Burnard v R, R v Burnard

Court of Criminal Appeal (NSW)|2008-12-10|Before: Tobias JA, James J, Price J

The application for directed verdicts of not guilty at the trial 44 At the conclusion of the Crown case at the trial counsel for Mr Burnard made an application for directed verdicts of not guilty, on the grounds:-

As to counts 4, 5 and 6, that the writing on the documents could not convey the implied representation particularised in the counts in the indictment.
There was no evidence on which the jury could find that Mr Burnard had intended to make the representations alleged.
There was no evidence on which the jury could find that the entity Kebbel Investment Bank did not exist.
Alternatively to 3, there was no evidence on which the jury could find that Mr Burnard knew that it was false that the entity Kebbel Investment Bank existed.
There was no evidence on which the jury could find that, if Mr Burnard had made each of the statements alleged and knew it was false, he made the statement with the intention of obtaining a financial advantage for the mezzanine companies. 45 After hearing argument the trial judge decided, without really giving any reasons, that on all of the counts there was a case to go to the jury and the trial judge dismissed the application for directed verdicts.

The appeal against conviction 47 It is appropriate to consider the appeal against conviction, before considering, if necessary, the Crown appeal against sentence. No point was taken by the Crown that the appeal against conviction had been filed out of time. 48 There were three grounds of appeal against conviction, namely:-

The trial judge erred in not directing an acquittal (on the application of the appellant) at the conclusion of the Crown case;
In the alternative to ground (1), the verdict of the jury in respect of each of the counts in the indictment was unreasonable or cannot be supported having regard to the evidence;
The trial judge erred in admitting certain evidence over objection, namely the evidence of David Gwyn Lewis.

Grounds 1 and 2 49 It is convenient to deal with grounds 1 and 2 together. 50 The principles to be applied by a trial judge in deciding whether to direct a jury to return a verdict of not guilty were stated by the High Court in Doney v The Queen (1990) 171 CLR 207 at 214-215 as follows:- "…if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 51 The principles to be applied by a Court of Criminal Appeal in deciding whether a verdict of guilty was unreasonable or cannot be supported having regard to the evidence (formerly described as whether a verdict of guilty was unsafe or unsatisfactory) have been stated by the High Court in such cases as M v The Queen (1994) 181 CLR 487 at 492-3, Jones v The Queen (1997) 191 CLR 439 at 450-452 and MFA v The Queen (2002) 213 CLR 606 at 614-615. 52 In M v The Queen Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment said at 492-3, in a passage approved by Gleeson CJ, Hayne and Callinan JJ in their joint judgment in MFA at 615(25):- "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 53 In determining this question a Court of Criminal Appeal must make its own independent assessment of the evidence and the Court is to have regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilty or innocence and that the jury has had the benefit of seeing and hearing the witnesses. 54 It is apparent from the statements of principles to which I have referred that the principles to be applied by a Court of Criminal Appeal in determining whether a verdict was unreasonable or cannot be supported having regard to the evidence are different from the principles to be applied by a trial judge in determining whether to direct a verdict of not guilty and that the principles to be applied by a trial judge in determining whether to direct a verdict of not guilty are more stringent. Furthermore, in the present case the only evidence adduced in the defence case after the Crown case had closed was some brief character evidence. It is, accordingly, appropriate for this Court to focus on the second ground of appeal. If the verdicts of guilty returned by the jury were not unreasonable or incapable of being supported having regard to the evidence, the trial judge could not have erred in declining to direct verdicts of not guilty at the conclusion of the Crown case. 55 It was common ground on hearing of the appeal that, in the present case, each offence charged under s 178BB of the Crimes Act had four elements, namely:-

