Wu v The Queen

[2016] NSWCCA 96

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wu v R [2016] NSWCCA 96
Hearing dates:	14 April 2016
Decision date:	27 May 2016
Before:	Ward JA at [1]; Price J at [83]; Adamson J at [84]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal.
Catchwords:	CRIMINAL LAW – sentence appeal – market manipulation and dishonesty offences – where offender assisted authorities in investigation of co-offenders – whether sentencing judge erred in determination of discount for assistance – whether error in comparative severity of sentences for offences – whether extent of accumulation reflected failure to apply principle of totality – leave to appeal granted and appeal dismissed
Legislation Cited:	Corporations Act 2001 (Cth), ss 1041A, 1311(1), 184(2)(a) Crimes Act 1914 (Cth), ss 16A(2)(g), 19AC, 20(1)(b) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Code Act 1995 (Cth), s11.5
Cases Cited:	AB v R [2013] NSWCCA 333 C v R [2013] NSWCCA 81; (2013) 229 A Crim R 233 Chan, Lo & Nguyen v R [2010] NSWCCA 153 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hutchinson v R [2014] NSWCCA 317 Isaac v R [2012] NSWCCA 195 Ma v R [2010] NSWCCA 320 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Cartwright (1989) 17 NSWLR 243 R v Charman [2007] NSWSC 1177 R v Dulhunty; R v PR [2015] NSWSC 1747 R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v El Hani [2004] NSWCCA 162 R v Gallagher (1991) 23 NSWLR 220 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Wheeler [2000] NSWCCA 34 R v Wu [2015] NSWSC 1877 SL v R [2015] NSWCCA 30 Z v R [2014] NSWCCA 323
Category:	Principal judgment
Parties:	Ge Wu (Applicant) Regina (Respondent)
Representation:	Counsel: T Game SC with S Buchen (Applicant) L Crowley (Respondent)   Solicitors: Watsons Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2014/00235651
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 1877 Date of Decision: 18 December 2015 Before: Bellew J File Number(s): 2014/00235651; 2014/00147710

Judgment

1. WARD JA: The applicant, Mr Wu, pleaded guilty on 19 May 2015 in the Local Court to two counts of conspiracy to engage in market manipulation contrary to ss 1041A and 1311(1) of the Corporations Act 2001 (Cth) and s 11.5 of the Criminal Code Act 1995 (Cth) (together, “the market manipulation offences”) and one count of dishonestly using his position as a director, contrary to ss 184(2)(a) and 1311(1) of the Corporations Act (“the dishonesty offence”). He was committed for sentence to the Supreme Court with his co-conspirators (Mr Dulhunty and “PR”) both of whom had also pleaded guilty to charges relating to the market manipulation offences.

2. Following a sentencing hearing on 9 December 2015, Mr Wu was sentenced on 18 December 2015 (R v Wu [2015] NSWSC 1877) to an overall term of imprisonment of 2 years and 9 months, commencing on 18 December 2015, with an effective minimum term of 9 months. His co-conspirators had earlier been sentenced on the market manipulation offences committed by them (R v Dulhunty; R v PR [2015] NSWSC 1747) by the same sentencing judge to an overall term of imprisonment of 1 year and 6 months (in the case of Mr Dulhunty) and consecutive terms of 11 months and 7 months (in the case of PR) but with an effective minimum term in each case of 6 months.

3. Mr Wu seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentences imposed on him. In substance, he contends that the sentencing judge erred: in the determination of the discount to be applied for his assistance to the authorities (ground 1); in imposing a longer sentence for the dishonesty offence than the market manipulation offences (ground 2); and by substantially accumulating the sentence for the dishonesty offence upon the sentences for the market manipulation offences (ground 3).

Background

4. Mr Wu was aged between 27 and 32 at the time of the offending, which occurred between 1 May 2007 and 17 November 2011. He was raised in China. He undertook tertiary education in Malaysia and New Zealand before moving to Australia in 2002. He obtained a Bachelor of Commerce and a Master of Commerce from the University of Western Sydney and became an Australian citizen on 21 May 2007.

5. In 2004, Mr Wu became involved in a business operated by his mother manufacturing health products in Australia for export to China. A decision was made to expand the business. For those purposes, Mr Wu engaged a consultant, Mr Dulhunty, who recommended that the business become a public listed company on the Australian Securities Exchange. Mr Wu followed that advice. Healthzone Pty Ltd (Healthzone) was publicly listed on 6 November 2006. Mr Wu and Mr Dulhunty were appointed the directors of Healthzone.

6. After the public listing, Mr Dulhunty introduced Mr Wu to another man (“PR”) as being another consultant who could assist the business. PR was ultimately appointed as the executive chairman, managing director and chief executive officer of Healthzone.

7. The market manipulation offences (counts 1 and 2) concerned a conspiracy between Mr Wu, Mr Dulhunty and PR to manipulate the price of Healthzone shares between 1 May 2007 and 17 November 2011. In furtherance of the conspiracy there was a total of 637 trades, involving the purchase of 3,899,078 shares and an overall investment of $1,390,597. Although counts 1 and 2 related to a single continuing conspiracy, they were the subject of separate charges because there was an increase during the conspiracy period of the maximum penalty for the offence (from imprisonment for 5 years and/or 2,000 penalty units to imprisonment for 10 years and/or 4,500 penalty units).

