Bangaru v R

Background 256Prior to the trial the Crown served a tendency notice specifying that the evidence listed in the schedule to the notice would be adduced to prove that the appellant "has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind". The evidence listed in the schedule was that of each of the investors the subject of counts 5 to 13. The tendency in question was not specified. 257The question of whether the material was admissible as tendency evidence was not addressed prior to the trial commencing. Instead the trial proceeded and the Crown called its witnesses, including the investors. As I have noted the appellant gave evidence and was cross examined. At the conclusion of the appellant's evidence and just prior to the Crown Prosecutor's address, she applied to "lead tendency evidence". This was inaccurate in that the evidence had already been led. In substance the Crown Prosecutor was seeking a direction from the trial judge concerning the use the jury could make of evidence concerning the remaining investor counts when considering a particular investor count and that she be allowed to address the jury accordingly. It was accepted that this required satisfaction by the Crown of ss 97 and 101 of the Evidence Act 1995. 258During the course of argument the Crown identified the "tendency" that it submitted was established by the evidence in relation to these counts as being a tendency of the appellant "to make misleading and deceptive representations to potential investors as to the application of their investment funds". Immediately prior to the commencement of the Crown Prosecutor's address, his Honour gave judgment concerning the application. His Honour found that the Crown was entitled to address the jury "on the basis that the tendency evidence it seeks to lead, if they are satisfied to the requisite extent, can be a matter they can take into account on the other counts". In his summing up his Honour identified the tendency contended for by the Crown that I have just referred to. With the investor counts, his Honour directed them that if they were satisfied beyond reasonable doubt that "the accused did the act in this way, for example, in relation to count 5, then [they] may use that fact in considering whether the accused committed the offences in counts 6 to 13". 259As framed, ground six of the notice of the appeal contends that there was a miscarriage of justice as a result of his Honour's directions to the jury in respect of tendency evidence so far as concerns counts 5 to 13 (the investor counts). The appellant's written submissions did not identify any particular features of the direction that were erroneous and no complaint about the content of the direction was made at the trial. In substance the complaint is that a tendency direction should not have been given at all in that it is said that the evidence did not have "significant probative value" within the meaning of s 97(1)(b) of the Evidence Act. The complaint was formulated by Senior Counsel for the appellant during the hearing of the appeal that, "as the conversations that gave rise to the passing of funds were individual and somewhat unique", they were "incapable of identifying enough unifying features to show that there was significant probative value vis-à-vis one to the other".

Tendency evidence 260Sections 97 and 101 relevantly provide: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 261At the outset an issue arises as to the standard of review that this Court should apply to his Honour's determination and, in particular, whether this Court should determine this ground on the basis of the principles stated in House v R [1936] HCA 40; 55 CLR 499 or in accordance with those stated in Warren v Coombes [1979] HCA 9; 142 CLR 531. In Dao v R [2011] NSWCCA 63; 278 ALR 765, a five member court considered this issue when hearing an application for leave to appeal under s 5F of the Criminal Appeal Act 1912 from a decision of a trial judge to refuse to sever three counts of an indictment. The trial judge's decision had followed from a ruling that the evidence from each complainant concerning each count would be admissible as tendency evidence on the other counts. All five members of the Court agreed that such a decision was to be reviewed on House v R principles (at [70] per Spigelman CJ; at [81] per Allsop P; at [157] and [171] per Simpson J; at [211] per Kirby J and [212] per Schmidt J). Spigelman CJ left open the position following a conviction based on tendency evidence (at [45]). Allsop P held that the principles in House v R were applicable at the point at which leave was being sought under s 5F (Dao at [81]). However to the extent that appellate review was to be conducted of a determination under s 97(1) of the Evidence Act his Honour held that it was to be conducted in a manner analogous to that discussed in Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 620 and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651-654 (per Gummow J). Allsop P described this approach as whether the trial "judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn" (Dao at [100]). His Honour stated that "[i]n practice, there is likely to be little difference between this approach and the application of House v R" (Dao at [100]). Simpson J held that determinations under s 97(1) are only reviewable on House v R principles (at [157] and [171]). Kirby J agreed with the comments of Spigelman CJ and Allsop P "concerning the nature of the appeal" (Dao at [211]). Schmidt J agreed with Simpson J's analysis (Dao at [212]). 