Suleman v R - [2009] NSWCCA 70

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Karl SULEMAN v R [2009] NSWCCA 70
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/2777

HEARING DATE(S):
09/12/2008

JUDGMENT DATE:
20 March 2009

PARTIES:
Karl Suleman v Regina

JUDGMENT OF:
McClellan CJatCL Howie J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/11/0175

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
24/01/2007

COUNSEL:
N Adams - Crown
In person - Applicant

SOLICITORS:
Commonwealth DPP - Crown
In person - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Factor in aggravation: Position of trust - Discount for plea of guilty - Application of totality principle.

LEGISLATION CITED:
Crimes Act 1900 - ss 178BB, 300(2)
Crimes (Sentencing Procedure) Act - s 21A(2)(k)

CATEGORY:
Principal judgment

CASES CITED:
R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159
R v MAK [2005] NSWCCA 369
R v Martin [2005] NSWCCA 190
R v Wickham [2004] NSWCCA 194
R v Johnson [2005] NSWCCA 186
R v Fordham (1997) 98 A Crim R 359

TEXTS CITED:

DECISION:
Refer to paragraph 53.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/2777
McCLELLAN CJ at CL
HOWIE J
HISLOP J
FRIDAY 20 MARCH 2009

Karl SULEMAN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Howie J.
HOWIE J: The applicant was sentenced in the District Court by Nield DCJ (the Judge) for a number of offences of dishonesty arising from investments made in a company of which the applicant was the principal and which he controlled. The applicant is unrepresented before this Court but has filed both written submissions in support of his appeal and written submissions in answer to the submissions filed by the Crown. He is a highly intelligent and articulate person, which is, no doubt, why he was able to lure a number of persons in the community into making investments into the company that ultimately failed, leaving most of the investors without the return of their money.
The indictment to which the applicant pleaded guilty contained 26 counts. Fifteen of the counts were for offences contrary to s 178BB of the Crimes Act 1900, being offences of making a false statement for which the maximum penalty prescribed is imprisonment for 5 years. Eleven of the counts were for offences contrary to s 300(2) of the Crimes Act 1900, being offences of using a false instrument, for which the maximum penalty prescribed is imprisonment for 10 years. As a result of his pleas of guilty the Judge sentenced the applicant to a total sentence of 7 years 4 months from 1 May 2006 with an overall non-parole period of 5 years 6 months. The applicant is eligible to be released to parole on 1 November 2011.
Facts
There was an agreed statement of facts placed before his Honour. The facts as recited by the Judge take up 15 pages of the remarks on sentence. It is unnecessary for the determination of the application to detail them to the same degree. I will summarise them as briefly as possible. Most of the offences involved the same criminal conduct but against different victims. In effect the applicant induced, sometimes by fraudulent documents, members of the public to invest in a company that he ran, Karl Suleman Enterprises Pty Limited (“KSE”). This company was incorporated in 1999 to take over the applicant’s highly successful business in the collection of supermarket trolleys.
From April 2000 until July 2001 the applicant sought and accepted investments in this company. There was a Financial Investment Agreement setting out the terms of the investment that was to be for a number of years, variously between three and fifteen. The result of the agreement was that the investor would be guaranteed a return on the investment by fortnightly payments from the income of the trolley collection business. In relation to one investor, the applicant induced the investment by false documents he had manufactured indicating the existence of contracts between large supermarket stores and KSE for the collection of trolleys. These false documents gave rise to the charges under s 300(2).
Count 1 on the indictment related to false statements made to Soldoz Pty Limited (“Soldoz”) in April 2000 in relation to an investment made by the company with KSE. In effect the applicant falsely stated that the investment made by Soldoz would be repaid from the income received by KSE from two specific trolley collection agreements in which KSE was involved with two supermarkets in Queensland. However those agreements did not exist and, therefore, any return made to Soldoz would not come from income derived by KSE from those sources. Soldoz’s investment agreement was actually fulfilled by KSE but from funds obtained from other investments to which other charges related.
Count 2 related to an investment made in KSE by the Billington Family Trust (“the Trust”) in April 2000 as a result of false statements made by the applicant. As in Count 1 the false statements related to specific agreements purportedly existing between KSE and 14 specified trolley services agreements with various supermarkets. Those agreements did not exist and, therefore, any returns made to the Trust would not be derived from the income of those agreements as the Trust believed. In fact the agreement made with the Trust was fulfilled, money being paid from funds obtained from other investment agreements. Counts 16 to 26 related to false instruments prepared by the applicant to induce the Trust to enter into the investment agreement and purporting to be the agreements between KSE and the specified supermarkets.
Counts 3 to 15 related to investment agreements between KSE and various investors made between April 2000 and July 2001. The false statement in each case was that the particular investor would receive a return of a specified amount each fortnight. However, the applicant was using these investments to fulfil the agreements with Soldoz and the Trust. Some returns were made initially but ultimately KSE failed and the agreements were not fulfilled. As a result of these agreements KSE was to make returns totalling over $137,000 per fortnight but was receiving an average net profit per fortnight of less than $8,000.
As a result of the investment agreements comprised in all the counts on the indictment KSE received investments totalling $3,185,000. As a result of the agreements investors, excluding Soldoz and the Trust, lost a total of $828,915.
Subjective matters
