Banovec v R

Judgment 1BASTEN JA: In October-November 2009 Mr Oliver Banovec (the applicant) stood trial on five counts of fraudulent omission to account, contrary to s 178A of the Crimes Act 1900 (NSW) and one count of perjury, contrary to s 327(1) of the Crimes Act. A jury returned verdicts of guilty on each count. On 19 February 2010 he entered pleas to two further counts, being a further count of perjury and a count involving the destruction or damage of a book, contrary to s 67(1) of the Australian Securities and Investments Commission Act 2001 (Cth). He was sentenced on all matters on 23 April 2010 by the District Court (Ainslie-Wallace DCJ). 2An application for leave to appeal against conviction and sentence was filed some 19 months later, on 1 December 2011. With respect to the appeal against the convictions, the applicant required leave because the grounds did not involve "a question of law alone": Criminal Appeal Act 1912 (NSW), s 5(1)(a). As to the convictions, I agree with the orders proposed by Hoeben JA and with his reasons. In respect of the appeal against the sentences, I would grant leave to appeal, but dismiss the appeal for the reasons set out below.

Proposed appeal against sentences 3The only ground in the application for leave to appeal relating to the sentences asserted that the sentencing judge "did not have before her the facts relating to the disadvantage that non Australian citizens have in relation to harsher prison conditions". In what can best be described as a skeletal written submission in support of this ground, counsel cryptically referred to "the unknown harsher prison conditions at the time of sentence". In an affidavit sworn on 4 February 2012 and filed in this Court on 21 February 2012, the applicant referred to information he had obtained, both from officers in the Department of Corrective Services and by way of advice from Mr Will Hutchins, Senior Solicitor, Prisoners Legal Service at Legal Aid NSW, the latter contained in a letter dated 23 June 2011. Mr Hutchins referred to the fact that the applicant was a permanent resident and was married to an Australian citizen, but was himself a citizen of Austria. He noted that the responsible Minister under the Migration Act 1958 (Cth) had power to cancel a visa if the applicant were unable to satisfy the Minister that he passed the character test: s 501(2). 4A person does not pass the character test if he or she has "a substantial criminal record": s 501(6). Mr Hutchins noted that the cancellation power existed if the person were sentenced "to a term of imprisonment of 12 months or more": s 501(7)(c). That was true and applied in the case of the applicant, whose sentences included a sentence of two years six months. Although not referred to in the letter, an alternative basis for finding a substantial criminal record was that the applicant had been sentenced to two or more terms of imprisonment where the total of those terms is two years or more: s 501(7)(d). The applicant's sentences totalled seven years. 5The letter referred to the likely attitude of the Department of Immigration and Citizenship (referred to as "DIAC") and of the Department of Corrective Services. Relevantly the letter stated: "You are of 'interest to DIAC' because you are liable to visa cancellation due to your gaol sentences. It is my understanding that DIAC do not consider cases until the inmate is within 18 months of their parole eligibility date. In your case, this will be from 11/3/2013. Although Corrective Services says that in these circumstances, progression to C3 will be considered on its merits, this will only happen if DIAC has made a decision that the person will not be deported." 6The applicant's complaint is that, despite enjoying a C1 minimum security classification, he will not be housed in a minimum security facility and able to perform work off the grounds of the correctional centre, until DIAC has determined not to deport him. Although he was advised that such a decision would be made "within 12 months of my earliest possible release date", he inferred that he would spend 80% of his time in custody in a maximum security facility, without the opportunity to participate in the works release program. 7Although that information is supplied in an inadmissible form, I did not understand the Director to object to its tender on that basis. Rather, the objection was based on the fact that such information was readily available at the time of sentencing and, if it had not been presented to the sentencing judge at that time, no error was established and accordingly there was no occasion for this Court to re-sentence the applicant, to which exercise the further evidence might be relevant. 8The source of the material speaks to its accuracy. Further, it is consistent with departmental practice of both the immigration and custodial authorities, as explained to this Court in other cases. The Director did not suggest that it was inaccurate. 9That conclusion is double-edged for the applicant. On the one hand, it permits the Court to accept the evidence, despite the form in which it was presented; on the other hand, it demonstrates that such information was readily available from the date of conviction, when it became apparent that the applicant was facing a term of imprisonment which would, almost inevitably, attract the consideration of the immigration authorities.

