BLUNDELL, Paul John v R

4. The prosecution did not oppose the imposition of periodic detention.

5. His Honour failed to give sufficient weight to the strong family and community ties of the applicant." 36 The difficulty for the applicant is that, to the extent that these submissions are intended to challenge the adequacy of consideration given to subjective circumstances, they run straight up against the express words in the Remarks on Sentence. His Honour was fully aware of all of the subjective circumstances. In the case of the applicant, the options of a Community Service Order or imprisonment to be served by way of periodic detention were not available by reason of Mr Blundell's interstate residence. 37 No evidence was adduced to support the assertion that appears as paragraph 2 of the "Amended Submissions", and no oral submissions were advanced in its support. In any event, the evidence before the sentencing judge was to the contrary, as set out above. His Honour cannot be held to have erred in imposing sentence on the basis of the facts as they then existed. 38 Counsel who appeared for the applicant placed heavy weight on what she called the "principle of parsimony". The argument derived from a judgment of Adams J (who did not claim to be the originator of the "principle") in DB v R; DNN v R [2007] NSWCCA 27. At [10] his Honour said: "… It is a fundamental assumption of sentencing jurisprudence that in no case will only one sentence be correct … In every other case the circumstances will justify a range of sentences, often quite a wide range, that may properly be passed. Although not articulated, so far as I am aware, in the decisions of this Court, it seems to me that it is also fundamental that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing … should be that which is imposed. This has been called the principle of parsimony, a phrase that originated in the judgment of Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 and has become common in Victoria see, eg, R v Storey (1996) [1998] 1 VR 359 at 366; R v PP (2003) 142 A Crim R 369 at 374. To impose a more severe sentence is, ex hypothesi , to intrude other inappropriate purposes into the administration of criminal justice. It is trite that minds may well reasonably differ as to what this minimum sentence might be in the circumstances of any particular case. Whether one applies this approach or not, it is unarguable that more than one sentence will invariably be warranted in law. This assumption is fundamental to the application of s 6(3) of the [ Criminal Appeal ] Act [1912]."

(I can detect, in Webb v O'Sullivan , no reference to "the principle of parsimony".) 39 The other members of the bench in DB; DNN were McClellan CJ at CL and Latham J, neither of whom endorsed the observations. Neither do I. Indeed, it seems to me that there is a fundamental contradiction in the paragraph: his Honour plainly accepts, as indeed he must, the well recognised and thoroughly entrenched principle that, in any case, a range of sentences exists. Where a sentencing judge imposes a sentence within that range, it will not be held to be erroneous, notwithstanding that another judge might have selected a different sentence. That cannot stand with the proposition, said to be "fundamental", that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing should be that which is imposed. The two simply cannot stand together. 40 Nor is the proposition supported by the authorities cited. In Webb Napier CJ was dealing with an appeal against a sentence imposed by a magistrate in respect of an offence of driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control. It appears that the relevant legislation provided for an increased sentence in respect of a second offence. At first instance, the magistrate had in fact imposed a sentence in excess of that which could lawfully be awarded in respect of a first offence. In fact, as the record showed, the offence in question was a second offence. Nevertheless, Napier CJ then said: " In cases of this kind , where the discretion of the court is so much at large, I think that it is a mistake to have any rule of thumb. The court should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest ." (italics added) 41 However, that was in a context in which his Honour had held: "… it is a second offence, but … it is apparent that it was an infraction which approximated in gravity to the minimum rather than to the maximum contemplated by the statute, that is to say, for a second offence …