262Thus at least three members of the Court, Allsop P, Simpson and Schmidt JJ, and it appears a fourth (Kirby J) rejected the proposition that appellant review of a determination under s 97 is to be conducted in accordance with Warren v Coombes principles, even on an appeal after a conviction. In terms of the approach to be adopted nothing in this case turns on the theoretical differences between the formulation of Allsop P based on Shrimpton and the principles stated in House v R. In this case the appellant did not assert that his Honour acted on wrong principle, took into account any irrelevant matter or failed to take into account any relevant matter. The appellant's complaint can only be characterised as a contention that that it was not "open to [his Honour] to draw the ... evaluative conclusion that was drawn" that the tendency evidence had substantial probative value (to use the phraseology of Allsop P) or was in that respect "unreasonable or plainly unjust" (to use the phraseology of House v R [1936] HCA 40; (1936) 55 CLR 499, 504). 263In DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262 at [62] a five member Court considered the proper construction of s 98 of the Evidence Act which concerns the tender of coincidence evidence. Their Honours approved four propositions that had been distilled by Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 at [139] concerning coincidence evidence, and reformulated a fifth proposition (at [72] per Whealy J with whom Bathurst CJ at [1], Allsop P at [11], McClellan CJ at CL at [135] and McCallum J at [136] agreed). 264Simpson J's analysis in Zhang was in turn based upon her Honour's earlier analysis in R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [33]-[35] concerning tendency evidence, the relevant part which was as follows: "[33] It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind:- (i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury); (ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b), which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced", and implicitly by the use of the subjunctive "would not" in s 97(1)(b). (iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (ie is capable of rationally affecting) the probability of the existence of a fact in issue; (iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, ie if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible. (Emphasis in original) [34] I have not, to this point, said anything about the identification of the 'fact in issue', the probability of the existence of which is said to be affected by the evidence under consideration. In some cases precise identification of that fact, or those facts, might be critical to the process. In this case, no attention was paid to that identification. It must be assumed that the fact (or facts) in issue to which the evidence was directed was (or were) whether the appellant had, on each or any occasion, conducted himself as alleged by the complainant." [35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence 'to be adduced' is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated." 265In DSJ at [72] Whealy JA reformulated the coincidence equivalent of the fourth proposition noted in Fletcher at [33]. Although DSJ concerned coincidence evidence, his Honour's formulation is equally applicable to tendency evidence: "... if a hypothetical jury would think it unlikely that the evidence were important in relation to the facts in issue then the trial Judge might the more readily conclude that the evidence lacks the capacity required for admissibility. Simpson J's formulation recognises that the trial Judge has no part to play in the evaluation of the actual weight to be given to any of the evidence or to its ultimate assessment. The substance of her Honour's formulation is that the trial Judge is required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue. In undertaking that task, the statute also requires, as her Honour recognised, that the evidence may be examined on its own account, or by having regard to other evidence adduced or to be adduced by the tendering party. As I have said, the trial Judge does not make any evaluation of the actual weight of the evidence nor does he or she make any prediction about the weight that will actually be assigned to the evidence by the jury in the trial. As stated in Mundine , what must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution." (emphasis added) 266In R v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [79] Beazley JA reviewed the authorities concerning tendency evidence and concluded that "the authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour". PWD was a Crown appeal from a rejection of tendency evidence. The respondent was charged with a number of indecent assaults upon male teenage students at a boarding school. The Crown did not allege that there were "striking similarities" in his conduct but rather contended that there was "a pattern of behaviour, modus operandi, system or pattern and common threads ... in the respondent's conduct" (PWD at [35]). Her Honour found error on the part of the trial judge at first instance and then concluded that the evidence had significant probative value: "[87] The evidence sought to be relied upon, if accepted by the jury, would demonstrate that the respondent was a person who was sexually attracted to young male students and acted upon that predilection in various ways and at different times, but in a setting where the students to whom he directed his sexual attentions were boarders, who were homesick, did not fit in with the normal pattern of school life in various ways, for example, by not developing friendships or by having discipline problems, and who were thus vulnerable. [88] In my opinion, the evidence of the four complainants and the other two tendency witnesses is capable of rationally affecting the assessment of the probability of the respondent having engaged in the conduct alleged and had a sexual interest in doing so. So much was found by the trial judge. That evidence has significant probative value in the determination of the question whether the individual allegations should be accepted. The likelihood that such conduct occurred in relation to the other complainants and tendency witnesses would make it more likely that the respondent acted in the way alleged in respect of each particular complainant. It is evidence which also has significant probative value in rebutting the suggestion that the respondent's relationship with each of the complainants was innocent."