Hardship in imprisonment 10Implicit in the applicant's submissions is the proposition that an offender who is likely to serve his or her sentence in conditions which are significantly harsher than those applicable to the general prison population is entitled to some reduction in sentence on that account. Such conditions of imprisonment are not to be treated as a "mitigating factor" and do not appear in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). However, the need to take account of the effect of particular hardship has long been recognised. In R v Cartwright (1989) 17 NSWLR 243, a case concerned with the consequences of providing assistance to the prosecution, Hunt and Badgery-Parker JJ stated at 255: "[The judge] will have to take into account any threat to the prisoner's safety and both the conditions under which he will have to serve his sentence in order to avoid reprisals and the steps which will need to be taken to protect him once he is released. Evidence should normally be led as to the existence and extent of such a threat, but to a large degree the judge is entitled to rely upon his own awareness of the severe hardships of protective custody in gaol. If there is any particular facility provided for the prisoner beyond the normal protection system, the judge should be given that information. It should not normally be a matter about which formal evidence is needed or about which there should be any real dispute. If there is any specific loss to the prisoner as a consequence of the conditions of his incarceration, it obviously should be raised expressly. In the present case, for example, it is asserted that the applicant has been denied the benefit of camp remissions. Just for what period before his release a prisoner with a thirteen year minimum term would have enjoyed the advantages of being sent to a camp is anything but clear, but such a loss of remissions (if applicable) is the sort of matter which should be raised expressly." 11This passage in Cartwright has been referred to as authority for the proposition that "every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison": Kirby J in AB v The Queen [1999] HCA 46; 198 CLR 111 at [105]. Other factors which may give rise to hardship in custody, including disabilities (physical or mental and as a consequence of disease, genetic factors or age) and lack of facility in English, have been taken into account. As noted by Street CJ, delivering the judgment of this Court (which included Nagle CJ at CL and Lee J), in R v Vachalec [1981] 1 NSWLR 351 at 353: "It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and this is a proper consideration to be taken into account by a sentencing judge. For example in a case to which we have been referred, R v Todd [1976] Qd R 21, the effect of imprisonment upon a blind man was held to be relevant and material in determining the length of his sentence." 12In Bekink v R [1999] WASCA 160; 107 A Crim R 415, Ipp J considered the effect of a "lock down" on prisoners at Casuarina Prison in Western Australia, following a Christmas Day riot. He noted the offender had been confined to cell "under conditions not significantly different from those applicable to prisoners who have committed offences in prison, and for a far longer period, even though - while in prison - he has done nothing wrong": at [6]. 13The need for a variety of circumstances of hardship to be taken into account in sentencing has been recognised in all jurisdictions in Australia; a selection of the available authorities was collected by Steytler P in Houghton v Western Australia [2006] WASCA 143; 32 WAR 260; 163 A Crim R 226 at [23]-[38]. Houghton was itself a case in which the claim of exceptional hardship was made by a foreign national facing the possibility of visa revocation and deportation and who was hence unlikely to obtain low security classifications towards the end of his sentence. After reviewing the relevant departmental policies, Steytler P concluded at [45]: "It seems, from all of this, to be probable that the prospect of the appellant's deportation, not known by the sentencing Judge, has resulted in the loss, or at least a diminution in, the prospect that the appellant would otherwise have achieved a minimum security rating and be accorded home leave privileges. It seems also to be probable (unless it can be determined that the Minister will not exercise his discretion to cancel the appellant's visa) that the prospect of deportation will result in the appellant's ineligibility for a re-entry release order that might, otherwise, have been made. However, even if it be assumed (without deciding) that these consequences give rise to a hardship of the kind that should be taken into account in considering whether the sentence of imprisonment imposed upon the appellant is appropriate (and it needs to be borne in mind, in this respect, that home leave and re-entry release orders are privileges, and not rights, that are granted or refused in accordance with the rules and policies of the Department of Corrective Services), I would not alter the sentence imposed upon the appellant." 14Murray AJA agreed with Steytler P. Roberts-Smith JA also agreed subject to the qualification that he was not prepared to assume that the potential consequences of possible deportation gave rise to "a hardship of the kind which should be taken into account in considering whether the sentence of imprisonment imposed upon [the appellant] is appropriate": at [50]. 15Different approaches to the question of hardship may well reflect the circumstances revealed in particular cases and an assessment of the particular effects of department policies and practices in different jurisdictions. However, the underlying principle that some allowance should be made in sentencing for specific hardship not faced by the general prison population is beyond dispute.

Changes in circumstances 16A particular issue will arise where the circumstances of additional hardship arose after sentencing and were not reasonably foreseeable at the time of sentencing. Such circumstances may include the incurring of a disability or diagnosis of an illness during the course of the sentence, or, as in Bekink, a change in the circumstances of imprisonment as a result of an unpredictable event. 17There are two broad approaches which have been adopted in such circumstances. The first, and more generally accepted, is to leave any amelioration of the sentence to the discretion of the Executive. However, since the abolition of remissions, the mechanisms by which the Executive can take such steps are greatly restricted. Secondly, there may be a difference in approach depending upon whether the new information has become available whilst an appeal was pending, as opposed to it arising after the appropriate appeal period has expired. 18It is not necessary to resolve these differing approaches in the present case, because the likelihood that the applicant would face a longer period in a higher security institution because of his visa status was readily foreseeable following his convictions. The evidence he now seeks to rely upon was not "fresh" in the sense that the relevant statutory scheme in the Migration Act and the polices and practices of the Department of Corrective Services and the immigration authorities were not known at the time of sentencing. The question in this case is thus whether the applicant should be entitled to reopen his sentences in order to invite this Court to take into account a factor not relied upon before the sentencing judge, although it could, and arguably should, have been raised at that stage.