The applicant was born on 16 April 1961. He was, therefore, 46 years of age at the date of sentence. He had no relevant criminal record except that on 15 April 2004 he was sentenced by Berman DCJ for dishonesty offences to a prison term of 21 months with a non-parole period of 12 months. The sentences dated from 5 March 2004 and the applicant was released to parole on 4 March 2005. Those offences arose in a period between December 2000 and October 2001. They involved false statements and associated forgeries made by the applicant for the purchase of luxury items including prestige motor vehicles and a yacht. It was shortly before his release to parole from that sentence that he was charged with the current matters. He was then on bail for 14 months before being returned to custody after he pleaded guilty to the matters the subject of this application.
There was nothing in the applicant’s background of relevance. He came to Australia with his family in 1976. He was educated to high school leaving standard. He married in 1988 and had two children. His marriage ended with the failure of his company. He thereafter had limited contact with his children. The applicant was treated by a psychiatrist for depression between July 2002 and May 2003. There were no relevant psychiatric or mental health issues to be addressed by the Judge. The psychiatrist assessed the applicant’s likelihood of further offending as low.
Grounds of appeal
The applicant raised the following grounds of appeal;
1.With regards Charges 1-26, I submit that His Honour erred or was overly harsh in allowing only a 15% discount for my pleas of guilty to all charges and my complete cooperation with various investigating bodies and the liquidator of Karl Suleman Enterprises Pty. Limited.
2.With regards Charges 1-26, I submit that His Honour erred in accepting as an aggravating factor, my breaching of a trust with the "Assyrian community".
3.With respect to Charges 1-26, I submit that His Honour did not take full account of all the circumstances of each particular charge in determining the penalty for each charge.
4.With regards charges 2 and 16-26, I submit that His Honour did not take into consideration the fact that a number of the charges were related to one single transaction. Or that the "victim" recovered 100% of their "investment" and suffered no loss.
5.I submit that certain elements of my state of mind were not adequately covered during my sentencing hearing and/or His Honour did not sufficiently take these factors into account in determining the sentence.
6.I submit that threats made against my life and the extra hardship and mental anguish that this is causing me during my incarceration, should have been taken into consideration in my sentencing.
7.Notwithstanding the above, I submit that in total, my non-parole sentence was manifestly excessive.
Discount for plea
The applicant was given a discount by reason of his plea of guilty of 15 per cent. The applicant submits that in light of the assistance he had given to various investigating authorities and the liquidators of KSE the discount should have been greater.
The discount by reason of the utilitarian value of the plea of guilty is based largely upon the timing of the plea and the saving of the costs of the prosecution of the offence before a jury. That discount does not include any consideration of remorse or any other factor such as assistance given to authorities by way of admissions or co-operation: see R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159.
The prosecution of these matters was commenced in the Local Court on 2 February 2005. The applicant was committed for trial after agreeing to dispense with committal proceedings. The matter was first before the District Court on 12 August 2005. A trial date was fixed for 1 May 2006 with an estimate of 4 weeks. The applicant indicated that he would plead guilty on 21 April 2006 and pleaded guilty on 1 May 2006. A discount of 15 per cent was to some degree generous in light of the fact that the pleas of guilty were very late, occurring about a week before the trial date and some 16 months after he was charged.
There was no evidence of any co-operation with investigating authorities raised at the sentencing hearing even though the liquidator gave evidence. Although the defence called Mr Griffiths, a business consultant employed by the applicant, and he repeated statements made to him by the applicant indicating some remorse, his Honour was not bound to give significant weight to those statements in light of the fact that the applicant did not give evidence.
This ground is not made out.
Breach of trust
In its written submissions before the sentencing judge the Crown stated the following under the heading “Aggravating Factors”:
(a) The Offender was known to the investors through word of mouth in the Assyrian community. A decision by many of the investors to place funds with KSE was influenced by the Offender’s position within the Assyrian community and his reputation as a prominent and successful businessman. As such, the Offender’s dealings with the investors involved an abuse of trust: s 21A(2)(k).
The reference to s 21A(2)(k) is a reference to the relevant provision of the Crimes (Sentencing Procedure) Act 1999 set out below.
Counsel for the applicant at the sentencing proceedings conceded that the objective gravity of “this offence (sic) is heightened by his particular relationship in the Assyrian Community. And no doubt some elements of trust were placed in him…………”.
In the course of his sentencing remarks, the Judge made the following statement:
“[the offences] other than those related to the Billington Family Trust, were committed upon commercially naive people. They involved a breach of trust that the investors; particularly those within the Assyrian Community, had in the appellant. "
This passage arises in a paragraph of the sentencing remarks clearly dealing with aggravating factors. His Honour later identifies the aggravating circumstances as including that the offences were committed in breach of trust.
Even accepting that members of the Assyrian community placed trust in the applicant because of his apparent status as a successful businessman within that community, it does not follow that there was a breach of trust between him and members of that community such that s 21A(2)(k) was engaged. Section 21A(2) sets out factors of aggravation to be taken into account when determining the sentence and the particular provision is as follows:
(k) the offender abused a position of trust or authority in relation to the victim.
