… 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.