Thorn v R
[2009] NSWCCA 294
•15 December 2009
Reported Decision: 198 A Crim R 135
New South Wales
Court of Criminal Appeal
CITATION: Andrew Joseph THORN V R [2009] NSWCCA 294
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 17/11/2009
JUDGMENT DATE:
15 December 2009JUDGMENT OF: Campbell JA at 1; Howie J at 2; Rothman J at 60 DECISION: 1. Application for leave to appeal is granted and the appeal is allowed.
2. The sentences imposed in the District Court are quashed and in lieu the following sentences are imposed:
(a) On the charge of attempt, imprisonment for 6 months to date from 27 March 2009. (b) On the first charge of obtaining, imprisonment for 6 months to date from 27 July 2009. (c) On the 2nd to 5th charges of obtaining, imprisonment for 9 months to date from 27 January 2010. (d) On the 6th to 8th charges of obtaining, imprisonment for 14 months to date from 27 March 2010. (e) On the 9th to 11th charges of obtaining, imprisonment for 18 months to date from 27 July 2010. (f) On the charge of money laundering, imprisonment for 2 years 8 months to date from 27 September 2010. There is to be an overall non-parole period of 2 years 4 months from 27 March 2009 to expire on 26 July 2011.CATCHWORDS: Criminal Law - Appeal against sentences - GST frauds - use of money laundering offence in relation to profits of the frauds - whether maximum penalty reliable - inappropriate use of s 4K Crimes Act (Cth) to impose single sentence for fraud offences - applicant re-sentenced. LEGISLATION CITED: Criminal Code (Cth) - ss 134.2(1), 400.4(1)
Crimes Act (Cth) - s 4K
Judiciary Act 1903 (Cth) - s 68
Crimes Act 1958 (Vic)CATEGORY: Principal judgment CASES CITED: R v Todd [1982] 2 NSWLR 517
R v Gay [2006] NSWCCA 6
R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159
Ansari v R [2007] NSWCCA 204; 70 NSWLR 89
R v Huang and Sui [2007] NSWCCA 259; 174 A Crim R 370
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v Bibaoui [1997] 2 VR 600
Putland v R [2004] HCA 8; 218 CLR 174
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Bahsa [2003] NSWCCA 36
Ridley v R [2008] NSWCCA 324
Bick v R [2006] NSWCCA 408
Robertson v R [2007] NSWCCA 270
Ly v R [2007] NSWCCA 28PARTIES: Andrew Joseph Thorn v Regina FILE NUMBER(S): CCA 2008/18664 COUNSEL: N Adams - Crown
J Trevallion - ApplicantSOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Archbold Legal Solutions - ApplicantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/18664 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 27 March 2009
2008/18664
TUESDAY 15 DECEMBER 2009CAMPBELL JA
HOWIE J
ROTHMAN J
1 CAMPBELL JA: I agree with Howie J.
2 HOWIE J: This is an application for leave to appeal against sentences imposed upon the applicant by Sides DCJ (the Judge). Each of the offences is a breach of the Criminal Code (Cth) (the Code) and arises out of a course of conduct upon which the applicant embarked as long ago as April 2002. He was sentenced on 27 March 2009. The reasons for the delay between the offending and sentencing and the consequences of that delay shall be referred to later as they give rise to a ground of appeal.
3 As a result of the offences committed, the applicant was to be sentenced for one count of dealing with the proceeds of crime contrary to s 400.4(1) of the Code (the money laundering offence), 11 counts of dishonestly obtaining a financial advantage contrary to s 134.2(1) of the Code (the fraud offences) and one count of attempting to obtain a financial advantage (the attempt offence). The money laundering offence carried relevantly a maximum penalty of imprisonment for 20 years. The fraud and attempt offences each relevantly carried a maximum penalty of 10 years imprisonment.
4 On the attempt offence the applicant was sentenced to imprisonment for 8 months from 27 March 2009. For the fraud offences the applicant was sentenced to a single term of imprisonment of 30 months from 27 March 2009. For the money laundering offence the applicant was sentenced to imprisonment for 40 months from 27 March 2011. In respect of the overall sentence of 5 years 4 months the Judge fixed a non-parole period of 3 years. The applicant is eligible for release to parole on 16 March 2012. His Honour made a reparation order in the amount of $114,586.92.