the making or publishing of a statement by Mr Burnard
which was false in a material particular
which Mr Burnard knew to be false in that material particular and
which was made by Mr Burnard with the intent to obtain for another person a financial advantage 56 It was accepted by counsel for Mr Burnard that, in the case of counts 1, 2, 3, 7, 8 and 9, it had been open to the jury to be satisfied beyond reasonable doubt that Mr Burnard had made a statement to the effect "I am a director of Kebbel Investment Bank". On these counts the submissions of counsel for Mr Burnard were directed to elements 2 and 3 of the charged offences. 57 The fundamental submission made by counsel for Mr Burnard was that, accepting that it had been open to the jury to find that Mr Burnard had said "I am a director of Kebbel Investment Bank", all that Mr Burnard was conveying, and intended to convey, by the statement was that he was a representative of an entity which carried on business under the trading name or "the banner" or "brand" of "Kebbel Investment Bank" (see, for example, par 7 of the appellant's written submissions). It was submitted that such a statement was not false and that it had not been open to the jury to find that it was false or that the appellant knew that it was false; the appellant Mr Burnard had in truth been a director of an entity which did exist, namely Kebbel NSW, which carried on business under the trading name of Kebbel Investment Bank. 58 In support of these submissions counsel for Mr Burnard pointed to the evidence by former employees of Kebbel NSW and by the witnesses Mr Lanser, Mr Daley and Mr Millmore, that Kebbel NSW was referred to as Kebbel Investment Bank. Counsel also pointed to the use of the name Kebbel Investment Bank in documents of Kebbel NSW. 59 Counsel for Mr Burnard submitted that it was necessary to have regard to the precise terms of the charges which had been brought against Mr Burnard and especially the particular in which it was alleged that the statements were false, that is that "the entity Kebbel Investment Bank did not exist". Mr Burnard had not been charged with falsely stating that Kebbel Investment Bank was a registered business name or a registered corporate name or that Kebbel Investment Bank was an authorised deposit-taking institution or had a licence to use the word "bank" or that Kebbel Investment Bank was a bank. 60 It was submitted on behalf of Mr Burnard that the evidence of Mr Foran and Mr Lewis merely showed that Kebbel Investment Bank was not a registered corporate name or a registered business name and that Kebbel Investment Bank was not an authorised deposit-taking institution and had not applied for or been granted consent to use the name "bank". The evidence by these witnesses did not show that there was not in existence an entity which carried on business under the trading name of Kebbel Investment Bank. Indeed, it was submitted, the evidence of Mr Foran and Mr Lewis was irrelevant to the real issues to be determined by the jury. 61 An analogy was sought to be drawn by counsel for Mr Burnard between the use by Kebbel NSW of the name "Kebbel Investment Bank" and the use by the company of which Mr Millmore was a director of the name "the Compliance Alliance". 62 Counsel for Mr Burnard referred to parts of the Crown's closing address at the trial and especially a part where the Crown prosecutor had said that it was "an inescapable fact…that Kebbel NSW is also calling itself Kebbel Investment Bank". 63 It was submitted on behalf of the Crown that it had been open to the jury to be satisfied beyond reasonable doubt that the statement made by Mr Burnard "I am a director of Kebbel Investment Bank" was not limited to conveying, and had not been intended by Mr Burnard to be limited to conveying, that he was a representative of an entity which carried on business under the name of Kebbel Investment Bank. It was submitted on behalf of the Crown that the submissions made on behalf of Mr Burnard that the statement was so limited ignored the actual terms of the statements made by Mr Burnard and the context in which those statements had been made. 64 The terms of the statements made by Mr Burnard included the word "director" and the words "Kebbel Investment Bank". Mr Burnard had not simply said that he was representing a business entity which carried on business under the name Kebbel Investment Bank. The context in which the statements had been made by Mr Burnard was that the statements had been made in an introduction to a presentation by Mr Burnard to potential investors, with the object of persuading them to invest money in financial products. It had been open to the jury to be satisfied beyond reasonable doubt that what Mr Burnard was conveying, and intended to convey, by his statements included that he was director of a company which was a bank and which was, accordingly, likely to be of financial substance and that, therefore, the financial products Mr Burnard was promoting were likely to be secure investments. 65 It was submitted on behalf of the Crown that, contrary to a submission made by counsel for Mr Burnard on the appeal, this had been the Crown case at the trial. In the Crown's opening address the Crown had said that the statements which the Crown alleged Mr Burnard had made had "the imprimatur…that the individual making those statements is a director of an investment bank". In the Crown's closing address it was submitted to the jury that Kebbel NSW was "a financial intermediary promoting another organisation's products in return for a commission…as opposed to a bank". 66 In the Crown's submissions on this appeal counsel for the Crown referred to evidence by Mr Spencer that Mr Burnard had said in the course of a presentation on 13 August 2003 that Kebbel was "a boutique bank" and to evidence by Ms Roscoe that Mr Burnard in the course of a presentation at a seminar had referred to Kebbel Investment Bank "as being like Macquarie Bank". 67 It was submitted by the Crown that the evidence of Mr Foran and Mr Lewis, so far from being irrelevant, was relevant to determining whether Kebbel Investment Bank, that is a corporate entity which was a bank, existed. 68 It was submitted by the Crown that the analogy sought to be drawn by counsel for Mr Burnard with the use of the name "the Compliance Alliance" by Mr Millmore's company was not legitimate, because "the Compliance Alliance" was a registered business name and the fact that it was a trading name was explicitly disclosed in the stationery of the company using that name. 69 In my opinion, the submissions of the Crown which I have summarised should be accepted. 70 Mr Burnard said words to the effect "I am a director of Kebbel Investment Bank" to audiences of potential investors, whom he was seeking to persuade to invest in financial products Kebbel NSW was promoting. In my opinion, it was clearly open to the jury to be satisfied beyond reasonable doubt of what was part of the Crown case at the trial, that what Mr Burnard was conveying and intended to convey was that he was a director of an existing registered company Kebbel Investment Bank, which was a bank, and to be satisfied beyond reasonable doubt that no such entity existed. The evidence of Mr Lewis and Mr Foran was relevant to proving that no such entity existed. If it was open to the jury to be satisfied beyond reasonable doubt that Mr Burnard was intentionally stating that he was a director of an existing registered company which was a bank, then it was clearly open to the jury to be satisfied beyond reasonable doubt that Mr Burnard knew that no such entity existed and that, in particular, Kebbel NSW of which he was director was not such an entity. The evidence of Mr Daley about his showing Mr Burnard parts of the Banking Act and telling Mr Burnard that he could not use the word "bank" and the evidence of Mr Lanser about his conversation with Mr Burnard in which he queried the use by Kebbel NSW of the terms "Investment Bank" and "bank" confirm these conclusions. 71 I turn now to a consideration of counts 4, 5 and 6. 72 In each of these counts it was alleged by the Crown, not that Mr Burnard had made a statement, but that he had published a statement in a document, a business card in the case of count 4 and letters in the case of counts 5 and 6. 73 In addition to submissions which were also made in relation to the other six counts in the indictment and which I have already summarised, it was submitted on behalf of Mr Burnard that it had not been open to the jury to find that Mr Burnard had published the documents the subject of the charges. 74 As to count 4, it was submitted that the business card had been handed to Ms Ereve by a woman who was not identified and that there was no evidence of any direct dealing between Mr Burnard and Ms Ereve. There was no evidence from anyone who had been an employee at the relevant time about any systems or practices relating to the handing out of business cards at seminars. Some evidence about practices at seminars had been given by Ms Klar but Ms Klar had not commenced her employment with Kebbel NSW until January 2004. 75 As to count 5, the letter had been received by Mr Felice in the mail. There was no evidence that the signature on the letter above the printed name "Neil Burnard" was Mr Burnard's. There was no direct evidence that Mr Burnard had authorised the sending of the letter and no evidence from anyone who had been an employee of Kebbel NSW at the relevant time about any systems or practices relating to the signing and sending of letters. 76 As to count 6, this letter had also been received by Mr Felice in the mail. The signature on the letter purporting to be Mr Burnard's was a facsimile signature. By the time of this letter Ms Klar had become an employee of Kebbel NSW and Ms Klar gave some evidence at the trial about a practice of scanning Mr Burnard's signature on to certain classes of documents. However, she had been unable in her evidence to say whether the letter of 1 November 2004 was such a document. 77 In my opinion, there was, in the case of each of the three counts 4, 5 and 6, sufficient evidence which it was open to the jury to accept for it to be open to the jury to find, by drawing a permissible inference, that Mr Burnard had authorised the publishing of the document. 78 As to count 4, Ms Ereve gave evidence that the business card had been handed to her at the beginning of the seminar she attended, the card had been handed out to all persons attending the seminar, the card had printed on it "Kebbel Investment Bank", Mr Burnard's name and the word "director" under Mr Burnard's name, Mr Burnard had been at the seminar and had made a presentation at the seminar and in making his presentation Mr Burnard had introduced himself by saying the same words as were on the card "Neil Burnard director of Kebbel Investment Bank". 79 As to count 5, the letter of 1 December 2003 offered Mr Felice a special opportunity to invest. The letter was addressed "Dear Joe" and contained a paragraph wishing Mr Felice and his family a Merry Christmas. Mr Felice gave evidence that he had attended a number of seminars at which Mr Burnard had made presentations and that Mr Burnard had introduced himself by saying he was Neil Burnard director of Kebbel Investment Bank. Mr Felice had spoken personally to Mr Burnard at the seminars. It was open to the jury to find that there was no reasonable possibility that a letter in such terms purporting to be signed by Mr Burnard had been sent without the authority of Mr Burnard. 80 As to count 6, the letter of 1 November 2004 was addressed "Dear Joseph". This letter also offered Mr Felice a special opportunity to invest. It said "Kebbel has been able to successfully negotiate an extension for the Westpoint North Sydney offering". The letter said that one of the persons who could be telephoned to arrange for an information memorandum was Jennifer Robins, who was Mr Burnard's partner or wife. Although there was no evidence definitely identifying the signature on the letter as being the appellant's, it purported to be the appellant's and there were some evidence that it was like the appellant's signature. Underneath the signature on the letter were the words "Neil Burnard director Kebbel". 81 On each of counts 4, 5 and 6, if it was open to the jury to find that Mr Burnard had authorised the publishing of each of the documents, it was open to the jury to be satisfied beyond reasonable doubt that the statement in each document was, not merely a statement that there was an entity which carried on business under the trading name of Kebbel Investment Bank, but a statement that there was a registered corporate entity Kebbel Investment Bank which was a bank; that such a statement was false in a material particular because no such entity existed; and that Mr Burnard knew that no such entity existed. 82 I would reject grounds 2 and 3 in relation to all of the counts in the indictment.