This aggravating factor is not made out simply because the victim trusted the offender for some reason or other, such as because of the offender’s standing in the community or he appeared to be a successful businessman. Nor is it made out because the persons with whom the offender dealt were “commercially naïve people”. The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to “a position of trust”. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. The position of trust may reside in only one of the persons, such as between parent and child. But there may be situations where each stands in a position of trust to the other. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.
The position of trust recognised by the common law does not arise simply from a subjective state of mind of one of the members of the relationship. It is not enough that for some reason or another the victim trusted the offender not to act in a particular way: that state of mind might be irrational or without foundation. On the other hand a position of trust can arise irrespective of the state of mind of the victim, for example because the victim is a child or mentally disabled. But the offender would know, or should have known, that he or she is in a position of trust with respect to the victim. In R v MAK [2005] NSWCCA 369 it was held in a sexual assault case that there was no position of trust between the offender and the victim simply because they had a prior encounter where nothing untoward had occurred between the two. The victim may have erroneously trusted the offender because of his behaviour on a prior occasion but that did not create a position of trust for the purposes of sentencing.
There are recognised trust relationships that rely upon the person’s standing in the community but usually as a consequence of the person holding a particular occupation or calling; for example doctors, priests or teachers. In such a case members of the community generally understand that holding that position imposes upon the holder a particular duty of care not to act to the detriment of a person dealing with the holder while fulfilling that position. That understanding is recognised by the common law.
But the common law does not recognise, for the purposes of sentencing, that a position of trust arises simply because the two persons are involved in a commercial relationship. There must be some peculiar aspect of the relationship that imposed a position of trust on one or both of the participants. Such relationships were considered in R v Martin [2005] NSWCCA 190 at [40] and included a real estate agent fraudulently omitting to account to a client and dishonesty offences by a solicitor in carrying out his duties.
It has been made perfectly clear both by the wording of s 21A(2) and decided cases that the section was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: R v Wickham [2004] NSWCCA 193; R v Johnson [2005] NSWCCA 186. The common law would not have identified the fact that the applicant was considered to be a successful businessman within the Assyrian community as imposing a position of trust upon him in relation to any person in that community with whom he dealt. Neither does s 21A(2)(k). The fact that defence counsel at the sentencing hearing conceded otherwise is irrelevant. Both counsel appearing before the sentencing Judge led him into error in that regard.
The Crown before this Court made the submission that the formal investment agreements themselves imposed upon the applicant a position of trust in relation to the investors because by entering those agreements they trusted in his honesty. That submission should be rejected and would impose a position of trust on almost every person entering into a commercial agreement. Nor does a position of trust arise simply because one of the persons to the agreement is commercially naïve.
This ground has been made out. It should be noted that, generally speaking, a finding that an offence was committed in breach of trust is a seriously aggravating factor. It could not be said in the present case that it was a matter that would not have significantly affected the sentence imposed upon the appellant.
Application of Pearce
Grounds 3 and 4 can be dealt with together and they concern the nature of the charges and the particular manner in which the Judge sentenced for each count on the indictment.
As has been noted already, counts 1 to 15 inclusive were offences contrary to s 178BB of the Crimes Act for which the maximum penalty prescribed was 5 years imprisonment. On each of counts 1 to 14 the Judge imposed a sentence of a fixed term of 1 year 6 months. The sentences for the first two counts commenced from 1 May 2006 and, thereafter, each of the sentences for the next pair of offences commenced on various dates after the commencement of the preceding pair of offences usually a period of 3 months later but in some cases a period in excess of 3 months. I am unable to see why differing periods of accumulation were chosen between the various counts and they did not appear to me to have any relationship to the seriousness of the offences. By this method the overall sentence imposed for the first 14 counts was a fixed term of 5 years 3 months.
The Judge then imposed a sentence on count 15 being a non-parole period of 4 months and 14 days from 18 June 2011 and to expire on 31 October 2011 and a parole period of 1 year 10 months.
Counts 16-26 were for offences contrary to s 300(2) of the Crimes Act. In respect of each of those offences, that carried a maximum penalty of 10 years imprisonment, the Judge imposed a fixed term of 9 months to date from 1 May 2006.
With respect there was a degree of artificiality and arbitrariness in the sentences imposed by the Judge and they bore little or no relationship to the offences for which sentence was being passed. For example, each of the s 178BB offences received exactly the same sentence even though the criminality differed considerably between them. The 6th count concerned an investment of $555,000 with a loss of $170,000 yet the 13th count concerned an investment of $100,000 and loss of $28,000. On its face it is difficult to understand how both offences could justify the same sentence.
The most serious criminality involved the offences relating to the Trust because of the associated forgery offences. Yet the sentence actually imposed for the Trust offences was no more than any of the other offences because the sentences for the forgery offences were made completely concurrent with the sentence of 1 year 6 months imposed for the s 178BB offence. The applicant complains that the sentence imposed for this offence and that for count 1 did not reflect the fact that the victims did not suffer any loss. Although the fact that no loss was occasioned to the victim is clearly a relevant factor, also significant is the amount of money put at risk by the fraudulent behaviour of the offender and the nature of the fraudulent conduct.

