Cooper v R

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Corporations Act 2001 (Commonwealth)

Cameron v The Queen (2002) 209 CLR 339 House v The King (1936) 55 CLR 499 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1989) 194 CLR 610 CASES CITED : Postiglione v The Queen (1997) 189 CLR 295 R v Martin [2005] NSWCCA 190 R v Rivkin [2004] NSWCCA 7 R v Way (2004) 60 NSWLR 168 The Queen v De Simoni (1981) 147 CLR 383

PARTIES: Bradley David COOPER - Applicant REGINA - Respondent/Crown

COUNSEL: B Walker SC with G Bashir - Applicant W Abraham QC with B Neild - Respondent/Crown

SOLICITORS: Uther Webster & Evans - Applicant Commonwealth DPP - Respondent/Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 609

IN THE COURT OF CRIMINAL APPEAL CCA 2004/4688

GROVE J BLANCH J JOHNSON J

11 March 2009 Bradley David COOPER v REGINA Judgment 1 GROVE J: This is an application for extension of time for seeking leave to appeal against severity of sentence imposed by James J in the Supreme Court on 23 June 2006. The application to extend time was supported by an affidavit by the applicant's solicitor Ms Vivian Evans sworn 4 September 2008. The content of the affidavit was not challenged. Ms Abraham QC who appeared with Mr Neild for the Crown in their written submissions conceded that some explanation for the delay had been made and that the Crown had not suffered prejudice as a consequence of it, however, it was contended that leave should be refused because the merits of the challenge to sentence lacked prospects of success. Whether that is so can only be determined by consideration of the arguments for and against the grounds which have been raised. I would grant any necessary extension of time. 2 The applicant stood trial upon an indictment containing 13 counts, upon all of which he was found guilty by the jury. Counts 1 - 6 have, for convenience, been referred to as "the bribery offences". Count 1 charged that on 3 December 2000 the applicant corruptly offered to give William Herbert Howard (Howard), an agent for HIH Casualty and General Insurance Limited (HIH C&G) a benefit, namely cash and employment by a company associated with the applicant, the expectation of which would tend to influence Howard to show favour to companies associated with the applicant in processing claims by them made to HIH C&G. The latter was part of a group of corporations which, for present purposes can be sufficiently referred to as HIH. 3 Counts 2 - 6 were in broadly similar terms relating to different dates and to varying amounts of cash given to Howard from time to time. 4 Counts 1 - 6 were charged as breaches of s 249B (2) of the Crimes Act 1900 which provides: "(2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit: (a) as an inducement or reward for or otherwise on account of the agent's: (i) doing or not doing something, or having done or not having done something; or (ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person, in relation to the affairs or business of the agent's principal; or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal,