Reopening sentencing exercise - nature of appeal 19The nature of an appeal to this Court has been the subject of consideration in a number of cases over the years, despite which a degree of uncertainty persists. The Court has been described as a "court of error": see, for example, Simpson J in JM v R [2008] NSWCCA 254 (McClellan CJ at CL and Nettle AJA agreeing) at [25], and the authorities referred to there. However, it is not entirely clear what consequences flow from this label. It may be accepted that the Court, on a sentencing appeal, does not engage in a de novo exercise of original jurisdiction. On the other hand, an appeal court which conducts an appeal "by way of rehearing" makes orders on the basis of the law as it stands at the time of the appeal and on the facts established at that time: see Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [50]. A court which has the power to receive further or fresh evidence is generally treated as conducting an appeal by way of rehearing. That this Court will receive "fresh" evidence, in the conventional sense of evidence that was not available at trial and could not with reasonable diligence have been obtained at that time, was affirmed in R v Lanham [1970] 2 NSWR 217 at 218 (Mason and Manning JJA and Isaacs J). 20However, at least at the level of general principle, the Court has stated that it will not receive evidence of events post-dating the sentence under appeal: R v Munday [1981] 2 NSWLR 177 at 178 (Street CJ, Moffitt P and Lee J agreeing), though the particular order of the Court was a refusal of an extension of time within which to seek leave to appeal. As Simpson J noted in JM v R, at [26], the distinction between events or circumstances that happened or arose after the sentencing and those which pre-dated or existed at the time of the sentencing, is not always a bright line. The example of a medical condition which later deteriorates was given. Similarly, there are other events which may be foreseeable at the time of sentencing, but do not materialise until after the sentence is imposed. The present case may be seen to fit within this last category. 21The statutory conferral of jurisdiction on this Court, in respect of an appeal against sentence, is to be found in s 6(3) of the Criminal Appeal Act which provides: "6 Determination of appeals in ordinary cases ... (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 22Whilst the exercise of that jurisdiction is subject to the constraints identified in House v The King [1936] HCA 40; 55 CLR 499 at 505, the requirement that "some error has been made in exercising the discretion" does not identify the basis upon which error may be perceived. Section 6(3) does not permit the imposition of inflexible rules in that respect. The preferable course is to identify broad principles governing the exercise of the discretion, while allowing for the possibility of exceptional cases where it is appropriate for the court to intervene. One factor to be taken into account is the statutory context, as it exists from time to time, which may permit intervention to correct sentencing error otherwise than by appeal: see, for example, Sentencing Procedure Act, s 43; Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Review of convictions and sentences. 23A different approach is traditionally taken with respect to evidence of post-conviction events where the evidence is tendered, not for the purpose of demonstrating a basis for intervention by this Court, but for the consideration of the Court in the event that it intervenes on other grounds and embarks upon a re-sentencing of the offender. It should also be noted that this Court should not necessarily take an inflexible view in respect of material which was before the sentencing judge, but in circumstances where its significance was not fully appreciated and it was not relied upon by the offender: AB v The Queen, where different analyses were applied by the majority (Gummow and Callinan JJ at [55] and Kirby J at [92]-[96]) and the minority (McHugh J at [20]-[21] and Hayne J at [127]-[130]). 24In the present case, the matter now sought to be relied upon was not raised before the trial judge. No explanation was provided as to why it was not raised. As indicated above, the circumstances upon which reliance could have been placed were readily available for consideration by the applicant (who was legally represented by counsel). The point was not one of speculation as to future possibilities; it merely involved an assessment of the likelihood of a particular event, based on known policies and practices and extant statutory provisions. 25While there should be a grant of leave to permit the applicant to raise these issues, the appeal should be dismissed on the basis that the evidence now sought to be relied upon is not fresh evidence. On the basis that the Court may have some broader power to admit such evidence, the circumstances of the present case did not demonstrate that this was a case in which intervention was warranted to correct an omission on the part of the sentencing judge to consider a matter which may well have been relevant to the exercise of her discretion, but which was not raised before her. 26HOEBEN JA: Offences and sentence On 23 November 2009 after a trial lasting 19 days, the appellant was found guilty of five counts of fraudulently omitting to account for money contrary to s 178A of the Crimes Act 1900 (the fraud counts) and one count of perjury, by making a false statement in an affidavit, contrary to s 327(1) of the Crimes Act 1900 (the false affidavit count). 27On 19 February 2010 the appellant entered pleas of guilty to two additional charges. These were one count of perjury in testimony in Supreme Court proceedings No 1488 of 2007 ("the false testimony count"), contrary to s 327(1) Crimes Act 1900 and one count of destroying documents contrary to s 67(1) of the Australian Securities and Investment Commission Act 2001 (Cth) (the document destruction count). 28On 23 April 2010 the appellant was sentenced by Ainslie-Wallace DCJ in respect of those offences. The effective sentence imposed by her Honour was imprisonment for 7 years with a non-parole period of 4 years and 9 months with a balance of term of 2 years and 3 months. 29The appellant appeals against his conviction for the fraud counts and the false affidavit count and against sentence. The grounds of appeal relied upon by the appellant are:

1. The Crown failed to lead relevant and material evidence.
2. The appellant applies to lead new evidence.
3. The conviction on the failure to account charges (s 178 Crimes Act 1900) was infected by the evidence of the perjury charge. The trial judge unfairly refused to grant an application for separate trials.
4. The trial judge failed to properly direct the jury in regard to the distinction between the receipt of funds for personal use and the receipt of funds by the corporation in the course of business when she could and should have done so.
5. The trial judge did not have before her the facts relating to the disadvantage that non-Australian citizens have in relation to harsher prison conditions. Factual background 30In relation to each of the fraud charges, the Crown's case was that: (a) On five separate occasions between about 15 November 2004 and 20 May 2005 the appellant, who controlled a mortgage broking business named Capital Trust and also controlled two companies named Capital Securitisation Ltd (CSL) and ACN110802938 Pty Ltd (ACN), had a conversation with the main Crown witness, Avinash , about a series of investment loan opportunities Mr Mookhy might invest in by lending money to borrowers respectively named Abadier, Farnhill, Holt, Maertin and Angus in which he offered the loans as investments to Mr Mookhy. (b) The appellant sent Mr Mookhy a fax in relation to each of the Abadier, Farnhill, Holton, Maertin and Angus loans recording the terms of the proposed loan in writing. Those terms included reference to precise borrowers, the fact the loans would be secured by a mortgage and a caveat over precisely identified real property, identified by address and in most cases deposited plan number. (c) Mr Mookhy advanced the funds comprising the Abadier, Farnhill, Holton, Maertin and Angus loans to Capital Trust or CSL on the terms discussed and set out in the conversations and faxes and did not consent to the money being on-lent to borrowers other than those identified in the faxes or to the money being used for any other purpose. (d) None of the purported borrowers referred to in the faxes for the Abadier, Farnhill, Holton, Maertin and Angus loans ever applied to borrow money from the appellant or companies he controlled on the terms detailed in the phone conversations or in the faxes. (e) The appellant received the money Mr Mookhy advanced to Capital Trust and CSL in his personal capacity, not on behalf of the companies, and used the money raised from the Abadier, Farnhill, Holton, Maertin and Angus loans for the general running costs of his business, Capital Trust and CSL by dispersing the funds advanced by Mr Mookhy through the bank accounts which he controlled of Capital Trust, CSL and ACN. (f) The appellant knew that he was not entitled to use the money received for the general running costs of his business and thereby fraudulently failed to account for the monies advanced by Mr Mookhy on each of the purported Abadier, Farnhill, Holton, Maertin and Angus loans. 