… regard should be had to the lower as well as to the upper limit of the penalties prescribed. Treating this as the second offence, the gravity approximates to the lower end of the scale, and there is no reason why the penalty should not be assessed upon that basis …" 42 In my opinion Napier CJ was not purporting to lay down any rule or principle of sentencing. His remarks were confined to the circumstances of the case that was before him. 43 It is true that in both R v Storey [1998] 1 VR 359 and R v PP [2003] VSCA 100; 142 A Crim R 369, the Court mentioned - in passing - "the principle of parsimony". In Storey the Victorian Court of Appeal was dealing with an application for leave to appeal against sentences imposed following pleas of guilty to charges of trafficking in a drug of dependence, of being in possession of a drug of dependence and of unlawful possession of a pistol. At p 366 the Court considered the approach to sentencing that distinguishes between aggravating and mitigating circumstances and rejected a rigid distinction between "circumstances of the offender" and circumstances of the offence. In that context their Honours said: "Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single 'right' answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes account of the various purposes for which sentences are imposed - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to principles of totality, parity, parsimony and the like … " (italics added; internal references omitted) 44 Their Honours did not explain what they meant or understood by "the principle of parsimony" and cited no authority for its application to the sentencing law of Victoria. 45 In PP Callaway JA, with whom Winneke P agreed, was dealing with a 15 year old who had been convicted of manslaughter. The observations made were to do with principles applicable to the sentencing of children. His Honour said: "What is required in every case is a sound discretionary judgment that gives appropriate weight, and usually great weight, to youthful immaturity, the better prospects that a young person has for rehabilitation and the desirability of keeping such offenders out of the adult prison system. Those considerations reinforce and complement the common law principle of parsimony and statutory provisions such as s 5(3) and (4) of the Sentencing Act [ 1991 ]." 46 As in Storey, the allusion was made in passing, and is not supported by references to any authority that establishes "the principle of parsimony" to be a sentencing principle applicable in Victoria. Nor was any explanation or interpretation of the term given. 47 I do not read these judgments as containing or endorsing a proposition that mandates that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing must be that which is imposed. That is inconsistent with the notion of a range of sentences, and the discretions properly open to sentencing judges. I do not accept that "the principle of parsimony", at least as, on one construction of DB; DNN, it appears to have been interpreted by Adams J, is part of the sentencing law of NSW. In Kelly v The Queen [2007] NSWCCA 357 at [30] Basten JA rejected that construction of the judgment in DB; DNN. Adams J, who, coincidentally, was also a member of that Bench, agreed with Basten JA. 48 For completeness, I extract para [30] of Kelly: "To suggest that there will not be, almost inevitably, a range of sentences which could appropriately be characterised as 'warranted in law' is to misunderstand his Honour's judgment; Adams J expressly stated the contrary in the balance of [10] through to [12]. If the 'principle of parsimony' is taken to imply that there cannot be such a range, that language should be abandoned. Indeed, 'parsimony' is a slightly curious word to use in this context, albeit it has, as his Honour noted, a respectable lineage in Victoria. In the South Australian case to which Adams J referred, Webb v O'Sullivan [1952] SASR 65 at 66, Napier CJ, in dealing with a traffic offence, had merely stated: 'Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.'" 49 There are, nevertheless, some troubling features in this application. The offences were committed in the first half of 2002. The applicant was not sentenced until July 2007. No explanation emerged for the very long delay. It is apparent, from some discussion between the sentencing judge and counsel, that additional charges had been laid against both brothers. In 2006 a different District Court judge dismissed those charges against Richard Blundell, as a consequence of which the DPP elected not to proceed against the applicant in respect of the same or similar charges. It may be that the pending trial on those charges provides some explanation for the five years which elapsed between the offences and ultimate sentencing. The materials before this Court do not make clear the dates on which the offences were discovered, or charges first laid. 50 In any event, the fact remains that the applicant came for sentence five years after his offending. The evidence disclosed significant steps towards rehabilitation. But that was all before the sentencing judge, and was taken into account by him. 51 The most troubling aspect, however, is the question of relativity with the sentences ultimately imposed upon the applicant's brother, Richard Blundell. I have used the term "relativity", and deliberately avoided the term "parity" because, it seems to me, the facts of the case do not fit easily within the authorities that are concerned with parity: Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295. 52 Although the two brothers were charged with offences of the same kind, committed at about the same time, and the gravamen of their offences was similar if not identical, the actual frauds they perpetrated were on different clients, and in vastly different sums. There is much suspicion that the two were acting in concert, but that was not the way the Crown elected to conduct the prosecution, and this Court cannot be satisfied, and cannot act on the basis that each brother was liable for the defalcations actually committed by the other. It is possible, if unlikely, that each of the two hit upon a scheme of salvaging the financial position of the firm in the same way, without disclosing that to the other. 53 The result is that Richard Blundell stood to be sentenced for the nine offences that he admitted, involving just under $17,000, while the applicant stood to be sentenced for three offences involving $146,000. Fraud on such a magnitude cannot, in my opinion, be met with anything less than a full time custodial sentence. There was no error by the sentencing judge in so concluding. 54 Nor was there any error in his assessment of the length of the overall sentence. 55 I would grant leave to appeal but dismiss the appeal.

Counsel heard on sentencing on 25 March 2008 56 The Applicant is eligible for and entitled to release on parole on 11 November 2008. The total sentence will expire on 11 August 2009. 57 Direct the Applicant be released on parole at the expiration of the non-parole period. **********

31/03/2008 - correction of solicitor on the record for the applicant - Paragraph(s) Cover sheet

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.