the firstmentioned person is liable to imprisonment for 7 years." 5 Counts 7 - 13 charged the applicant with publishing a statement to HIH C&G which he knew to be false in a material particular with intent to obtain financial advantage to companies associated with him. These were referred to as "the false statement offences". These counts allege breaches of s 178BB (1) of the Crimes Act which provides: "(1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for five years." 6 The applicant was on bail until committed into custody after return of the guilty verdicts by the jury on 31 October 2005. 7 His Honour sentenced the applicant on 23 June 2006 as follows: (a) On each of counts 7 - 10 to imprisonment for a fixed term of two years six months commencing on 31 October 2005 and expiring on 30 April 2008, the sentences to be served concurrently with each other; (b) On each of counts 11 and 12 to imprisonment for a fixed term of two years commencing on 31 October 2006 and expiring on 30 October 2008 to be served concurrently with each other; (c) On count 13 to imprisonment for one year six months commencing on 31 October 2007 and expiring on 30 April 2009, and (d) On each of counts 1 to 6 to imprisonment consisting of a non-parole period of two years commencing on 31 October 2008 and expiring on 30 October 2010 with a balance term of three years commencing on 31 October 2010 and expiring on 30 October 2013. 8 The effective overall sentence amounted to a non-parole period of five years with a balance term of three years. Obviously the sentences on counts 7 -1 2 have now expired and the sentence on count 13 will expire shortly. 9 The sequence of relevant events commenced on 3 December 2000 when, pursuant to an arrangement made by the applicant, Howard met him at a hotel in Balmain. At the time Howard was Chief Investment Officer of the HIH Group of companies and the bank accounts of that group were conducted through HIH C&G. Both of them knew that the HIH Group was in a parlous financial position. The applicant offered Howard cash and a position in one of his companies if he would help to resolve claims which were being made by some of those companies which, if allowed, would be paid out through HIH C&G. Howard agreed to the proposition. Those facts were the foundation of count 1. 10 The other bribery offences, counts 2 - 6, arose out of a series of cash payments following that agreement. The specifications in counts 1 - 6 of the indictment did not link the promises or the payments to particular claims by the applicant's companies. The evidence and his Honour's charge to the jury noted an apparent relationship between some payments and some claims and as I shall mention later, a table was prepared seeking to show how payments or claims "fitted into the case". 11 However, it is important to note that in relation to an element in count 1 (numbered as element 3 in a written direction provided to the jury) concerning the expectation of benefit by showing favour "in the processing of claims and demands of those companies" his Honour directed: "In element 3 it would be sufficient for the Crown to prove that the expectation of the benefit offered would tend to influence Mr Howard to show favour to any company associated with the accused in the processing of any claim by that company." 12 A similar direction was given in relation to other counts charging the bribery offences. Again in his Honour's remarks on sentence he observed that the Crown case was that individual payments were not necessarily specifically linked to the settlement of any particular claim which Howard facilitated. 13 His Honour found that on 22 December 2000 at the applicant's office in North Sydney Howard was handed an envelope containing about $20,000 which was stated to be a "Christmas present". This fact was a constituent of count 2. 14 Howard was uncertain about the order of events, however, about $30,000 was transferred from a bag brought by the applicant to one belonging to Howard at the Ritz Carlton Hotel in Sydney. On another occasion the applicant picked up Howard in his Ferrari motor vehicle and they drove to the Sheraton on the Park Hotel where an envelope containing about $40,000 was passed to Howard. Whatever the order, these events occurred in January and February 2001 and were constituents of counts 3 and 5. 15 During January 2001 Howard was holidaying at Noosa, Queensland and an innocent intermediary delivered to him an envelope from the applicant. It contained about $9,000 and related to count 4. 16 In March 2001 Howard called at the applicant's residence at Balmoral where the applicant withdrew either $20,000 or $25,000 from a drawer and gave it to him. This payment was reflected by count 6. 17 Subject to the uncertainty about the amounts referrable to count 6, Howard received cash from the applicant totalling either about $119,000 or about $124,000. 18 It is necessary to sketch some background out of which the allegations comprehended in the false statement offences arose. 19 The applicant had had dealings with HIH through companies which he owned and controlled. One of these was Vision Publishing Pty Limited (Vision) a wholly owned subsidiary of Goodwill Group Pty Limited (Goodwill). There was also relevant contact involving the applicant emerging from the takeover of FAI Insurances by HIH in 1999. One result of the takeover was that HIH came to own a large shareholding in the applicant's US based corporation Home Security International (HSI) which was the parent company of an Australian entity FAI Home Security Pty Limited and all of the shares in another company FAI Finance Corporation (FAI Finance) which had previously been part owned by the applicant. By December 2000 HIH had made a decision to separate itself (described as a "divorce") from the applicant and his corporations. This involved consideration of various claims for payment by HIH and acceptance or rejection of these claims was to be considered under the guidance of Howard who was the recipient of the bribes paid by the applicant. Howard was in a position to authorize payment through HIH C&G. 20 One of the claims was based upon a memorandum by a consultant who was working at the time for HIH, which recorded an agreement by HIH to sponsor seminars produced by Vision in the amount of $1.2 million. No such seminars ever took place. However, in December 2000 the applicant raised with Howard a claim for payment of the $1.2 million. Howard arranged for the claim to be accepted and it was agreed that it would be satisfied by HIH discharging a debt of about $850,000 owed by Goodwill to FAI Finance and by the payment of $347,500 to Vision. These things occurred. 21 Thereafter, the applicant learned that the Chief Executive Officer of HIH (Williams) was unaware of the satisfaction of the claim and the applicant set about seeking to obtain a repeat payment of the claim which he knew had already been settled. 22 On 15 December 2000 the applicant dispatched documents bearing date 6 December 2000, one of which was a letter to Williams asserting that Vision had not been paid the $1.2 million sponsorship amount. That false statement was the foundation of count 7. 