Ground 3 83 Earlier in this judgment I quoted the summary of Mr Lewis' evidence in the written submissions on behalf of Mr Burnard. I also noted that objection was taken at the trial before any of the evidence was given and that the trial judge overruled the objection. 84 On the appeal against conviction counsel for Mr Burnard repeated the submissions that Mr Lewis' evidence was irrelevant; alternatively, if it had any relevance, it should have been excluded pursuant to s 137 of the Evidence Act, because any probative value the evidence had was outweighed by the danger of unfair prejudice to Mr Burnard; and that much of the evidence was impermissible evidence of opinion by Mr Lewis about the interpretation and effect of the Banking Act. 85 It was submitted that Mr Lewis' evidence, insofar as it was adduced to prove that there was no authorised deposit-taking institution with the name Kebbel in it and that no company with the name Kebbel in it had ever applied for or been granted consent to use the word "bank", while it might have been relevant if Mr Burnard had been charged with different offences, for example with offences under s 66 of the Banking Act, was not relevant to the charges which had actually been brought against him. It was submitted that the rest of Mr Lewis' evidence was even less capable of having any relevance. 86 It was alternatively submitted that, even if Mr Lewis' evidence did have some relevance, it was unfairly prejudicial to Mr Burnard because it distracted the jury from a consideration of the real issues they had to decide, and by suggesting that Mr Burnard might have committed some offence with which he had not been charged it would have tended to make the jury more likely to find that Mr Burnard had committed the offences with which he had been charged. 87 It was submitted on behalf of Mr Burnard that much of the evidence was impermissible opinion evidence and was not rendered admissible by the decision of the Court of Criminal Appeal in R v Petroulias [2005] 62 NSWLR 663, a case which had been cited by the Crown to the trial judge. 88 It was submitted by the Crown that Mr Lewis' evidence was relevant, that it was not unfairly prejudicial and that none of it was impermissible opinion evidence or, alternatively, if some of the evidence had been inadmissible opinion evidence, nevertheless no miscarriage of justice had occurred. 89 I consider that this ground of appeal is related to the earlier grounds of appeal. If, as was submitted by counsel for Mr Burnard, the only statement which it was open to the jury to find that Mr Burnard had made or published, was that he was a director (or merely a representative) of an entity which carried on business under the trading name of Kebbel Investment Bank, then Mr Lewis' evidence might not have been relevant. However, if, as was submitted by the Crown and as I have already found, the word "bank" in the expression "Kebbel Investment Bank" could not be ignored, then, in order for the Crown to prove that the entity Kebbel Investment Bank did not exist, evidence that there was no authorised deposit-taking institution with the name Kebbel in it and that no company with the name Kebbel in it had ever applied for or been granted consent to use the word "bank" was clearly relevant. Furthermore, such evidence was not unfairly prejudicial. Evidence is not unfairly prejudicial merely because it has the tendency to establish the Crown case (Festa v The Queen (2001) 208 CLR 593 at 603). 90 Much, if not all, of the rest of the evidence given by Mr Lewis was relevant, as being evidence of matters of which it was necessary or helpful for the jury to be informed, in order for the jury properly to understand the significance of the evidence that there was no authorised deposit-taking institution with the name Kebbel in it and that no company with the name Kebbel in it had ever applied or been granted consent to use the word "bank". Even if some of the matters about which Mr Lewis gave evidence were not matters on which he could properly give evidence, for example the effect of the Banking Act, they could have been the subject of directions by the trial judge, there was no complaint on behalf of Mr Burnard that any of Mr Lewis' evidence was erroneous and, consequently, there was no miscarriage of justice in Mr Lewis giving this evidence. 91 I would reject the third ground of appeal. 92 Having rejected all the grounds of appeal against conviction, I would dismiss the appeal against conviction.

The Crown appeal against sentence 93 As I indicated near the beginning of this judgment, on each of counts 3, 6, 7 and 9 in the indictment Judge Charteris sentenced Mr Burnard (who for the purpose of the Crown appeal against sentence I will refer to as "the respondent") to a term of imprisonment of 12 months, the execution of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, conditionally upon his entering into a bond to be of good behaviour for the period of the sentence. Although not expressly stated in the remarks on sentence or in his Honour's sentencing orders, it is clear that the sentences were intended to be served completely concurrently and to commence from the date of sentencing. On each of counts 1, 2, 4, 5 and 8 his Honour ordered that the respondent pay a fine of $10,000, making total fines of $50,000. 94 The maximum penalty of imprisonment for an offence against s 178BB of the Crimes Act is imprisonment for five years. There is no standard non-parole period for an offence under s 178BB of the Crimes Act. Section 178BB does not itself provide for the imposition of a fine on a person convicted of an offence under the section. However, by virtue of the general provision in s 15 of the Crimes (Sentencing Procedure) Act a court may impose a fine not exceeding $110,000 on a person convicted of an offence under s 178BB. . 95 The sentencing judge delivered lengthy remarks on sentence. His Honour devoted sections of his remarks to subjects which he described as an "overview", the "background to the offences", "mezzanine financing", "the charges" and "the investors". Under the heading "the trial" his Honour summarised the evidence which had been given at the trial and the submissions which had been made on behalf of the respondent at the trial. His Honour then dealt with matters pertaining specifically to the sentencing of the respondent under headings "the sentence hearing", "the submissions", "findings" and "orders". Later in this judgment I will refer to a number of parts of his Honour's remarks on sentence in detail. 96 The respondent did not give evidence either in the trial or in the proceedings on sentence. The sentencing judge did, however, have a pre-sentence report and a report by a psychologist. On the basis of these reports the sentencing judge made findings in his remarks on sentence about some of the subjective circumstances of the respondent. 97 The respondent was born in the United Kingdom in 1960. At the age of 23 he had migrated to Australia. After a brief first marriage he married his present wife by whom he has two children, who, at the time of sentencing, were 9 years old and 7 years old respectively. The respondent had gained a bachelor of business degree in 1990 and the sentencing judge found that the respondent had been a high achiever in the field of finance. 98 On the Crown appeal it was submitted by the Crown that the sentences imposed on the respondent were manifestly inadequate and it was also submitted that the sentencing judge had made a number of specific errors in the sentencing of the respondent. It will be convenient to deal first with the specific errors in sentencing alleged by the Crown. 99 The principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence were stated by Wood CJ at CL in a frequently quoted part of his Honour's judgment in R v Wall [2002] NSWCCA 42 at (70) as follows:- "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499 applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 655 at 671; rather it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at paras 61 and 62, and Wong and Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error is shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Paazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnson (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."