5 The facts are that in 2001 the applicant entered into a business partnership with a person named Jerrad Till. In October of that year the partnership registered four trading entities for an Australian Business Number (an ABN). The entities were registered on line with the Australian Tax Office (the ATO) for the Goods and Services Tax (GST). As a result, each of the entities was registered to lodge a Business Activity Statement (a BAS) with the ATO on a quarterly basis.
6 Over the next two years the entities lodged 26 BAS claiming a GST refund in respect of purchases allegedly made by the entities. None of the BAS declared any accrued GST or other income. As a result, refunds totalling $295,201.45 were made to the entities. The ATO paid the refunds into two bank accounts held in the names of the applicant and Till. On receiving each of the refunds they were split equally between the applicant and Till by transferring them into their personal accounts or by withdrawals at an ATM.
7 On 30 November 2000 the applicant on his own behalf registered a trading entity, APTP. On 1 July 2003 he registered that entity for GST and registered it to lodge a quarterly BAS. On 2 October 2003 the applicant lodged a BAS for the period 1 July 2003 to 30 September 2003 and claimed a GST refund of $17,323. This refund was never paid because a review by the ATO determined the claim was false. This claim gives rise to the attempt offence.
8 In 2003 the ATO conducted a GST compliance review on the partnership entities and APTP. On 2 December 2003 the applicant met with ATO officers. He provided them with a signed statement that contained the following admission:
My business partner Jerrad Till was unaware of the false claims. He later became aware of my gambling addiction and also of my actions regarding the false claims………….
I advise the claims that have been made on the above business apart from approximately $10,000 of legitimate claim are false claims and I have no supporting documentation for them. The businesses commenced and ceased within a few months and generated no income. The money that was given to me via my business account was used to gamble. A majority spent at Star City Casino in Sydney. I have since and will continue to seek counselling for my gambling addiction.
9 Later the applicant’s business partner made a statement corroborating the applicant’s admissions and denying any knowledge of the claims.
10 On 13 August 2007, that is almost 4 years after the applicant made the above admission, ATO officers formerly interviewed him. The applicant confirmed his fraudulent conduct, but on this occasion implicated Till as being knowingly involved in the claims and receiving half of the refunds. During the course of this interview the applicant identified his handwriting on 11 of the 26 BAS lodged for refunds. As to the other 15 he said either that they were completed by Till or that he did not know who had completed them. He also admitted the falsity of the APTP claim.
11 As a result of these admissions the applicant was charged with the offences for which he was sentenced. Presumably because there is no joint criminal liability provision under the Code, the applicant was charged only with the 11 BAS that he acknowledged were made by him. The value of the refunds received under these charges was $114,586.92. He was also charged with the attempt offence in respect of APTP, the value of that claim being $17,323.
12 The money laundering offence was charged to cover the balance of the fraudulent claims. However, as that offence provision did not commence operation until 1 January 2003, the charge related to the use of money, which had been obtained by the false claims, for the period between 7 January 2003 and 16 October 2003. The total amount of the money involved in this charge was $103,512.50. It was conceded that this sum included $38,938.74 being refunds received from four of the 11 claims that were included in the fraud offences. However, without any attempt to trace the source of the funds contained in the money laundering offence to particular claims made to the ATO for refunds of GST, it cannot accurately be ascertained how much of the funds comprised in the money laundering offence related to the claims covered by the fraud offences.
13 The applicant was 19 years of age when this offending behaviour commenced. At that time he had no criminal record. On 17 August 2004 he was sentenced in the Local Court for a number of dishonesty offences including larceny as a servant and making false instruments. The offences related to his stealing money from the safe of his employer. As a result he was ordered to perform 300 hours of community service and placed upon a bond for two years with an order that he pay nearly $8,000 in compensation. On 30 August 2005 he was sentenced for the offence of obtaining a financial advantage in relation to a social security fraud and was given, in effect, a suspended sentence of three months. On 27 September 2007 for an offence of obtaining by deception he was sentenced in the Local Court to a suspended sentence of 9 months.
14 As a result of these sentences the applicant came under the supervision of the Probation and Parole Service. He was directed by the Service to engage in counselling for his gambling as that was said to be the reason for his criminal offences. His performance of community service was considered to be unsatisfactory but he eventually completed it in April 2006.
