grounds 3 and 4. The application for permission to appeal on Grounds 1, 2 and 5 was heard in conjunction with the appeal on Grounds 3 and 4.
Held, per Doyle JA (Livesey P and David JA agreeing), granting permission to appeal on Grounds 1, 2 and 5 but dismissing the appeal on all grounds:
1.      Discussion of role of trial judge in making comments during the course of a trial (at [62]-[70]), in summarising the defence case (at [212]-[217]), and in making comments during the course of the summing-up (at [231]-[251]).
2.      When considered in their immediate and broader trial context, the impugned interventions made by the trial judge during the course of the trial did not, either individually or cumulatively, give rise to a miscarriage of justice (Ground 4) (at [177]).
3.      The defence case, including the various hypotheses consistent with innocence relied upon by defence counsel, was accurately and fairly summarised to the jury (Ground 3) (at [228]).
4.      The impugned comments made by the trial judge during his summing up did not give rise to a miscarriage of justice (at [271]).
5.      No error has been demonstrated in the trial judge’s admission of the discreditable conduct evidence in relation to the applicant’s earlier role in claiming rebates on behalf of two other companies that he owned and operated, or in the trial judge’s directions in relation to that evidence (at [288]).
Application for permission to appeal against sentence.
In January 2021, the applicant was sentenced for the separate offence of attempting to possess a commercial quantity of a border-controlled drug, namely methylamphetamine, to 10 years and six months imprisonment with a non-parole period of six years and 10 months.
In July 2021, the applicant was sentenced for the subject offending to a single sentence of 10 years imprisonment to be served cumulatively with the sentence imposed for the trafficking offence. The total sentence to be served was 20 years and six months with a non-parole period of 14 years, backdated to commence on 30 December 2019.
The applicant seeks permission to appeal against his sentence on the ground of manifest excess. Underpinning this ground are five complaints of specific errors made by the sentencing judge: first, in considering a previous conviction for dishonest offending that occurred in the 1990s; secondly, in taking into account a 2009 conviction for trafficking offending; thirdly, in considering a single sentence of 150 years and applying totality; fourthly, in failing to account for delay; and fifthly, in finding that the subject offending was committed against a lifetime of other offending.
Held, per Doyle JA (Livesey P and David JA agreeing), granting permission to appeal but dismissing the appeal:
1.      There was no error in the approach adopted by the sentencing judge in respect of any of the specific errors alleged by the applicant.
2.      The head sentence and non-parole period were not, in the circumstances, manifestly excessive.
Criminal Code Act 1995 (Cth) SS 134.2, 307.1; Evidence Act 1929 (SA) SS 34P, 34R, referred to.
RPS v The Queen (2000) 199 CLR 620; McKell v The Queen (2019) 264 CLR 307; Ratten v The Queen (1974) 131 CLR 510; R v Esposito (1998) 45 NSWLR 442; Galea v Galea (1990) 19 NSWLR 263; R v MacBeth [2008] SASC 71; R v L, GA [2015] SASCFC 166; Michel v The Queen [2009] UKPC 41; Domican v R (1992) 173 CLR 555; R v Ferguson [2018] SASCFC 130; Castle v The Queen (2016) 259 CLR 449; R v Perks (1986) 43 SASR 112; Cleland v The Queen (1982) 151 CLR 1; R v Allen (2011) 109 SASR 396; England v R (2013) 116 SASR 589; B v The Queen (1992) 175 CLR 599; Chong v The Queen [2020] WASCA 143; Galipo v The State of Western Australia [2019] WASCA 188; Pyliotis v The Queen [2020] VSCA 134; R v Emes [2019] SASCFC 75; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276; Chong v The Queen [2021] SASCA 89; Nguyen v The Queen; Tran v The Queen; Nguyen v The Queen [2022] SASCA 25; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; R v Pickard [2011] SASCFC 134; Ndreka v The Queen [2021] SASCA 11; R v Baden-Clay (2016) 258 CLR 308; Pell v The Queen (2020) 268 CLR 123; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; Valente v R (1985) 2 SCR 673; Director of Public Prosecutions v Rattigan [2017] IESC 72; Green v The Queen (1971) 126 CLR 28, considered.

ROBERTS v THE QUEEN
[2022] SASCA 36
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

LIVESEY P: Where the conduct of the trial judge in a criminal trial before a jury is criticised, it must be evaluated having regard to certain essential features of a criminal trial. The first is that the jury, and not the trial judge, is tasked with finding the facts; the jury is “the constitutional tribunal for deciding issues of fact”.[1] Secondly, the issues in contest, and the evidence to be led at trial, are determined by the parties, not the trial judge. Whilst the judge may make rulings in the course of what is an adversarial contest, those rulings are based on what the parties put forward, whether by way of evidence or argument. Thirdly, from start to finish it is necessary that the trial judge be and be seen to be both independent and impartial.
[1] R v Baden-Clay (2016) 258 CLR 308, [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). See also Pell v The Queen (2020) 268 CLR 123, [38]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelmann JJ).
It has been repeatedly emphasised that it is fundamental to the character of a court within the Australian judicial system that, as an institution, it is in fact and appearance, independent and impartial.[2] The principles of judicial independence and impartiality are fundamental common law principles.[3] The test for independence and impartiality is one of perception.[4]
[2]     In various contexts, see for example, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [3] (Gleeson CJ, McHugh, Gummow and Hayne J), [79]-[82] (Gaudron J), [144] (Kirby J); North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146, 147-148 (Gageler SC); [3] (Gleeson CJ); [26]-[29] (McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 67-69 (Gleeson CJ), [64] (Gummow, Hayne and Crennan JJ), [238]-[242] (Callinan J); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 25 (Gaudron J); Wainohu v New South Wales (2011) 243 CLR 181, [44]-[48], [68] (French CJ and Kiefel J), [104]-[105] (Gummow, Hayne, Crennan and Bell JJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [39] (French CJ, Kiefel and Bell JJ), [122]-[125], [128]-[129] (Gageler J); Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400, [59]-[62] (Hinton J, with whom Lovell J agreed).
[3]     Fingleton v Christian IvanoffPty Ltd (1976) 14 SASR 530, 548 (Wells and Sangster JJ): “courts [must] have their complete independence assured to the extent that they own no master save that of the law, and are subject to no external influence save that exerted upon them by the principles and precepts of intellectual and personal integrity”.
[4]     Valente v R (1985) 2 SCR 673, [22] (Dickson CJC, Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ); North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146, 148 (Gageler SC), [29] (McHugh, Gummow, Kirby, Hayne, Callinan, and Heydon JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, [66] (Gummow, Hayne, and Crennan JJ).
The trial judge in a common law trial must be and be seen to be independent of the parties and any extraneous influence. The trial judge must be and be seen to be impartial.[5] This has been described as the “supreme judicial virtue”.[6] Where a judge is or appears to be partisan, the trial becomes unfair and public confidence in the administration of justice is undermined.[7]
[5]     In Yuill v Yuill [1945] 1 All ER 183, 189 Lord Greene MR spoke of the judge who “descends into the arena and is liable to have his vision clouded by the dust of the conflict”. See also Jones v National Coal Board [1957] 2 QB 55, 64 where Denning LJ described the judge who “drops the mantle of a judge and assumes the role of an advocate”; and Michel v The Queen [2010] 1 WLR 879 (PC), 889 where Lord Brown of Eaton-under-Heywood JSC warned that the judge “must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced”.
[6]     Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 72 Australian Law Journal 33, 34: “Partiality and the appearance of partiality are both incompatible with the proper exercise of judicial power. The one poisons the stream of justice at its source; the other dries it up”.
[7]     Lord Taylor of Gosforth, ‘The Independence of the Judiciary in a Democracy’ (1995) 4 Asia Pacific Law Review 1, 2: “Public confidence in the fairness of the justice system depends crucially on the judges being believed to be impartial, free from bias and from extraneous influence”.
Where an accused person stands trial on criminal charges before a jury, the trial judge has certain, well-defined responsibilities. These are each a feature of “the fundamental task of ensuring a fair trial of the accused”.[8] These include the necessity to explain to the jury the respective roles of the judge and the jury, the role of counsel and the applicable legal principles, particularly the requirement that the prosecution prove guilt beyond reasonable doubt. During the course of the trial, the judge must rule on objections and ensure that only legally relevant evidence is put before the jury. At the conclusion of the trial, the trial judge must provide a summing up, instructing the jury as to the elements in law of each criminal charge or defence, and reminding the jury to base their deliberation on, and only on, the evidence led in the courtroom. It is usual for the trial judge to review the evidence, reminding the jury of the evidence relevant to proof of guilt, as well as why the defence contends that the prosecution has failed to prove guilt. Often this is done by reviewing the arguments of counsel.
[8] McKell v The Queen (2019) 264 CLR 307, [3] (Bell, Keane, Gordon and Edelman JJ).
Whilst it has been traditional to describe the role of the trial judge as encompassing the “fundamental task” of ensuring “a fair trial of the accused”,[9] the High Court has recently described at least one aspect of that task as a “duty”.[10]
[9] RPS v The Queen (2000) 199 CLR 620, [41]-[42] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ).
[10] McKell v The Queen (2019) 264 CLR 307, [45] (Bell, Keane, Gordon and Edelman JJ): being “the judge's duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters”.
This appeal raises for consideration three well-recognised features of the composite duty of the trial judge to ensure a fair trial of an accused before a jury. The first concerns the extent to which it is acceptable for a judge to make comments or ask questions during the course of the trial before a jury. The second concerns the manner in which the trial judge may or must address the arguments which comprise the defence case, and the third concerns the extent to which it is appropriate to comment on the evidence and cases of the prosecution and the defence in the course of the summing up.
Whilst a trial judge has a broad discretion as to the way in which the judge presides over a criminal trial before a jury, as well as the way in which the trial judge sums up or comments, that power is not unconstrained. It is subject to the essential features of a criminal trial and the composite duty to ensure a fair trial of the accused.
It is in this context that the scope for intervention by the trial judge during the course of the trial must be viewed.