Consideration 267At the point in this case at which his Honour had to determine the issue raised by s 97, all of the evidence the subject of the application had been tendered and the appellant's case had closed. With the exception of count 5, I have described that evidence and the appellant's case when addressing ground seven of the appeal. 268It is necessary to briefly note the evidence concerning count 5. The investors the subject of count 5 were Mr and Mrs Panicker. The form of representation pleaded by count 5 was similar to counts 6 to 11 and 13, namely, a representation that "funds would be applied to a joint venture between them and Streetwise to develop a particular property at Terrey Hills" when the funds "were not to be applied". This representation was said to have been made between 1 November 2001 and 30 April 2002. 269Mrs Panicker gave evidence that in late 2001 she approached the appellant about an investment. She said the appellant showed them a vacant site at Terrey Hills and the appellant suggested they invest in its development. Mr Panicker gave similar evidence. He recalled the appellant referring to the development of the land and saying, inter alia, that "... if he would put the rest of the money in and develop it within a year we would see some good profit out of the venture". The clear implication is that Mr and Mrs Panicker would contribute the initial funds to develop it. This was later confirmed by a one page document entitled "Deed of Investment" that Mr and Mrs Panicker received on 30 April 2002. The document referred to Mr and Mrs Panicker "participat[ing] as an investor in a development project" being undertaken by Streetwise and that they would be "entering into a joint venture" with Streetwise pursuant to which they contributed $300,000.00. Their investment was said to be "limited to this particular project". 270An inconvenient fact for the appellant was that Streetwise never owned the property at Terrey Hills. In his evidence he stated that he advised Mr and Mrs Panicker that their funds would be treated as a loan until such time as the property at Terrey Hills could be acquired and thereafter they could buy a share in the "project". Thus, consistent with his defence on other counts, he claimed that Streetwise was entitled to use their funds as it pleased and he did not make any representations to suggest otherwise. 271Thus by the time his Honour came to rule on the Crown's application, the critical issue common to all of counts 5 to 13 had been distilled to whether the appellant had represented to each of the investors that their funds would be applied in a particular manner. The evidence did not reveal any striking similarities in the statements that he was said to have made. However, accepting the evidence on each count at its highest, there were clearly a number of common features between the counts. Each of the investors approached Streetwise seeking financial assistance or advice. The appellant and Streetwise took on the role of adviser and finance arranger with no suggestion that any investor should obtain legal advice. The finance transaction arranged by Streetwise involved a mortgage over the investor's family home which in each case was their only substantial asset. The form of "investment" offered for counts 5 to 11 and 13 was not relevantly different, being some form of joint venture with Streetwise. With the exceptions of counts 5 (Panicker), 6 (Mr and Mrs Fassos) and 10 (Mr Falzon), each transaction proceeded in a broadly similar manner with there being an initial meeting with a representative of Streetwise before they were introduced to the appellant as managing director who in effect "sealed the deal" and secured their signatures on a document requiring them to contribute finance. With counts 6 and 10 (Mr Fassos and Mr Falzon) there was no initial meeting with a representative of Streetwise as those investors worked for the company, but the balance of those transactions proceeded in the same way as the others. Even in their cases, the appellant's assurances at the time of sign off were critical as they were with count 5. 272Each of these investors were in a position of some vulnerability or dependence vis a vis Streetwise and the appellant. They were placing trust and confidence in Streetwise and the appellant and putting their financial future at risk. They each had an interest in having some assurance that their funds would be utilised in furthering the joint ventures and the appellant had an obvious interest in providing that assurance to access their funds. The evidence of the investor witnesses, if accepted, was capable of establishing that the appellant had a "tendency" or modus operandi of falsely reassuring such investors that their funds would be utilised in building and developing the property the subject of their investment. In my view it was open to his Honour to find that an acceptance by the jury that the appellant told one set of investors that their funds would be applied towards the joint venture was capable of being "of importance or of consequence in establishing the fact in issue" (DSJ at [72]) on one or more of the other counts namely that he provided a similar false assurance to another set of investors pursuing the same or a similar transaction with Streetwise. 273Although no specific submission was directed to these counts, it is necessary to make further mention of count 5 concerning Mr and Mrs Panicker and count 12 concerning Mr and Mrs Barnes. 274With Mr and Mrs Panicker the relevant representation was alleged to have been made between late 2001 to April 2002 whereas all the other counts concerned representations between April and November 2003. This is one matter weighing against its inclusion in the tendency direction that was given, although it does not appear that any invitation to that effect was made to his Honour. Nevertheless in the context of this case, I do not consider that this factor is of such significance that it can be concluded that it was not open to his Honour to conclude that the evidence on this count was capable of having substantial probative value on the other counts and vice versa. The modus operandi of the appellant as described by Mr and Mrs Panicker for their transaction was in all other respects the same as counts 6 to 13. An acceptance of Mr and Mrs Panicker's evidence was capable of being considered as the first manifestation of the appellant's "tendency" to provide false assurances about the use that would be made of funds contributed to joint ventures which later played itself out in 2003 with the other counts. Equally, an acceptance of the evidence on one or more of the other counts was capable of being considered to be "of importance or of consequence in establishing" (DSJ at [72]) that at an earlier time he was spruiking joint ventures in the same way in otherwise identical circumstances. 