23 Following the dispatch of these documents there were a series of activities relative to this duplicated claim. On 20 December 2000 the applicant sent a facsimile transmission to Howard about several matters but included therein a statement "I plan to settle the $1.2 million sponsorship agreement". As stated, that claim had already been settled and this false statement was reflected in count 8. 24 Sham negotiations took place between the applicant and Howard and it was purported to resolve the matter by an agreement that the applicant would receive $750,000. 25 On 8 January 2001 the applicant sent another facsimile transmission from Goodwill to Howard enclosing an invoice (dated 27 December 2000) in the amount of $825,000 which was said to be made up of $750,000 plus GST. It was represented that $450,000 was payable immediately and $375,000 payable within four months. It was stated that the account was "extremely overdue". The statements in this transmission were the subject of count 9. 26 Howard arranged for $412,500 (one half of $825,000) to be paid forthwith. In reference to Vision's claim, on 15 January 2001 the applicant sent Howard a memorandum which referred to "the amount of $375,000 owing by HIH to me". This false statement was the basis of count 10. Howard responded to this demand by an immediate payment which was "discounted" to $325,000. 27 As a matter of history, a mutual association called Credit Reference Australia (CRA) demutualized in September 1998 allocating shares in a corporation entitled Data Advantage Limited to previous members of the association. Some of the shares were allocated in accordance with invoices by CRA over a defined period. As a result of this process, a large parcel of shares was allocated to FAI Finance and the applicant claimed that some of these should have been received by his company, FAI Home Security. 28 In mid January 2001 Howard flew to Hayman Island where he spoke to the applicant who was staying on the island and the subject of the Data Advantage shares was raised. Howard said that he would need documentation. On 31 January the applicant sent to Howard a facsimile of a letter bearing date 2 August 1999 which had been signed by Rodney Adler who had formerly been Chief Executive Officer of FAI Insurances. The letter stated that a large percentage of the Data Advantage shares should have been allocated in accordance with the applicant's contention. In the covering letter to Howard the applicant described this letter as "retrieved from archives". In fact, the applicant instigated the creation of the letter in January 2001 and Adler signed it then. The false statement that the letter had been retrieved from archives was a foundation of count 11. 29 That letter with other documents were forwarded to a solicitor for advice. The solicitor was unaware that the date of 2 August 1999 which it bore was not genuine and, on the assumption of regularity, he advised that as at that date FAI Home Security should have received 80 percent of the value of the allocated shares. The applicant forwarded the advice to Howard at HIH C&G thereby publishing to it the solicitor's advice and asserting an agreement to the effect of it. There was no such agreement and that was the material false particular. However, on 14 February 2001 the claim was "settled" by Howard authorizing payment of $1 million. The publication of the false particular founded count 12. 30 As at February 2001 HIH held some shares (126,000) in an American company, Publicard Inc. On 23 February the applicant sent a facsimile transmission to Howard offering to buy these shares for an immediate cash payment of $163,800. No currency was specified in this offer. Enquiries suggested that these shares were valued at US$2. Arithmetically, the offer represented $1.30 (currency unstated) per share for 126,000 shares. At the time the exchange rate for an Australian dollar was about US$0.50. 31 Howard accepted the offer and an employee of HIH converted what was assumed to be US$163,800 and the applicant paid the converted amount of A$312,000. 32 The applicant realized afterwards that the value of the shares was not as high as he had thought. After this realization, on 12 March 2001 he telephoned Howard and asserted, for the first time, that his offer was A$163,800. On the following day he repeated this assertion in a facsimile transmission. He offered options of reversing the transaction and receiving a refund of A$312,000 or, alternatively, refunding the difference between that sum and A$163,800 namely A$148,200. Howard arranged payment to the applicant of the lastmentioned sum and this took place on 14 March 2001. On 15 March 2001 HIH went into provisional liquidation. 33 The false statement that the applicant had offered A$163,800 as distinct from US$163.800 for the Publicard Inc shares which he confirmed in the facsimile transmission after he had spoken to Howard founded count 13. 34 In broad summary the applicant's criminal conduct was constituted by paying a series of bribes to an executive functionary who would, in return, authorize payments which would ultimately benefit the applicant (counts 1 - 6); four false statements in pursuit of the duplicated payment of a claim for $1.2 million for sponsorship of the seminars organized by Vision which did not take place (counts 7 - 10); two false statements relating to the value of the allocated shares in Data Advantage Limited (counts 11 and 12); and one false statement relating to the purpose of Publicard Inc shares purporting to identify the purchase price in Australian rather than US dollars (count 13). 35 His Honour conducted an analysis of the payments to determine whether some, or some parts, of claims would have been (legitimately) paid in any event. The details of these findings can be accepted but it is unnecessary to recapitulate them for present purposes. 36 As the sentences above detailed reveal, his Honour recognized the association in the conduct represented in the counts charged and it was acknowledged by counsel then appearing that the sentences should be "grouped". His Honour as stated, made the sentences on counts 1 to 6 concurrent with each other and similarly the sentences on counts 7 to 10 and counts 11 and 12 concurrent with each other. 37 The notice of appeal specifies grounds as follows: "GROUND 1 1. The sentencing judge erred in taking into account in assessing the objective criminality of the offences that they were committed with the intention of procuring a senior officer of HIH to commit breaches of trust. GROUND 2 2. The learned sentencing judge erred in his application of Pearce v The Queen (1989) 194 CLR 610 and the principles of proportionality and totality such that the sentences imposed were excessive. GROUND 3 3. His Honour erred in failing to impose a sentence on the applicant that was proportionate with that of his co-offender (taking their different circumstances into account) and failed to apply the principle of 'consistency' in sentencing. GROUND 4 4. His Honour erred in not taking into account in mitigation on penalty that the applicant had complied with his obligations under Part 3, Division 3 Criminal Procedure Act (pre-trial disclosure). IN THE ALTERNATIVE GROUND 5 5. The sentences imposed on each count are manifestly excessive." 38 GROUND 1