Apart from asking questions designed to clear up answers or clarify matters of concern, the trial judge is not to become involved in questioning to the extent that the judge appears to have become partisan or has formed a view about the evidence.[11] A judge cannot be seen to have questioned to the extent that the judge appears to have assumed the role of prosecutor or of defence counsel.[12] Conduct such as this risks a miscarriage of justice.[13]
[11] See generally R v Esposito (1998) 45 NSWLR 442, 472 (Wood CJ at CL) and R v MacBeth [2008] SASC 71, [72]-[74] (Doyle CJ with whom Bleby and Gray JJ agreed).
[12] See generally R v Esposito (1998) 45 NSWLR 442, 472 (Wood CJ at CL); R v MacBeth [2008] SASC 71, [72]-[74] (Doyle CJ with whom Bleby and Gray JJ agreed) and R v L,GA [2015] SASCFC 166, [115]-[116] (Sulan, Peek and Lovell JJ).
[13] See, for example, Lockwood v Police (SA) (2010) 107 SASR 237, 241 (Vanstone J); R v T, WA (2014) 118 SASR 382, [38]-[39] (Kourakis CJ). Kirby A-CJ contrasted the approach of a judge in a civil case in Galea v Galea (1990) 19 NSWLR 263, 281.
Similarly, whatever the right or discretion of a trial judge to frame a summing up as the judge sees fit, that is constrained by the duty to give accurate and fair instruction to the jury.[14] In this, as in other aspects of the conduct of the trial judge, it is necessary to “hold an even balance between the cases of the prosecution and the accused”.[15]
[14] McKell v The Queen (2019) 264 CLR 307, [39] (Bell, Keane, Gordon and Edelman JJ).
[15] Cleland v The Queen (1982) 151 CLR 1, 10 (Gibb CJ); McKell v The Queen (2019) 264 CLR 307, [35] (Bell, Keane, Gordon and Edelman JJ).
The High Court has emphasised that the discretion of a trial judge to comment on the facts “should be exercised with circumspection”[16] and that, absent the necessity for comment, “the wise course will often be not to do so”.[17] Recently, the High Court in McKell emphasised that:[18]
Certainly, insofar as today’s judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact.[19]
[16] McKell v The Queen (2019) 264 CLR 307, [47] (Bell, Keane, Gordon and Edelman JJ).
[17] McKell v The Queen (2019) 264 CLR 307, [47] (Bell, Keane, Gordon and Edelman JJ), citing Castle v The Queen (2016) 259 CLR 449, [61] (Kiefel, Bell, Keane and Nettle JJ).
[18] McKell v The Queen (2019) 264 CLR 307, [49] (Bell, Keane, Gordon and Edelman JJ).
[19] Director of Public Prosecutions v Rattigan [2017] IESC 72, [92].
Whatever the difficulties associated with identifying permissible or impermissible comment, the duty of a trial judge to provide fair and accurate instruction is “always concerned with practical fairness to both sides”.[20] In particular, the High Court has questioned the right to comment on disputed questions of fact, suggesting that “that risk should not be courted by trial judges”.[21]
[20] McKell v The Queen (2019) 264 CLR 307, [55] (Bell, Keane, Gordon and Edelman JJ).
[21] McKell v The Queen (2019) 264 CLR 307, [46] (Bell, Keane, Gordon and Edelman JJ), a question which Gageler J found unnecessary to address, [59].
Finally, in determining whether there has been a miscarriage of justice, it is inappropriate to speculate about how the jury actually reacted to the trial judge’s comments:[22]
The issue is whether the trial judge’s comments were apt to create a “danger” or a substantial risk that the jury might actually be persuaded of the appellant’s guilt by comments in favour of the prosecution case made with the authority of the judge.
(footnote omitted).
[22] McKell v The Queen (2019) 264 CLR 307, [42] (Bell, Keane, Gordon and Edelman JJ).
I am grateful to Doyle JA for his comprehensive statement of the facts and contentions made on appeal. I too have considered the conduct of the trial judge in the context of the trial as a whole. When undertaking an analysis of the conduct of the trial judge, it is necessary to look at both the particular and the whole. The particular criticisms must be considered in their proper context. The appeal court must review the overall conduct of the trial and the summing up as a whole.[23]
[23] Green v The Queen (1971) 126 CLR 28, 34 (Barwick CJ, McTiernan and Owen JJ); B v The Queen (1992) 175 CLR 599, 606 (Brennan J); McKell v The Queen (2019) 264 CLR 307, [39] (Bell, Keane, Gordon and Edelman JJ).

Whilst I agree that it would have been preferable if certain interventions or comments had not been made by the trial Judge, it is necessary to recall that these were scattered over a number of days. The trial Judge appeared to remain independent. It cannot be said that the trial Judge intruded on or assumed the role of counsel. The trial Judge did not try to persuade the jury.[24] It cannot be said that he took a partisan approach, whether with his questions or his comments or his summing up.
[24] Cf, R v Emes [2019] SASCFC 75, [39] (Hinton J, with whom Nicholson J agreed).
In these circumstances I agree with Doyle JA’s reasons for granting permission to appeal on appeal Grounds 1, 2 and 5, but dismissing the appeal against conviction.
Finally, I agree with the reasons of Doyle JA for granting permission to appeal on sentence, but dismissing appeal against sentence.
DOYLE JA: The applicant challenges both his conviction and sentence.
The issues raised on the conviction appeal concern three important aspects of the role of a trial judge in the conduct of a criminal trial before a jury. The first concerns the nature and extent of the questions asked by the judge during the evidence given by various prosecution witnesses. The second concerns the extent to which the judge addressed the defence case and defence arguments when summing-up the case to the jury. The third concerns comments made by the judge about the evidence and the cases of the prosecution and the defence during the summing-up.
The argument on appeal is that, on each aspect, the trial judge failed to maintain “an even balance”[25] and favoured the prosecution to the extent that there was a miscarriage of justice. The resolution of these appeal grounds requires an appreciation of the proper role of the trial judge and an evaluation of each intervention, together with their overall effect, as well as an evaluation of the summing-up as whole, given the nature of the trial and the way in which it was conducted by the parties.
[25] Cleland v The Queen (1982) 151 CLR 1 at 10 (Gibbs CJ).
The sentence appeal concerns a complaint that the sentence was manifestly excessive, but also raises a number of specific errors which it is contended vitiated the exercise of the sentencing discretion.
The applicant, Reginald Roberts, was unanimously convicted by a jury of 75 counts of dishonestly obtaining a financial advantage from the Commonwealth.[26] The maximum penalty for each offence was 10 years imprisonment.
[26] Contrary to s 134.2(1) of the Criminal Code 1995 (Cth).
The circumstances of the offending were that, on 75 occasions between late December 2002 and April 2006, the applicant received rebates under the Diesel and Alternative Fuels Grants Scheme of approximately $50,000 from the Commonwealth Government by lodging with the Australian Taxation Office falsified claims for rebates on diesel fuel purchased by companies that he operated. The applicant received fuel rebates from the Commonwealth totalling $3,809,000 in this way.
Prior to his sentencing for this offending, the applicant had been convicted of the offence of attempting to possess a commercial quantity of a border-controlled drug, namely methylamphetamine.[27] On 12 January 2021, he was sentenced to 10 years and six months imprisonment for that offending with a non‑parole period of six years and 10 months. The sentence was ordered to commence from 30 December 2019.
[27] Contrary to s 307.1 of the Criminal Code.
On 14 July 2021, the applicant was sentenced for the fuel rebate offending to a single sentence of 10 years imprisonment, to be served cumulatively upon the sentence that had earlier been imposed for the trafficking offence. The sentencing judge fixed a new non-parole period for both sentences of 14 years.
The total sentence to be served for both sets of offending was thus 20 years and six months, with a non-parole period of 14 years, and with the sentence backdated to commence on 30 December 2019.
It is appropriate to commence by providing an overview of the fuel rebate offending before addressing the issues arising on the conviction and sentence appeals.
Overview of the offending
The applicant owned two companies, Old No. 7 Transport Pty Ltd and Old No. 7 Trucking Pty Ltd (collectively, the Old No. 7 companies), which were engaged in a legitimate road transportation business.
In the early 2000s, the Commonwealth Government, through the ATO, established the Diesel and Alternative Fuels Grants Scheme.[28] That scheme enabled road haulage businesses to claim a partial fuel rebate of 18.51 cents per litre of diesel fuel purchased for on-road use. The scheme was self-assessed. To participate, a business would register its ABN and the vehicles for which it intended to claim fuel rebates. A business could then make a monthly claim which identified the amount of diesel fuel it had purchased for that period, and included a declaration that the information provided was true and accurate, and that the business had retained appropriate records to substantiate its claim. A rebate payment would then be made to the business by the ATO.
[28] Which later became the Energy Grants (Credits) Scheme.
From 2001, the Old No. 7 companies claimed fuel rebates from the ATO in this way. The applicant was not charged with any offence associated with the rebates claimed by these companies. The relevance and permissible use of the evidence of these rebate claims is addressed in detail later, but essentially the evidence was led to demonstrate the applicant’s familiarity with the fuel rebates scheme. By late 2002, it became apparent that the business operated by the Old No. 7 companies was facing significant financial difficulties and the applicant, apparently in response to these difficulties, proceeded to become involved in three further road haulage businesses.
The first of these companies was Double R Logistics Pty Ltd (Double R). The applicant made 43 separate monthly claims by Double R for fuel rebates between December 2002 (when the business was established) and July 2006, and received $2,319,886 in rebates. The rebates were received through an account controlled by the applicant and subsequently dispersed among other accounts, including the applicant’s personal credit and savings accounts. These rebate claims and payments were the subject of counts 1–43.[29]
[29] Counts 1–19 related to those claims made prior to the sale of Double R to Inter Link (from December 2002 to June 2004) and counts 20–43 related to claims made by Double R after that sale (from July 2004 to June 2006).