31The appellant's case was that Mr Mookhy was provided with documentation between him and CSL which clearly set out that Mr Mookhy would place the funds with CSL and that CSL would pay interest on the investment. The appellant contended that the documentation (referred to as the "Information Memorandum" (IM) gave to the appellant a wide discretion to invest the funds under the agreement. The appellant contended that he invested the funds with One Spencer Street Pty Limited in accordance with the agreement. The appellant accepted that the One Spencer Street investment failed. The appellant contended that CSL commenced action and obtained judgment against One Spencer Street and had at all material times acted in accordance with the agreement between it and Mr Mookhy. 32The appellant contended that he had procured the creation of the IM so as to make clear to potential investors the terms under which they could invest money with CSL. One of those terms was that the money could be invested at his sole discretion on behalf of CSL. 33The appellant contended that the IM, together with the unsecured notes (UN), governed the agreement between the parties and that his discretion to reinvest into alternative investments (other than those referred to in the faxes) was agreed and that the funds of Mr Mookhy were loaned to One Spencer Street in accordance with the agreement. 34At trial the appellant gave evidence that he gave a copy of the IM to Mr Mookhy on 15 November 2004 and faxed and mailed other copies of the IM to Mr Mookhy on 16 November 2004. It was Mr Mookhy's evidence that he did not receive a copy of the IM on 15 November 2004 from the appellant and that the first time he saw a letter from the appellant to him dated 16 November 2004 purporting to enclose the IM, was when it was shown to him in his solicitor's office in November 2006. Mr Mookhy said that he never received a copy of the IM from the appellant by fax. 35The Crown case in relation to the perjury charge was: On or about 14 November 2006 the appellant swore an affidavit stating that on 16 November 2004 he sent to Mr Mookhy, via an email to fax service, a fax comprising a copy of a covering letter and the IM. The IM comprised 37 pages and the letter was two pages, giving a total of 39 pages. The affidavit was sworn by the appellant in civil proceedings in which Mr Mookhy was seeking to recover the loan monies from CSL and the appellant. 36When giving evidence at trial, the appellant repeated this claim that the IM he sent by fax to Mr Mookhy on 16 November 2004 with a two page covering letter, was the finalised IM of 37 pages in length (including an application form) which was exhibit 1 in the trial. 37The appellant annexed to his affidavit a record of the purported fax in the form of a fax transmission report, which purported to be an email from the "Dingofax" service sent on 16 November 2004. 38The appellant did not and could not have sent the fax comprising the finalised IM and covering letter to Mr Mookhy on 16 November 2004 in the manner claimed in the affidavit and the fax transmission report annexed to the appellant's affidavit was false because - (i) The subscriber had never been able to access the Dingofax "outbound" email to fax machine service and was not able to do so on 16 November 2004. (ii) Unifier 2 Pty Limited, which kept records of all Dingofax delivery notifications, had no record of the notification number referred to by the appellant or anything close to it. (iii) Unifier 2 Pty Limited, which kept records of all Dingofax outbound email to fax transmissions, had no records of an outbound fax on 16 November 2004, 39 pages long or of an outbound fax on that date of a duration of 4 minutes and 56 seconds, or of an outbound fax being sent to the specified destination, or an outbound fax on that date being delivered at 9:07:05AM AEST, these being the details recorded on the purported fax transmission report presented by the appellant. (iv) There was no record in Telstra's records of any communication being received by Mr Mookhy's telephone that matched the time of the purported fax communication referred to in Annexure A to the affidavit of the appellant. (v) There was no record in Unifier 2's records of the fax referred to in Annexure A to the affidavit of the appellant, sworn 14 November 2006. (vi) It was not possible for a client of Ozefax (as the appellant was) to use Dingofax to send an outbound email to fax machine communication before May 2005. (vii) It was not possible for a delivery notification of the type annexed to the affidavit of the appellant and marked "A" to have been sent on 16 November 2004. (viii) The user email address was not registered to send outbound faxes with Dingofax in November 2004. (ix) An outbound fax transmission of 39 pages on the Dingofax service could not have been completed in 4 minutes 56 seconds and would have taken much longer. (x) The finalised IM which the appellant claimed he had given to Mr Mookhy on 15 November 2004 and faxed to Mr Mookhy on 16 November 2004 was not in existence on 16 November 2004 because it was still being drafted by the solicitor of the appellant and Capital Trust - Simon Singer - as at 29 November 2004 and was not finalised until after that date. 39The appellant at trial had no answer to the Crown's case in relation to the perjury charge. 40It was not disputed at trial that Mr Mookhy provided funds on five separate occasions to Capital Trust and CSL. It was not disputed that CSL sent faxes inviting Mr Mookhy to invest money in CSL. It was not disputed that in the faxes an investment opportunity was identified and that the faxes further identified that the investment would be secured by a specific property if each investment had settled. It was not disputed that Mr Mookhy received all the yearly and monthly investment statements. What were disputed were the terms of the investment. 41It was common ground that the appellant did not invest the money provided by Mr Mookhy in the investments identified in the faxes, but instead invested the money in other investments which subsequently failed, resulting in the money being lost. 42The Crown sought to refute the appellant's evidence that he had a discretion under the IM and UN to invest funds as he saw fit. The Crown led evidence that the IM did not exist in its final form as of 15 and 16 November 2004 when the appellant said that he provided copies to Mr Mookhy. To this end the Crown adduced evidence from Mr Singer to the effect that substantial amendments were still being made to the IM on 22, 26 and 29 November 2004. 43In order to understand the first two grounds of appeal, it is necessary to say something about the "new evidence" which the appellant sought to adduce and its relevance to the first ground of appeal. The "new evidence" comprised parts of a statement of Cedric Adrian Millner, dated 22 April 2008 (MFI 3). It was submitted that because Mr Millner was not called by the Crown to give evidence in accordance with this statement, the trial was unfair and that the appellant lost a realistic chance of an acquittal. 