This lack of discrimination in the sentencing is the point raised by the applicant in his 3rd and 4th grounds of appeal. I appreciate the difficulty in sentencing for multiple offences in the way that Pearce has been interpreted but the manner in which the Judge sentenced the applicant does not appear to reflect the proper application of that principle.
The Judge set out his method for deriving the sentences that he imposed. His Honour stated:
[51] I have determined, balancing the purposes of sentencing, the objective features of the offences, the subjective features of the offender and the aggravating and mitigating factors, all of which I have referred, that for the offences contrary to s 178BB of the Crimes Act, those referred to in counts 1 to 15 of the indictment, the starting point is imprisonment for three years six months, and for the offences contrary to s 300(2) of the Crimes Act, as referred to in counts of 16 to 26 of the indictment, the starting point, because those offences were used in conjunction with the offence referred to in count two of the indictment, is imprisonment for three years. I reduce the period of three years six months by 15 per cent, which, for ease of calculation, is seven months, to 2 years 11 months, and a period of three years by 15 per cent, which, again for ease of calculation, is six months, to two years six months. Absent a special circumstance, a sentence of imprisonment for two years eleven months would be divided into a non parole period of two years two months seven days and a parole period of eight months twenty one days, and a sentence of imprisonment for two years six months would be divided into a non parole period of one year ten months fourteen days and a parole period of seven months fourteen days.
After finding that there were no special circumstances based upon the applicant’s depression, the Judge went on:
[53] As to whether the sentences should be served concurrently or consecutively, I consider that, as the offences were separate and distinct offences, although the offences referred to in counts 16 to 26 are related to the offences referred to in count 2 of the indictment, the sentences for the offences contrary to s 178BB of the Crimes Act, those referred to in counts 1 to 15 inclusive of the indictment, should be served partly concurrently and partly consecutively, and that the sentence as to the offences contrary to s 300(2) of the Crimes Act, those referred to in counts 16 to 26 of the indictment, should be served concurrently with each other and partly consecutively with the other sentences. However, in view of what I will say as to totality, this result cannot be achieved.
[54] As to totality, I consider that to reflect the offender's criminality for the 26 offences, and to punish him properly for those offences, the offender should serve a total sentence of seven years four months with a total non-parole period of five years six months and a parole period of one year ten months. To achieve this result, I propose to impose upon the offender sentences of imprisonment for a fixed period in relation to counts 1 to 14 inclusive and counts 16 to 26 inclusive of the indictment, and for a period divided into a non parole period and a parole period in relation to count 15 of the indictment. For ease of division of the overall non parole period of five years six months among the offences, the actual sentences that I will impose on the offender in relation to counts 1 to 14 inclusive and 16 to 26 inclusive of the indictment will be less than the period calculated in para 51 above.
With respect it is clear that the Judge did not apply the principle that has been obtained from Pearce because he has not determined the appropriate sentence for each offence individually. He has treated all the s 178BB offences as being of the same criminality and each worth a sentence of 3 years 6 months regardless of the amount invested or the amount lost. Such a starting sentence is in my view too high for most of the offences under s 178BB in light of the maximum penalty of 5 years. In any event that starting sentence became irrelevant once the Judge decided simply to impose a sentence of 1 year 6 months for all the s 178BB offences except count 15. A sentence of 1 year and 6 months for the offences involving the Trust was probably manifestly inadequate. Arguably the most serious offences were those in breach of s 300(2) because they were forgeries that induced the Trust to risk its money. They carried a greater maximum penalty than the s 178BB offences. Yet they were punished by a total sentence of a fixed term of 9 months concurrent with the s 178BB offence relating to the Trust. Therefore, there was no actual penalty imposed for those offences and the total criminality involved in the offences against the Trust was not distinguished from the lesser criminality involved in the s 178BB offences against the other victims.