In 2004, the applicant purportedly sold Old No. 7 Trucking and Double R to Inter Link Freight Services (Inter Link), the second company. The business sale agreement was prepared by a solicitor from Phillips Fox Lawyers. Inter Link continued to make claims for fuel rebates for a period of 28 months between February 2004 and June 2006. In total, Inter Link received $1,269,639 in fuel rebates over that period. The applicant, acting as a ‘consultant’ from Inter Link, lodged the fuel rebate claims on behalf of Inter Link. These rebate claims and payments were the subject of counts 44-71.
The third company was Phillip Williams Pty Ltd (Phillip Williams), which made four fuel rebate claims between November 2005 and March 2006 totalling $219,474. On the prosecution case, the applicant made these claims and received the benefit of the rebates. These rebate claims and payments were the subject of counts 72-75.
In August 2005, the applicant was contacted by the ATO and asked to provide documents substantiating the fuel rebate claims made from December 2004 to June 2005. In August 2006, when the applicant was unable to do so, the ATO expanded its audit to include the claims made by Old No. 7 Trucking, Double R and Inter Link for the period spanning July 2001 to June 2006. The ATO completed its audit in January 2007 and, together with the Australian Federal Police, executed search warrants first in December 2008 and again in May 2009.
On 21 July 2016, an Information and Summons was laid in the Magistrates Court. The matter proceeded to trial in the District Court commencing on 4 February 2021.
On 13 March 2021, the applicant was convicted of all counts. He was later sentenced in the manner set out at the commencement of these reasons. The applicant then sought permission to appeal against his conviction and sentence.
PART A: APPEAL AGAINST CONVICTION
The applicant sought permission to appeal against his conviction on five grounds. He was granted permission to appeal on Grounds 3 and 4, but still requires permission to appeal on Grounds 1, 2 and 5. The application for permission and appeal were heard together.
Each of Grounds 1 to 4 allege a miscarriage of justice by reason of the trial judge’s failure to observe, or fulfill, his role in ensuring a fair trial. Grounds 1 and 2 involve complaints that the trial judge made various comments during the course of his summing-up which went beyond the judge’s role in summarising the evidence, and the parties’ cases, in a fair and balanced way, and which were unfairly favourable to the prosecution case or pejorative of the defence case. Ground 3 involves a complaint that the trial judge did not adequately summarise the defence case. Ground 4 involves a complaint that the trial judge intervened in an excessive and unfair manner during the course of the trial.
It can readily be seen that these grounds overlap, and also require consideration of the cumulative effect of the matters about which complaint is made. Because the applicant’s complaints are best considered in the sequence in which they arose, and must in any event be considered in the overall context of the trial and summing up, I propose to structure my reasons on the appeal against conviction by addressing each of the following in turn: the conduct of the trial and the parties’ respective cases; the principles governing judicial intervention during the course of a jury trial, and their application to the present case (Ground 4); the structure and content of a trial judge’s summing-up; the principles governing a trial judge’s obligation to summarise the defence case, and their application to the present case (Ground 3); and the principles governing comments by the trial judge during the course of a summing-up and their application to the present case (Grounds 1 and 2).
I will then separately address Ground 5, which involves a complaint about the trial judge’s directions in relation to the fuel rebates claimed by the Old No. 7 companies.
The conduct of the trial
The trial was a relatively lengthy one. It took place over 20 hearing days, spread across six weeks. As described below, the prosecution called a number of witnesses, with the transcript running to over 1700 pages (including over 1400 pages of evidence). The parties also relied upon a large volume of documentary exhibits, including a number of detailed schedules and tables prepared by ATO auditors and investigators.
The prosecution case
The prosecution case at trial was, in essence, that the applicant controlled each of Double R, Inter Link and Phillip Williams; that the applicant’s companies did not, at any time, engage in any legitimate road haulage business, or even own trucks or purchase fuel; that the applicant made all of the fuel rebate claims on behalf of each of these companies; and that the applicant received the benefit of those claims in the form of rebate monies transferred to his personal accounts.
Underpinning the prosecution case was evidence led in relation to the rebate claims made by the Old No. 7 companies. The prosecution adduced evidence in the form of business activity statements for those companies which showed a large discrepancy between the fuel rebates claimed, and the business income and fuel expenditure that was able to be substantiated.
As already outlined, the applicant was not charged with any offence in respect of the Old No. 7 companies. The prosecution did not lead this evidence as propensity evidence. It was led on three bases: first, that it demonstrated the applicant’s familiarity with the fuel rebates scheme; secondly, that it demonstrated that the nature of the applicant’s participation in the scheme through subsequent entities was deliberate, and not the result of any inadvertence, mistake or misapprehension as to how the scheme operated; and thirdly, that it demonstrated that each of the five companies was operated by the same person by virtue of the similarity between the conduct with respect to both his legitimate businesses (the Old No. 7 companies), and the conduct of the impugned businesses (Double R, Inter Link and Phillip Williams).
The trial judge’s directions in respect of this uncharged conduct are the subject of Ground 5 of the applicant’s appeal against conviction, and I will turn to those directions in some detail later in these reasons.
On the prosecution case, the evidence in relation to the Old No. 7 companies also informed the context in which the charged offending occurred. It tended to show that, by 2002, the applicant’s legitimate road haulage business was suffering financial difficulties. It also tendered to show that the applicant had found a way to claim large amounts of money by way of the fuel rebates without the need to substantiate the claims made. This is what the prosecution said led the applicant to establish the three new companies.
In respect of counts 1–43, being those in relation to the fuel rebates claimed by Double R, the prosecution case was that the applicant was the sole director of the business and controlled the company’s accounts. As to those accounts, the prosecution relied on what it said was the clear and exhaustive audit that had been conducted of that business and its accounts. That audit found no evidence to substantiate any business expenses (such as receipts or bank statements showing fuel purchased), or any legitimate business income aside from the inflow of fuel rebates. The only records which existed were prepared by the applicant’s accountant upon the applicant’s instructions (which were sometimes written, but often verbal). On the evidence, the applicant would simply make fuel rebate claims and, when the rebates were received, transfer those monies to his personal accounts.
Following the purported sale of Old No. 7 Trucking and Double R to Inter Link, the prosecution case was that the applicant continued to claim and receive fuel rebates on behalf of Double R. On the prosecution case, the sale agreement and new company served as something of an insurance policy to enable the applicant to distance himself in the event that any of the companies were audited or investigated. As developed later in these reasons, the prosecution case was that there was no evidence of any sale in fact taking place; that the sale agreement was prepared on the instructions of the applicant, using a falsified identity and sham company.
In respect of counts 44–71 (being those relating to the fuel rebates claimed by Inter Link), the prosecution case can be summarised in the following way: the applicant, on behalf of a shelf company that was created using falsified details, and had no legitimate business, made a number of claims for fuel rebates which, when monies were received, were transferred to his own personal accounts.
The prosecution relied upon the evidence of a Mr David Williams to the effect that he had, in the past, created fake identities (and related documents), companies and accounts (such as bank and utility accounts) in exchange for payment. The prosecution case was that Mr David Williams, on behalf of the applicant, fabricated the identity of David Campbell, and registered Inter Link using that and other fake details, as well as falsified documentation.
On the prosecution case, the applicant’s purpose in fabricating or creating Mr Campbell and Inter Link, was to distance himself from scrutiny in the event of an audit or investigation. In this way, the applicant, under the guise of an ‘agent’ of Inter Link, continued to make fuel rebate claims in respect of both Double R and Inter Link, and continued to transfer the monies received into his personal accounts.
In respect of counts 72–75, the prosecution case was that, in much the same way as he had done for Inter Link, the applicant set up Phillip Williams (the company) using an entirely fictious director and company secretary, Mr Phillip Williams, and that he did so in order to continue to lodge false claims and receive fuel rebates. The company was operated through an interstate accounting firm (Brown Baldwin) for the purpose of obscuring the applicant’s involvement. The prosecution relied upon largely circumstantial evidence, including palm and thumb prints taken from one of the claim forms lodged by Phillip Williams, analysis by the ATO, and the fact that the applicant had, in 1994, been caught by SA police using a fake SA driver’s licence that was in the name of Phillip Williams but with a photograph of the applicant.
The prosecution alleged that, from the time the ATO first contacted the applicant in August 2005 to request that he substantiate his claims, the applicant misled investigators by claiming that Old No. 7 Trucking and Double R had been sold and that all the documents he had held for these companies had been provided to Inter Link. The prosecution also alleged that the applicant lied to investigators by saying that he had sent three envelopes of documents to the ATO, when in reality he had only ever sent two, and by maintaining that Mr Campbell and Mr Williams were real people when they were not. The prosecution also contended that, in an apparent attempt to hinder the investigation, the applicant had provided 12 boxes of unorganised and irrelevant material to the ATO, which investigators were then required to review in detail. This resulted in a significant period of time being required for the investigation to be conducted and charges laid.
In support of its case, the prosecution called 18 witnesses, being several ATO auditors involved in the audit and investigation of the fuel rebate claims and companies the subject of these proceedings (Ms Dodawec, Mr Wyers, Mr Stocks-Ramsay and Mr Clarke); several ATO and AFP investigators involved in more formal aspects of the case (Mr Foster, Mr Milograd, Mr Growden, Mr Dec and Mr Elston); the solicitor from Phillips Fox Lawyers who prepared the business sale and purchase agreement for the purported sale of Old No. 7 Trucking and Double R to Inter Link (Ms Su); two of the people involved in setting up Old No. 7 Trucking and Double R (Mr Nassaris) and Inter Link and Phillip Williams (Mr Luke); an AFP fingerprint expert (Ms Wilson) who gave evidence to the effect that the applicant’s left palm and right thumb prints were found on one of the four claim forms lodged for Phillip Williams; an SA police officer (Mr O’Reilley) who gave evidence that in 1994 he located a driver’s licence in the name of Phillip Williams but with a photo of the applicant; the applicant’s accountant (Mr Reimann); Mr David Williams, who acknowledged that he set up Inter Link and Phillip Williams with fake identities, and acknowledged that he did not ever have any contact with anyone by the names of Mr Campbell or Mr Phillip Williams, and that he forged the signature of Mr Campbell on the business sale and purchase agreement referred to above; and two men who had dealings with the applicant in connection with the business of the Old No. 7 companies (Mr Antoniw and Mr Evans).