44The relevant parts of the statement are: "31 A few days before I invested, I picked up a document from the Capital Trust office. I got it from reception. I rang up and got it and left. 32 I am shown a document headed "Information Memorandum" dated November 2004. It is marked ASIC barcode SBO 007447. 33 I have examined this document and can say: (a) This appears to be the same as the Information Memorandum (IM) I picked up from the Capital Trust Office; (b) I read the IM; ... 42 Rather than have the tenant pay the bond to Grand Hotel Wyong Pty Ltd I asked the tenant to pay the bond straight to Capital Trust. The tenant paid the bond to Capital Trust on or around 1 December 2004. 48 I am shown a document headed "Note Certificate - CSL Unsecured Notes Issue No 4" and dated 6 December 2004. It is marked with ASIC barcode SOP 1591654. 49 I have examined this document and can say: (a) I received this document in or around December 2004. (b) This document records that: (i) The Note Certificate No is 410; and (ii) The investment was $300,000." 45In the appeal there was no issue that the appellant had become aware of the existence of the statement from Mr Millner at some time between April and July 2008 and had made a photocopy of it (affidavit of Phillip Peck, par 15-16). There was no issue that the Crown brief which included the statement of Mr Millner was provided to the legal advisors of the appellant on 20 January 2009. There was no issue that in correspondence the appellant acknowledged the receipt of Mr Millner's statement (affidavit of John Davidson, par 12, Annexures E1 and E2, par 15, Annexure F). There was no issue that the statement of Mr Millner was served on the legal advisors of the appellant on 12 August 2009 when the full Crown brief was re-served. It was common ground that the witness list sent to counsel for the appellant on 12 October 2009 did not include Mr Millner. It was common ground that at no time prior to, or during the trial, was any request made by or on behalf of the appellant for Mr Millner to be called as a Crown witness or to be made available by the Crown for cross-examination. Ground of Appeal 1: The Crown failed to lead relevant and material evidence. Ground of Appeal 2: The appellant applies to lead new evidence. (Both these grounds of appeal relate to the fraud counts.) 46The appellant submitted that the Crown had an overall obligation to ensure that criminal trials are conducted fairly. The appellant submitted that there was an obligation to call witnesses whose evidence was necessary to give a complete account of the events on which the prosecution was based and to allow the narrative to unfold (Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at 674 (Dawson J)). The appellant relied upon the sixth statement of principle identified in The Queen v Apostilides [1984] HCA 38; 154 CLR 563 at 575: "6 A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice. ..." The Court explained the sixth principle at 577-578: "It remains to offer a comment on the sixth proposition. In Richardson the Court said: "Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call a particular witness, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice." In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. ... So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory." 47The appellant submitted, by reference to that statement of principle, that the evidence of Mr Millner was relevant to an important issue in the case and its absence would have created a false impression in the minds of the jury as to what was happening. The appellant submitted that the effect of the evidence of Mr Millner was that the IM was well and truly in the marketplace in November 2004 and was being used by the appellant as a basis for other persons such as Mr Millner making loans to his companies. The appellant submitted that the evidence of Mr Millner refuted the Crown's argument that it was the faxes which provided the basis for the investment of monies by Mr Mookhy. The appellant submitted that the evidence of Mr Millner supported his evidence that he provided copies of the IM to Mr Mookhy on 15-16 November 2004. 48The appellant submitted that if the Crown had led this evidence from Mr Millner, the jury may well have been left with a reasonable doubt as to whether Mr Mookhy had advanced monies in accordance with the faxes, rather than in accordance with the terms of investment set out in the IM and UN. The evidence of Mr Millner, the appellant submitted, also supported the defence that he had an honest belief that by investing the money in the way in which he did, he was acting in accordance with the agreement which he had with Mr Mookhy as set out in the IM. 49The appellant submitted that the failure to call Mr Millner exposed the Crown to the criticism that it was engaged in a strategic manoeuvre to "pick and choose" witnesses to present the most adverse case from the appellant's point of view. The appellant submitted that the calling of Mr Millner's evidence would have prevented the Crown making submissions to the effect that the IM was not available in November 2004 and therefore could not have been given to Mr Mookhy as the appellant asserted. 50The appellant submitted that if the evidence of Mr Millner had been led by the Crown, it would have been open to the jury to draw an inference or accept an hypothesis consistent with the appellant's version of events and therefore consistent with innocence. In substance therefore the appellant submitted that the failure by the Crown to call Mr Millner caused the trial to miscarry. 51Before examining the submissions of the appellant more closely, it is necessary to determine by reference to his statement, what the evidence of Mr Millner would have been. The first point is that the evidence was general rather than specific. The pick up of the document occurred "a few days before I invested". He was shown the 04 version of the IM and said that "this appears to be the same" as the IM which he picked up. In relation to the investment of the monies, he said that the payment took place "on or around 1 December 2004" and that the acknowledgement of the investment was dated 6 December 2004. Put at its highest and giving the evidence a precision which the statement lacks, its effect was that a document which appeared to be the same as the 04 IM was picked up by Mr Millner in the last few days of November, i.e. 28, 29 or 30. 52That evidence would not have prevented the Crown from making any of the submissions which are criticised. It would not prevent the Crown from submitting that the 04 version of the IM had not come into existence by 15 or 16 November 2004. That submission was available because of the evidence of Mr Singer, supported as it was by correspondence that on 22, 26 and 29 November the IM was still in draft form and was subject to significant amendment. In fact the statement of Mr Millner is not inconsistent with the evidence of Mr Singer. There were clearly drafts of the IM in existence on 22 and 26 November but importantly, not on 15 or 16 November. 53The Crown did not contend that there was no IM in existence at all in November 2004. On the contrary, the Crown led evidence from Mr Singer about the existence of a number of drafts of the IM in November 2004. It was the Crown case that the 37 page finalised IM could not have existed before 29 November 2004 and therefore could not have been given to Mr Mookhy on 15 November 2004 and faxed to him on 16 November 2004, as claimed by the appellant. 