15 There was a pre-sentence report in evidence. It stated that the applicant was residing with his partner whom he intended to marry in January 2010. There was little in his background of significance. His father died when the applicant was aged 9 years but he has always enjoyed a close relationship with his mother and sister. He stated that he committed all his offences to support his gambling and drug usage. He commenced using ecstasy at the age of 18 and then used both cocaine and cannabis. He maintained that he had stopped using drugs at the age of 22. The report contained the following statement:
[The applicant’s] offences were committed some years ago. Since first coming to the attention of this Service [the applicant] has undergone gambling and financial counselling. Discussion with his family members would appear to confirm that [the applicant] is no longer engaged in drug use or gambling activities. The offender is prepared to accept some responsibility for his offending behaviour, however, it is noted that [the applicant] expressed his frustration that his business associate had not been prosecuted.
The officer preparing the report assessed the applicant as “unlikely to require, or benefit from, supervision by this Service”.
16 There was a report from a psychologist dated 25 September 2007. It states that the applicant had been employed with the one company since January 2005. The applicant told the psychologist that the present offences were not committed to support a drug habit but because of his gambling. He said that he “wanted to win lots of money to make life easier”. He said that the business he set up with Till was initially intended to “tap into the Schoolies market on the Gold Coast” by creating travel and accommodation packages. However, the business ultimately was “nothing more than a moniker”. He stated that he had spent all the proceeds on gambling in the hope of making sufficient funds to emulate the lifestyle of his business partner. He told the psychologist that he had resolved his gambling addiction and now had the prospects of a “great job, girlfriend and plans for a future including marriage”.
17 There was a further report dated 9 February 2009. It indicated that the applicant was still in the same employment and was hoping to commence training that might result in promotion. He was in the same relationship and still intending to marry. He had not returned to gambling. The applicant reported being concerned about the sentencing for these offences but accepted that he needed to be punished. He reported “episodic sleep and mood disturbance related to the stress of criminal proceedings”. He expressed regret and remorse for his behaviour.
18 There were a number of testimonials placed before the sentencing judge including from his present and past employers, his mother and fiancée.
19 The applicant relies upon the following grounds of appeal:
1. His Honour failed to take into account the issue of delay as a factor entitling the Offender to further leniency;
2. The sentence in respect to the s 400.4(1) offences (sic) was excessive;
4. The overall sentence was excessive.3. The sentence in respect to the s 134.2(1) offences was excessive; and
20 The first ground of appeal refers to the delay in the prosecution of the offences between at least 2 December 2003, when the applicant in effect admitted to having committed the offences, and the commencement of the prosecution on 4 September 2008.
21 The submissions note that the legal representative appearing for the applicant before the Judge raised the issue of delay and its relevance to the imposition of an appropriate sentence. They also concede that the Judge was aware of the delay and referred to it during the course of his sentencing remarks. His Honour stated:
For the best part of 4 years after 2004 he had the support of the Probation and Parole Service, further he had met his fiancée and they are now engaged and live together in a home owned by his fiancée that is subject to a mortgage. Both he and his fiancée are currently in employment. In the Offender's case he has been in the same job for about 4 years.
There has been considerable delay between when the offender first admitted his involvement in these offences to the ATO and the commencement of proceedings on 6 August last year. He is not responsible for the delay. There is evidence of the Offender suffering anxiety causing him episodic sleep and mood disturbances because of that delay entitling him to some leniency. However, that anxiety was not such as to cause him to immediately stop engaging in offending behaviour or cause him to promptly address his issues underlying his offending behaviour after the interview with the tax office in 2003.
Earlier in his remarks the Judge noted that the applicant had “addressed the main factors underlying his offending behaviour” and that he had “established a stable lifestyle with a partner who is supportive as are a number of his associates”.
22 The complaint is that his Honour dismissed the effects of delay by reason of the applicant’s further offending up until 2004, and did not give him the benefit of his failure to commit any further offences after that time and the evidence of his rehabilitation since that time. Reliance is placed upon the well-known statements of Street CJ in R v Todd [1982] 2 NSWLR 517. The Court was also taken to a passage in R v Gay [2006] NSWCCA 6 where this Court was critical of a delay of 3 years in a prosecution by the ATO and noted that a failure to have a matter brought to justice quickly will “mitigate an otherwise appropriate sentence”.