The sentencing judge erred in the approach he adopted in arriving at the sentences he imposed (including the length of the sentences, the suspension and the accumulation and fines). 100 This allegation of specific error by the sentencing judge was based on a part of his Honour's remarks on sentence in which his Honour said:- "I conclude that there ought to be a period of imprisonment. However, I then need to address how that period of imprisonment should be served. In my view, there must be a period of imprisonment; other penalties alone do not adequately reflect the seriousness of the behaviour. I am, however, persuaded that I should suspend any period of imprisonment and order that the offender enter into a bond. In my view having regard to the total of the nine charges and the course of conduct of the offender, a period of 12 months imprisonment suspended under section 12 is justified. I then have to address the issue of totality. It seems to me that I am justified in imposing not only the periods of imprisonment to which I have referred, which are to be suspended, but also to impose a financial penalty upon the offender. In my view, addressing issues of totality, the offender should receive fines of $10,000 on each of five charges and be sentenced to imprisonment for 12 months on the remaining four charges. I find that there are special circumstances. I find that if I were imposing the sentences to be served from today I would accumulate them to reflect a head sentence of 1 year and 9 months with a non-parole period, after the finding of special circumstances, of 12 months. Because I am suspending those sentences, I do not need to make any formal finding." 101 It was submitted by the Crown that a proper analysis of this part of the sentencing judge's remarks on sentence was that his Honour had made the following determinations in the following order:- "(1) No other penalty but imprisonment would adequately reflect the seriousness of the offending. (2) He should suspend the periods of imprisonment. (3) Having regard to the totality of the 9 charges and the course of conduct of the offender a period of 12 months imprisonment suspended under s.12 of the Crimes (Sentencing Procedure) Act 1999 is justified (it appears on each sentence). (4) He next was required to address the issue of totality which he considered justified altering the penalties to impose not only the periods of imprisonment which were suspended but to impose a financial penalty. (5) Addressing those issues of totality, the respondent should receive fines of $10,000 on each of 5 charges and (be) sentenced to imprisonment for 12 months on the remaining 4 charges. (6) There were special circumstances withins.44 of the Crimes (Sentencing Procedure) Act 1999. (7) If the sentences were to be served from today " I would accumulate them to reflect a head sentence of 1 year and 9 months with a non parole period after the finding of special circumstances of 12 months ." (8) As the sentences were being suspended there was no need to make any formal finding." 102 It was submitted by the Crown that, if this analysis was correct, then:-

The sentencing judge had improperly decided to suspend each of the sentences of imprisonment he would impose, before determining the appropriate term of each of the sentences of imprisonment. The Crown referred to R v Zamagias [2002] NSWCCA 17 especially per Howie J at pars 22-30.

The sentencing judge had improperly decided to suspend each of the sentences of imprisonment he would impose, before considering questions of totality and concurrence and accumulation of sentences. The Crown referred to R v JRD [2007] NSWCCA 55 especially per Howie J at par 33. It was submitted that, although the sentencing judge had referred to the issue of totality in this part of his remarks on sentence, he had done so, only after having decided that the sentences of imprisonment should be suspended and the sentencing judge had in truth never adequately considered the issue of totality.