8. Mr Wu had assisted the authorities relating to the investigation of PR on a charge of conspiracy to defraud arising out of the same circumstances that formed the basis of Mr Wu’s dishonesty offence, and has undertaken to give evidence at his forthcoming trial.

9. Following the application of a combined discount of 35% for his guilty plea and assistance to the authorities, Mr Wu was sentenced on count 1 to imprisonment for 7 months commencing on 18 December 2015 and expiring on 17 July 2016 and on count 2 to imprisonment for 9 months commencing on 18 July 2016 and expiring on 17 April 2017. The total sentence imposed for the market manipulation offences was thus a term of imprisonment for 1 year and 4 months.

10. Count 3 concerned Mr Wu’s dishonest use of his position as a director of Healthzone to gain an advantage for PR. He did so by assisting PR to obtain the benefit of a $1,000,000 loan from the Commonwealth Bank of Australia to Healthzone in circumstances where he knew that PR would use the loan contrary to its stated purpose. He accepts that, in so doing, he misled Healthzone’s lawyers, its board of directors and the Bank. Healthzone was placed in external administration and was subsequently liquidated. The loan funds were not recovered.

11. The maximum penalty for the dishonesty offence was imprisonment for 5 years and/or 2,000 penalty units. For this offence Mr Wu was sentenced, following an application of the combined discount of 35%, to imprisonment for 1 year 8 months commencing on 18 January 2017 and expiring on 17 September 2018.

12. The sentencing judge ordered that Mr Wu be released upon recognisance after serving 9 months in prison and be subject to a good behaviour bond for a period of 2 years (ss 19AC and 20(1)(b) of the Crimes Act 1914 (Cth)).

13. In the earlier sentencing of Mr Wu’s two co-offenders in respect of the market manipulation offences, the sentencing judge had noted that the sentences reflected a discount “at the uppermost level” for their guilty pleas (see R v Dulhunty; R v PR at [103]). Neither of Mr Wu’s co-offenders, unlike Mr Wu, was entitled to a further reduction of sentence by reason of any assistance to the authorities.

14. PR is due to be tried for those offences this year (T 58.42ff). For this reason, publication of the judgment from which Mr Wu now seeks leave to appeal has been suppressed and orders were made at the commencement of these proceedings similarly suppressing publication of these reasons and any identification of PR’s full name until further order.

Sentence judgment

15. At the sentencing hearing, the Crown tendered lengthy statements of facts, the content of which was largely agreed by the conclusion of the sentencing hearing. The sentencing judge set out those facts at [6]-[7] of his reasons.

16. Mr Wu gave evidence at the sentencing hearing and, although his Honour was not able to accept aspects of his evidence in their entirety, he formed the view that Mr Wu was doing his best to be truthful ([52]).

17. Tendered at the sentencing hearing was a statement given by a senior manager employed by the Australian Securities and Investments Commission (ASIC) detailing the assistance rendered by Mr Wu in relation to the fraud proceedings brought against PR and an undertaking given by Mr Wu to give evidence for the Crown at PR’s trial, attached to which was a comprehensive statement by Mr Wu to ASIC, largely dealing with the dishonesty offence but also his relationship with his co-offenders. These were admitted at the sentencing hearing as confidential exhibits. Those exhibits were before the Court on the hearing of the present proceedings. The sentencing judge was satisfied that Mr Wu’s assistance (up to the point of the committal of PR for trial) had been important and substantial and that it would continue to be so ([100]). There is no dispute as to that.

18. The sentencing judge assessed the offending in counts 1 and 2 (the market manipulation offences) as being of “considerable seriousness” ([62]). In so concluding, his Honour had regard to: Mr Wu’s motivation (which he found had included a perceived obligation to his mother to protect her “legacy” but also a desire to protect his significant shareholding in the company, though not the prospect of or desire for immediate financial gain) ([54]-[55]); Mr Wu’s knowledge that what he was doing was illegal, though noting that Mr Wu had little or no experience in matters of share trading and the like ([56]); Mr Wu’s expressed fear of the consequences which might follow if PR were to leave Healthzone (a factor of marginal relevance in his Honour’s eyes) ([57]); and Mr Wu’s concerns about the conduct of a perceived “hostile investor” in the company (though his Honour noted it was not appropriate to respond to that behaviour by engaging in serious criminal offending) ([58]).

19. The sentencing judge did not accept that Mr Wu should be regarded as an instigator of the conspiracy, in the sense of being the architect of it or having devised it; though he accepted that Mr Wu was clearly a participant in the conspiracy from an early stage ([59]). His Honour considered that there was little to differentiate between the level of participation of, or roles played by, each of the three offenders in the conspiracy, noting that the principal point of distinction was that Mr Wu’s participation extended over a period of more than four years, whereas that of his co-offenders was over three years ([59], [111]).