23 Of course the prosecution is not to be punished for delay by a reduction in the otherwise appropriate sentence, even though it must be said that the delay in the present case is completely unacceptable. But it is the impact of the delay upon the applicant that is the most significant consideration. There was no evidence in the psychological reports that the delay in the prosecution had any deleterious effect upon the applicant. His Honour’s reference to anxiety causing him episodic sleep and mood disturbance was a reference to the applicant’s “current psychological functioning at the time of consultation” that is in February 2009. In the report of 2007 it is stated that his “sleep patterns and moods have been affected due to the stress of matters currently before the court”. The “anxiety and dread” he was suffering at that time was because of a fear of a full time custodial sentence.
24 In any event the Judge indicated that he was giving the applicant “some leniency” by reason of the delay. But he also noted, appropriately, that it was not the case that the discovery of the offences had any significant impact upon the applicant because he continued both to gamble and commit dishonesty offences until 2004. The relevance of prior convictions for offences that occur after the offence for which sentence was being passed was considered in R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159. The dishonesty offences occurring shortly after the commission of the present offences indicate that little leniency could be given for the fact that the applicant was a first offender in light of the circumstance that he continued to offend in order to support a gambling habit. This is particularly so in light of the number of criminal acts committed by him that gave rise to the offences for which he was to be sentenced and the period over which the present offences were committed.
25 There is no obvious error in his Honour’s remarks and the real question is whether the sentence imposed is excessive having regard to the fact that the applicant was aged 19 years when he committed the offences and had been completely rehabilitated by the time of sentence. That is an issue to be addressed under the ground of appeal that asserts that the overall sentence was excessive.
26 The second ground asserts that the sentence for the money laundering offence was excessive. The submission is that the criminality involved in this offence is less than the fraud offences and that the sentencing of the applicant was overly complicated by the use of this offence, especially as it overlapped to an extent with the fraud offences. It is further submitted that the sentence imposed is out of proportion with the penalty imposed for the other offences.
27 This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained. Further the money laundering charge was used to punish the applicant for his criminality arising from his partner’s fraudulent conduct. As was noted earlier, there is no concept of a joint criminal enterprise under the Code, so the applicant could not be charged with his partner’s fraudulent activity even though it was common activity of them both.
28 If the applicant could have been charged with all of the frauds committed jointly by his partner and him, he would have faced 26 charges under s 134.2(1), each carrying a maximum penalty of 10 years and with a total sum obtained by the frauds of $295,201.45. That was in effect the criminality of the frauds perpetrated by the partnership. He would also have faced sentence for the attempt offence of $17,323.
29 However he was sentenced for the 11 fraud offences totalling $114,586.92, the attempt offence of $17,323 and the money laundering offence of $103,512.50. The latter offence carried a maximum penalty of 20 years imprisonment. There is merit in the applicant’s complaint that the nature of the charges overcomplicated the sentencing process, but this was due to what appears to be a deficiency in the Criminal Code and not as a result of inappropriate conduct or over-charging by the prosecutor.
30 In sentencing for the money laundering offence the Judge referred to a number of decisions of this Court including Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 and R v Huang and Sui [2007] NSWCCA 259; 174 A Crim R 370. But those cases involved money laundering of a completely different character to that involved in the offence before his Honour. Ansari concerned persons who were intimately involved in dealing with money that was the result of some other person’s criminal activity so as to hide its source. That is money laundering in the true sense of that term and clearly the type of activity that the legislature had in mind in creating the offence. Similarly Huang and Sui were involved in money laundering as it is generally understood but at a lower level of criminality than in Ansari. They were involved in taking sums of money at the behest of another and depositing it in various accounts under false names to hide the source of the funds.
31 But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.
32 There is nothing in his Honour’s remarks that acknowledges the unusual use of this offence in this particular case. There was little benefit to be gained from considering the cases his Honour mentioned or the statistics indicating the range of sentences imposed for offences under s 400.4. Yet the Judge summarises the facts in Huang and Sui, remarked upon the relevant subjective factors for each of those offenders and considered what this Court had said about the sentences that ought to have been imposed upon them. Nothing said by this Court in that decision, in Ansari or the other cases to which his Honour referred offered any guidance to the sentencing of the applicant except to indicate that his offending was of a very different character and much less serious.