The prosecution also relied upon a large number of documentary exhibits, several of which consisted of detailed schedules and tables relating to the fuel rebate claims and finances of the various entities that made those claims. Those documents were prepared, and explained, by the ATO auditors who gave evidence.
The defence case
The applicant did not give evidence, and did not otherwise call any oral evidence. Aspects of the defence case and in particular the applicant’s version of events did emerge, however, from the evidence given by some of the ATO auditors of their dealings and discussions with the applicant.

On the defence case, all documentation in relation to Old No. 7 Trucking and Double R had been given to Mr Campbell by the time the 2005 ATO audit occurred. In respect of that audit, the applicant claimed to have sent three envelopes to the ATO containing relevant documents; and that because the ATO only ever received two of these envelopes (marked ‘1 of 3’, and ‘2 of 3’ respectively) the missing envelope explained the lack of some of the documents complained of by the ATO.
The applicant also maintained that he had sold Double R and Old No. 7 Trucking in July 2004 to Mr Campbell. The applicant relied in that respect upon the sale agreement prepared by Phillips Fox Lawyers which was said to evidence that the company was to be purchased for around $4 million by Mr Campbell. The sale was apparently contemplated as early as 2002, and defence counsel argued that the sale had occurred, or at least that it was reasonably possible that it occurred. The lack of detail in the sale agreement itself was said to be explained by the existence of some other document setting out those details, although that document was never produced.
The applicant claimed that Mr Campbell was a real person with whom he had a number of dealings and meetings. The applicant maintained that he was employed as a consultant to Inter Link, being paid $25,000 per month, and made fuel rebate claims for Double R and Inter Link on behalf of Mr Campbell. On the applicant’s case, it was Mr Campbell who provided all the information necessary to complete the fuel rebate claim forms.
On the applicant’s case, he had known a man called Mr Phillip Williams from working with him at Old No. 7 Transport, and had introduced Mr Phillip Williams to Mr Campbell. But he maintained that he had not submitted fuel rebates in respect of Phillip Williams (the company).
Reflecting the above, defence counsel’s closing address focused upon several hypotheses which were said to be consistent with the applicant’s evidence and at least reasonably possible on the evidence. The substance of these defence hypotheses is set out later in these reasons.
Ground 4: judicial intervention during a jury trial
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. In the context of a jury trial this task encompasses overseeing the fair and efficient conduct of the trial, in accordance with the rules of evidence; and providing guidance to the jury by identifying the issues in the case, instructing as to the legal principles necessary to resolve those issues, and assisting the jury in their application of those principles to the evidence, including by summarising the evidence and the parties’ respective cases.
This fundamental task falls to be performed within a framework in which it is for the jury, and the jury alone, to decide the facts.[30] Importantly, this task also falls to be performed in an adversarial context, in which it is the parties who are the protagonists and hence who dictate the forensic landscape against which the facts fall to be determined. As Barwick CJ explained in Ratten v The Queen:[31]
As Smith J rightly said in expressing the reasons of the Full Court in this case, "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence". It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. …
[30] RPS v The Queen (2000) 199 CLR 620 at [41]-[42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ); McKell v The Queen (2019) 264 CLR 307 at [2] (Bell, Keane, Gordon and Edelman JJ).
[31] Ratten v The Queen (1974) 131 CLR 510 at 517 (Barwick CJ); R v Esposito (1998) 45 NSWLR 442 at 469-470 (Wood CJ at CL).
This understanding of the fundamental task of the trial judge, and the framework and context within which it falls to be performed, informs both the conduct of the trial and the content of the summing-up. I shall return to the content of the summing-up later in these reasons, when addressing Grounds 1, 2 and 3. However, focusing for the moment upon the conduct of the trial, it is essential that the trial judge remains impartial throughout the course of the trial, and does not intervene in a manner that creates an appearance of partiality, that conveys the judge’s own view of the facts, or that is otherwise apt to sway the jury towards one side or the other.
In R v Esposito,[32] Woods CJ at CL reviewed the authorities governing the limits of a trial judge’s permissible intervention in the conduct of a trial. After noting the greater latitude in questioning and commenting that may be acceptable in a trial by judge alone (particularly in civil matters),[33] his Honour summarised:[34]
The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of the ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed to elucidating an area of the evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.
[32] R v Esposito (1998) 45 NSWLR 442 at 467-472 (Wood CJ at CL), 477-478 (James J), 478 (Adams J).
[33] R v Esposito (1998) 45 NSWLR 442 at 470 (Wood CJ at CL), referring to Galea v Galea (1990) 19 NSWLR 263 at 281-282 (Kirby ACJ).
[34] R v Esposito (1998) 45 NSWLR 442 at 472 (Wood CJ at CL).
The Court in that case held that the trial judge’s questioning of the appellant, in the presence of the jury, as to inconsistencies in his evidence – even though apparently motivated by a desire to ensure the prosecution case was properly presented to the jury – was inappropriate. The judge had intervened in a manner that compromised his appearance of impartiality and conveyed his disbelief, or at least his scepticism as to the credibility, of at least some parts of the appellant’s evidence, giving rise to a miscarriage of justice.[35]
[35] R v Esposito (1998) 45 NSWLR 442 at 467-468, 472-473 (Wood CJ at CL), 477-478 (James J), 478 (Adams J).
In R v MacBeth,[36] Doyle CJ articulated the principles in the following terms:[37]
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. It is not suggested that the Judge offended against this principle. Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. There is a helpful discussion of the relevant guidelines in the reasons of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 468-473.
In short, the complaint about the judge’s questions has to be considered in the context of the role of counsel and of a judge in a jury trial, and paying appropriate regard to principles of the kind outlined in Esposito. At the same time, one must recognise that consistently with those principles there is scope for variation of approach, from judge to judge and from case to case. The principles are important, but in the end the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[36] R v MacBeth [2008] SASC 71.
[37] R v MacBeth [2008] SASC 71 at [72]-[74] (Doyle CJ, Bleby and Gray JJ agreeing).
The complaint of miscarriage was not made out in that case. The judge’s interventions were short, related to matters that were material to the case, were apt to assist the jury, and were not asked in a manner or terms that was inappropriate.[38]
[38] R v MacBeth [2008] SASC 71 at [75]-[76]] (Doyle CJ, Bleby and Gray JJ agreeing).
On the other hand, the judge’s interventions in R v L, GA[39] were held to be excessive, resulting in a miscarriage of justice. After summarising the principles set out above, the Court held:[40]
The Judge’s interventions were numerous and were such that the Judge had dropped the mantle of a Judge and assumed the role of an advocate. The questioning by the Judge went beyond clearing up ambiguities or assisting the jury to better understand the evidence. On occasions, the Judge’s questions suggested incredulity on his part. On other occasions, he took over the role of the prosecutor, both in examination-in-chief of the prosecution witnesses and in cross-examination of the appellant. On other occasions, his questioning interfered with the examination by the appellant’s counsel of the appellant, and interfered unduly when counsel was cross-examining the prosecution’s witnesses.
[39] R v L, GA [2015] SASCFC 166.
[40] R v L, GA [2015] SASCFC 166 at [115]-[116] (Sulan, Peek and Lovell JJ).
I conclude my discussion of the relevant principles by referring to the decision of the Privy Council in Michel v The Queen.[41] It related to a trial in the Royal Court of New Jersey, presided over by a Commissioner sitting with two Jurats. In considering the circumstances in which excessive intervention by a judicial officer might cause a trial to miscarry, Lord Brown, delivering the judgment of the Court, observed:[42]
Naturally, in Jersey, where the facts are decided by the Jurats (the Commissioner retiring with the Jurats but not joining in the fact-finding unless the Jurats disagree), the facts are not summed up so that the Nelson approach is not available to the Commissioner. But that cannot begin to justify the Commissioner seeking to give the Jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. Indeed, it does not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial. Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
[41] Michel v The Queen [2009] UKPC 41.
[42] Michel v The Queen [2009] UKPC 41 at [34] (Lord Brown).
In the present case, the applicant relies upon approximately 50 interventions or comments made by the trial judge during the course of the trial. While the impugned interventions were thus numerous, it is to be recalled that the trial was a lengthy one, spread across 20 hearing days. Further, unlike the situation in R v L, GA, the interventions were not lengthy, and did not involve the judge taking over the role of prosecutor in questioning any of the witnesses, or otherwise interfering in either party’s presentation of the case. Rather, the interventions were generally more akin to the short interventions in R v MacBeth.
That said, the gravamen of the applicant’s complaint is not so much the length of the interventions. Rather, it is the nature and tone, and combined effect, of the numerous short interventions. The complaint is that the judge’s interventions tended to support the prosecution case and created an impression of his Honour’s support for that case that risked swaying the jury.
To do justice to the applicant’s complaints, while at the same time not losing sight of the context in which they occurred, it is necessary to address each of the impugned interventions in the sequence and context in which they occurred. It is convenient to do so by grouping the interventions by reference to the witness during whose evidence the interventions occurred. For ease of later reference, I shall number each of the impugned interventions.
Evidence of Ms Dodawec
The first group of complaints relate to interventions during the course of the evidence of the first prosecution witness, Ms Dodawec. Ms Dodawec was an ATO auditor who gave evidence on several topics, including how the diesel fuel rebate scheme worked, her dealings with the applicant (both at the outset of the audit process and then during that process, including in relation to the provision and receipt of documents from the applicant), and the detail of the audit and its findings in relation to each of the 75 charged rebate claims.
Intervention 1 (T144) occurred during the course of Ms Dodawec’s examination˗in˗chief about a conversation she had with the applicant relatively early in the audit process. The judge asked the following two questions:
HIS HONOUR
Q.You are indicating that he said he had spoken to Inter Link. Did he say how he was able to do that when he claimed he didn't have a number for them.
A. No, he didn't.
Q.If he had spoken to them did he provide you with any number on which he had spoken with them as he said he had done.
A.No.