20. His Honour also noted that the offending: extended over a considerable period; involved multiple trades worth substantial sums of money; was carried out in a way which was both calculated and planned; but was not particularly sophisticated in that it did not involve the use of false names or other forms of subterfuge ([60]). His Honour also noted that the offending had the capacity to threaten the integrity of, and public confidence in, the stock market and to cause damage to members of the community who had invested their savings into that market; the price of the shares having been manipulated and distorted ([61]).

21. As to the dishonesty offence, count 3, the sentencing judge said (at [63]):

The offending in count 3, although of a different kind, was equally serious. It was not confined to a single act. Over a significant period of time, the offender engaged in continued deception, practiced upon a number of persons and organisations, in the full knowledge that what he was doing [was] wrong, and in circumstances where the end result was an advance of a substantial sum of money to PR, and a corresponding loss to Healthzone. In acting as he did, the offender engaged in a serious misuse of his position as a director of Healthzone. Moreover, in circumstances where he had some knowledge of PR’s financial difficulties, the offender must have been aware, at the very least, that PR would have difficulty repaying the loan according to its terms. (my emphasis)

22. His Honour considered that the offending in count 3 was mitigated to some degree by the fact that Mr Wu derived no benefit at all from the offending. His Honour also accepted that Mr Wu was placed under some pressure by PR, in the sense described in the context of the offending in counts 1 and 2; but again expressed the view that it was not an appropriate response to deal with those concerns by engaging in serious criminal offending ([64]).

23. As to the subjective case, the sentencing judge listed, by reference to s 16A of the Crimes Act, (at [65]) various factors to be taken into account, those being the degree of contrition, the guilty plea, the degree of assistance, the personal characteristics of the offender, the prospects of rehabilitation and the probable effect that any sentence or order would have on the offender’s family or dependants.

24. His Honour noted (at [81]) that the Crown had raised no issue in respect of a number of aspects of Mr Wu’s subjective case. The Crown accepted that: Mr Wu had entered a plea in the Local Court and was entitled to a discount at the uppermost level ([82]); Mr Wu had expressed remorse for his offending ([83]), his Honour there making the express finding that Mr Wu was genuinely remorseful; Mr Wu would suffer significant extra-curial punishment as a consequence of being disqualified on conviction from holding any position as a company director for five years ([84]); Mr Wu’s prospects of rehabilitation were generally positive ([85]); and Mr Wu was a person of no prior convictions and generally of good character ([86]).

25. In relation to the last factor, his Honour was nevertheless of the view that, even allowing for Mr Wu’s mental state (he having been diagnosed with an adjustment disorder as well as depression), general deterrence remained an important factor and said that the fact that the offending in respect of all counts had occurred over an extended period lessened the weight to be given to prior good character ([86]).

26. Having earlier considered the evidence as to Mr Wu’s state of health, the sentencing judge concluded that: notwithstanding Mr Wu’s mental state, general deterrence remained important and must be given significant weight in the sentencing process in respect of all counts, the offending in each case being sustained and planned; personal deterrence had no real role to play, having regard to the expression of remorse; and Mr Wu’s mental state and a diagnosed condition of Meniere’s disease might render a custodial sentence more onerous ([95]).

27. His Honour also accepted that the imposition of a custodial sentence would have an adverse impact upon Mr Wu’s widowed mother, who was not in good health and living in China with no one immediately available to look after her ([96]-[98]), though his Honour concluded that the effect of a custodial sentence on the mother would not be exceptional and considered that this circumstance was not one which attracted substantial weight ([98]).

28. His Honour concluded that Mr Wu’s subjective considerations were stronger “in some respects” than those of his co-offenders, particularly insofar as his health issues were concerned ([111]).

29. As to the determination of the discount to be applied, his Honour said (at [106]):

There is no fixed tariff in respect of a discount for an offender’s co-operation. However, the customary range for a combined discount which encompasses a plea of guilty and assistance has been expressed as being 20% to 50%: see for example SZ v R [2007] NSWCCA 19 at [43]-[44] per Buddin J (Howie J and Simpson J (as her Honour then was) agreeing. However in R v Sukkar [2006] NSWCCA 92 Howie J (with whom McClellan CJ at CL agreed) observed (at [5]) that because of the general recognition that it was no longer inevitable that an offender who has provided assistance will serve any custodial sentence in more difficult conditions, sentencing courts should reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. His Honour went on to observe that it should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged within the prison system and, if the offender wishes to assert otherwise, he must lead evidence of that fact. In his Honour's view, this meant that absent such evidence, a discount in excess of 40% should be very exceptionally applied, if at all. That general approach has since been endorsed by the Court of Criminal Appeal: AB v R [2013] NSWCCA 333 at [36]-[38] per Schmidt J (Leeming JA and Hall J agreeing).

30. His Honour noted that there was no evidence that a custodial sentence would be likely to be more onerous as a result of Mr Wu’s assistance to the authorities and that his Counsel had expressly indicated that “there was no major issue in terms of the offender’s security” ([107]). His Honour concluded that:

In these circumstances, the upper end of the range of combined discount for the plea and assistance is one of 40%. In my view, the combined discount in the present case should be one of 35%, 5% of which shall be referable to the offender’s future assistance. In my view, this discount should be applied to all of the offences before the court.