275As I have explained above, Mr and Mrs Barnes "invested" in what was described a "house and land package". They entered into two option agreements under which it was envisaged that upon exercise by them they would pay the option fees which would become deposits under a contract for sale and development of two properties. In fact the option fees were handed over prior to any exchange and no such exchange took place. The alleged misleading representations were said to be that Streetwise was the owner of the lands and that the option fees would be applied towards the purchase of the property by them. This latter aspect was a reference to an assurance said to have been given by the appellant that the monies would be held in an interest bearing account, which they were not. Even though this representation did not relate to the use of the funds for the purposes of a joint venture, its remaining features were sufficiently similar to the other counts to leave it open to his Honour to conclude that the evidence on this count was capable of being "of importance or of consequence in establishing the fact in issue" on other counts and that the evidence on the other counts had the same character in relation to this count. The tendency alleged by the Crown contemplated the appellant providing misleading assurances to investors concerning the application of their funds so that he and Streetwise could obtain access to those funds. 276Given its apparent factual similarity to this case it is necessary to refer to the decision of the Full Court of the Federal Court (Whitlam, Sackville and Mansfield JJ) in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. In Jacara, the Full Court dismissed an appeal from a judgment dismissing a civil claim for damages for misleading and deceptive conduct contrary to former s 52 of the Trade Practices Act 1974 (Cth). The appellant pleaded that a representative of the respondent had induced it to enter into a lease to occupy premises in a shopping centre (Jacara at [14]). At the trial the appellant had sought to read affidavits from other tenants to the effect that the same representative had made misleading representations to them on similar topics to the pleaded representations (Jacara at [26] to [27]). As in this case, there were variations between the deponents as to the particular statements they attributed to the respondent's representative. The trial judge had rejected their evidence (see Jacara at [29] to [34]) and the Full Court upheld that rejection (Jacara at [83]). 277For present purposes two matters should be noted about Jacara. First the Full Court applied House v R principles in reviewing the trial judge's refusal to admit the evidence (Jacara at [75]). Thus one reason for any perceived differences between the outcome in that case and this one are the different determinations by the judges at first instance and a standard of scrutiny on appeal that accommodates different first instance assessments provided they are undertaken in accordance with correct principle and do not lead to unreasonable outcomes. 278Second, critical to the outcome in Jacara was the nature of the facts in issue. The representations pleaded by the appellant in that case were precise (see Jacara [14]) Thus, for example, it was pleaded that the respondent represented that following the redevelopment the number of visitors to the centre would increase "by at least 50%-60%". This precision reflected the particular conversations that the appellant attributed to the respondent's representative. No doubt, the pleaded representations were drafted and the particular conversations were relied upon having regard to reliance, causation and damage issues which were a necessary part of the appellant's case. However, once the appellant in Jacara had set itself the task of demonstrating the making of representations or statements with that level of precision it became that much more difficult for it to demonstrate that the evidence of other lessees had significant probative value given the variances in the versions of the conversations that they deposed to. Hence the trial judge in Jacara emphasised the significance or lack of it of the alleged tendency evidence to establishing the "representations alleged" (at [31]) and the Full Court referred to it not having "significant probative value on the facts and issues" (at [81]), the latter of which are, of course, defined by the pleadings. 279By contrast in this case the representations pleaded in the various counts of the indictment were either identical or very similar. They were not fixed by reference to any precise words or figures said to have been uttered by the appellant, but instead referred to the overall effect of his spruik of the transaction to be entered into by the various investors. As I have said by the time his Honour came to decide this question the issues between the Crown and the appellant had been distilled to whether the appellant had falsely represented to each of the investors that their funds would be only applied to further the joint venture or purchase they were entering into. The evidence of the investor witnesses on one count was clearly capable of being significantly probative of whether the appellant acted in that same way on another count. If, however, the critical fact in issue for each count was whether the appellant had uttered certain specific words, as was the case in Jacara, then a different outcome may have resulted. This analysis does not necessarily advantage the Crown by permitting it to include a count specifying a representation pitched at a very high level of generality. Amongst other matters, the less specific the representation in a particular case, the harder it may be to prove its falsity beyond reasonable doubt. 280The appellant did not contend that there was any error on his Honour's part in being satisfied under s 101(2) that the "probative value of the evidence substantially outweigh[ed] any prejudicial effect" it may have had on the appellant. His Honour noted all tendency evidence has some prejudicial effect. However in this case his Honour also noted that the jury had already heard the evidence and would be directed that before they could use the evidence concerning one count as evidence on another count they would have had to have already concluded that "the tendency matter [had been] established beyond a reasonable doubt". His Honour considered that these matters "serve to reduce the prejudicial effect upon the accused". I see no error in this approach (see Dao at [172] per Simpson J). 281I reject ground 6 of the appeal. 282It follows that I would dismiss the entirety of the appeal against the appellant's conviction on all counts.