33 In my opinion his Honour should have treated this as an offence towards the lowest range of the type of offending covered by the section, even while noting, as he did, that it encompassed a number of transactions over a significant period of time. In the particular circumstances of this case the maximum penalty was not a reliable guide to the seriousness of the conduct involved: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]. Further, the penalty was based upon the offender dealing with money over the value of $100,000 yet that amount was reached by including a sum of money, whatever it might have been, that overlapped with the fraud offences.
34 The penalty imposed for this offence was 40 months: that represents a sentence of 5 years less a discount of 30 per cent for plea and assistance. However, the discount was inappropriately high. The applicant’s assistance was no more than his admissions, part of which implicated his partner. Yet he had earlier made a statement absolving his partner of any responsibility and thus misled the investigators. He was not offering to give evidence against his partner who had in the meantime departed the jurisdiction. The assistance was of no real value to the authorities. I do not believe that his interview with the police warranted any discount above that flowing from his willingness to facilitate the administration of justice by his plea of guilty. It is not unusual that a person who pleads guilty also makes admissions to the police yet no additional discount is granted for that fact. The discount should have been no more than 25 per cent.
35 Whether the sentence for the money laundering offence is manifestly excessive depends upon how that sentence compares with what would have been appropriate to reflect the seriousness of the dishonesty offences by which the funds had been obtained, bearing in mind that they would each have attracted a maximum penalty of 10 years imprisonment. I shall return to this matter shortly.
36 The third and fourth grounds were argued together. It was asserted that the sentence for the fraud offences and the overall sentence were excessive. It was noted that with a discount of 30 per cent the starting head sentence for all the offences was over 8 years. A comparison was made between the applicant’s offending and that in other cases that have come before this Court. As I have already noted, the discount for assistance was unwarranted and the applicant should have received no more than 25 per cent.
37 Further the Judge imposed a totally concurrent sentence for the attempt offence. His Honour stated:
……….Having considered the issue of totality the Court came to the view that there should be some accumulation between the sentences for those offences [the fraud offences] and the one for money laundering. However, the sentence for the attempt is concurrent because, had it stood alone, the Court would not have imposed a full time sentence.
38 With respect this reasoning is fallacious. Even if it is accepted that had that offence “stood alone” it might not have warranted a custodial sentence, that fact did not justify the imposition of a fully concurrent sentence when it did not stand alone. It was a separate and discrete act of criminality in addition to the partnership offences. The question to be asked was whether the criminality for the fraud offences could encompass the criminality for the attempt offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. In my opinion it could not. It was a significant fraud. The amount of money claimed exceeded all but four of the fraud offences. It was an attempt only because the ATO determined that the claim was false. In any event it is curious that his Honour determined that, had the offence stood alone, it would not have warranted a custodial sentence and then imposed a sentence of 8 months imprisonment.
39 The sentencing of the applicant contained a fundamental error in the manner in which the Judge sentenced the applicant for the fraud offences. As has been indicated, he imposed a single sentence for all 11 offences. He purported to rely upon s 4K(4) of the Crimes Act (Cth) to permit that course. Section 4K is as follows:
4K Continuing and multiple offences
(1) Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.
(2) Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person is guilty of an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.
(4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
40 The section was considered in R v Bibaoui [1997] 2 VR 600. The Court of Appeal of Victoria was concerned with the validity of a single sentence imposed in the County Court on an indictment containing three counts of defrauding the Commonwealth. In effect the Court concluded that s 4K(3) was concerned with summary offences and the words “information, complaint or summons” appearing in that subsection did not embrace an indictment. The Court held that the joinder of offences on an indictment was not covered by s 4K(3) but rather by the application of s 68 of the Judiciary Act 1903 (Cth) which picked up the procedure laid down for the trial of indictable offences under the Crimes Act 1958 (Vic).