54The Crown opened on this issue as follows: "I expect there will be a number of different types of evidence led in the proceedings which will, I expect, establish that, that the Information Memorandum did not exist at the date in question, that is on 16 November 2004. And the means by which, in the document and copy of an email annexed to the affidavit, it is (not transcribable) were means which again did not exist at that date, 16 November 2004". (AB Vol 1 T.18-19) 55In closing addresses the Crown addressed on the significance of the detailed evidence of Mr Singer as follows: "But the real point I submit about this is, putting that to one side, is it's clear, is it not, that the Information Memorandum copy that appears at p 122 and onwards of exhibit 1 just couldn't have existed before 29 November 2004." (AB Vol 4, T.1006) 56The handwritten amendments on the portions of the IM faxed by Mr Singer to the appellant on 29 November 2004 do not appear in drafts of the IM produced before that date but do appear in the finalised IM. Therefore, the finalised IM, which the appellant claimed he faxed to Mr Mookhy on 16 November 2004, could not have existed before 29 November 2004. It is notable that the finalised IM refers to "CSL unsecured notes issue No 04", whereas the earlier drafts all refer to "CSL unsecured notes issue No 01". Mr Singer recalled this change from number 01 to number 04 occurring in "late 2004" (AB Vol 3 T.514). The appellant himself said that the Information Memorandum "in its complete form" was finalised "towards the end of November 2004, early December 2004" (AB Vol 4, T.876). 57The evidence of Mr Mookhy that he did not receive by fax a copy of the 2004 version of the IM on 16 November 2004 was supported by the evidence of the falsification by the appellant of the fax records said by him to have come into existence on that date. The conflict between the evidence of the appellant as to the delivery of the IM on 15 and 16 November 2004 (T.767.40, 768.23-.47, 769.47, 770.1-.49, 772.5, 838.47, 839.1-840.11) and that of Mr Mookhy and Mr Singer was a classic issue for the jury to resolve. The evidence of Mr Millner, limited as it was to the end of November 2004, was irrelevant to that issue since it was not inconsistent with the evidence of Mr Mookhy, nor was it inconsistent with that of Mr Singer. 58A proper analysis of Mr Millner's statement indicates that its relevance was marginal at best and that it would not have had any real impact on the issue which the jury had to decide. 59A recent statement of the obligations of a prosecutor is in R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 at [57] where Greg James J said: "57 In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused's guilt." 60Smart AJ said: "102 At the risk of undue repetition these further principles should be noted: (a) The Crown prosecutor in deciding how the Crown case will be presented and what oral evidence will be adduced has the responsibility of ensuring that the Crown case is presented with fairness to the accused: Richardson v The Queen (1974-75) 131 CLR at 119. (b) The Crown prosecutor will often have to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether it is credible and truthful, whether in the interests of justice it should be subject to cross-examination, amongst other matters: Richardson (at 119). (c) The prosecutor should decide in the particular case what are the relevant factors and in the light of those factors determine the course which will ensure a proper presentation of the Crown case comformably with the dictates of fairness to the accused: Richardson (at 119). (d) To avoid a miscarriage of justice, a Crown prosecutor should call all available material witnesses. They include those whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case: Whitehorn v The Queen 152 CLR 657 at 674 per Dawson J. (An exception exists where there are many witnesses to prove the same point.) (e) However, the Crown has a discretion not to call in the Crown case an eye witness if the prosecutor judges that there is sufficient reason for not calling the witness, as, for example, where the prosecutor concludes the witness is not reliable and trustworthy or is otherwise incapable of belief. This applies even to a witness who is essential to the unfolding of the narrative on which the prosecution is based: R v Richardson (at 121) and Whitehorn v The Queen (at 674). (f) The prosecutor's judgment must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. It is for the jury to resolve these: R v Apostilides (at 576). (g) "In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment" [or able to give material evidence] but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defendant and then, if necessary, be re-examined: R v Apostilides (at 576). (h) Frequently, eye witnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the Crown. It is where it is apparent that the eye witness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the Crown not calling that witness will arise. (i) Overriding all the particular guidelines and formulations is the general obligation imposed upon a Crown prosecutor to act fairly in the discharge of the function which he performs. That is the guiding and fundamental principle to be kept in mind as new and unusual situations emerge: Whitehorn (at 675)." Spigelman CJ agreed with the statements of principle by both Greg James J and Smart AJ. 61The application of those statements of principle to the facts of this case did not require that the Crown call Mr Millner. He was not a material witness and his evidence was at best only marginally relevant. There is, of course, the added difficulty for the appellant that he and his legal advisors were well aware of the contents of Mr Millner's statement and could have requested that he be called in the Crown case if they regarded his evidence as material or relevant to the defence case. No such request was made. Alternatively, they could have called Mr Millner in the defence case. The failure to make such a request of the Crown and the failure to call Mr Millner in the defence case have not been explained. 62It follows that the evidence of Mr Millner if led at trial would not have improved the appellant's chances of achieving an acquittal on any of the fraud counts or on the false affidavit count. The prosecution did not, by not calling him, cause a miscarriage of justice and did not prevent an hypothesis consistent with innocence from being left to the jury. 63Ground 2 of the appeal related to the admission of the statement of Mr Millner as fresh evidence. This ground of appeal appears to be misconceived. The issue is not whether this Court should receive as fresh evidence on the appeal the statement of Mr Millner, but whether it is evidence which should be heard by a jury in order to avoid a miscarriage of justice. Clearly this Court needs to admit the evidence on a conditional basis in order to evaluate its effect. 64The considerations which guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at trial have been considered on a number of occasions, e.g. Gallagher v R [1986] HCA 26; 160 CLR 392; Mickelberg v R [1989] HCA 35; 167 CLR 259; R v Abu-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and GAR v R (No 1) [2010] NSWCCA 163 at [26]. 65Usually a conviction will not be set aside if the evidence relied upon could with reasonable diligence have been produced by the accused at trial. Quite clearly Mr Millner's statement was available at the time of trial and its existence was known by the appellant's legal advisors. That consideration does not assist the appellant. 66The other consideration is whether the evidence, if believed, might reasonably have led the jury to return a different verdict. Put another way, a Court of Criminal Appeal will not intervene unless the evidence is "of such cogency that innocence is shown to the court's satisfaction or the court entertains a reasonable doubt as to guilt". (R v Abu-Chabake at [63].) As already indicated, the evidence of Mr Millner was not of that quality. 