Sentence Appeal 283On 24 August 2010, the jury returned guilty verdicts on counts 1 to 13. On 17 December 2010, his Honour sentenced the appellant to terms of imprisonment for each count. The sentencing structure that his Honour adopted was to divide the 13 counts into three groups. Within each group the same sentence was imposed and they were wholly made concurrent with one another. The three groups of sentences were then cumulated. 284On counts 1 to 4 (the finance counts), his Honour sentenced the appellant to fixed terms of imprisonment of two years and six months each to be served concurrently and backdated to commence from 27 March 2009. The appellant had been taken into custody following his conviction on 24 August 2010. However, his Honour backdated the sentences to a time prior to then, representing the time he had spent in custody, both in the United States of America prior to being extradited to Australia and then before being released to bail after he returned. 285In relation to counts 5 to 8 on the indictment (i.e. the investor counts involving Panicker, Fassos, O'Donnell and Di Benedetto), his Honour sentenced the appellant to four concurrent fixed term sentences of two years and six months. This group of sentences was fixed to commence upon the expiry of the sentence for the first group of offences. These sentences commenced on 26 September 2011 and, if not disturbed, will expire on 25 March 2014. 286In relation to counts 9 to 13 (i.e. the investor accounts involving Hardy, Falzon, De Silva, Barnes and Tavares/Rowe), his Honour sentenced the appellant to five concurrent sentences of three years and six months each comprised of a non-parole period of one year and four months and a balance of term of two years and two months. The non-parole periods for this group of sentences were fixed to commence on the expiry of the sentences for counts 5 to 8. Thus, if not disturbed, they will commence on 25 March 2014, and expire on 24 July 2015 and the balance of term for each will expire on 24 September 2017. 287The effect of the sentences was that the appellant was sentenced to an overall period of imprisonment of eight years and six months to date from 27 March 2009, with a minimum period in custody of six years and four months. The Sentencing Judgment 288I note the following nine points concerning his Honour's sentencing judgment. 289First, His Honour made findings as to the value of the benefits obtained by the appellant's dishonest statements and the financial losses he occasioned. 290In relation to counts 2 to 4, the false statements made by the appellant concerning the state of the accounts were made to obtain credit facilities totalling in excess of $8 million. In relation to count 1, the false statement concerning the financial accounts was made for the purpose of obtaining a continuation of a loan facility from the NAB in the amount of $11 million. With that count, his Honour considered that the measure of loss is "limited to any extensions of the amount of the line of credit". This meant that only "part of the value of the facility of approximately $11 million" was the value of the loss. Accordingly, for counts 1 to 4 his Honour found that the value of the monies fraudulently obtained as the result of the appellant's conduct was "somewhere between $19 and $8 million". Later in the judgment his Honour concluded that the amount obtained was between $8 million and $10 million. Taking into account enforcement action undertaken by the financial institutions, the outstanding amount was just in excess of $4 million. 291In relation to counts 5 to 13, the investor accounts, his Honour found that the amounts received from the investors totalled $3,716,022.10 but this figure had increased to $5,504.576.50 by reason of the various legal fees and other costs incurred in connection with the various civil proceedings that arose of those transactions. Thus, his Honour concluded that the resulting loss was in excess of $5.5 million. 292Second, his Honour summarised the appellant's subjective circumstances as follows. The appellant was born in South Africa. He was the middle child of three. His Honour recorded that he had a "difficult childhood due to the apartheid regime and the racism inherent in that regime", but he had the benefit of caring parents and a supportive relationship with his family. At age seven he sustained a head injury which had affected his behaviour and schooling. He attended some special classes throughout his schooling in South Africa, but was able to complete the equivalent of the HSC in South Africa and achieved average results. After he left school he worked in his father's insurance brokerage company, initially as a clerk, before becoming an insurance salesman in the family business. 293The appellant was married in South Africa in 1988 and emigrated to Sydney with his wife and two young children in 1996. He obtained permanent residency in this country in 2001. He gained employment in the real estate industry before starting his own business in 1997. 294In July 2005, after his company ran into difficulties subsequent to these offences, he and his family received death threats. Fearing for their safety, they moved overseas. 295Third, his Honour described the effect of the appellant's predicament on his family. His wife gave evidence of having received threatening calls, and their children's respective schools raising concerns about their ability to protect them. His Honour accepted her evidence that these events left their children "traumatised, depressed and scared". The appellant's wife and son returned to Australia some time after the appellant's extradition. His Honour noted that they were supportive of their father and were doing the best they could to rebuild their lives. The appellant's daughter had remained in the USA to pursue her education. 