However derived, the starting total sentence for all the offences before discount was about 8 years 6 months. This represented a sentence for criminality involving 15 separate victims conducted over a period of about 15 months where each offence had a maximum penalty of at least 5 years and included, in one case, the use of forged documents to induce the victim to invest in the applicant’s company. All up over $3 million was fraudulently received by the applicant and resulted in a loss to investors of over $800,000. Whether the overall sentence is such that some lesser sentence ought to be imposed will be considered later.
The applicant’s mental state
The applicant complains that no regard was given by the Judge to the fact that he hoped to be able to make returns under the agreements by other business interests he had, particularly in an Internet provider. The applicant accepts in his submissions that material he now seeks to rely upon was not placed before the sentencing judge. There is no reason why this Court should act on that material and in any event it is merely statements set out in his submissions.
In relation to the applicant’s expectations of funding the investments through other business activities, the applicant gave no evidence about this matter before the sentencing judge. He puts that explanation forward now in order to show that his intention was simply not to strip the investors of their investments but that he hoped in the long term to be able to honour the agreements through finances obtained by other enterprises. But it is not unusual to find that a fraudster hopes to be able to make good the agreements he enters into with innocent members of the public from other investments, or other sources of finances that he hopes will become available in the future. The crux of the offence under s 178BB is that the victim is induced to risk money based upon false statements intentionally made by the offender where had the true situation been known the victim might not have entered into the agreement. None of the victims in the present matter were aware that their returns were subject to the applicant successfully floating a company in which he had an interest.
To the extent that it is a mitigating factor that the applicant honestly believed he would be able to finance the agreements, the burden to prove that fact was upon him. On the basis of the evidence before him it was well open to the Judge to make his finding that “[the applicant] used [KSE] as a cash cow to fund his lifestyle and the public profile of the Froggy Group of Companies.
This ground fails.
The hardship of the applicant’s custody
The applicant states in his written submissions:
Although not raised at my sentencing hearing, I have had a number of threats made upon my life. I have been threatened that if I didn't pay money to certain well known criminals, I would not be protected while in jail. I also had a $100,000 contract on my life, which I believe can be confirmed from intelligence at Silverwater jail.
This extra strain put upon the role in prison is a factor which also should have been given some consideration in setting my sentence.
As the applicant concedes, none of this material was raised before the sentencing judge and is only before this Court by way of submission. This is a Court of error and does not generally receive material that could, and should, have been put before the sentencing court; see R v Fordham (1997) 98 A Crim R 359. There is no reason why this Court should now receive this material in whatever form it is placed before the Court.
Totality of criminality
One matter not referred to by the applicant as a ground of appeal but that became apparent during argument was the failure of the sentencing judge to take into account the sentences imposed upon the applicant by Judge Berman in the particular circumstances of this case.
As has already been noted, the offences for which Judge Berman sentenced the applicant took place between December 2000 and October 2001 and concerned dishonest misrepresentations. They were different in kind to those with which the Court is now concerned except that they were intended to present a façade of wealth by the applicant and to live a lifestyle beyond his immediate needs. The Judge in the present matters found that these offences were similarly motivated. The offences before Judge Berman resulted in little, if any, loss to the victims.
Two matters are of importance in considering what effect is to be given to the sentences imposed upon the applicant by Judge Berman: first, the present offences fell within the period of time over which the offences before Judge Berman took place and, secondly, the applicant was not charged with these matters until he was about to be released to parole upon those sentences. The Judge sentencing him for the present offences ought to have considered the fact that the applicant had already served 12 months in custody for offences arising over the same period of time as the present offences and committed from a motivation similar to that which resulted in the present offences being committed. All the offences the applicant committed throughout 2000 and 2001 were part of a course of fraudulent activity committed over that period.