41 It was also held that, as s 4K(4) is only referable to convictions for offences “referred to in subsection (3)”, the subsection did not refer to offences prosecuted on indictment. Ormiston JA who delivered the principal judgment stated at 603-604:
If what I have said be correct, subs (4) has no relevance to offences charged on indictment. Although such a conclusion may seem to depend upon relatively slight indications, I consider that in its favour is the desirability of the accused, upon conviction, being informed of the penalty for each offence of which he is convicted and the reasons for that penalty; and, moreover, the need, if there be any appeal brought on either side, for an appeal court fairly to understand not only the penalty imposed but the reasoning behind the imposition of each penalty. The desirability of there being separate dispositions of each count on an indictment has been discussed in such cases as Castro v R (1881) 6 App Cas 229 at 237-8 per Lord Selborne LC and in Ryan v R (1982) 149 CLR 1 ; 40 ALR 651, although no concluded views were expressed in the latter case. In summary jurisdictions where the appeal process more often than not requires a rehearing, the need for separate penalties may not be so great and convenience may dictate an overall head sentence for offences capable of being heard summarily, especially where fines are being imposed, but in my opinion convenience should not dictate what is the proper method which should be adopted upon the hearing and determination of prosecutions by indictment. These considerations, I consider, serve to reinforce the interpretation which I have chosen to give to subs (4), notwithstanding the uncertainties to which the language of s 4K has given rise.
In my opinion, however, subs (4) is intended to be confined to those offences which are in fact joined in originating criminal process of the kind described, but limited, by subs (3), to informations, complaints and summonses. Subsection (4) is only relevant if there be a conviction of two or more of the offences upon such process, and that in my opinion requires that the offences are the subject of joinder in the kind of process described in subs (3). A single penalty could not be imposed merely because offences were of a similar kind; they must be offences which are the subject of charges joined pursuant to subs (3). Otherwise the section might have the effect of allowing a single sentence in cases where there had been no joinder, that is, where there were, for various reasons, before the court separate informations or, for present purposes, separate indictments.
42 Tadgell JA stated at 606:
The essential question is whether the respondent had been convicted of “offences referred to in subsection (3)”. Are the offences to which the respondent pleaded guilty “referred to in subsection (3)”? If one reads subs. (3) literally, the only offences to which it refers are “offences against the same provision of a law of the Commonwealth”. I do not consider, however, that that is what is meant. Were it so, subs. (4) would authorise the imposition of a single penalty for convictions for infringements of the same provision committed years apart and having nothing in common save that they depended upon infringements of the same statutory provision. There is little to recommend such an interpretation. After all, subs. (3) is permissive and subs. (4) appears to assume that the authority which subs. (3) confers has been availed of. The more likely intention is that subs. (4) refers to two or more offences against the same provision of a law of the Commonwealth, charges for which are joined in the same information, complaint or summons which are founded on the same facts or form, or are part of, a series of offences of the same character. What, then, is encompassed by the phrase “the same information, complaint or summons”? Does it, as the learned judge ruled, comprehend an indictment? Section 4a of the Act provides that, under a law of the Commonwealth, “indictment” includes an information and presentment, but there is nothing to say that an information includes an indictment. I see no reason why it should, and the choice of language in subs. (3) of s. 4k, that is to say “information, complaint or summons”, seems to me to indicate that it does not.
43 And later at 607:
A person who is convicted of more than one indictable offence, not tried summarily, is entitled to know, when sentenced, what penalty is imposed in respect of each individual offence. The matter is somewhat analogous, for practical purposes, to the position in the civil sphere where a single verdict is taken for a plaintiff who sues upon two or more separate causes of action. The verdict is applicable to all causes of action and, if one be later found to be unsustainable, the verdict cannot stand at all: Cutts v Buckley (1933) 49 C.L.R. 189 at 198-9. By parity of reasoning it is, generally speaking, or may be, material also to the Court of Appeal considering an appeal against conviction or sentence to know what penalty was imposed in respect of each offence if there was a conviction for more than one. If there were an appeal against conviction alone, and, for example, the conviction on one of several counts were set aside and a new trial ordered, the whole of a single undivided sentence would necessarily fall: cf. Bartlett v R. (1990) 100 A.L.R. 177 at 185. It would presumably be necessary for the Court of Appeal to impose sentence anew in respect of those of the convictions which were not set aside, the total sentence having fallen, yet such a task might very well be frustrated by the pendency of the new trial because the Court of Appeal could not know what kind of a sentence might be imposed for a conviction upon a new trial. For reasons such as that — and there are no doubt others — the practice in this State has long been not to impose an undivided sentence where there has been a conviction on two or more counts joined in the one presentment or indictment. The position was, if I may say so, succinctly summed up by Brennan J. in Ryan v R. (1982) 149 C.L.R. 1 at 22-3. Moreover, at 25, his Honour said: “A global sentence is not usually passed in Victoria; indeed, it may be illegal.” His Honour was there referring to the passing of a single sentence in respect of two or more convictions upon the same indictment.