296Fourth, the material before his Honour recorded the absence of any significant contrition or acceptance of responsibility for his actions on the part of the appellant. Tendered before his Honour were two probation and parole reports, one prepared in May 2008 soon after his extradition and another prepared in November 2010 while he was awaiting sentence. The first report suggested that the appellant had given consideration to pleading guilty to the offences. It recorded a denial by the appellant of any personal gain or intention to defraud but an acceptance that his actions resulted in the collapse of the Streetwise companies and the subsequent hardship caused to others. The second report recorded an acceptance by the appellant that he was reckless in signing the balance sheets, but noted that he "attributed responsibility to the fact that he employed a young accountant". This report recorded that the appellant took little responsibility for his offending behaviour. 297Fifth, His Honour found that a specific aggravating circumstances of the offences was the substantial injury, emotional harm and loss and damage caused by the offences (s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). I have already described his Honour's findings in relation to the level of financial loss occasioned. In relation to the investor counts, his Honour found that it was a "severe loss for each and every [victim]". His Honour accepted the Crown's description of the investors as "mum and dad investors" and concluded that there had also been a "significant emotional cost to them" and that "their loss and the subsequent legal battles that they have to go through have exacted an emotional toll on them". This is a significant matter and one to which I will return. 298Sixth, his Honour found that a further aggravating circumstance was that the offences were part of a "planned or organised criminal activity" (s 21A(2)(n)). His Honour characterised the appellant's involvement as follows: "Whilst I do not conclude that the offender commenced his business with the specific and sole intention of defrauding financial institutions and investors it appears plain that such business model as he adopted was not sound, and, furthermore, as the business began to unravel he resorted to fraud and deception to obtain funds to shore up those businesses." 299Seventh, his Honour accepted as a mitigating factor (s 21A(3)(f)) that the appellant did not have a previous criminal record and that he was a person of good character. However, his Honour considered that the relevance of good character is of less significance in white collar crimes "since it is that factor which normally places an offender in a position where he or she is able to commit the offence" (R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [410]; R v Williams [2005] NSWSC 310; 152 A Crim R 548 at [61]). 300Eighth, His Honour declined to make any finding that the appellant had good prospects of not re-offending or of rehabilitation (cf s 21A(3)(g) and (h)): "However his failure to acknowledge his part in these offences make it difficult to predict what the future circumstances will be so far as contact with the criminal law is concerned. It is certainly true that the circumstance of the present offences indicate a weakness in his character insofar as conducting himself in a proper, honest and legal manner." 301Ninth, his Honour characterised the appellant's conduct as being at the very serious end of the scale for these type of offences. 302In relation to the finance counts (1 to 4), His Honour concluded that the amount of money obtained by the appellant was "... extremely high and marks those four counts as extremely severe in terms of objective gravity". 303In relation to the investor counts (5-13), his Honour found: "It is clear from these matters that for a period of approximately three and a half years the offender continued this [offending] conduct. A significant amount of money was obtained by him. The investors from whom it was obtained were not sophisticated, and, indeed, were vulnerable to a sophisticated and professional sales pitch, which the offender and/or his subordinates employed." His Honour found that these matters reflected the "very serious objective gravity of the particular counts". 304Not surprisingly, His Honour concluded that both general and specific deterrence were of particular importance in sentencing the appellant.

Ground one - unclear non-parole period 305Ground one complains that his Honour's discretion miscarried in that his Honour failed to "clearly articulate the appropriate non-parole period". 306At the commencement of the sentencing judgment his Honour stated that he proposed to impose a sentence with a combined non-parole period of six years and four months and an overall sentence of eight years and six months. At the conclusion of the sentencing judgment his Honour stated: "The effect of those sentences, Mr Bangaru, is I have sentenced you to a non-parole effectively of four years and six months which commenced on 27 March 2009 and which will first expire on 24 July 2015. The sentence will fully expire on 24 September 2017. Accordingly, just to make it clear, the sentence is one of eight years and six months with a non-parole period of six years and four months." (emphasis added) 307The allegation of uncertainty in the statement of the combined non-parole period arises from the apparent discrepancy between the figure of "four years and six months" in the first paragraph of this extract, and the figure of "six years and four months" in the second paragraph. In my view there is no substance in this ground. His Honour's reference to "four years and six months" was clearly a slip. This is apparent from the comments at the beginning of the judgment, the clarification at the end of the judgment, and the words which immediately follow the phrase "four years and six months" which specifies that the combined non-parole period commenced on 27 March 2009 and "will first expire on 24 July 2015", being a period of six years and four months. His Honour accidentally transposed the words "four" and "six" in the first paragraph of the above quote. His Honour recognised the slip and immediately fixed it. 308I reject ground one.