31. His Honour concluded that no other sentence than a sentence of imprisonment was appropriate having regard to his conclusion that the offending in all three counts was of considerable seriousness and that general deterrence was important. His Honour considered that the starting point for the sentences to be imposed on Mr Wu in respect of counts 1 and 2, before the application of any discount, should be the same as the starting point applied in the cases of his co-offenders (namely 7½ months imprisonment for count 1 and 9½ months imprisonment for count 2); and that, since the offending in count 3 was quite separate from counts 1 and 2 (though also arising from his position in Healthzone), there must be some accumulation. All but three months of the sentence for count 3 was accumulated.

Application for leave to appeal

32. As noted earlier, there are three proposed grounds of appeal if leave to appeal is granted. I will consider each in turn.

Ground 1 – discount for assistance

1.   The learned sentencing judge erred in determining the discount to be applied for the applicant’s assistance to the authorities. In particular:

(a)   The discount was inadequate;

(b)   The learned sentencing judge failed to have due regard to the adequacy of the discount in terms of the actual reduction in the length of the sentence;

(c)   The learned sentencing judge erred in holding that the “upper end of the range of combined discount” for plea and assistance was 40%; and

(d)   The applicant was denied procedural fairness.

33. There was no dispute at the sentencing hearing that the assistance given by Mr Wu had been significant. The Crown accepted that, so far as it could tell, it was genuine. The Crown prosecutor submitted that it was very important from the regulator’s point of view that “people who do what this man had done, get the benefit of it, and publicly so that it can help in relation to not just this matter”.

33. Mr Wu notes that the Crown’s position at the sentencing hearing in relation to the appropriate discount was that it would be greater than that given to the co-offenders and at the higher end of the scale. The oral submissions made for Mr Wu at that time were to the effect that there were no artificial limits on the discount; that the Act “forces you out of percentages and into months and years”; and it was suggested that the appropriate discount in the present case would be between 40-50%. In exchanges with the sentencing judge, Mr Game SC, appearing for Mr Wu, accepted the proposition that 50% was generally speaking a “high water mark” for this kind of case:

HIS HONOUR:   … the authorities generally say, do they not, that 50 per cent is a high water mark?

GAME:   In a situation like this it would be, yes. Otherwise you have to be in the situation of extreme danger and multiple, ongoing assistance to the authorities in ongoing investigations. There is none of that.

HIS HONOUR:   Does it get as high as that in this case?

GAME:   Maybe not, but not far off.

35. Having regard to the broad principles identified in R v Cartwright (1989) 17 NSWLR 243 (at 252Dff per Hunt and Badgery-Parker JJ) applicable to the discount to be given for assistance provided to the authorities and to the rationale for reducing a sentence by reason of assistance to the authorities summarised in Isaac v R [2012] NSWCCA 195 (at [46]), it is submitted for Mr Wu that his assistance called for a substantial discount, and that he did not receive that.

36. It is noted that the sentencing judge found that the important and substantial value of Mr Wu’s assistance went both to past and future assistance. Mr Wu points out that his assistance not only included the provision of his very lengthy statement to ASIC but also (referring to the evidence given by him at T 30.42-48) that he had voluntarily assisted liquidators by answering questions about the affairs of the company. His Honour accepted that Mr Wu’s disclosures were not tailored in any sense ([104]). Emphasis is placed on the fact that Mr Wu signed an undertaking to give evidence as a Crown witness in the trial of PR and it was accepted at the sentencing hearing that he would be an important and valuable witness because he was in a position to give direct evidence about the conspiracy. Mr Wu also points to the finding that his decision to co-operate was motivated by genuine contrition ([103]).

37. The complaint that Mr Wu did not receive a “substantial” discount is made by reference to the fact that the combined discount of 35% included a discount (that his Honour had said should be at the “uppermost level”) for his early guilty plea.

38. In that regard, Mr Wu submits that a discount at the “uppermost” level for his guilty plea would indicate a discount in the order of 25%, and that it can be inferred that this was the case by reference to the sentences imposed for his co-offenders (who were entitled to and received no discount for any assistance to the authorities). Having regard to the indication by the sentencing judge that the starting point for the market manipulation offences should be the same as that applied for his co-offenders, Mr Wu submits that it can be discerned the co-offenders received a 25% discount for their guilty pleas. He argues that since his Honour said that all three offenders should receive discounts at the uppermost level, it must be concluded that the discount allowed to Mr Wu for both past and future assistance to authorities was in the order of 10% (of which his Honour expressly attributed 5% to the anticipated future assistance, hence the discount for past assistance was similarly 5%).

39. It is submitted that such a discount does not meet the public interest or policy of the law in encouraging offenders to come forward and assist the authorities in investigating and prosecuting other offenders. In particular, Mr Wu argues that the discrete component of the discount given for his future assistance (of 5%) is inadequate having regard to the likelihood that he will be giving “protracted and valuable evidence in a complex fraud conspiracy trial”.

40. It is submitted that the public interest served by the discount for assistance to authorities is pronounced in the case of white-collar crimes that are relatively easy to commit and difficult to detect and prosecute; and which often involve illegal combinations or joint criminal conduct (such as conspiracy offences).