This was an unfortunate intervention. While the judge’s two questions addressed fairly natural and obvious implications that arose from the witness’s account of her conversation with the applicant, they were capable of being understood as conveying a degree of incredulity on the part of the judge as to the truth of the applicant’s out of court statements. By itself, this intervention was of little consequence; but its significance falls to be considered in the context of the balance of the interventions, and the trial as a whole.
Intervention 2 (T226) occurred later in the examination-in-chief. It occurred in the context of Ms Dodawec’s evidence to the effect that the applicant provided her with 12 boxes of documents, which she said she took as a “show of openness” by the applicant, at least in the sense that while he was not able to provide substantiation of fuel purchases, he was prepared to hand over all of the records he had to demonstrate that he had “nothing to hide”. The judge intervened to ask two questions:
HIS HONOUR
Q.So he didn't produce to you any actual records saying 'Well, this is my record of purchasing petrol', he just said 'Take the 12 boxes'.
A.    Yes, 'You can have all of my records', yep.
Q.    You took that as a show of helpfulness, did you.
A.    Well -
HIS HONOUR:    It's a rhetorical issue. Ignore my comments, members of the jury.
This intervention was also unfortunate. While the first question was an appropriate attempt to clarify the effect of the evidence that had been given, the second question was capable of being understood as conveying some level of incredulity on the part of the judge as to the applicant’s helpfulness. The judge appeared to recognise that his question might be interpreted in this way, and immediately told the jury to ignore his comments.
While the judge’s instruction to the jury to ignore his comments might have lessened the significance of this intervention, it is not a complete answer. But whether this intervention gave rise to a miscarriage again falls to be assessed in a broader context. That context includes the evidence of Ms Dodawec, both before and after this intervention, that she did regard the applicant’s conduct in providing 12 boxes of documents as an apparent display of openness on the part of the applicant.
Intervention 3 (T310) occurred during the course of Ms Dodawec’s evidence as to an apparent incongruity between the amount she had calculated that Old No. 7 Transport would have needed to spend on diesel fuel ($5.3 million) in order to justify the rebates it claimed, and its reported revenue (slightly less than $1.2 million). Ms Dodawec concluded her evidence on this topic with the rhetorical question “so, the big question is how was that amount of fuel paid for if it was ever paid for?” The judge then said:
HIS HONOUR
Q.    Is that because, from your calculations, the business only received $1.2 million -
A.    Yeah.
Q.    - in income over those years.
A.    Yeah.
Q.But if they bought the diesel fuel they claimed they bought, they would have had to have spent 5.3 million, ie, four or five times that amount.
A.That's right, just on fuel let alone other expenses that the business would have incurred over the five year period. Yes.
Q.    I understand your evidence.
A.    Yes.
This intervention was unobjectionable. It involved the trial judge doing no more than clarifying or confirming, in slightly simpler or more direct terms, the evidence that had already been given. In my view this was a legitimate and appropriate aspect of the judge’s task, particularly in a case of the length and complexity of the present one, of assisting the jury to understand the evidence.
Intervention 4 (T318) occurred in the context of Ms Dodawec’s evidence in relation to the business activity statement for Old No. 7 Transport in the second quarter of the 2002/2003 financial year. The witness had noted that fuel purchases of slightly in excess of $600,000 were recorded, but only $59,000 was recorded at G11 on the business activity statement for that period, noting “the extreme mismatch” between those two figures. The judge then asked the following series of questions:
HIS HONOUR
Q.So if that claimed diesel rebate were genuine you'd expect the G11 payment would be that expense, like 600,000 plus -
A.    That's right, that's right.
Q.    - rego, gas, all spare parts -
A.    Yeah.
Q.    - registration, repairs, all of those things.
A.    Yep, yep. Fax paper.
Q.    That's what you're talking about, is it.
A.    That's right, yep.
Intervention 5 (T319) occurred only moments later in the context of similar evidence in relation to the fourth quarter of the same financial year. The witness again noted the discrepancy between the reported figures for the amount claimed for fuel ($240,115) and the amount claimed at G11 in the BAS for non‑capital purchases ($48,403). The witness suggested that this “shows real incompetence on the part of an entity because … they’re potentially not putting down their true expenses that they can get the GST back for.” The judge then intervened:
HIS HONOUR
Q. That is if the fuel claim is genuine you mean.
A. That's right, if it's genuine, yep, yeah.

Intervention 6 (T344) occurred when Ms Dodawec gave some fairly summary evidence to similar effect as that which preceded interventions 4 and 5, but in relation to a later time period. The judge intervened in similar terms to clarify that the effect of her evidence was that larger amounts should have been claimed at G11 in the relevant BAS, if the fuel rebate claims were “legitimate”.
Interventions 4, 5 and 6 were similar in nature. They involved questions calculated to confirm the effect of evidence that had already been given. While of debatable assistance to the jury, the questions did not add to the prosecution case. The applicant complains that the judge’s questions assumed some doubt about the genuineness or legitimacy of the fuel claims. I accept that that is so. While this called for caution on the part of the judge, it was not as though that doubt was something only brought to the fore by the judge’s questions. The entire premise, made express at times, of the prosecutor’s questions, and the witness’s answers, leading up to these interventions was that there were reasons to doubt the genuineness or legitimacy of the claims made. Understood in this context it is of limited significance, and in my view ultimately unobjectionable, that the judge’s attempts to clarify the evidence for the assistance of the jury made reference to this doubt.
Intervention 7 (T355) occurred during the course of Ms Dodawec’s evidence to the effect that the ATO audit had not revealed any evidence to substantiate fuel purchases by Old No. 7 Trucking in the 2002/2003 or 2003/2004 financial years. The judge intervened to ask whether this absence of evidence included the 12 boxes provided by the applicant to the ATO:
HIS HONOUR
Q.    Does this include the 12 boxes -
A.    Yes.
Q.    - that were given to you by Mr Roberts as his entire records.
A.It certainly does. Yeah, it certainly includes no evidence of any fuel purchases for Trucking in these periods of time. Yep, that's correct. So no evidence was forthcoming from any of the materials in the 12 boxes. Yep.
Q.    Or from any of these other fuel companies you -
A.    No fuel -
Q.    - like Toll or Perth -
A.    Yep, no -
Q.    - or SAFF, no evidence at all.
A.    No fuel purchases whatsoever, no.
Intervention 8 (T374) was to similar effect, but in the context of the fuel rebate claims made by Double R. Ms Dodawec had given evidence, by reference to some documents, as to the amount of the claims made by Double R, and as to the absence of any evidence that Double R was conducting a business. The judge then asked three questions that sought to clarify and summarise the evidence already given:
HIS HONOUR
Q.So overall Double R Logistics claimed it had used 12,533,150 litres of fuel; is that right.
A.    Yes, that's right.
Q.    And on the basis of that they were able to get $2,319,886 from the tax office.
A.    That's right, yep.
Q.And nowhere in anything you found any evidence that they were conducting business at all.
A.    That's - no, I didn't find any evidence of that. Yep.
I see no difficulty with Interventions 7 and 8. They involved the judge doing no more than clarifying or confirming the effect of the evidence that had been given. While a judge must be mindful of the need to avoid unnecessarily reinforcing the effect of evidence that has been given, particularly where it is damaging to an accused person, whether a judge has gone ‘too far’ in this regard, must be assessed having regard to the length, nature and complexity of the evidence. In my view, the judge’s interventions to this point were comfortably on the helpful and appropriate side of the line.
I note in passing that soon after this, and after the judge had explained to the jury that a table in one of the documents relied upon by the prosecution related to counts 44–71, and invited the jury to make a note of that on the document, the judge asked defence counsel whether he wished to add anything to what the judge had said. Defence counsel said “No, that’s quite accurate”, and the judge then added “If you think I am interfering too much you, of course, are always welcome to raise it with me”. Defence counsel thanked the judge for this invitation but said nothing further. As mentioned later, while a defence counsel’s failure to object is not determinative of a complaint of unfairness in a judge’s intervention during a trial, it is nevertheless of some relevance in attempting to assess the likely perception and impact of that intervention in the context and atmosphere of the trial as it was unfolding. While I would not expect defence counsel to complain in the presence of the jury, it is of some relevance in the present matter that defence counsel never took the opportunity to do so even in the absence of the jury.
The last of the impugned interventions during the course of Ms Dodawec’s evidence (Intervention 9 (T409)) occurred after Ms Dodawec had given some summary, or “consolidated”, evidence as to the total rebate claims made by Inter Link, and the absence of any substantiation of the claimed fuel purchases. The judge asked the following questions:
HIS HONOUR
Q.    So you are saying there was no substantiation of any fuel purchases.
A.    That's right.
Q.    Of the 6 million litres none of it was substantiated.
A.    That's correct, yep. That's right, yep. No records were forthcoming whatsoever.
Q.    No receipts or anything like that.
A.    Nothing, nothing, zero, nothing.
The same observations I made in relation to Interventions 7 and 8 apply in respect of this intervention.
Evidence of Mr Wyers
The next run of five impugned interventions occurred during the course of the evidence given by Mr Wyers, another ATO auditor. His evidence focused upon the cashflow analysis he had undertaken, which demonstrated the flow of the funds received by way of fuel rebates through to accounts associated with the applicant.
The first intervention during Mr Wyers’ evidence about which complaint is made (Intervention 10 (T604.20)) is unobjectionable. It involved the judge merely clarifying with the prosecutor what the different colouring on a table of figures signified.
Intervention 11 (T629) occurred in a context in which Mr Wyers had given evidence about the work he had done with a view to identifying whether any business income or payments had been made into a particular account, with the effect of his evidence being that he had found nothing “that appeared to be business in nature” from Double R. The judge then asked a single question (that did no more than seek the witness’s response to a summary of the effect of the evidence he had just given):
HIS HONOUR
Q.So, in effect, the Double R Logistics as represented by this table appears to have no business income at all.
A. That's what it appears, yes.
Again, this was unobjectionable clarification or confirmation of the evidence that had just been given. While it was obviously damaging to the defence case to have an auditor give evidence that his work had revealed that Double R had no business income, that was the effect of the evidence that had just been given. The judge’s question did not elicit any new or additional evidence, and did not, in my view, involve any inappropriate reinforcement (as opposed to confirmation) of the evidence that had been given.