44 In Putland v R [2004] HCA 8; 218 CLR 174 Gleeson CJ at [9] referred to the decision in Bibaoui and stated that there was no reason to doubt its correctness. Gummow and Heydon JJ in a joint judgment noted that Bibaoui correctly held that s 4K(3) identified the procedures for the commencement of criminal proceedings in summary jurisdictions. They held that:
[50] ……..whilst s 4K of the Crimes Act made particular provision with respect to joinder in summary process (with qualifications drawn from the revised indictment procedures) and for aggregated sentencing, no such specific provision was made by federal law with respect to the trial on indictment of federal offences. In particular, the question of the existence of any power of aggregated sentencing upon charges tried on indictment was left to the operation of s 68(1) of the Judiciary Act…………….
45 Kirby J stated (footnotes omitted):
[86] I agree with the other reasons that the interpretation adopted by the Victorian Court of Appeal in R v Bibaoui is correct. By the reference in s 4K(3) of the Crimes Act to “the same information, complaint or summons” it must be accepted that the provision for the imposition of aggregate sentences on convicted federal offenders was confined to those convicted of summary offences. It did not extend to indictable offences such as those brought against the appellant.
46 I am unaware of any decision of this Court upon the meaning of s 4K(4) but it is clear, at least since the decision in Putland, that the provision does not authorise a single global sentence to be imposed for multiple indictable offences against the laws of the Commonwealth. His Honour, therefore, failed lawfully to sentence the applicant for the 11 fraud offences. Although this point did not arise at the hearing of the application, the Court sought written submissions on the issue from the parties after it had reserved its decision. Both parties agreed that s 4K had no application and accepted that this Court must resentence the applicant.
47 The proper manner to approach sentencing for the fraud offences was to apply Pearce v The Queen [1998] HCA 57; 194 CLR 610 as it has been consistently interpreted in this State: to sentence for each offence individually and then determine whether those sentences should be concurrent or cumulative in order to address the principle of totality. This does not mean that there cannot be a grouping of some of the offences as, for example, was done by this Court in R v Bahsa [2003] NSWCCA 36.
48 The first of the fraud offences occurred on 23 April 2002 and was for $3,847.81. The next four offences were committed on 19 July 2002 for sums totalling $5,883. The next offence was on 14 October 2002 for $4,852, then 8 January 2003 for $11,742.11, then 10 July 2003 for $19,755. The next three offences were committed on 9 October 2003 for sums totalling $68,507.
49 In effect the applicant was being sentenced for fraudulent activity involving about $312,524, including the attempt offence, from which activity he personally obtained about $103,512 according to what he said in his interview. In effect the conduct involved 27 acts of fraud against the ATO over a period from April 2002 to October 2003. The offences were planned and a breach of trust. For that criminal activity the applicant received an overall sentence of 5 years and 4 months with a non-parole period of 3 years. Of course this sentence was passed after a discount of 30 per cent and, as I have noted, a discount of that degree was unjustified.
50 On the subjective side the applicant started committing the offences when he was aged 19. He was not entitled to any significant consideration as a first offender having regard to the extent of the frauds and the later offences committed by him. At the time of sentencing he was completely rehabilitated. There was a considerable delay in the prosecution of the offences from their being discovered. The non-parole period is 56 per cent of the total sentence notwithstanding that the usual range is between 60 and 66 per cent and yet there was no purpose to be served by the applicant having a lengthy period of parole as supervision was not required.