The sentencing judge erred in taking into account in assessing the objective criminality of the offences that they were committed with the intention of procuring a senior officer of HIH to commit breaches of trust. 39 The initial argument advanced by the applicant asserted that his Honour treated the complicity of the applicant in Howard's breaches of trust towards his employer HIH C&G as additionally aggravating the objective criminality of his offences. Reliance was placed upon this extract from his Honour's remarks on sentence: "As to paragraph (k) of s 21A(2), the prisoner did not commit any direct breach of trust in that he was not a director, an officer or an employee of HIH or of any company which was a member of the HIH group of companies. However, the prisoner was complicit in breaches of trust by Mr Howard. Mr Howard was a senior officer of HIHC &G and the prisoner offered a bribe and gave bribes to Mr Howard with the intention of procuring Mr Howard to commit breaches of trust and the prisoner's conduct had that consequence. The knowingly false statements made by the prisoner were made with the intent of procuring or assisting Mr Howard to commit breaches of trust." 40 Section 21A (2) (k) of the Crimes (Sentencing Procedure) Act 1999 specifies a possible aggravating factor that "the offender abused a position of trust or authority in relation to the victim". The whole of s 21A (2) is governed by a general proviso that a court is not to have additional regard to one of the specified aggravating factors if it is an element of the offence. 41 The submission was that his Honour made an assessment in breach of that proviso. It should be noted that, prior to the remarks above quoted and relied upon by the applicant, his Honour had said explicitly in relation to s 21A (2) that the aggravating factors referred to in paragraphs (g) (substantial harm was caused) and (n) (planned or organized criminal activity) were present. He did not find that a factor as referred to in (k) was present. 42 The counts for the bribery offences are properly construed to charge as an element the intention to influence Howard to act in breach of the trust placed in him by his employer. It was not an element of those offences that the applicant committed a breach of trust and his Honour's reference to s 21A (2) (k) was exclusory of that as an aggravating factor. This was consistent with his omission to mention it when specifying the factors which he did find were present which were limited to those set out in (g) and (n). 43 Read in context, it is apparent that his Honour was not finding that there was additional aggravation by reason of a breach of trust by the applicant but he was observing that an intention that motivated the applicant was to induce Howard to breach a trust which he owed to his employer for the purpose ultimately of advantage to the applicant. That was a circumstance relevant to the assessment of the applicant's objective criminality. 44 I accept the applicant's contention that, so far as the bribery offences are concerned the procuring of breach of trust between the agent (Howard) and his principal (HIH C&G) is an element of the offence but his Honour's remarks do not demonstrate that he treated this as an additional factor of aggravation. 45 It was submitted in relation to the false statement offences that the applicant could not be penalized for complicity with Howard in his breaches of trust because such a finding constituted a circumstance of aggravation not alleged in the counts of the indictment. This elevated to the level of a more serious offence conduct for which sentences were being imposed: The Queen v De Simoni (1981) 147 CLR 383. 46 De Simoni was a case concerning the West Australian Criminal Code but the principles discussed therein have frequently been cited in common law jurisdictions. Gibbs CJ said (at p 389): "At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 47 The breach of principle which the Chief Justice was articulating concerned giving cumulative or additional effect to a matter of aggravation. He was not placing a restriction upon the taking of matters into account in assessing the objective criminality of an offence: see R v Way (2004) 60 NSWLR 168 at 191-192. 48 The contention of the applicant was that complicity by him in the breaches of trust by Howard towards HIH C&G could conceivably have given rise to charges under s 176 or 176A of the Crimes Act. These provisions carry greater prescribed penalties (ten years imprisonment) than those of the charges against the applicant and are thereby to be categorized as more serious offences. 49 In an argument presented in a negative sense, it was observed that breach of trust was not an essential element of the false statement charges and attention was drawn to comments in the judgment in R v Martin [2005] NSWCCA 190 where some examples of abuse of trust were said to amount to aggravating factors available to be taken into account on sentence. It was submitted that the present case could be distinguished on the facts (the applicant was not an officer of HIH whereas Martin was an officer of a particular corporation) and it was submitted that comments were "in any event" obiter and wrong. The submission tended to deflect attention from pertinent issues. It is not necessary to engage in an examination of the correctness or otherwise of the comments in Martin. 50 Each of the false statement counts involved an element of intention to obtain a financial advantage for the applicant through his various corporations. Recognizing his Honour's statement in reference to s 21A (2) (k) that the applicant intended assisting Howard to commit his breaches of trust is not an indication that he was treating that circumstance as a matter of aggravation but that it was a circumstance which he was taking into account in the assessment of the objective gravity of those offences. Those breaches of trust led to the improper payment of funds consequent upon the presentation of the false statements. It would have been artificial and sterile, to assess the objective seriousness of the false statement offences by excluding consideration of how consequences were achieved and what they were. 51 I would reject ground l. 52 GROUND 2