41. In oral submissions, emphasis was placed on the further argument (ground 1(b)) that it was not sufficient for the sentencing judge to focus on the quantum of the percentage discount to be applied. It is submitted that his Honour was obliged, in determining the adequacy and appropriateness of the discount, to consider the actual effect (in terms of the actual reduction in months) of the discount on Mr Wu’s sentence.

42. It is submitted that a percentage reduction results in a lesser benefit to an offender who is to receive a shorter sentence. Reference is made to what was said by Basten JA in SL v R [2015] NSWCCA 30 at [13]:

There is another sense in which disproportion may not be properly reflected in the actual “proportion” by which a sentence is reduced. The reduction could be measured by reference to years, rather than a percentage. In terms of length of imprisonment, a percentage reduction will give a greater benefit, the more serious the offender’s criminality. On the other hand, the person who plays the lesser role in the offending and may face a relatively shorter sentence than the co-offenders against whom the assistance is provided, may nevertheless be at equal or greater risk as a result of providing assistance to the authorities than an offender who committed more serious offences. Thus a 25% reduction of a four year sentence is one year; the same proportionate reduction of a 12 year sentence is three years. The mechanical exercise (applying a percentage reduction), may, in some cases, fail fully to serve the purpose of the reduction for assistance to authorities. (The percentage reduction is appropriate in the case of a guilty plea.)

43. Mr Wu argues that the “mechanical” application of a percentage reduction in the present case failed fully to serve the purpose of the reduction for his assistance to authorities. Insofar as there is no indication in the sentence judgment that consideration was given to the adequacy or otherwise of the discount for assistance in light of the actual reduction in time of the sentence, Mr Wu argues that there was error in the sentencing exercise in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499).

44. It is also submitted (ground 1(c)) that the sentencing judge erred in applying the reasoning of Howie J in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 (at [5]), in effect that, absent evidence that an offender who has provided assistance will be disadvantaged within the prison system, “a discount in excess of 40% should be very exceptionally applied, if at all”.

45. Reference is made to the comments made in this regard by Basten JA in R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63 at [14]-[15] and to the caution expressed in that case by RS Hulme J at [145]. At [15], Basten JA said:

… The remarks in Sukkar appear to require the courts to assume there will be no deprivation, in the absence of evidence to the contrary. However, in relation to future administrative actions of the custodial authorities, it is difficult to know what information an offender could usefully give, confident that it would apply after the sentencing. Arguably, the obligation of the Director to lend every assistance should apply in this, as in other respects, in relation to the consequences of the assistance: cf R v Cartwright (1989) 17 NSWLR 243 at 254B (Hunt and Badgery-Parker JJ). ...

(Reference is also made to what was said in C v R [2013] NSWCCA 81; (2013) 229 A Crim R 233 at [40] and R v Charman [2007] NSWSC 1177 at [20]-[21]).

46. It is submitted that, although the sentencing judge correctly acknowledged that there is no “fixed tariff” in respect of a discount for an offender’s co-operation, his Honour applied the observations in Sukkar in a way that “artificially” and erroneously constrained the discretion to be exercised and erroneously treated the percentile figure of 40% as being the upper end of the range of combined discount for the plea and assistance. It is argued that this had a manifest effect in terms of capping, and hence diminishing, the discount ultimately applied to Mr Wu’s sentence and that his Honour acted upon a wrong principle by constraining the exercise of his discretion in this way (giving rise to the basis for appellate intervention: R v Gallagher (1991) 23 NSWLR 220 at 230C; R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 at [6]-[7]; Z v R [2014] NSWCCA 323 at [32]-[33]).

47. It is further submitted that his Honour’s reliance upon the absence of evidence of a more onerous impact of custody due to Mr Wu’s assistance to authorities was misplaced because it failed to account for the fact that he was on bail at the time of sentence; and that his Honour erroneously relied upon the “express” indication from counsel that there was no major issue in terms of the offender’s security. As to the latter, the relevant exchange appears at T 2.38, in the context of a discussion as to whether there was a need for Mr Wu’s name to be anonymised in the sentence judgment. Mr Wu notes that Mr Game SC then went on to say, at T 3.22, when applying for Mr Wu’s evidence to be given in camera:

I say we don't have particular security concerns but we would have if you sentence Mr Wu to imprisonment, then there can't be a judgment on the Internet.

and that, immediately after the sentence of actual imprisonment, a recommendation to correctional authorities was sought from, and granted by, his Honour concerning Mr Wu’s safety in custody.

48. Finally, it is submitted that there was procedural unfairness in that the exchanges between the sentencing judge and counsel during the course of the proceedings were apt to leave Mr Wu with an understanding that his Honour intended to apply a discount that would be “significant” and would “be one that approaches the high water mark” of 50%. Mr Wu argues that there was no suggestion in the proceedings that a discount below 40% was in contemplation and hence Mr Wu was denied the opportunity to put submissions in respect of the “inadequate discount” ultimately applied to his sentence.