51 The Court was taken to a number of decisions by way of a schedule that had been placed before the sentencing judge. In particular the applicant relied upon the decision in Ridley v R [2008] NSWCCA 324 where after trial a sentence of 8 years with a non-parole period of 5 years was imposed for GST frauds amounting to about $1.6m. This Court dismissed the appeal against sentence with Allsop P stating at [94]:
In my view, the overall sentence was well within the permissible range for a serious fraud on the revenue of this kind.
52 There is nothing in that decision that indicates that the sentence imposed upon the applicant was too harsh. It simply indicates that the sentence imposed upon that applicant in that case was not too harsh. There is no inconsistency with the sentence imposed upon the applicant being within a permissible range and that imposed in Ridley also being within the permissible range. Another decision to which the Court was taken was Bick v R [2006] NSWCCA 408, but that was a decision concerned with different criminality and where a maximum penalty of 5 years was taken to apply.
53 In Robertson v R [2007] NSWCCA 270 GST frauds resulted in the applicant receiving $322,934 and attempting to obtain just over $319,000. The applicant had pleaded guilty on the day of trial. The sentence imposed of 5 years 6 months with a non-parole period of 3 years 6 months was in effect upheld on appeal although the Court had to make a technical correction.
54 In Ly v R [2007] NSWCCA 28 the applicant was sentenced for 55 counts of taxation fraud. The applicant received $328,692.27 and, but for the intervention of the ATO, would have received a further $66,426.99. He pleaded guilty in the Local Court and had no prior or later criminal history. He was aged 33. The Court intervened to reduce the non-parole period so that the applicant was sentenced to 6 years with a non-parole period of 4 years.
55 In the present case this Court is resentencing the applicant in light of the failure of the Judge to sentence the fraud offences in accordance with the law. His discretion also miscarried in my view in relation to his determination of the sentence for the money laundering offence by giving too much regard, in the unusual circumstances of this case, to the maximum penalty and decisions of this Court that were, on the peculiar facts of this case, misleading. Had there been no such errors the appeal might have been refused on the basis that the sentence imposed was at the very top of the range, but within the Judge’s discretion.
56 But the Court is exercising its own discretion. I have given the matter anxious consideration. This was prolonged and planned criminality and, as has been noted, in breach of the trust that arises from self-reporting in taxation matters. It is an offence against the community at large because it deprives the government of revenue that it needs to act in the general interest of the community. It was committed for the purposes of gambling.
57 General deterrence is usually a highly significant matter in such cases. But here there has been unacceptable and unexplained delay that was in no way the fault of the applicant. During that period of delay the applicant has not only completely reformed but he has also matured from a misguided youth with a compulsion to gamble into a well-respected citizen with honest and steady employment on the threshold of marriage. In those unusual circumstances and especially having regard to the age of the applicant at the time of the offending, it seems to me that he is a less suitable candidate to be used as an example to deter others from engaging in such conduct.
58 I believe a lesser sentence is warranted than that imposed by the Judge. It should be a sentence at the lower end of the range. Both Robertson and Ly seem to be more serious cases than the present and did not have the unusual subjective circumstances of the applicant. I think that the overall head sentence should be 5 years 6 months less a discount of 25 per cent. This gives a sentence of about 4 years 2 months. There should be a non-parole period of 56 per cent of that term, being the percentage chosen by his Honour, and resulting in a period of 2 years 4 months that the applicant must serve before being released to parole.
59 I propose the following orders:
2. The sentences imposed in the District Court are quashed and in lieu the following sentences are imposed;
1. The application for leave to appeal is granted and the appeal is allowed.
(a) On the charge of attempt, imprisonment for 6 months to date from 27 March 2009.
(b) On the first charge of obtaining, imprisonment for 6 months to date from 27 July 2009.
(c) On the 2 nd to 5 th charges of obtaining, imprisonment for 9 months to date from 27 January 2010.
(d) On the 6 th to 8 th charges of obtaining, imprisonment for 14 months to date from 27 March 2010.
(e) On the 9 th to 11 th charges of obtaining, imprisonment for 18 months to date from 27 July 2010.
There is to be an overall non-parole period of 2 years 4 months from 27 March 2009 to expire on 26 July 2011.(f) On the charge of money laundering, imprisonment for 2 years 8 months to date from 27 September 2010.
: I have had the advantage of reading in draft the reasons for judgment of Howie J and the orders he proposes. I agree with those reasons and orders proposed by his Honour.
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