The learned sentencing judge erred in his application of Pearce v The Queen (1989) 194 CLR 610 and the principles of proportionality and totality such that the sentences imposed were excessive. 53 His Honour expressly noted his obligation to comply with what had been specified in Pearce v The Queen (1989) 194 CLR 610. The applicant argues that his Honour did not fulfil his expressed intention. It was submitted that two errors were apparent, first, that his Honour failed to determine appropriate sentences for each offence and, second, that he failed to have regard to elements of commonality in certain of the bribery offences and certain of the false statement offences. 54 This ground and the arguments in support of it were to an extent based upon a misconception concerning the relationship between counts and payments. As earlier mentioned there was produced at the hearing a schedule purporting to cross reference payments (or set-off) to specific counts. 55 In his remarks on sentence his Honour summarized the position thus: "On the Crown case at the trial the individual payments made by the prisoner to Mr Howard were not necessarily specifically linked to the settlement by Mr Howard of any particular claim made on behalf of a company associated with the prisoner and in some cases were linked to the settlement of a number of claims." 56 It was not contended that the similar direction to the jury in this regard was erroneous and neither was it erroneous for his Honour to approach the issues of sentence accordingly. 57 It was submitted that, although a finding by his Honour of "substantial loss" in relation to each offence was not disputed, he failed to examine which claims by the applicant's companies were linked to which charges. So to do would have been inconsistent with dealing with the issue in accordance with the trial and his Honour's above cited finding. 58 In relation to the false statement charges it can be said that the link was self evident and, to the extent that that might have been relevant, his Honour "grouped" by concurrent sentence the related misconduct as above set out. 59 All of the bribery offences were met by equal sentences to be served concurrently. The attempt to draw distinctions by reason of linking various amounts of improper payments must fail in the light of the finding, congruent with the conduct of the case, that the bribes were not referrable to any particular payment. In that circumstance, given the identity of other factors including subjective matters favourable to the applicant, no error has been demonstrated by his Honour's imposition of equivalent sentences within the groups, in particular the six bribery offences. His Honour did not fail to set appropriate terms for each offence. 60 The second argument in support of this ground referred to the joint judgment (McHugh, Hayne and Callinan JJ) in Pearce at p 623 where their Honours said: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conducts falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 61 It might be observed that what was discussed in that extract was commonality of elements and not the repetition of similar criminal conduct. The commonality asserted by the applicant in this case was that in each offence the intention of the applicant was to gain a benefit in the processing of the claims of his various corporations. Those payments represented outcomes of the offences. As the extract from the joint judgment states it is "the commission of elements that are common" which requires avoidance of double punishment not a similarity of outcome. In any event, as already observed, where the outcome was the same in respect of particular offences, his Honour "grouped" the sentences and ordered that they be served concurrently. 62 There was no commonality between the acts of criminality leading to impermissible "double punishment" referrable to each of the groups of offences. His Honour, having assessed sentences for individual offences, made the orders effecting the partial accumulations as above indicated. 63 It is well established that questions of cumulation are matters for the exercise of discretion in respect of which this Court can only intervene in accordance with the principles laid down in House v The King (1936) 55 CLR 499. No miscarriage of discretion has been shown. 64 I would reject ground 2. 65 GROUND 3