Crown response

49. As to the complaint that the discount for assistance was inadequate, the Crown accepts (as it did at the sentence hearing) that Mr Wu deserved a substantial sentence discount to reflect the nature and extent of the assistance he had provided and had promised to provide to law enforcement agencies. However, it is submitted that the discount Mr Wu did receive was substantial and that a combined discount of 35% was appropriate and in accordance with the general range of sentence discount identified by the authorities; and that, whether expressed as a percentage figure or calculated as a period of time, it does not demonstrate error in the exercise of his Honour’s discretion.

50. The Crown submits that Mr Wu’s complaint in this regard is essentially as to the weight to be given to a mitigating factor and notes that the circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined (referring to what was said in Chan, Lo & Nguyen v R [2010] NSWCCA 153 per Kirby J at [65], with whom Beazley JA, as her Honour then was, and Johnson J agreed; in R v El Hani [2004] NSWCCA 162 per Howie J at [91]; and in Hutchinson v R [2014] NSWCCA 317 per Fullerton J at [32], with whom Hoeben CJ at CL and Adamson J agreed.

51. In oral submissions, the Crown conceded that one might infer, from the sentence imposed on PR and having regard to the comments that his Honour made in sentencing Mr Wu, that the discount given for past assistance in Mr Wu’s case was 5%, though the Crown makes the point that the sentencing judge did not specify that the discount for the guilty plea was 25% in Mr Wu’s case. The Crown argues that even if the relevant discount was 5% for past assistance and 5% for future assistance, this does not demonstrate that there was an error in the exercise of his Honour’s discretion, noting that the co-offenders’ guilty pleas meant that there was remorse, contrition and willingness to accept responsibility for their offending as Mr Wu did. The Crown’s submission in any event was that, had his Honour given a greater discount for the combined assistance and plea, it nevertheless could not have led to a situation where no custodial sentence was imposed at all because that would fail to reflect the principle of general deterrence.

52. The Crown points to the need for the discounted sentence not to be disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender; and argues that it is both artificial and wrong in principle for Mr Wu to seek to demonstrate error by dissecting the combined discount into percentages that were purportedly allowed for the guilty pleas and for assistance. The Crown refers to what was said by Gleeson CJ in R v Gallagher at 227-228 to the effect that matters such as a plea of guilty, expression of contrition and willingness to co-operate with authorities form a complex of interrelated considerations. The Crown submits that the attempt to demonstrate error by isolating the nominated 5% discount for future assistance and then considering the adequacy of that component of the sentence alone is also wrong in principle.

53. The Crown submits that there is no basis for this Court to draw the inference that the sentencing judge failed to have regard to the actual effect of the discount on Mr Wu’s sentence, in terms of the actual period of reduction in time to be served, simply because this matter is not referred to expressly in his Honour’s sentence judgment and argues that this amounts to no more than speculation on Mr Wu’s part. In any event, it argues that a comparison between the undiscounted sentences and the actual sentences shows that there was a substantive and meaningful reduction in Mr Wu’s head sentences from 4 years 2¾ months in total (to be released after 1 year and 1¾ months) to imprisonment for 2 years 9 months to be released after serving a period of 9 months. It also submits that the fact that the minimum time to be served (9 months) represented only 27% of the aggregate head sentence (of 2 years 9 months) indicates that his Honour was mindful of the actual period of incarceration that Mr Wu would be required to serve. It is submitted that, while there is no fixed percentage or statutory ratio which applies to the fixing of a minimum term for a federal offender under the Crimes Act, in the present case the ratio between the time to be served and the head sentence reflects the fact that a significant degree of leniency has been extended to Mr Wu. Hence it submits that, even if there were an error as contended for by ground 1, on re-sentencing, the overall sentence would not be lesser than the one imposed due to the need to have regard to the principle of general deterrence.

54. As to the remaining complaints by Mr Wu, the Crown notes, first, that the fact that he was on bail at the time of sentencing did not prevent him from putting forward evidence (or submissions) as to the possibility of additional hardship in this case; or of his intention to apply for protection within the prison system, and second, that Mr Wu was not denied the opportunity of making submissions as to the appropriate level of combined discount for plea and assistance. Rather, the question of the possible range for the discount was squarely raised by the parties before his Honour, both in written submissions and in the sentencing hearing. The Crown points out that in its written submissions in reply, dated 8 December 2015, specific reference was made to R v Sukkar and the relevant principles at [44]-[47]. Reference is also made to the exchanges between his Honour and counsel at T 93:43 -T 94:67. It is submitted that Mr Wu cannot now complain of procedural unfairness in circumstances where the Crown clearly submitted that the top of the customary range in a case such as this was 40% not 50%; he did not clearly dispute that range or the correctness of Sukkar; there was no evidence of additional hardship; and it was conceded that the assistance was not “in the astronomical range”. It is submitted that his Honour’s indication that the assistance would approach the high water mark did not preclude a discount that fell below 40%, having regard to all the circumstances of the case.

Determination

55. In relation to the sentencing for a federal offence, although a guilty plea must specifically be taken into account (pursuant to s 16A(2)(g) of the Crimes Act), there is no requirement for a discrete identifiable percentage discount to be nominated for the reduction of a sentence on account of an offender's guilty plea; nor is there a requirement to identify the level of discount for assistance by a discrete percentage (apart from the need to comply with the statutory requirement within s 16AC(2) of the Crimes Act). In Ma v R [2010] NSWCCA 320, for example, where there was a combined discount at first instance of 35% for the plea and for assistance, of which 6% was for future assistance, Schmidt J observed that the percentage discount for the guilty plea could not be assumed to be 25%.