Intervention 12 (T640) involved an exchange between the judge and prosecutor as to the relevance of evidence of certain payments from a particular account to the ATO. At one point in this exchange, the judge said to the prosecutor “I see, you are saying that by [the applicant paying those amounts] to the tax office for those other companies, proves that he was associated with those companies, in layman’s terms”. I have no difficulty with this observation by the judge. It was expressed, and would have been understood, as no more than an articulation of the prosecution case in relation to the relevance of the account and payments. In my view this was a useful and permissible clarification of the intended relevance of the evidence.
I would add that any lengthy, or potentially controversial, debate about the relevance of evidence should ordinarily take place in the absence of the jury. But that was not this situation. This intervention was of a minor nature, seeking mere clarification of the relevance of certain evidence, the admissibility of which was not contested. The intervention involved appropriate assistance to the jury in a case of the nature and complexity of the present one.
Intervention 13 (T695) occurred during the course of the examination‑in-chief of Mr Wyers, and was similar in nature to Intervention 12. It followed a question by the prosecutor about a payment, which the witness agreed had been made to the ATO. The judge then sought clarification from the prosecutor as to the relevance of that payment:
HIS HONOUR:    What's the relevance of that, Mr Powell?
MR POWELL:    There's a potential relevance here with respect to the payment of tax debts to the ATO that extend beyond any debt incurred specifically by this entity but incorporate other entities that are the subject of evidence in the trial. So it's by way of a link to other of the companies and other of the accounts.
HIS HONOUR:    This is part of your case that this is, in fact, linked to the accused?
MR POWELL:    Yes.
HIS HONOUR:    Notwithstanding that it's in the name of Interlink and Phillip Williams and/or David Campbell.
MR POWELL:    And that the name Phillip Williams was the name by which the fuel claims were made.
HIS HONOUR:    I just want to understand the relevance of it; it is to link the accused with these last four counts of the information.
MR POWELL:    It is.
HIS HONOUR:    You'll draw that together whenever.
MR POWELL:    Yes.
HIS HONOUR:    Members of the jury, I'm just trying to establish the relevance of it so I understand where it fits. It's not to indicate any approval or disapproval by me, I'm just trying to clarify where things sit.
You're happy with that, Mr Allen?
MR ALLEN:      I am.
HIS HONOUR:    With any of this, if you think I should make any supplementary comment to put things in perspective of course you're most welcome to suggest that to me or at a break or anything of that nature.
MR ALLEN:      I'm grateful and I will.
For similar reasons to those given in the context of the previous intervention, I consider this intervention was appropriate. I acknowledge that attempts by a judge to clarify the relevance of evidence may, if not expressed carefully, transgress into statements that might be seen to be supporting the contended import of the evidence rather than querying or clarifying its contended relevance. The judge’s clarification at the end of the above intervention demonstrates the judge’s awareness of this risk. I do not think he crossed the line, and to the extent he went close to it, his clarification, while not always a complete answer, would have assisted the jury to understand that the purpose of the intervention was to clarify the contended relevance of the evidence and not to comment upon, or support the effect of, the evidence.
Intervention 14 (T731) also occurred during the examination-in-chief of Mr Wyers. It arose out of evidence about a cheque drawn on a Double R account which was made payable to a bank rather than the intended payee’s name or account number. It was in this context that the judge said:
HIS HONOUR
Q.That's a bit unusual, isn't it, to just have it payable to the bank rather than to the person or the account in the bank.
A.    Yes, it's probably a little unusual. I'd agree with that, yes.
Q.    It means you can't tell to whom it's addressed -
A.    No.
Q.    - from the cheque itself.
A.    No.
In circumstances where this feature of the cheque had no apparent bearing on the issues in the case, this intervention was harmless and unobjectionable.
Evidence of Mr Clarke
Mr Clarke was also an ATO auditor. He was involved in several aspects of the investigation and had interviewed the accused. That interview related to several matters of significance, including the purported agreement for the sale of Old No. 7 Trucking and Double R to Inter Link.
Interventions 15 (T823) and 16 (T839) involved statements made by the judge upon the receipt into evidence of two documents. In the case of the former, the judge invited the jury to note a distinction between the exhibit (exhibit P47), being an unexecuted version of sale agreement, and the signed version that was already in evidence. In the case of the latter, the judge noted that the letter that was being received as an exhibit indicated that the applicant was going to arrange for the signing and execution of the document.
The complaint is that the judge unnecessarily highlighted these (potentially damaging) aspects of the documentary evidence. But I would not characterise the interventions in that way. The interventions involved mentioning features of the documents that had just been the subject of evidence from the witness, and in that sense did not add to the evidence. Rather, I regard the interventions as involving useful and appropriate guidance from the judge as to the relevance of the documents that were being tendered, by reference to the evidence that had just been given.
Intervention 17 (T859) occurred following a question and answer during Mr Clarke’s examination-in-chief in relation to the businesses expenses that he expected to have been incurred by Old No. 7 Transport given the fuel rebates claimed, and the other information provided to him by the applicant about the business:
Q. So when you factor that in, and just to focus for a moment on these months in which you saw here fuel rebate payments of $50,000 entering the account, what sort of expenses were incurred by the company incorporating both fuel and other costs based on the information you had from Mr Roberts.
A.Well, applying that same notional calculation and taking on face value what was told to us about his business and his running costs you would expect to see expenses in the order of $500,000.
HIS HONOUR
Q. Per month.
A. Per month.
The judge’s intervention (which mirrored an intervention he had made moments earlier) was limited to clarifying that the figures mentioned by Mr Clarke were monthly amounts. This intervention was helpful to the jury and appropriate clarification of the evidence being given.
Intervention 18 (T862) occurred later in the same run of questions and answers. It followed answers in which Mr Clarke had explained the fuel and other business expenses that he would have expected to see in the accounts he had examined given the fuel rebates claimed, but that he “couldn’t see”:
HIS HONOUR
Q.So you couldn't see any income to represent that, you couldn't see any fuel sales to represent that and you couldn't see any overall expenses to represent that.
A.    Correct.
Q.    But you could see $50,000 a month of ATO money going in.
A.Correct and withdrawals from the account consistent with there being available $50,000, not significantly more. So the withdrawals to the account were only to the extent of the payments made.
Q.    By the ATO.
A.    Correct and some of the identifiable suppliers.
Again, the judge’s intervention was aimed at clarifying the evidence being given. While it had the effect of summarising more clearly the evidence that had already been given, and in that general sense was helpful to the prosecution, it did not go any further than the evidence that had already been given.
Intervention 19 (T873) occurred in the same context:
Q.And as far as your analysis went the only amounts of income were the handful of amounts that you've taken us to across these statements.
A. Yes, that's correct.
HIS HONOUR
Q.So, again, there was no evidence of fuel purchases of anywhere approaching that, there was no evidence of any other business expenses anywhere approaching that and there was no evidence of any income approaching that.
A. That's correct, your Honour.
This intervention was of a similar nature to the previous one. While unnecessary by this point in the evidence, and again helpful to the prosecution in a very general sense, it again did not take the matter any further than the evidence that had already been given.
Intervention 20 (T902) occurred following some evidence given by Mr Clarke about the details provided to ASIC for the entities that had claimed the relevant fuel rebates. After several of Mr Clarke’s answers made reference to Mr Campbell’s name appearing in the ASIC records the judge said:
HIS HONOUR: I mention, members of the jury, you'll remember the opening, the prosecution case is that David Campbell is a fictional person. I just remind you of that while we're looking at the documents so you can be scrutinising and checking for those and the general issues as we go through. Anything you would like me to add to that, Mr Allen?
MR ALLEN: No.
While this intervention had the effect of reminding the jury of the prosecution case that Mr Campbell was a fictitious person, I see nothing objectionable about this. It would have assisted the jury to appreciate the contended relevance of the evidence that had just been given. I consider this to be a permissible and unobjectionable reason for intervening in the context of a relatively lengthy and complex matter such as the present one.
Intervention 21 (T924) occurred following evidence by Mr Clarke in relation to his analysis and comparison of various business activity statements lodged by Old No. 7 Trucking and an answer that was not unfavourable to the applicant:
Q.As we work our way through, did you reach a particular statement or statements that were of interest to you for the purposes of your investigation.
A.So when I looked at the business activity statement for the period 1 January 2003 to 31 March 2003, so the next activity statement, I noted that - you'll see that the GST on the - sorry, the total sales and the total expenses are quite close together and the resulting GST on sales and the GST on the purchases are close together, so the net payment to the ATO was significantly lower. So on this particular activity statement it was $1,014.
Q.    What was the significance of that, if any.
A.So again in the context of looking for business activity that was consistent with the value of the company being around that $10 million turnover, that was quite significant for me. Also comparing it to the previous periods where the sales were significantly higher than the expenses, it was indicating that the business in terms of its cashflow - so what it was earning in income and what it was paying out in expenses - was getting very close together.
HIS HONOUR
Q.    The income is falling.
A.    The income is falling as well.
Q.    There seemed to be no wages paid here.
A.    No wages.
Q.    Was that usual, unusual.
A.There are circumstances where a business can re-subcontract out its work, so on the face of it it may not be completely unusual. In the sense of looking at the books and records where I was seeing NetBank transfers in the bank statements, I noted that it was an inconsistency.
The impugned question about income falling was merely a restatement in simpler language of the evidence the auditor had already given. In the context of quite lengthy and complex evidence I regard this as an intervention that was appropriate, and likely to have been helpful to the jury.
While the judge’s subsequent questions about the absence of any wages, and whether this was unusual, went further than the evidence given, I see no difficulty with this in circumstances where it was not a matter of any great significance in the overall context of the evidence in the trial, and in any event received an essentially neutral answer from the witness.
Intervention 22 (T928) occurred following evidence given by Mr Clarke to the effect that his attempt to reconcile the figures in the business activity statements with the bank accounts for the same periods revealed discrepancies:
HIS HONOUR
Q.Is it a case, as you said previously, that for each of those last three business activity statements, for each of those three-month periods you couldn't find any correlation with the bank accounts.