His Honour erred in failing to impose a sentence on the applicant that was proportionate with that of his co-offender (taking their different circumstances into account) and failed to apply the principle of "consistency" in sentencing. 66 The co-offender referred to in the statement of the ground is, of course, Howard. Howard was not charged with the same offences as the applicant and was sentenced for two counts contrary to s 184 (2) of the Corporations Act 2001 (Commonwealth) for dishonestly using his position as an officer of HIH C&G with the intention of gaining an advantage for the applicant's companies. The maximum prescribed penalty for such offences is five years imprisonment. Howard pleaded guilty. 67 In support of this ground the applicant referred to the joint judgment (Dawson and Gaudron JJ) in Postiglione v The Queen (1997) 189 CLR 295 at 301 where their Honours said: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

68 Although the crimes of Postiglione and his co-offender Savvas were entirely different from those of the applicant and Howard there is some comparison to be drawn from their Honours' following observation to that just quoted: "The different circumstances involved this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas." 69 The major beneficiaries of the crimes were the applicant's companies and he would, for that reason, meet the description of principal organizer. It was he who instigated the very first meeting at the Balmain Hotel. The quantum of bribes received by Howard was a comparatively small proportion of the total benefits which were improperly paid out by HIH C&G. Howard rendered significant assistance to the prosecuting authorities as did Postiglione. Not the least of Howard's assistance was the giving of evidence at the trial of the applicant. 70 The applicant's submissions recognized that he and Howard were not dealt with for the same offences but attention was sought to be directed to his Honour's findings that there was a degree of correspondence between the criminal conduct constituting some of the offences by each of them. Such findings were open to his Honour but they do not translate a finding that the offenders were of like total culpability for their respective crimes. 71 In what has been treated as one classic statement on the topic, Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 said at 609: "The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account ."