Ground two - special circumstances 309Ground two of the application for leave to appeal in respect of the sentence alleges that his Honour erred in failing to expressly consider whether there were "special circumstances" for the purposes of s 44(2) of the Sentencing Act which warranted the imposition of a sentence in which the balance of the term exceeded one-third of the non-parole period. 310The appellant contended that this was warranted by reason of his good character, the support he had from his family, the fact that the original business model he adopted had been successful, that the sentencing structure involved a significant degree of accumulation, and that he had not previously been imprisoned prior to the commission of these offences. 311To address this ground it is first necessary to discuss the overall structure of the sentences imposed by his Honour. Sub-section 44(2) specifies that the balance of term of the sentence "must not exceed" one-third of the non-parole period unless the Court determines that there are special circumstances for that ratio being greater. Although the one-third ratio is expressed as a maximum, it is a figure commonly adopted for individual sentences absent special circumstances being made out. 312Sub-section 44(2) is directed to the sentences imposed for individual offences. However it is also common for sentencing judges dealing with multiple offences to strive to structure their sentences so that the ratio of the effective balance of term to the combined non parole period approximates to the one-third referred to in s 44(2). If an offender was to receive two cumulative sentences, each of which had a non-parole period and balance of term that reflected the statutory ratio, there can be a dramatic reduction in the proportion that the effective balance of term represents to the combined non-parole period. This is illustrated by an example in which an offender is sentenced for two offences, with the sentence for offence A consisting of a three year non-parole period and a one year balance of term, and the same sentence being imposed for offence B with the non-parole period for offence B commencing upon the expiry of the non-parole for offence A. The effect of two such sentences would be that the offender would serve a combined non-parole period of six years and a balance of term of one year. The balance of term for the sentence for offence A would be subsumed into the non-parole period for the sentence for offence B. In this example the combined non-parole period represents over 85% of the total effective sentence and operates to frustrate the sentencing judge's intentions. A common method of avoiding this difficulty is to rely on s 44(2) to reduce the non-parole period that would otherwise be imposed for offence B so as to ensure that the ratio for the balance of term to the combined non-parole period is approximately equal to the maximum statutory ratio for individual sentences, i.e. one-third (see R v Street [2005] NSWCCA 139 at [37] to [39]). 313In this case his Honour adopted that approach. Further, to facilitate a sentence which overall reflected the statutory ratio for individual offences provided for in s 44(2), his Honour imposed fixed terms for the first two sets of offences which were individually concurrent and then cumulative. I will return to consider the significance of fixed term sentences when addressing grounds three and four. 314It follows that ground two of the appeal, as expressed, is misconceived. His Honour implicitly did consider whether there were "special circumstances" for the purposes of s 44(2) of the Sentencing Act to warrant a variation. However, his Honour determined that only a variation to the sentences for the third group of offences was warranted and only to the extent necessary to ensure that the combined non-parole period (40 months) bore a ratio to the overall sentence (54 months) including the balance of term (14 months), that was approximately equal to the statutory ratio for individual sentences (74% and 75% respectively). 315To the extent that the ground of appeal can be taken as a complaint that his Honour did not go further in varying the statutory ratio for some or all of the offences, then it has no substance. No submission was made to his Honour that a variation in the statutory ratio was warranted by reason of any special circumstance pertaining to the appellant. It is conceivable that the fact that an offender had not been previously imprisoned, might warrant a finding of special circumstances in a particular case. However, it does not compel that conclusion in this case. In R v Fidow [2004] NSWCCA 172 at [22], Spigelman CJ stated: "This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in [R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [68]], it is necessary that the circumstances be sufficiently special to justify a variation." 316This is illustrated by the approach of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120 at [58], where the Court considered that the desirability of the applicant in that case undergoing suitable rehabilitative treatment was a special circumstance that justified a departure from the statutory proportion between the non-parole period and the balance of term. In that case, in circumstances where the other factors relevant to sentencing such as general and specific deterrence had diminished significance (Muldrock at [59]), the objective of rehabilitation was served by varying the statutory ratio. 317By contrast in this case, nothing in any of the matters pointed to by the appellant when considered against the relevant objectives of sentencing as specified in s 3A of the Sentencing Act , warranted or required any such variation. In particular, in the absence of any positive finding concerning his prospects of rehabilitation, that objective of the sentencing process did not warrant any such variation. 318I reject ground two.

Ground three - no meaningful allowance for rehabilitation

Ground four - sentences overall manifestly excessive 319Ground three of the appeal alleges that his Honour's discretion miscarried in that he made no meaningful allowance for rehabilitation as said to have been required by s 3A(d) of the Sentencing Act. It is convenient to consider this with ground four which contends that the sentences overall were excessive. 320The appellant's submissions in relation to ground four did not contend that the sentences imposed for any of the individual offences per se were excessive. Instead, the appellant complained of his Honour's approach to accumulation, having regard to the application of the totality principle (Mill v R [1988] HCA 70; 166 CLR 59). That said, it is appropriate to address these grounds within the discipline stated in Pearce v R [1998] HCA 57; 194 CLR 610 at [45], namely by first considering the sentences imposed for the individual offences before considering questions of totality. 