103 It was also submitted by the Crown that there was an inconsistency in the sentencing judge first holding that a period of 12 months imprisonment suspended under s 12 would be justified, "having regard to the total of the nine charges", and then deciding, having given some consideration to the issue of totality, that a period of 12 months imprisonment suspended under s 12 should be imposed on four only of the charges and that a fine of $10,000 should be imposed on each of the other five charges. 104 In oral submissions the Crown submitted that the approach which should have been adopted by the sentencing judge was to apply Zamagias and Pearce v The Queen (1998) 194 CLR 610 at 624 (45). For each offence the sentencing judge should have decided whether no penalty other than imprisonment was appropriate (Crimes (Sentencing Procedure) Act s 5); if so, the sentencing judge should then have determined the appropriate term of the sentence of imprisonment; the sentencing judge should then have considered questions of totality, cumulation and concurrency of sentences; and it was only then that the sentencing judge should have considered whether, if the array of sentences he had determined would permit it, the execution of any of the sentences of imprisonment should be suspended. 105 Counsel for the respondent referred to JRD at par 32, where Howie J said that a sentencing judge is not required to determine a sentence in discrete stages without knowing what the final outcome of the sentence will be and to Zamagias at par 30 where Howie J said that it is unnecessary for a sentencing judge to expressly state in his remarks on sentence that he or she has taken in the correct order what Howie J described as "the two step approach" of first determining the term of a sentence and then determining how that sentence is to be served. 106 It was submitted by counsel for the respondent that, when the sentencing judge said in the part of his remarks on sentence which I have quoted "however, I then need to address how that (emphasis supplied) period of imprisonment should be served", his Honour had already determined that the term of the sentences of imprisonment should be the period referred to soon afterwards in his remarks on sentence, that is 12 months, and that, accordingly, there had been no contravention by his Honour of the principles stated in Zamagias. 107 Counsel for the respondent sought to distinguish both Zamagias and JRD on the basis that in each of those cases the Court of Criminal Appeal had concluded that the sentencing judge had imposed a sentence of two years, because that is the maximum sentence which is capable of being suspended under s 12 of the Crimes (Sentencing Procedure) Act, whereas no such inference should be drawn in the present case. 108 It was submitted by counsel for the respondent that the sentencing judge had appropriately distinguished between the offences for which terms of imprisonment should be imposed and the offences for which fines should be imposed, on the basis that the offences for which fines should be imposed involved less money and, it was submitted, less criminality. 109 I accept that, as stated by Howie J in Zamagias, it is unnecessary for a sentencing judge to expressly state in his or her remarks on sentence that (having decided that no penalty other than imprisonment is appropriate) he or she has taken in the correct order a two-step approach of first determining the term of the sentence and then determining how that sentence is to be served. I note, however, that Howie J added that "the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court (that is the Court of Criminal Appeal) to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous". 110 In the present case, I would be prepared to accept, as was submitted by counsel for the respondent, that the sentencing judge's remarks on sentence are open to an interpretation which would not involve any contravention of one of the principles stated in Zamagias, that is I would be prepared to accept that the sentencing judge did determine the term of the sentences of imprisonment, before deciding that they should be suspended. I would, accordingly, reject the first of the two submissions by the Crown which I have numbered. 111 As to the second of the two submissions, I am, however, of the opinion that the sentencing judge, as a judge sentencing an offender for multiple offences, was required to give consideration to questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative, before making any decision to suspend the execution of any of the sentences. Such a consideration would necessarily involve a determination of what would be appropriate sentences for all of the offences, before determining whether any of the sentences should be suspended. 112 Such a consideration would be required, in order to determine whether, having regard to the restrictions in s 12 of the Crimes (Sentencing Procedure) Act on the making of orders suspending the execution of sentences of imprisonment, it would even be open to suspend the execution of a particular sentence and in order to ensure that the sentences for the individual offences would be consistent with each other. Very importantly, such a consideration would be necessary in order to give effect to the sentencing principle of totality, "that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct" (see R v Weldon [2002] 136 A Crim R 55 per Ipp JA at 62 (46)). 113 As was stated by Howie J in JRD at par 33:- "So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court." 114 In the present case I consider that the sentencing judge's remarks on sentence indicate that his Honour decided to suspend each of the sentences for imprisonment he would impose, before considering the questions of totality and the extent to which the sentences for the different offences should be made concurrent or cumulative. His Honour then gave only limited effect to the principle of totality by imposing a number of fines in addition to the sentences of imprisonment for 12 months. The shift in his Honour's remarks from holding that a period of 12 months imprisonment which was suspended would be justified, having regard to the nine charges, to holding that sentences of imprisonment of 12 months should be imposed on four only of the charges and that fines should be imposed on the other five charges indicates that his Honour had not properly considered the question of totality before deciding that sentences of imprisonment should be suspended. 115 A consequence of the sentencing judge's failure to apply properly the principle of totality was that four fully concurrent suspended sentences of the same length were imposed, even though the sentences were for four different offences by the respondent involving four different victims, and the aggregate sentence for these four offences did not reflect the total criminality in the four offences. 116 I would uphold the first ground of specific error alleged by the Crown. 2. The sentencing judge erred in his findings in relation to the impact of the respondent's false statements on the decision by the victims to invest. 117 At pp 28-29 of his remarks on sentence the sentencing judge said:- "A fundamental matter I think I should decide is how important in the mix was the offender's statement that he was a director of or that he was "from" the Kebbel Investment Bank. It is difficult to assess that matter but having considered all of the evidence and heard from the investors I think it is likely that the investments would still have been made had the offender merely said that he was from the "Kebbel Investment Group". I cannot be satisfied that had the offender not used the words "Kebbel Investment Bank" the investments made by the investors would not have taken place. That is a matter I take into account in determining the penalty." 118 At p 32 of his remarks on sentence his Honour said:- "I have already indicated I conclude, on the balance of probabilities, that there was not likely to have been a different outcome as regards investment by the victims of the nine offences had the offender utilised the words "Westpoint Investment Group"." 119 At p 34 of his remarks on sentence the sentencing judge said:- "I do not conclude that it was crucial to the decisions to invest, the fact that Mr Burnard used the expression Kebbel Investment Bank or that he was a director." 120 It was submitted by the Crown that there was no evidence on which these findings by the sentencing judge could have been based. In the Crown's written submissions it was said that each of the investor witnesses had given evidence in the committal proceedings that the false statement by the respondent that he was director of Kebbel Investment Bank had influenced his or her decision to invest in a mezzanine company. However, in pre-trial proceedings counsel for the respondent had indicated that he would object to such evidence being given in the trial and, as such evidence was not considered by the Crown to be necessary to prove any of the elements of the offences charged, the Crown had decided not to lead the evidence at the trial. 121 It was submitted by the Crown that the sentencing judge had erred in focusing on whether there had been any impact of the respondent's false statements on the decisions by the victims to invest in the mezzanine companies, as this was not an element of the offences charged under s 178BB. Notwithstanding this submission, the Crown also made a separate submission that the sentencing judge's findings were inconsistent with the jury's verdicts of guilty. 122 Counsel for the respondent submitted that, insofar as the findings by the sentencing judge were negative findings to the effect that the sentencing judge was not satisfied of what, if established, would have been an aggravating factor, that the investments would not have been made if the false statements had not been made, there was no need for any evidence to support the findings. It was submitted that it was not relevant for the Crown to point to evidence which had been given in the committal proceedings but which had not been adduced at the trial. It was submitted that the findings made by the sentencing judge were not inconsistent with the jury's verdicts of guilty, because it was not an element of the offences charged that the respondent's false statements had caused the victims to invest in the mezzanine companies. On the other hand, it was relevant to the sentencing of the respondent to determine whether the respondent's false statements had caused the victims to decide to invest in the mezzanine companies, as part of determining what injury, loss or damage had been caused by the offences. 123 In my opinion, the submissions of the respondent should be accepted. 124 Insofar as the findings by the sentencing judge were negative findings, that a possibly aggravating factor had not been established by the Crown, there was no need for evidence to support the findings. Even insofar as the findings were positive findings favourable to the respondent, made on the balance of probabilities, I consider that it was open to the sentencing judge, having seen and heard the investor witnesses give evidence at the trial, to make such findings. 125 I accept the submission made by counsel for the respondent that any evidence which might have been given in the committal proceedings but was not given in the trial was irrelevant. 126 As submitted by counsel for the respondent, the sentencing judge's findings were not inconsistent with the jury's verdicts of guilty but were nevertheless relevant to the sentencing of the respondent. 127 I reject the contention that the sentencing judge erred in the second specific respect alleged by the Crown.