A.    No, the only deposits were the fuel tax credits to that account.
Q.So 1 July '03 to 30 September '03, 1 October '03 to 31 December '03, 1 January '04 to 31 March '04 in each of those business activity statements there's over $300,000 worth of claimed sales.
A.    That's right.
Q.    There's around $300,000 worth of claimed purchases ie business expenses.
A.    That's correct.
Q.    None of that is reflected in any of the bank accounts.
A.    No.

In my view, this was a fair and accurate articulation of the “context” and “familiarity” contemplated by the first agreed head of relevance. To the extent that it encompassed a potential motivation for the offending (namely, that the business was in serious decline), and a familiarity with not only the use, but also misuse, of the fuel rebate scheme, I see no difficulty with this. These directions were in terms that reflected the prosecutor’s elaboration upon the first agreed head of relevance in his closing address, and did not invoke a propensity form of reasoning.
In SUP [12], the judge said that the evidence was also adduced to show that there was little or no possibility that the claims made by the appellant were legitimate claims for the three subsequent companies. It would have been preferable had the trial judge adhered more closely to the second and third heads of relevance identified immediately prior to trial, although to be fair to the trial judge, the prosecutor had already put these uses in different terms. While the judge’s articulation of this additional relevance and use of the evidence could have been more clearly expressed, I consider that it adequately identified the ‘deliberateness’ and ‘similarity’ heads of relevance that had been agreed. I do not think that it invited any impermissible propensity use of the evidence. It did not suggest any use of the evidence that relied upon a proclivity, propensity or disposition.
In each of SUP [13], [18] and [21], the judge returned to, and repeated in slightly differing terms, the first head of relevance of the evidence.
In the circumstances, I am satisfied that the judge adequately identified the permissible uses of the discreditable conduct evidence. Further, I am satisfied that, through the directions given in the balance of SUP [13] and [14], the judge also adequately directed the jury as to the impermissible use of that evidence. He directed them not to engage in ‘bad person’ reasoning, or indeed any (propensity) reasoning to the effect that because the evidence might reveal that the applicant made fraudulent fuel rebate claims through the Old No. 7 companies that he was, for that reason alone, more likely to have committed the charged offences.
In my view, Ground 5 has not been made out.
PART B: THE APPEAL AGAINST SENTENCE
The applicant was convicted of 75 counts of dishonestly obtaining a financial advantage from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for each offence was 10 years imprisonment.
As mentioned at the outset of these reasons, the applicant was sentenced to 10 years imprisonment for this offending. When added to the sentence of 10 years and six months imprisonment that he had received for his trafficking offending, that resulted in an aggregate sentence of 20 years and six months imprisonment. The judge fixed a non-parole period for this aggregate sentence of 14 years.
The applicant seeks permission to appeal on the sole ground of manifest excess. However, the particulars given of that ground of appeal complain of five specific errors made by the judge: (i) in taking into account a previous conviction for dishonesty offending that occurred in the 1990s; (ii) in taking into account a 2009 conviction for trafficking offending; (iii) in considering a single sentence of 150 years imprisonment and applying totality; (iv) in failing to take into account delay; and (v) in finding the subject offending was committed “against a lifetime of other offending.”
It is not necessary to summarise the circumstances of the applicant’s offending. I have done so at the outset of these reasons. I propose to commence my reasoning on the sentence appeal by summarising the applicant’s personal circumstances and some of the pertinent aspects of the judge’s sentencing remarks. I will then address the specific errors that have been alleged before dealing with the more general issue of manifest excess.
The applicant’s personal circumstances
At time of sentencing, the applicant was 68 years of age.
The applicant has led a generally unremarkable life. He had left school while relatively young and had worked ever since, predominately in the transport industry. The applicant established his first business at 18 years of age. Through his businesses, the applicant had employed a number of workers and supported local sporting clubs.
The applicant is a father, and a grandfather to nine grandchildren. In 2019, he commenced a relationship with a woman he had previously known for a number of years. The judge noted that she had a high regard for the applicant. She described him as hardworking and said that he interacted positively with his family. She said that the applicant had had a strong, positive relationship with his brother, who had unfortunately passed away many years ago.
The applicant has a criminal history. As the judge summarised:
You have previous and subsequent offending commencing in 1969 when you were dealt with for stealing three motor vehicles and possessing goods stolen outside the state and were given probation. You had some other summary and traffic offending of different types before, in 1995, you were committed for trial in the Balmain Local Court for stealing a motor vehicle, public mischief and making false and misleading statements with intent to obtain financial advantage. Whilst it is not entirely clear from the record, your counsel clarified that you failed to appear and were indicted in the Sydney District Court in 1999 for stealing the motor vehicle and failing to appear for both that and the false statement offending, which it seems was ultimately dealt with when you came back before the court in 2001 and were placed on a three-year bond to be of good behaviour in each instance. Accordingly, you were on that bond to be of good behaviour when your offending in this current matter commenced in December 2002.
The judge also referred to the applicant’s subsequent offending. In December 2009 he was convicted of a drug trafficking offence, with the judge stating that he then appealed successfully, was retried and again convicted. He was ultimately sentenced to a suspended sentence of 12 months imprisonment. He was later convicted of the further trafficking offence that resulted in him receiving a sentence of 10 years and six months imprisonment. That offending involved him attempting to possess a commercial quantity of a border controlled drug, namely methylamphetamine. It related to 200 kilograms of methylamphetamine which, if sold in 1 kilogram parcels, would have been worth between about $25 million and $36 million. It was a sophisticated and well-planned operation, with the applicant’s involvement including arranging for two crane jibs to be shipped from China to Australia.
The sentencing remarks
After summarising the applicant’s circumstances, the judge turned to sentence the applicant.
The judge considered that the sentence for the subject offending was entirely separate from the trafficking offending for which he had recently been sentenced, such that it should be made wholly cumulative.
The judge had earlier set out the detail of the subject offending. He had also outlined the applicant’s subsequent conduct in embarking upon “an elaborate course of obfuscation and lies designed to cover [his] tracks”, and had mentioned that none of the monies claimed by way of fuel rebates had been recovered.
The judge commented that it was an understatement to describe the offending as serious. It involved a highly organised, repeated fraud on the taxpayer over a number of years. It involved the applicant committing 75 separate instances of fraud, each based upon a new fraudulent claim involving a substantial sum, generally around $50,000 for each instance. And while each offence was similar, the applicant had applied increasing levels of sophistication and dishonesty over time in an attempt to cover his tracks, conceal his involvement and distance himself from the offending.
The judge described the offending as involving the applicant taking advantage of a scheme that had been designed for the assistance of legitimate road transport operators, with the applicant having betrayed the integrity of that scheme in a persistent and relentless manner for his own personal profit. His Honour contrasted the applicant’s offending with the more common occurrence of fraud in connection with Commonwealth benefits by people in financial difficulty. As his Honour noted, there was no evidence that the applicant was in any financial difficulty.
The judge noted that the applicant maintained his innocence, and indeed had shown no contrition or remorse, and had made no restitution. He added that the applicant’s subsequent offending and continued denials showed that there was little scope for rehabilitation.
The judge said that he also had regard to the applicant’s age, and that he was already serving a substantial term of imprisonment that meant that any term now imposed would “carry [him] well into his advancing years.”
Turning to the sentence of imprisonment which it was appropriate to impose, the judge commenced by observing:
Were the court dealing with each separate offence individually, namely a deliberate defrauding of the Commonwealth of some $50,000, a sentence of maybe two years might be an appropriate starting point for each of your 75 offences. Were the court to embark on that course, in your case, with each offence having been committed on a separate occasion a month after the previous one, were those sentences to be cumulative it could result in a sentence of 150 years imprisonment.
However, rather than adopt this approach, the judge determined to impose a single term of imprisonment for the offending. His Honour imposed a single sentence of 10 years imprisonment, which he made wholly cumulative upon the sentence he was already serving for his trafficking offence.
In fixing a non-parole period of 14 years for the aggregate sentence of 20 years and six months, the judge said:
The court must, accordingly, set a new overall non-parole period. The court has regard to all the matters advanced on your behalf. The reality is you have committed two entirely different kinds [of offence] at two entirely different times against a backdrop of other offending, so any prospects of rehabilitation on your part must be extremely limited. There will be a single new non-parole period of 14 years.
In ordering an immediate custodial sentence, the judge added:
Your offending is too serious against a lifetime of other offending, together with your total lack of remorse or restitution, for any option other than a lengthy immediate custodial sentence to be appropriate.
The allegations of specific errors
The first of the complaints of specific error appears to be a complaint that the judge erred in bringing to account the applicant’s earlier offending for which he was ultimately sentenced in 2001. As I understand the applicant’s complaint, he accepts that he was convicted for this offending (which included publishing a false statement with intent to obtain a financial advantage, and larceny of a motor vehicle), but suggests that the judge erred in taking it into account in circumstances where it had been resolved on a factual basis that was suggestive of a ‘plea of convenience’ and where the delay in the matter being resolved was not the fault of the applicant. While these matters of detail were, at most, potentially relevant to the weight to be attached to this earlier offending, they did not justify, let alone require, the judge to ignore that offending. Further, while the judge did not mention these matters of detail in his sentencing remarks, I do not think there is any basis for thinking that his Honour erred, for example, by sentencing on an erroneous basis.
The second of the specific errors alleged by the applicant is that the judge said, in the context of the applicant’s December 2009 drug trafficking offence, that he had been convicted upon retrial, whereas he had in fact pleaded to that offending upon re-trial. I do not think that this slip in the judge’s description of the process that led to the applicant’s conviction for that offending was material. It was not an error that affected the sentence imposed.
Thirdly, the applicant contends that the judge erred in his approach by considering an initial cumulative sentence of 150 years imprisonment, and in failing to address the information placed before the court as to life expectancy. While not developed in any detail, the contention appears to be that the judge erred in his application of the principle of totality, or in otherwise failing to ensure a proportionate sentence.