56. In the present case, however, as an arithmetical exercise it can be inferred that the combined discount for past and future assistance must have been in the order of 10%. Reasonable minds may differ as to the amount to be applied for the level of assistance Mr Wu rendered in the past to the authorities (and will render in the future). However, I see no error in the House v The King sense in the assessment by his Honour that a 35% combined discount was appropriate to reflect both the guilty plea and the assistance to authorities.

57. As to the application of a percentage discount rather than a discount specified or calculated by reference to a particular number of months, there was similarly no error of principle relating to the exercise of the sentencing judge’s discretion. His Honour applied the combined percentage discount in a manner consistent not only with authority but also with the way in which the parties had submitted that his Honour should approach the issue of sentence discounts.

58. The fact that a percentage reduction will result in a lesser benefit (in terms of actual months) to an offender who is to receive a shorter sentence is an obvious consequence of the fact that there is a lesser head sentence to which the percentage is applied. A 35% reduction to a 25 year sentence, for example, will obviously produce a reduction of some years whereas a 35% reduction of a 1½ year sentence can arithmetically only result in a reduction of months. However, I consider it unfair to the sentencing judge to suggest that the percentage discount was applied as a “mechanical exercise” without an assessment of the practical effect of that discount. I do not accept that the primary judge’s reasons reflect a “mechanical” or artificial approach to the discounts to be allowed.

59. The determination of the ratio between head sentence and minimum sentence of itself must have involved the sentencing judge taking into account the minimum amount of time he considered it appropriate that Mr Wu should remain in custody. The operation of the combined discount on the head sentence did not produce such a disproportionate result, in my opinion, that it would bespeak an error of the House v The King kind.

60. Nor am I persuaded that a combined discount of 35% (including a 5% discount for future assistance and an amount in the order of 5% for past assistance) does not serve the public interest in encouraging offenders to assist authorities in relation to this sort of crime.

55. As to the complaint that his Honour applied the reasoning in Sukkar in some artificial way, again I consider that criticism to be unwarranted. His Honour took into account the customary range for a combined discount; the observations made by Howie J in Sukkar to the effect that a discount in excess of 40% should only very exceptionally be applied (in the absence of evidence as to the position of disadvantage within the prison system by reason of having provided assistance); and to the endorsement of that “general approach” by this Court in AB v R [2013] NSWCCA 333 at [36]-[38]. It is clear that the sentencing judge was speaking in terms of a general approach, not some artificial or rigid cap. Applying that general approach to the circumstances of the case before him, the sentencing judge considered the “upper end” of the range of combined discount to be 40%. I do not read the reasons for sentence as indicating that his Honour treated his discretion as constrained in this regard.

56. As to the complaint that Mr Wu was on bail at the time and could not provide evidence of disadvantage, not only was it open to him to have made submissions as to any perceived disadvantage arising from his giving of assistance to the authorities, but also the submissions made by his Counsel proceeded on the basis that this was not an exceptional situation (see the passage extracted at [34] above).

57. Finally, there is no basis for the submission as to a failure to accord procedural fairness. His Honour discussed with Counsel what would be regarded as the customary range for a combined discount where (as here) no major issue as to Mr Wu’s security in prison had been raised in that context. All that could reasonably have been drawn from those exchanges was that his Honour was contemplating a combined discount towards the upper end, but not at the top, of the customary range. His Honour did not suggest that the combined discount could not be less than 40%; nor could it reasonably be inferred from the discussion that any decision to that effect had been made. If the top end of the range for this kind of case was (as Counsel for Mr Wu himself seems to have suggested to his Honour) somewhere between 40-50%, then all that can be said is that a combined discount of 35% was towards the top end of that lower range marker. That conclusion does not evince a lack of procedural fairness. There is nothing to suggest that Mr Wu did not have the opportunity to make as comprehensive submissions to the sentencing judge as he wished in respect of the combined discount; nor to suggest that his Honour did not properly take into account the submissions that were made on Mr Wu’s behalf.

58. The primary judge took into account the relevant sentencing considerations and applied a combined discount that was within the customary range. Ground 1 is not made out.

Ground 2

65. The second ground of appeal relates to the comparative severity as between the respective market manipulation offences and the dishonesty offence. It is contended that:

2.   The learned sentencing judge erred by imposing a more severe sentence for the dishonesty offence than the total sentence imposed for the market manipulation offence.

66. This turns principally on a semantic issue, namely what was meant by his Honour when he said (at [63]) that the offending in count 3 “although of a different kind, was equally serious” (my emphasis), given that his Honour then said (at [64]) the offending in respect of the dishonesty offence was mitigated “to some degree” by the fact that Mr Wu himself had derived no benefit at all therefrom.