The sentencing judge erred in failing to take into account matters relevant to the sentencing process including the financial gain obtained by the respondent from the offending. 128 At p 5 of his remarks on sentence the sentencing judge said:- "There is no issue in the sentencing proceedings that the company Kebbel NSW, of whom the accused was a director, was paid a commission by Westpoint Corporation Limited in relation to funds that were received into a Westpoint mezzanine company. That is somewhat an unusual feature. It is of no significance in the sentencing process however. The evidence suggests that the commission upon investments paid to Kebbel NSW was 10%. That seems to me to be an extraordinary percentage but such was the commercial rate negotiated no doubt between Kebbel NSW and the Westpoint Corporation. Of that 10%, a percentage was shared with others. In the circumstances of the facts of this case substantially the sharing of that 10% earned by Kebbel on investments received was with an organisation known as "Online Superannuation"." 129 At p 25 of the remarks on sentence the sentencing judge noted that a total gross commission of $117,500 had been received by Kebbel NSW. 130 At p 27 of his remarks on sentence the sentencing judge again expressed surprise at the extent of the commission received by Kebbel NSW. 131 It was submitted by the Crown that the sentencing judge erred in holding that the commission received by Kebbel NSW was "of no significance in the sentencing process". It was submitted that a relevant factor in the sentencing process was that a company of which the respondent was a director and the shares in which were held directly or indirectly by his wife had received a financial benefit from every investment the respondent secured for a mezzanine company. 132 It was submitted by counsel for the respondent that what the respondent had been charged with was making knowingly false statements to obtain a financial advantage for a mezzanine company or mezzanine companies and not a financial advantage for himself or for Kebbel NSW. It was pointed out that the total amount of the nett commission received by Kebbel NSW had been only $69,025. Reference was made to a part of the transcript of the proceedings on sentence on the basis of which it was submitted for the respondent that the sentencing judge had taken into account that Kebbel NSW was paid a commission. 133 In my opinion, that a commission was being received by Kebbel NSW, of which the respondent was a director and the shares in which were held directly or indirectly by his wife, from each investment made in a mezzanine company was a relevant factor in the sentencing of the respondent and the sentencing judge did err in holding that it was of no significance in the sentencing of the respondent.

The sentencing judge erred in taking into account and/or placing undue weight on matters personal to the respondent, including a finding that he was contrite, that he did not require personal deterrence and the effect of extra-curial punishment. 134 I will deal in turn with each of the matters referred to by the Crown.

Contrition 135 As noted earlier in this judgment, the respondent did not give evidence either in the trial or in the proceedings on sentence. The material the sentencing judge had which could have been relevant to contrition consisted of a pre-sentence report, a report by a psychologist and some evidence as to the character of the respondent. 136 At p 24 of his remarks on sentence his Honour said with respect to the pre-sentence report:- "It details the offender's regrets as to the failure of Westpoint. What does come through in the evidence is that the offender's apprehension is that he has not committed an offence but he is very sympathetic to the victims of the failure of Westpoint." 137 At p 25 of his remarks on sentence his Honour said with respect to the psychologist's report:- "The history given by the offender is that he is devastated by his charging, he is sorry for those who have lost money and he genuinely believed that the Westpoint Corporation companies were approved investments." 138 At p 26 of the remarks on sentence his Honour said that he accepted that the respondent "very much regrets the failure of Westpoint". 139 It was submitted by the Crown that, the respondent not having given evidence, the sentencing judge should have given little, if any, weight to the hearsay evidence in the pre-sentence report and the psychologist's report; that, in any event, what was recorded in the pre-sentence report and the psychologist's report fell short of amounting to true contrition or remorse; that the respondent had pleaded not guilty so that there was no plea of guilty from which contrition might be inferred; and that the sentencing judge had found that the respondent's apprehension was that he had not committed any offence. 140 It was submitted on behalf of the respondent that the sentencing judge at p 26 of his remarks on sentence had expressly recognised that, as the respondent had not given evidence, "I have to view his statements to the probation service and to the psychologist…somewhat cautiously". It was submitted on behalf of the respondent that the sentencing judge, while accepting that the respondent had expressed his regret at the failure of Westpoint and his sympathy for the investors, had not in fact made any finding of contrition or remorse on the part of the respondent. On the contrary, his Honour had found that the respondent's apprehension was that he had not committed any offence. 141 I consider that the submissions of the respondent should be accepted. It was open to the sentencing judge to make such findings as he did make. However, nowhere in the remarks on sentence did the sentencing judge actually make a finding that there was contrition or remorse on the part of the respondent.

Personal deterrence 142 At p 35 of his remarks on sentence the sentencing judge made a finding that the respondent "does not require any personal deterrence". 143 It was submitted by the Crown that this finding was not open to the sentencing judge. The respondent had made knowingly false statements to unsophisticated investors with the intention of persuading them to invest in the mezzanine companies, in circumstances in which Kebbel NSW, a company with which the respondent was associated, would receive a substantial commission, but, according to the finding made by the sentencing judge that the respondent's apprehension was that he had not committed any offence, the respondent had no insight into the criminality of his conduct. 144 It was submitted by counsel for the respondent that there was evidence on which a finding that there was no need for personal deterrence could be based, including evidence of the respondent's general good character, his work history and the extra-curial punishment he had suffered for his offending and other evidence in the pre-sentence report and the psychologist's report. 145 In my opinion, it was open to the sentencing judge to make the finding he did, that there was no need for personal deterrence in the sentencing of the respondent.

Extra-curial punishment 146 At p 26 of his remarks on sentence the sentencing judge said:- "I accept that his charging has resulted in his not being able to obtain employment in his industry. There is a significant extra-curial punishment evidenced in this case by the fact his conviction will prevent his being a director of companies for a considerable period of time. Indeed there might be application that he be banned for the rest of his life from occupying a position of director or other important positions associated with the financial industry." 147 At p 34 of his remarks on sentence the sentencing judge described the extra-curial punishment the respondent had received as "quite considerable". 148 It was submitted by the Crown that the extra-curial punishment the respondent had suffered was typical for offenders being sentenced for white-collar crimes. Even if this is so, the extra-curial punishment the respondent suffered by reason of his offending was clearly a matter the sentencing judge was entitled, and indeed required, to take into account and the sentencing judge had a discretion as to the amount of weight he should give it. 149 I conclude that I reject the contention that the sentencing judge erred in any of the specific respects alleged, that is with respect to contrition, personal deterrence or extra-curial punishment.

The sentencing judge erred in taking into account matters irrelevant to the sentencing process. 150 One assertion of error on the part of the sentencing judge was based on the following parts of the remarks on sentence. At p 31 of his remarks on sentence the sentencing judge said:- "I do accept, though, that he believed that the investments were sound. It would never have been in his interests to have Westpoint collapse. He misjudged the investment as much as those whom he persuaded into the investments had done."