67The conclusion I have reached is that the evidence sought to be relied upon was not "fresh" in any relevant sense and that there was no miscarriage of justice flowing from the fact that it was not presented to the jury. This ground of appeal has not been made out. Ground of Appeal 3: The conviction on the failure to account charges (s 178 Crimes Act 1900) was infected by the evidence of the perjury charge. Her Honour unfairly refused to grant an application for separate trials. 68The appellant accepted that he had no defence to the false affidavit count. Accordingly, once the evidence of that matter had been adduced, he submitted that any prospect of his evidence being accepted on other issues by the jury (however truthful it might have been) was lost. It was only a short step for the jury to conclude that he was not telling the truth about the IM. The appellant submitted by reference to what was said in R v O'Connor (1992) 59 A Crim R 278 at 287 the jury's consideration of the fraud counts must have been so infected by the offence touching the false affidavit count as to render its verdict on the fraud counts unsafe and unsatisfactory. The appellant submitted that her Honour should have appreciated that and ordered separate trials. 69In making that submission, the appellant conceded that even if the false affidavit count had not been heard at the same time as the fraud counts, it would have been open to the Crown to adduce evidence about it so that the evidence on that issue would have been before the jury in any event. That was a concession properly made. 70Her Honour rejected the appellant's application for separate trials in a short judgment delivered on 26 October 2009. The basis for her Honour's decision was the closeness of the relationship between the fraud counts and the false affidavit count. Her Honour considered that the potential prejudice could be dealt with by a strong direction to the jury. 71Her Honour was empowered by s 21(2) of the Criminal Procedure Act 1986 to order a separate trial of any count or counts in an indictment if she were of the opinion: (a) That an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment; or (b) That for any reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment. 72The test of whether joinder of counts is appropriate was considered in R v McCarthy (1984) 14 A Crim R 155. There Street CJ approved the following statement of principle from R v Assim [1966] 2 QB 249 at 261: "As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same persons that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by them being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together." 73In the particular circumstances of this case when the evidence as to the false evidence could and would have been led in any event, the appellant has not established any relevant prejudice or embarrassment by reason of the fraud counts being tried at the same time as the false affidavit count. The fraud counts and the false affidavit count were so related by a range of factors, that the interests of justice were best served by them being tried together. This ground of appeal has not been made out. Ground of Appeal 4: Her Honour failed to properly direct the jury in regard to the distinction between the receipt of funds for personal use and the receipt of funds by the corporation in the course of business when she could and should have done so. 74The appellant submitted that her Honour had failed to properly direct the jury in regard to the distinction between the receipt of funds for personal use by the appellant and the receipt of funds by a corporation in the course of business. In particular, the appellant submitted, that her Honour had not advised the jury that the appellant had received no personal benefit from the money paid by Mr Mookhy to CSL. The appellant agreed that no point was taken at trial concerning her Honour's direction on this issue. Accordingly, leave pursuant to r 4 is required. 75Comprehensive directions were given by the trial judge on the question of the distinction between the receipt of funds personally as distinct from receiving them as a representative or employee of a company. These directions were given after extensive discussions between her Honour and counsel (AB Vol 4, SU D1, pp 41-49; AB Vol 4, SU D2, pp 1-14). 76The approach followed by her Honour was to provide the jury with a written direction (MFI's 20 and 25) which set out the elements of the offence constituted by the fraud counts and then to explain those elements of the offence. The elements identified by her Honour were: (i) The accused received money from Avinash Mr Mookhy. (ii) At the time that the accused received the money from Mr Mookhy it was on terms that the accused was to account for that money by lending it in accordance with the faxes referred to in the charges. (iii) The accused failed to account for the money - that is he failed to lend the money to the named persons. (iv) At the time the accused failed to account for the money he was fraudulent. 77These directions were correct. (a) The Crown was required to prove beyond reasonable doubt that the appellant received the sums of money referred to in the fraud counts from Mr Mookhy (R v Francipane (NSWCCA, unreported, 23 December 1998 at p 10). (b) The Crown had to prove beyond reasonable doubt that the appellant received the money personally, not as an employee or representative of any of the companies in the Trust Group (R v Maharaj (1995) 85 A Crim R 374 at 380-381). (c) Where a person controls a company and personally controls the receipt of monies by the company and the disposition of that money, he will be capable of receiving that money personally, rather than as a mere representative or employee of the company (R v Moran (1991) 52 A Crim R 440 at 441; R v J (1987) 9 NSWLR 615 at 623). (d) It is not the law that a payment to a company, e.g. a cheque in favour of the company - received by a director is necessarily received by him as a representative of the company (R v Moran at 442; R v J at 623). 78As can be seen from the above statement of the elements of the offence, whether or not the appellant personally gained from the transaction may be a background fact which would assist in the establishment of an element of the offence, but it is not itself an element of the offence and did not have to be specifically referred to by her Honour. In relation to the fourth element of the offence, her Honour said in her written direction (MFI 25): "This element and all of the elements of the offences, must be found by you beyond reasonable doubt. That is, you must be satisfied beyond reasonable doubt that at the time that the accused received the money from Mr Mookhy he was acting for his own personal purposes and not acting on behalf of the company. If you are not satisfied beyond reasonable doubt of that then you cannot find this element proved and you must find the accused not guilty." 79I am not satisfied that there was anything in her Honour's written or oral directions which required correction or amendment and I would refuse leave pursuant to r 4 for the appellant to rely upon this ground of appeal. Sentence Appeal Ground of Appeal 5: The sentencing judge did not have before her the facts relating to the disadvantage that non-Australian citizens have in relation to harsher prison conditions. 80In support of this ground of appeal, the appellant sought leave to rely upon his affidavit as to prison conditions (MFI 3) and on a letter from the Department of Immigration and Citizenship (DIAC), dated 29 September 2010 (MFI 4). The letter from DIAC advised that "it is also unlikely that any visa cancellation consideration will formally commence until approximately 12 months prior to your earliest date of release." 81In passing sentence on 23 April 2010, her Honour summarised the appellant's subjective case as follows: He was aged 32 and had left his home in Austria when aged 21 and had come to live in Australia. He had a Masters degree in Economics and had always been in employment. He had no previous criminal convictions. 