321As noted for each of counts 1 to 4 his Honour imposed a fixed term of imprisonment of two years and six months. As I have already explained, his Honour only varied the statutory ratio in s 44(2) to the extent necessary to specify a ratio between the balance of term and the combined non-parole period which reflected the usual ratio of one-third. In Ruttley v R [2010] NSWCCA 118 at [43] Simpson J stated that "[o]rdinarily, where a fixed term is imposed, it equates to what would have been a non-parole period had one been fixed." It follows that the fixed term sentences of two years and six months (thirty months) each equates to overall sentences of three years and four months (forty months) each. 322The same reasoning applies to counts 5 to 8, i.e. those sentences equate to an overall sentence for each offence of forty months. This analysis is consistent with the forty-two month total sentence his Honour imposed for each of counts 9 to 13, as there was little reason to differentiate between the criminality involved in any of counts 5 to 13. The two month discrepancy between the effective sentence imposed for each of counts 5 to 8 (forty months) compared with those imposed for each of counts 9 to 13 (forty-two months) is of no moment. 323The maximum penalty for each of these offences was five years. In relation to counts 1 to 4, his Honour found that the appellant's criminality was "extremely severe". The monetary amounts involved in each offence were very large. The appellant was the directing mind of the Streetwise group and orchestrated the preparation of misleading accounts. His subjective case was very weak. To the extent that there was a finding of good character, the authorities in relation to white collar crime diminished the significance that is attached to it. There was no evidence of contrition and no finding that he had any positive prospects of rehabilitation. The only matter that operated in his favour was the suffering that had been imposed upon his family. This was in significant part a result of his own conduct. The authorities suggest that such suffering has little weight unless the circumstances are exceptional (R v Edwards (1996) 90 A Crim R 510). No submission to that effect was made before his Honour or before this Court, nor would it be well founded. 324In these circumstances an effective sentence which represented two-thirds of the maximum penalty for each of counts 1 to 4 was, in my view, not outside the range. 325In relation to each of counts 5 to 13, the analysis does not differ. It is true that the amounts involved were less than the sums the subject of counts 1 to 4. However, any such difference was more than balanced, and indeed exceeded, by the limited capacity those victims had to bear such losses and the emotional toll the appellant's outright lies caused them. They were people of modest means. Their only substantial asset was their house. The financial and emotional hardship imposed upon all of them by the appellant's calculated lies will affect them and their families for many years to come. The appellant engaged in this conduct on a systematic basis over a number of years. He showed callous indifference to the likely harm that would be caused to people who were placing significant trust and confidence in him. Given the very high criminality involved and his weak subjective case, the individual sentences imposed for each offence were, in my view, not excessive. 326As noted, ground three complains that his Honour made "no meaningful allowance for rehabilitation". I have already described the finding that his Honour made in relation to the appellant's prospects of rehabilitation above. Given the underwhelming nature of that finding, I can discern no error in the approach that his Honour took. 327The remaining complaint concerns the approach his Honour took to accumulation in light of the totality principle. In the sentencing judgment his Honour stated: "The Crown has argued that by reason of the number of offences principles [of] accumulation and totality need to be applied. I agree with those submissions generally. In my view, the number of offences and the period over which they occurred warrant partial accumulation of groups of offences one upon another, whilst being internally concurrent. I have grouped the offences into three. The first is the counts one to four s 178BB I have grouped in one group. The second group are the earlier offences, namely counts five to eight of the investor counts those which occurred between February and May 2003. The third group of offences had been the later counts of the investor counts, those from nine to thirteen, being those offences which occurred between June and November 2003. There is no great science in what I have done. I have attempted to fairly represent, based on the evidence that I have heard both at trial and in sentence, a cross section of the offender's criminality and to impose what I hope is a just and warranted sentence in that regard." (emphasis added) 328Clearly his Honour did take into account the totality principle. Thus the true complaint is the manner of its application. The appellant complains that, contrary to what his Honour stated, there was, in effect, "total accumulation and not partial cumulation in respect of any of the sentences that apply to the three groups". This may be so, but it ignores the otherwise generous approach his Honour adopted towards the appellant of providing for complete concurrency of the sentences within the three groups. In my view had his Honour made the three groups of sentence wholly concurrent but only made provision for partial accumulation between the groups then the outcome would not have fully reflected the totality of the appellant's conduct. 329There was no doubt an element of pragmatism in the approach that his Honour adopted. It would have been open to his Honour to only partially accumulate the sentences within the three groups, but if that course was embarked upon, then the otherwise generous approach of allowing complete concurrency of the sentences within the groups would have to have been reconsidered. A more doctrinaire approach would have involved a series of partial accumulations of all thirteen counts. The adoption of that approach would have led to an overall sentence being imposed upon the appellant which was much greater than the one which he received and which would not otherwise be erroneous. 330In any event, our task is to discern error and, apart from one matter, I see no error in his Honour's approach. The only error is the statement in the passage set out above at [327] that the second group of offences comprising counts 5 to 8 occurred between February and May 2003. That statement is correct for counts 6 to 8. However count 5 occurred between November 2001 and April 2002. In view of that, it is difficult to see how the sentence for that offence could have been made concurrent with the sentence for counts 6 to 8. Not surprisingly, this is not an error which the appellant complains of. It is certainly not a matter that warrants any interference with the sentences his Honour imposed in a manner favourable to the appellant. 331I reject grounds three and four.

Orders 332Accordingly, the orders I propose are: (1)The appeal against conviction on all counts be dismissed; (2)The application for leave to appeal the sentence on all counts is granted; and (3)The appeal against sentence on all counts be dismissed.

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