In a number of places in the remarks on sentence the sentencing judge said words to the effect that the investors had suffered their losses because of the failure of Westpoint and that the respondent had played no part in the failure of Westpoint. 151 It was submitted by the Crown that the sentencing judge had erred in attributing the investor's losses solely to the collapse of Westpoint and that the sentencing judge should have taken into account that there was a connection between the respondent's conduct and the losses of the investors, because the investments the respondent had sought to persuade the victims to enter into were inherently risky. It was further submitted that the sentencing judge over-emphasised the respondent's lack of control over the collapse of Westpoint. 152 I do not consider that I should find error on the part of the sentencing judge. 153 The Crown prosecutor at the trial had stated in his opening address to the jury that the respondent had had nothing to do with the collapse of Westpoint and I accept that it was appropriate for the sentencing judge to repeat this concession by the Crown in his remarks on sentence. It would have been an aggravating factor in sentencing, if the respondent had not honestly believed that the investments he was promoting were sound investments. 154 The remark at p 31 of the sentencing judge's remarks on sentence which I have quoted was not made by the sentencing judge by way of stating an independent mitigating factor. The remark was made by the sentencing judge as a qualification on a finding, adverse to the respondent, which the sentencing judge had made immediately previously, that the respondent at the time of each presentation had known that he was addressing unsophisticated investors who did not have the same skill and experience as the respondent in the making of financial investments. In my opinion, it was an appropriate qualification for the sentencing judge to make. 155 At p 32 of his remarks on sentence the sentencing judge said:- "I conclude that the offender was influenced by superiors within Kebbel group of companies which led him to permit the use of the expression when he did know it was not accurate…" 156 It was submitted by the Crown that the finding that the respondent was influenced by superiors was not relevant, because there had not been any employer-employee relationship between any party and the respondent and if the respondent knew, as the jury were clearly satisfied he did, that the statements he was making were false, it was irrelevant that he was influenced by others in making the statements. 157 I do not consider that these submissions by the Crown should be accepted. 158 The sentencing judge did not make any finding (which would have been an erroneous finding) that the respondent was an employee in an employment relationship. The sentencing judge merely found that the respondent had been influenced by "superiors" within the Kebbel group of companies. There was evidence on which the sentencing judge could find that Mr Beck and Mr Bell were superior to the respondent within the Kebbel group of companies. Furthermore, there was evidence from Soran Martin that it had been the idea of Mr Beck and Mr Bell to use the name "Kebbel Investment Bank" for the various companies in the Kebbel group of companies and evidence from Mr Daley that the respondent had telephoned Mr Beck and had been assured that a legal opinion had been obtained that the word "bank" could be used. That the respondent had been influenced by persons superior to him in engaging in the offending conduct, while not a defence, was clearly relevant to an assessment of the level of the respondent's criminality. 159 At p 30 of his remarks on sentence the sentencing judge said:- "I accept Mr Wigney's submission that the use of the name was not clandestine or secretive." 160 It was submitted by the Crown that this finding was irrelevant. It would not be possible to seek to persuade potential investors to invest in the mezzanine companies, by being clandestine or secretive. 161 There is force in the submission by the Crown but I nevertheless consider that it was open to the sentencing judge to regard as being relevant to the sentencing of the respondent that the name Kebbel Investment Bank had not been used in a clandestine or secretive manner.

The sentencing judge erred in finding that the criminality of the offending was below the mid-range of objective seriousness. 162 At p 35 of his remarks on sentence the sentencing judge said:- "The criminality of each of the offences in my view, however, is below the mid range of objective seriousness." 163 Counsel for the Crown submitted, and counsel for the respondent disputed, that the sentencing judge had erred in making this assessment. 164 It is convenient to defer consideration of this submission to my consideration of the general ground of appeal that the sentences imposed by the sentencing judge were manifestly inadequate.

The sentencing judge erred in failing to adequately reflect the element of general deterrence. 165 It was acknowledged by the Crown that the sentencing judge had recognised in his remarks on sentence the necessity for the sentences he imposed on the respondent to give effect to the sentencing purpose of general deterrence but it was submitted by the Crown that the sentences actually imposed on the respondent had failed to give effect to the need for general deterrence. 166 It is convenient to defer consideration of this submission to my consideration of the general ground of appeal that the sentences were manifestly inadequate.

The sentencing judge erred in finding special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act . 167 The sentencing judge said in his remarks on sentence that he found that there was special circumstances. However, he then said that, because all the sentences of imprisonment were being suspended (and hence Pt 4 of the Crimes (Sentencing Procedure) Act did not apply) "I do not need to make any formal finding". 168 It was submitted that the sentencing judge had not stated any reasons for finding that there were special circumstances and that there was nothing in the circumstances of the case which would have justified such a finding. 169 I consider that I should accept the submission by counsel for the respondent that, although no circumstances were stated in the part of the remarks on sentence in which his Honour made the finding of special circumstances, it is clear from the remarks on sentence generally that the circumstances the sentencing judge would have regarded as special included the respondent's previous good conduct, his good prospects of rehabilitation and that he had not previously served any term of imprisonment. In any event, as his Honour recognised, because all the sentences of imprisonment were being suspended, Pt 4 of the Crimes (Sentencing Procedure) Act including s 44(2), had no actual application and his Honour ultimately made no finding about special circumstances.

