Clarke II v Commonwealth Director of Public Procecutions [2012] ACTCA 7

Court of Appeal (ACT)|2012-02-16|Before: Lander JJ, Gallop J

The application of the principle of parity is always a difficult matter. It is difficult enough when there are only two co-offenders to be sentenced by one sentencing judge on material before the court in a joint trial and in sentencing proceedings which follow conviction for an offence committed jointly. There are special difficulties where other co-offenders have been sentenced for the same offence by another judge on another occasion on evidentiary material which may (and usually does) differ from that before the later judge. The principle of parity requires that the judge who sentences co-offenders subsequently, should not impose sentences which are so severe when compared with those imposed on the other co-offenders previously, that the sentences give rise to a justified sense of grievance on the part of those sentenced subsequently.

20. There can be no doubt that marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for allowing an appeal against sentence: see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 per Mason J at p 611.

21. We acknowledge that there is a marked disparity between the sentences imposed by the learned sentencing Judge on the appellant, and those imposed by Miles CJ on his co-offender. There will still be a marked, albeit lesser, disparity between the sentences we intend to impose on the appellant and those imposed on his co-offender. We consider such disparity is justified by the differences in circumstances between the offenders. The appellant was the driving force in the offences, the funds were controlled by the appellant and the appellant was overwhelmingly the principal beneficiary of the offending. The co-offender was subordinate to the appellant in the company. He did not receive anything like the personal benefits received by the appellant, nor did he stand to gain the business advantages sought by the appellant.

22. The co-offender's conduct after arrest was also markedly different from that of the accused. The co-offender pleaded guilty at the earliest opportunity whereas the appellant maintained his opposition to the charges throughout committal proceedings occupying 137 sitting days. The appellant did not enter pleas of guilty until the eve of his trial, and thereafter made two separate applications for leave to withdraw his pleas. The co-offender provided very significant assistance to the prosecution, and offered to provide future assistance which he did by giving evidence against the appellant in the committal proceedings. Finally, the appellant fled the jurisdiction on or about 25 June 2000 and remained at large until he was arrested in Berlin in June 2010 and subsequently returned to Australia.

23. We consider that the circumstances of the appellant and those of his co-offender are so markedly different that the appellant cannot entertain any legitimate sense of grievance if the sentences imposed on him are considerably harsher than those imposed on his co-offender.

24. The final matter to be addressed is the appellant's submission that the learned sentencing Judge erred in imposing sentences that failed to distinguish between the different uses to which the funds the subject of each count were put by the appellant. The appellant's submission is that insofar as some counts involved the appellant using the funds of the company for business type purposes, albeit not authorised by the clients of the company, these counts reveal less criminality than those where the appellant had applied the misappropriated funds to his own immediate benefit.

25. The basis for this submission was said to be the decision of Higgins J (as he then was) in the matter of R v Elvin [1997] ACTSC 1, an unreported decision delivered 10 January 1997. The defendants in that case were the directors of a company which had for a number of years conducted the business of manufacture and supply of concrete. In 1993 an Australian Tax Office audit of the company found apparent discrepancies in the actual as opposed to the reported assessable income for the company for the financial years ending 30 June 1987 through to 30 June 1991. It was found that the company had understated its income for those financial years by failing to include in the company's returns cash sales totalling some $241,778.00. His Honour said at [6]:

Had that income merely been diverted to the personal use of the offenders, their culpability would, prima facie be considerable.

26. His Honour went on to note that it was not the case that the income had been diverted to the personal use of the offenders. He noted that the cash receipts were, at least substantially, used to pay business related expenses. Counsel for the appellant in these proceedings relies upon his Honour's comments as evidencing a principle that the misappropriation of monies for the purpose of payment of business expenses is less culpable than the misappropriation of monies for personal use. We do not think that his Honour's comments in Elvin stand for that proposition, nor do we think that such a proposition can be maintained as a matter of principle.

27. His Honour's comments in Elvin have been taken out of context by the appellant. After making the comments referred to, his Honour noted that the Australian Tax Office acknowledged that all but $13,997.00 of the $241,778.00 in unreported income could legitimately have been written off as tax deductible expenditure. Thus, his Honour continued, only a small amount of the taxable income ended up as understated. His Honour's comments must be understood against this background, as explaining that the figure of $241,278.00 did not reflect the actual loss to the revenue.

28. In the instant case we consider that the learned sentencing Judge was correct not to draw any distinction in sentencing between the uses to which the appellant put the misappropriated money. In his written submissions, counsel for the respondent accurately sets out the position with respect to the appellant's use of the funds:

In each case the character of the use of the funds was essentially the same, namely to further the business interests of the appellant and for his personal expenses.

29. Having determined that the learned sentencing Judge fell into error the appeal must be upheld and the appellant resentenced.

30. We consider the following sentences to be just and appropriate:

31. The totality of the appellant's criminality is best expressed by cumulating the sentences on Counts 1, 2 and 4, with the sentence imposed on Count 3 to be served concurrently with that imposed on Count 1, and the sentence imposed on Count 5 to be served concurrently with that imposed on Count 4. This results in an aggregate sentence of seven years imprisonment. There will be a nonparole period of five years. Both the aggregate sentence and the nonparole period will commence on 3 April 2009.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Legal Aid ACT

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions

14. The learned sentencing Judge's failure to properly apply the totality principle justifies this Court in re-sentencing the appellant if we are satisfied that a different sentence is appropriate: see AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 per Hayne J. We will therefore consider whether, in the separate exercise of our discretion, different sentences, both individual and aggregate, are warranted. Before we do so we will, however, consider the other basis on which the Crown accepted the learned sentencing judge was in error.

19. In his written submissions, counsel for the Crown drew our attention to the comments of Miles CJ and Von Doussa J (with whom Weinberg J agreed) in Steer & Ors v The Queen [2000] FCA 462 at [14]:

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