The first limb of this contention is misconceived. In referring to a potential cumulative sentence of 150 years imprisonment, the judge was not using it as a notional starting point. Recognising the disproportionate nature of that potential starting point, his Honour did not use it. Nor did his Honour adopt an approach that was otherwise inappropriately distracted by the notional sentences that he might have posed had any of the offences been committed in isolation. Rather, his Honour recognised the need to structure the sentence in a manner that acknowledged the overlap in the offending, and in what was required by way of penalty for each offence so as to achieve the overall objectives of the sentencing exercise. Quite appropriately, his Honour determined to impose a single sentence of imprisonment. Understood in this way, far from misapplying the approach to proportionality indicated by decisions such as R v Donald; R v Pitt; R v Whitaker,[103] his Honour’s properly applied that approach. For similar reasons to those given in Cuong v The Queen,[104] the challenge to the judge’s passing reference to a potential notional starting point of 150 years imprisonment should be rejected.
[103] R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276 at [31] (Lovell J, Nicholson and Parker JJ agreeing).
[104] Cuong v The Queen [2021] SASCA 89 at [6]-[8] (Lovell and Bleby JJA); see also Nguyen v The Queen; Tran v The Queen; Nguyen v The Queen [2022] SASCA 25 at [195]-[199] (Doyle JA); cf Livesey P and Stanley AJA at [131], taking the view that in the circumstances of the sentence imposed in that case, it reflected the severity of the notional starting point.
The second limb of this contention should also be rejected. The judge did not overlook the significance of the applicant’s age to the sentence ultimately to be imposed. Indeed, the judge expressly took account of the fact that the sentence imposed would “carry [him] well into his advancing years”. While it is true that the judge did not make any express reference to the material placed before his Honour that suggested that the sentence would take him beyond his statistical life expectancy, I do not think this is indicative of error. It was sufficient that, in ensuring a proportionate sentence,[105] the judge had regard to the applicant’s relatively elderly age. He plainly did so.
[105] Noting that, when invoking totality to reduce a sentence that might otherwise have been crushing given the person’s age or health, this is ordinarily no more than an aspect of the obligation to impose a sentence that is proportionate: Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [61] (Livesey P, Doyle and David JJA), and the authorities referred to therein.
The fourth of the specific errors complained of by the applicant is the matter of delay. It is true that, by the time the applicant came to be sentenced, a significant period of time had passed since the commission, and indeed initial detection, of his offending. The offending related to a period between about December 2002 and April 2006. The ATO audit commenced in the second half of 2005. It is also true that delay in the prosecution of a matter, by reason of the hardship it may occasion, will sometimes be a relevant sentencing consideration. However, as the authorities make plain,[106] even unnecessary delay in the prosecution of a matter will not ordinarily be a significant mitigatory factor unless it is accompanied by some indication that the defendant has, during the period of that delay, demonstrated some capacity for, or taken some steps towards, rehabilitation.
[106] See, for example, the discussion of the relevant principles in R v Pickard [2011] SASCFC 134 at [89]-[100] (Blue J, David J agreeing).
There were two difficulties that stood in the way of the delay in the present case operating in any materially mitigatory way. The first is that, as the judge was at pains to point out in his sentencing remarks, the applicant bore significant responsibility for the delay that occurred. I have mentioned the judge’s finding that after his offending was first detected, and became the subject of an ATO audit, he embarked upon “an elaborate course of obfuscation and lies designed to cover [his] tracks.” But the judge went quite a bit further than this in attributing responsibility for the time taken by the investigation and prosecution to the applicant. His Honour said:
You then embarked upon an elaborate course of obfuscation and lies designed to cover your tracks. You claimed that you legitimately sold Double R Logistics to someone else and proffered the forged Phillips Fox sale agreement in support of that. You purported to mail to the Tax Office three envelopes full of documentation, however they only received two. The court finds beyond reasonable doubt that there was never a third envelope and that was another of your strategies of obfuscation.
You provided some 12 boxes full of jumbled and largely irrelevant documents, indeed many thousands of documents claiming they represented your entire records. You dishonestly maintained the fiction that there was a David Campbell and a Phillip Williams.
In short, you lied and misled the Tax Office from start to finish of their several years of dealings with you.
Because of this, the investigation required to, in essence, minutely review large quantities of jumbled and irrelevant documents provided by you, prove a negative that you had not conducted the trucking business to which the claims related, or any other trucking work in Australia to which they could relate, that the business sale agreement you claimed had occurred had not occurred and that the people you claimed existed, David Campbell and Phillip Williams, simply did not exist, was a Herculean task.
That, in part at least, accounts for the significant time taken for the matter to be formally investigated, analysed, collated and assembled in admissible form before it could be pursued against you in a criminal court. For example, the history of the matter shows that it took your own lawyer several months just to read the brief. The court does take into account that the matter has taken a significant time to come before the court.
The applicant contends that, despite these findings, there were still aspects of the delay in the investigation and prosecution of this matter that remained unexplained. The applicant pointed to some aspects of the chronology of events in support of this submission. In my view, it is difficult to attach much weight, if any, to this submission in light of the judge’s findings as to the applicant’s contribution to the delay.
The second difficulty with the applicant’s complaint about delay is that there was no basis for finding that the applicant had used the period of the delay to demonstrate a capacity for, or to otherwise embark upon, his rehabilitation. The fact of the applicant’s subsequent offending, his maintenance of innocence in respect of the subject offending, and his failure to show any remorse or contrition all stood in the way of any such finding. Nor was there any material change in the applicant’s personal circumstances during the period of the delay.

In the circumstances, the delay in the prosecution of this matter was of very limited significance. To the extent it retained any material significance at all, it is apparent from the last sentence from the extract from the judge’s sentencing remarks set out above that his Honour did take it into account.
The fifth specific error alleged is that the judge erred in stating that the applicant fell to be sentenced “… against a lifetime of other offending” when, the applicant contends, that had not been established. It is to be observed that these words were used by the judge in the concluding paragraph of his sentencing remarks in outlining, in a summary or ‘rolled-up’ way, the matters that stood in the way of any sentencing option other than a lengthy immediate custodial sentence. Understood in this way, it was no more than a reference to the detail of the applicant’s history of offending that had been addressed in some detail earlier in the sentencing remarks. I reject this allegation of error.
The allegation of manifest excess
It remains to address the more general complaint of manifest excess in the sentence and non-parole period that were ultimately imposed.
The principles governing this Court’s task in considering manifest excess are well-known and need not be repeated.[107]
[107] See, for example, Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing).
The nature and seriousness of the present offending was aptly described by the trial judge, as summarised earlier in these reasons. In short, the offending was sophisticated and carefully planned. It involved a sustained course of dishonest conduct that required careful and systematic implementation. It spanned a period of in excess of three years from December 2002 to April 2006, and involved 75 discrete acts of dishonesty, each of which involved a large sum of money. The offending resulted in the loss of approximately $3.8 million to the Commonwealth, none of which has been recovered. There is nothing to suggest that the offending was motivated by anything other than greed.
The integrity of the taxation system, and other schemes funded through Commonwealth revenue (such as the fuel rebate scheme the subject of the present offending), depend upon the honesty of taxpayers and claimants. That is why taxation offences, and other analogous instances of fraud on the Commonwealth, require an emphasis upon general deterrence.[108] The applicant’s offending was a particularly serious instance of this type of offending, and called for a particularly strong sentencing response by way of deterrence.
[108] Heng v The Queen [2022] SASCA 24 at [3] (Livesey P).
While personal circumstances, of course, remain important, there was nothing in the applicant’s circumstances that called for any particular leniency. While his advancing age was a relevant consideration (particularly given the sentence he was already serving for his trafficking offence), this was not overlooked. And his personal circumstances (including his history of offending, and his lack of any remorse or contrition in respect of the present offending) otherwise suggested limited prospects for rehabilitation. Indeed, the judge found that he had “extremely limited” prospects of rehabilitation.
I have had regard to the schedule of comparative sentences provided to the sentencing judge. In my view, those sentences do not provide any basis for suggesting that a sentence of 10 years imprisonment was manifestly excessive. While it might be said that the head sentence was a heavy sentence, I am not persuaded that it was manifestly excessive.
In challenging the non-parole period of 14 years that the judge fixed for the aggregate head sentence of 20 years and six months, the applicant noted that the non-parole period that had earlier been set for the trafficking offence (six years and 10 months) was 65 per cent of the head sentence of 10 years and six months that had been imposed. Noting that the new non-parole period was slightly in excess of 68 per cent of the aggregate sentence, the applicant submitted that this demonstrated the judge had erred in some way, and in particular appeared to have attached inappropriate weight to the applicant’s trafficking offence (given that it occurred after the subject offending).
I do not think there is any merit in this submission. First, it was based upon a mathematical error. It was contended that the judge had effectively increased the non-parole period by seven years and 10 months, which is slightly more than 78 per cent of the 10 year sentence imposed for the subject fuel rebate offending. In fact the judge only increased the non-parole period by seven years and two months, which is slightly less than 72 per cent of the 10 year sentence imposed.
Secondly, and in any event, I consider that both the increase in the non-parole period and the total non-parole period were appropriate. While the trafficking offending took place after the subject offending, the judge was entitled to take this offending into account in reaching a view as to the applicant’s prospects of rehabilitation. The judge expressly found that the applicant had extremely limited prospects of rehabilitation, and in my view there was ample basis for this finding in the combination of the applicant’s history of offending and the circumstances of the subject offending. This included his lack of contrition or remorse, and the absence of any evidence suggesting that he had taken any steps to address the criminogenic factors that led to him offending.
I would grant permission to appeal against sentence, but would dismiss the appeal.
Conclusion
For the reasons set out, I would grant permission to appeal against conviction on Grounds 1, 2 and 5,[109] but dismiss the appeal. I would also grant permission to appeal against sentence, but dismiss the appeal.
[109] Noting that the applicant has already been granted permission to appeal on Grounds 3 and 4.
DAVID JA: I agree with the reasons of Doyle JA, and the orders he has proposed.