Were the sentences manifestly inadequate 170 The Crown's submissions on the appeal against sentence, both its written submissions and its oral submissions, were mainly devoted to supporting the Crown's assertions that the sentencing judge had erred in the specific respects with which I have already dealt. It was submitted by the Crown that, because of these alleged specific errors, the sentences imposed by the sentencing judge had been manifestly inadequate. In pars 25 and 56 of the Crown's written submissions a general submission was made that the sentences imposed were manifestly inadequate. 171 As I have already noted, it was submitted by the Crown that the specific errors made by the sentencing judge included the making of a finding that the level of objective seriousness of the offences was below the mid range and what was submitted to have been the failure by the sentencing judge to give effect to the need, which the sentencing judge acknowledged, for the sentences he imposed to give effect to the purpose of general deterrence. The Crown referred particularly to a finding which the sentencing judge had made that each prospective investor had been financially unsophisticated and had been invited to make an investment decision which would affect the investor's financial security for the rest of his or her life and in those circumstances each investor was entitled to expect that the respondent, having regard to his superior skill and experience, would ensure that the statements he made in promoting financial products were scrupulously honest. 172 It was submitted by counsel for the respondent that a number of matters moderated the objective seriousness of the respondent's offences. It is convenient to quote part of par 73 of the respondent's written submissions in which these matters were summarised:- "(a) The fact that the use of the name Kebbel Investment Bank was the idea of the offender's supervisors (primarily Mr Beck) and that it was the influence of the offender's superiors that led the offender to use or permit the use of the name. The name was used by many others in the Kebbel Group as a trading name, brand or logo. (b) In these circumstances the offender's use of the name was not contumelious or clandestine. (c) Whilst the offender used the name in the context of promoting the mezzanine investments, he genuinely believed that those investments were good investments. The offender was not in any way involved in the management of Westpoint or the mezzanine investments. (d) It could not be found that the investors would not have made the investments if the offender had not used the name. The offender was not solely or even primarily responsible for the losses suffered by the investors." 173 It was also submitted on behalf of the respondent that there were a number of favourable subjective circumstances. These circumstances were summarised in par 74 of the respondent's written submissions as follows:- "(a) The offender was a man of good character with a previously unblemished record and impressive curriculum vitae. (b) The offender had very good prospects of rehabilitation and did not require any significant personal deterrence. (c) The offender had suffered significant extra-curial punishment as a result of his conviction. He and his family had been devastated as a result of his conviction." 174 Counsel for the respondent also referred to a statement made by Howie J in Zamagias at par 31, which is in accordance with other authorities, "that a sentence of imprisonment can be a significant and effective punishment even where execution of the sentence is suspended". 175 I will not repeat the details of the objective facts of the offences. Broadly stated, over a period of many months the respondent made or published knowingly false statements that he was a director of an entity which was a bank with the intention of obtaining financial advantages for mezzanine companies, knowing that the persons to whom the statements were made or published were financially unsophisticated. A company with which the respondent was associated would receive a gross commission of 10 per cent on any investments which were made. Six different persons made investments totalling $1,175,000 and the company with which the respondent was associated received a total net commission of $69,025. There was clearly a strong need for the sentencing judge to give effect to the purpose of sentencing of general deterrence. 176 I have already held that the sentencing judge made the first of the specific errors alleged by the Crown, in that he erred in the approach he adopted in arriving at the sentences he imposed, and that as a result of this error his Honour, in sentencing for multiple offences, did not properly consider questions of totality and the extent to which individual sentences should be made concurrent or cumulative. I am further of the opinion that the total of the sentences imposed by the sentencing judge, that is sentences of imprisonment totalling 12 months, all of which were suspended, and fines totalling $50,000, was manifestly inadequate to reflect the respondent's total criminality, even after taking into account the matters relied on by counsel for the respondent as moderating the respondent's objective criminality and the matters relied on as being favourable subjective circumstances and even if it is accepted that the offences fall below the mid-range of objective seriousness. 177 It is true that in Zamagias at (31) Howie J said that a sentence of imprisonment can be a significant and effective punishment even where execution of the sentence is suspended. However, his Honour subsequently added at (32):- "It must be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness (as a deterrent) because it is a significantly more lenient penalty than any other sentence of imprisonment." 178 In my opinion, subject to any question of this Court's discretion, the Crown appeal against sentence should be allowed.

Discretion 179 Earlier in this judgment I set out the statement of Wood CJ at CL in R v Wall of the principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence. One of these principles (principle (d)) is:- "The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal." 180 It was submitted by counsel for the respondent that, if, contrary to the earlier submissions made on behalf of the respondent, this Court concluded that error had occurred in the sentencing of the respondent, nevertheless this Court should, in the exercise of its discretion, refuse to intervene. 181 The Court received, as being relevant to the Court's discretion to refuse to intervene even if error was established (and as relevant to any re-sentencing of the respondent), an affidavit sworn by the respondent's solicitor shortly before the hearing of the appeal. No point was taken by the Crown that the affidavit was by the respondent's solicitor and not the respondent. 182 I have held that error did occur in the sentencing of the respondent and that the sentences imposed on the respondent were manifestly inadequate. I am, nevertheless, of the opinion that this Court should, in the exercise of its discretion, refuse to intervene. 183 As noted earlier in this judgment, delay occurred in the sentencing of the respondent and will have occurred in the disposition of the Crown's appeal against sentence. The jury returned their verdicts of guilty on 6 May 2008. The hearing of the sentence proceedings concluded on 20 June 2008. The sentencing judge reserved his sentencing decision for two months, not delivering his reserved remarks on sentence and actually sentencing the respondent until 22 August 2008. 184 The respondent's solicitors were promptly notified that the Crown was considering an appeal against sentence but the Crown appeal was not filed until a month after the respondent was sentenced, on 23 September 2008. 185 Because of this Court's congested lists the appeal was not heard until 10 December 2008, in the second last week of the legal year. This Court was obliged to reserve its decision on the appeal against conviction and the Crown appeal against sentence because of the complexity of the issues which were raised. The law vacation then intervened. By the time this judgment is handed down at least nine months will have elapsed since the jury returned their verdicts of guilty. 186 During almost all of that period of nine months the respondent will have been in a state of suspense and stress concerning what penalty he will receive for his offences. It can be inferred that it would have been a temporary relief to the respondent to learn that the sentencing judge had decided not to send him to prison but that relief would have been almost immediately dissipated by the information that the Crown was considering an appeal. 187 There will be cases where a non-custodial sentence has been imposed by the sentencing judge, where a proper performance of this Court's function on a Crown appeal against sentence will require that this Court allow the appeal and impose a sentence which is a custodial sentence. However, the facts in the present case that the sentences imposed by the sentencing judge were non-custodial sentences in that they did not require the respondent to be immediately imprisoned and that the respondent has been at liberty for many months since he was tried and since the sentences were imposed and that any re-sentencing of the respondent by this Court which was more than merely "tinkering" would involve the imposition of sentences of imprisonment to be served in prison, are matters to be taken into account by this Court. 188 A further matter is that the affidavit by the respondent's solicitor discloses that while the respondent has been at liberty since being sentenced the respondent has taken steps to establish himself in a new line of work. 189 After being sentenced by the sentencing judge the respondent formed the view, justifiably, that, as a result of his loss of reputation and as a result of ASIC forming the intention to permanently ban the respondent from acting as a representative of a securities dealer or investment adviser and from providing any financial service, he would be unable to return to work in the financial services industry and he should endeavour to re-establish himself in a new line of work. 190 The new line of work chosen by the respondent is environmental consulting. The respondent has completed courses in management systems auditing, leading management system audit teams and auditing environment management systems. He has applied for and received associate membership of the Environmental Institute of Australia and New Zealand and has attended environmental conferences and seminars. 191 In these circumstances counsel for the respondent referred, appropriately, to the following passage in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 305:- "…the deep rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation."

Conclusion 192 In my opinion, the appeal against conviction should be dismissed and the Court should, in the exercise of its discretion, dismiss the Crown appeal against sentence. 193 PRICE J: I agree with James J.

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.

CITATION: Burnard v R, R v Burnard [2009] NSWCCA 5

Doney v The Queen (1990) 171 CLR 207 Everett v The Queen (1994) 181 CLR 295 Festa v The Queen (2001) 208 CLR 593 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 CASES CITED : MFA v The Queen (2002) 213 CLR 606 Pearce v The Queen (1998) 194 CLR 610 R v JRD [2007] NSWCCA 55 R v Petroulias [2005] 62 NSWLR 663 R v Wall [2002] NSWCCA 42 R v Weldon [2002] 136 A Crim R 55 R v Zamagias [2002] NSWCCA 17

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Cases Cited (20)

Cited By (6)