In such a situation as this the second sentencing judge should have considered what would have been the position had all of the offences committed by the appellant been before the one sentencing judge otherwise the applicant might be unduly prejudiced by the fact that, through no fault of his own, he came to be sentenced on two separate occasions by two different courts for offences occurring as part of a continuous course of criminal activity.
This was not a matter raised with the Judge and therefore, unsurprisingly, he did he not take it into account. The offences before Judge Berman were arguably less serious than these offences even though the amount of money involved in the loans fraudulently obtained by the applicant was about $3 million. As I have already indicated, there was no loss occasioned by his conduct in committing those offences and Judge Berman found some highly mitigating facts including a positive finding that the applicant intended to repay the loans he fraudulently obtained.
For the present offences and those before Judge Berman the applicant in effect received an additional non-parole period of 12 months to that imposed by Judge Nield. The matter is somewhat complicated because the applicant was released to parole between the two sentencing proceedings and placed on bail in respect of the present offences.
Decision
In my opinion having regard to the error in taking into account that the offences were committed in breach of trust and the totality of the sentences for the whole of the applicant’s fraudulent criminality over the period of 2000 and 2001 there should be some modest reduction in the overall sentence imposed by his Honour. This can best be achieved by adopting the scheme used by his Honour notwithstanding the technical criticisms that might be made of it, otherwise this Court would be required to increase some sentences to achieve the appropriate result. The seriousness of a particular offence can be reflected in the period of accumulation between the sentence for that offence and the sentence for the next offence on the indictment. So, for example, to indicate the seriousness of the offence relating to the Trust in count 2 there is a period of accumulation of 12 months with counts 3 and 5. Yet the overall sentence imposed for counts 1 to 14 is the same as that imposed by the Judge. The reduction in the overall non-parole period is achieved by a change to the commencement date of the sentence for count 15. The reduction in the overall sentence is achieved by a reduction in the balance of term for that count. It is my intention that the overall non-parole period be reduced by 9 months and the overall balance of term by 3 months: that is a total term of imprisonment of 6 years 4 months with a total minimum period of custody of 4 years 9 months as against a total term imposed of 7 years 4 months and a total minimum period of custody of 5 years 6 months imposed by his Honour.
I propose the following orders:
1. Leave to appeal be granted and the appeal allowed.
2. The sentences imposed in the District Court for counts 1 to 15 are quashed and the applicant sentenced as follows:
On count 1 the applicant is sentenced to imprisonment for 18 months to date from 1 May 2006 and that expired on 31 October 2007;
On count 2 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2007 and that expired on 30 June 2008;
On counts 3 to 5 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2008 and that expires on 30 June 2009;
On count 6 the applicant is sentenced to imprisonment for 18 months to date from 1 April 2008 and that expires on 30 September 2009;
On counts 7 to 9 the applicant is sentenced to imprisonment for 18 months to date from 1 July 2008 and that expires on 31 December 2009;
On count 10 the applicant is sentenced to imprisonment for 18 months to date from 1 October 2008 and that expires on 31 March 2010;
On count 11 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2009 and to expire on 30 June 2010;
On counts 12 and 13 the applicant is sentenced to imprisonment for 18 months to date from 1 April 2009 and to expire on 30 September 2010;
On count 14 the applicant is sentenced to imprisonment for 18 months to date from 1 July 2009 and to expire on 31 December 2010;
On count 15 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 4 months 14 days to commence on 17 September 2010 and to expire on 31 January 2011 the date upon which the applicant is to be released to parole with a balance of term of 1 year 7 months to date from 1 February 2011.
3. The sentences for counts 16 to 26 are confirmed.
HISLOP J: I agree with Howie J.
**********

AMENDMENTS:

26/03/2009 - Edit error. - Paragraph(s) Cover sheet and para 26

16/06/2010 - Edit error - Paragraph(s) 53

LAST UPDATED:
16 June 2010