67. Mr Wu submits that, on his Honour’s reasoning, a lesser sentence (or at least a sentence of no greater severity) should have been imposed for the dishonesty offence. Mr Wu (somewhat ironically given the complaint about mechanical application of percentile figures) thus argues that he has received a sentence 25% longer than the total sentence imposed for two counts of market manipulation. Mr Wu argues that the internal inconsistency in the sentencing outcome is reflective of error and that his Honour erred by imposing an unduly severe sentence for the dishonesty offence.

68. The Crown submits that his Honour did not find (at [63]) that the dishonesty offending and the market manipulation offending were of precisely the same seriousness (and says that such a finding would have been highly unusual given the different objective circumstances involved). It submits that, in context, his Honour was stating no more than that the dishonesty offence was also an offence of considerable seriousness and hence there was no internal inconsistency in his Honour’s approach in setting a marginally longer sentence for the dishonest use of position offending.

Determination

69. I do not read his Honour’s reasons as demonstrating any internal inconsistency in this regard. The dishonesty offence involved, as his Honour’s reasons take into account, separate and discrete criminality of a different kind to that involved in the market manipulation offences. It involved misuse of a trusted position and the aggravating features noted by the sentencing judge at [63]. As I read what his Honour said, it was simply that, as was the case with the market manipulation offences, the dishonesty offence was of considerable seriousness, not that there was some precise equivalence in the assessment of objective seriousness of each.

70. The ultimate sentence for the dishonesty offence was in my opinion far from being unduly severe in all the circumstances to which the sentencing judge referred.

71. Ground 2 is not made out.

Ground 3 – accumulation

72. The final ground of appeal relates to the accumulation of the respective sentences:

3.   The learned sentencing judge erred by substantially accumulating the sentence for the dishonesty offence upon the sentences for the market manipulation offence.

73. For Mr Wu, it is accepted that there was no issue in the sentence proceedings that there should be some degree of accumulation between the sentences for the market manipulation and dishonesty offences (referring to the transcript at T 59.41-59.46, 62.24-62.30) but he complains that the sentence for the dishonesty offence was almost entirely accumulated (all but 3 months) upon the sentences for the market manipulation offences. It is submitted that this structure offends the principle of totality and resulted in an unduly severe overall sentence.

74. Mr Wu acknowledges that his Honour had a broad discretion in structuring the individual sentences but submits that the decision to accumulate the dishonesty offence to such a marked degree failed to give due recognition to the common aspects of the different offences and thereby involved error. Reference is made to the discussion in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 per Simpson J, as her Honour then was, at [8]-[12], and refers to what was said by the plurality in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]-[47] as to the need for consideration to be given to questions of totality.

75. Mr Wu points in this regard to the following matters: the offences were committed during the same period of time; the offences involved common participants (PR being a key participant in both matters); the offences concerned the affairs of the same company; and (which is emphasised by Mr Wu) in respect of both offences he was placed under a substantial degree of pressure by the dominance of PR. Mr Wu notes that he did not instigate either offence and did not directly benefit from either offence (rather, he and his family suffered significant losses in respect of both offences).

76. The Crown argues that, in applying the principle of totality, the question is whether the sentence for one offence can comprehend and reflect the criminality of the other offence and submits that, subject to the principle of totality, it may be appropriate to impose significantly cumulative sentences for separate serious offences in order to signal to would-be offenders and the community at large that additional criminality will attract additional punishment.

77. The Crown argues that the facts identified by Mr Wu as “important commonalities” do not compel a conclusion that there was an error in the exercise of discretion. The Crown accepts that the offending was partly contemporaneous; that in each instance the offending occurred while Mr Wu held a position as a director of Healthzone; that one of his motivations for the offending was his desire to protect his family’s personal and financial interests in the company; and that his relationship with PR was a contributing factor to the commission of the offences. However, it submits that those general circumstances do not provide a basis for substantial concurrency in sentences. It notes that each of the offences involved distinct criminality of considerable seriousness and submits that an aggregate sentence which reflected the seriousness of the total criminality of Mr Wu necessarily required a substantial degree of accumulation.

78. The Crown points to what was said in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) there emphasising the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in R v Wheeler [2000] NSWCCA 34 at [36]- [37].

Determination

79. In my opinion, the extent of accumulation between the sentence for the dishonesty offence and the sentences imposed for the market manipulation offences does not demonstrate error in the exercise of the sentencing discretion. The market manipulation and dishonesty offences involved separate courses of conduct: on the one hand a co-ordinated and planned conspiracy which involved the commission of multiple trades and large amounts of money over a period of four years to the detriment of the market integrity of Healthzone listed shares; on the other the defrauding by Mr Wu and PR of the Bank (and the company) of a substantial sum of money in a series of events spanning seven months.

80. There was distinct and discrete criminality in the respective offences and it cannot be said in my opinion that the significant degree of accumulation reflected a failure to take into account or apply the principle of totality. No error in the exercise of the sentencing discretion such as to warrant appellate intervention has been established.

81. Ground 3 is therefore not made out.

Conclusion

82. For the above reasons, I would grant leave to appeal and dismiss the appeal.

83. PRICE J: I agree with Ward JA.

84. ADAMSON J: I agree with the orders proposed by Ward JA, for the reasons given by her Honour.

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Amendments

25 October 2017 - Publication restriction uplifted

Decision last updated: 25 October 2017