82A number of persons wrote to the court attesting to his good character and to the effect that he had always acted honestly and decently. They said that the frauds were uncharacteristic of him. The appellant did not give evidence but wrote a letter to the court in which he expressed regret and some remorse for what had occurred. 83Her Honour noted that the appellant had been made bankrupt and that his marriage was faltering. Her Honour also noted that in one of the testimonials it was explained that the convictions for fraud and perjury would effectively bring to an end the appellant's ability to work in the finance area, which in turn would create difficulties for him on his release from prison. 84The individual sentences imposed by her Honour were as follows. On the charge of destruction of documents, the appellant was sentenced to a fixed term of imprisonment of 10 months. On the charge of perjury committed in the Supreme Court, he was sentenced to a fixed term of imprisonment of 12 months. On the charge of perjury of which he was convicted by the jury, he was sentenced to a fixed term of imprisonment of 1 year and 6 months. In relation to each of the first four counts of fraud, the appellant was sentenced to fixed terms of imprisonment of 2 years and 6 months. On the fifth count of fraud, he was sentenced to imprisonment with a non-parole period of 3 months, which would expire on 1 September 2014 and a balance of term of 2 years and 3 months which would expire on 1 December 2016. Accordingly the earliest date for his release to parole was 1 September 2014. As previously indicated, the effect of the sentences passed by her Honour was imprisonment for 7 years with a non-parole period of 4 years and 9 months. 85It was the appellant's submission that an error had occurred in the sentencing process because it had not been brought to her Honour's attention that as a non-Australian citizen, he may in due course have his visa cancelled. This meant that he would be disadvantaged in comparison with other prisoners while serving his sentence. The nature of the disadvantage was that he was unlikely to be moved to a C2 or C3 classification, which would allow him to be housed in a minimum security facility and to perform work on and off the correctional centre facility. In his affidavit the appellant asserted that he would be required to spend most of his time in custody in a maximum security facility despite being classified as a minimum security risk. 86It was not submitted that her Honour had erred in failing to take account of this material since it had not been placed before her. The submission was that this material should have been placed before her Honour and if so, it would have produced a lighter sentence. Alternatively it was fresh evidence which had only come to light after the sentencing proceedings and should now be taken into account by this Court. 87The alternative submission cannot succeed. The evidence sought to be relied upon was clearly not "fresh". The policy of DIAC towards non-Australian citizens in custody could have easily been obtained and placed before the court in a letter. The policy of the Department of Corrective Services to non-Australian citizens when in custody could also have been obtained and placed before the Court in a similar way. This was not done. The failure to do so has not been explained. 88Given the seriousness of the offences, the likelihood that DIAC would consider revocation was at least more probable than not. In that circumstance, any departmental policy contingent upon that fact would be implemented. All of that was information readily available to be considered on sentencing and, if the applicant had wished that it be taken into account, it should have been raised with the sentencing judge but was not. 89The evidence sought to be relied upon by the appellant to establish these issues is unsatisfactory. The letter from DIAC simply advises that no decision will be made about his visa until 12 months before he is due to be released. The remaining evidence is in the form of second-hand anonymous hearsay (MFI 3, par 20-29). Put at its highest, it raises speculative considerations about administrative arrangements which may or may not be made in relation to the appellant's future classification and location within the prison system. 90Annexure "N" to MFI 3 is a letter from Legal Aid NSW to the appellant dated 23 June 2011. It is a response to certain inquiries by the appellant. It states: "... Although Corrective Services says that in these circumstances, progression to C3 will be considered on its merits, this will only happen if DIAC has made a decision that the person will not be deported. You should write to the address below and request that a decision be made now on whether or not your visa will be cancelled. You should mention in the letter: (1) Your classification, in particular, progression to minimum security and access to leave programs, is being held up because there is no decision from DIAC; and (2) The date you came to Australia, how long you have been living here, when you married, if you have children here, if the marriage is still on foot, work you have done here and plan to do when released and where and with whom you plan to live here when released ..." The address given was that of DIAC. Accordingly, the appellant's progression within the prison system is by no means clear. 91The situation is analogous to that where a reduction in sentence is sought because much or part of a sentence will be served in protection. The observations of Howie J (with whom McColl JA and Studdert J agreed) in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at [179 - 180] are apposite: "179 The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case. 180 As was recognised in Totten, the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement." 92The issue is whether, even if the additional evidence sought to be relied upon is taken into account, this Court should now re-open the sentence, there being no error on the part of the sentencing judge in failing to make allowance for the hardship referred to. 93Whether or not the appellant's visa will be revoked remains speculative. If it is not revoked, he will proceed through the prison system in the conventional way. There also seems to be a difference of opinion between Legal Aid NSW and the Department of Corrective Services. The Department of Corrective Services seems to be saying that the appellant's progression to C3 will be considered on its merits, Legal Aid is of the opinion that this is contingent upon a favourable decision being given by DIAC. 94This raises the very issue identified in Mostyn at [180] in that the Court is asked to carry out some kind of predictive exercise based on evidence which is uncertain at best. In those circumstances I have concluded, that even if the additional evidence sought to be relied upon by the appellant had been before her Honour, or was before this Court, I would not interfere with the sentence which her Honour passed. Conclusion 95Since all of the conviction appeal grounds raise mixed questions of fact and law, the leave of this Court is required for those matters to go forward. The Court has heard detailed argument in relation to these grounds, but none of them has been made out. In those circumstances, I would grant leave to appeal in respect of Grounds 1 and 3 but would dismiss the appeal. I would refuse leave to appeal in respect of Grounds 2 and 4. In relation to the sentence appeal, I would grant leave to appeal but dismiss the appeal. 96Accordingly, the orders which I propose are: Conviction Appeal (1) Leave to appeal is granted in respect of Grounds 1 and 3, but the appeal is dismissed. (2) Leave to appeal is refused in respect of Grounds 2 and 4. Sentence Appeal (1) Leave to appeal is granted but the appeal is dismissed. 97McCALLUM J: I agree with Hoeben JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2012