72 In any event, Howard was entitled, on being convicted for Commonwealth offences, to a reduction of sentence on his pleas of guilty for having shown a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339; his pleas of guilty were also indicators of remorse and he rendered the assistance above described. His Honour detailed a number of reasons for his conclusion that the applicant's sentences should be greater than those received by Howard. He found that the applicant was the instigator of the offending and that the crimes of the applicant were more serious and that this was plainly reflected by the higher prescribed maximum penalties. 73 The applicant's submissions do not articulate a complaint in terms of parity but in terms of asserting a lack of "consistency". Citation was made of the remarks of Mason J in Lowe at p 610: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice ." 74 There can be no criticism of the ideal which that expression postulates but it has not been understood to require a sentencing judge to engage in a comparative exploration of sentences for any offence by any offender whether or not connected with the sentencing task being performed. Consistency is achieved by the imposition of sentences conforming to established sentencing patterns, every sentence taking into account the particular circumstances of the offence and of the offender. 75 The applicant appeared for sentence for many more offences than Howard and his Honour was constrained to give effect to principles of totality. In addition, as previously mentioned, some of the applicant's offences were required to be set against a guide of maximum penalty greater than that faced by the co-offender. His Honour's assessment displayed no lack of consistency. 76 It was irrelevant for the applicant to seek to draw contrast between the sentences received by him and those received by the offenders Raymond Williams and Rodney Adler. Notoriously, and as the remarks of sentencing judges in those cases revealed, they were involved in criminal behaviour associated with the collapse of the HIH Group. Those offences had nothing to do with the crimes of the applicant. It may be true that some part of the attrition upon the funds of HIH by the improper payments to the applicant's companies could have contributed to the ultimate insolvency but that does not make the punishment of those offenders a yardstick for the punishment of the applicant for what he has done. 77 I would reject ground 3. 78 GROUND 4

His Honour erred in not taking into account in mitigation on penalty that the applicant had complied with his obligations under Part 3, Division 3 Criminal Procedure Act (pre-trial disclosure). 79 The complaint in this ground is that his Honour should have reduced the sentences by taking into account "the voluminous disclosure made in the course of this complex criminal trial". 80 The Crown challenges the description "voluminous" and observes that his Honour made no such finding. Section 22A of the Crimes (Sentencing Procedure) Act 1999 provides: "22A(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence has made pre-trial disclosures for the purposes of the trial. (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 81 His Honour's remarks were transcribed under various headings, one of which was "Mitigating Factors". Under that heading he said: "The prisoner did provide some assistance within s 23 of the Crimes (Sentencing Procedure) Act in the proceedings relating to the offences. However, the assistance provided by the prisoner was limited. The prisoner agreed that at the trial the statements of a number of witnesses could be read, without the makers of the statements being required to give oral evidence, and for the purposes of the trial a limited number of facts were agreed to by the prisoner. On 6 May 2005 I gave certain directions ordering pre-trial disclosure pursuant to Div 3 of Pt 3 of the Criminal Procedure Act . On 24 June 2005 the prisoner's solicitors wrote to the Director of Public Prosecutions supplying the names of a number of witnesses to be called as character witnesses at the trial (none of whom were in fact called) and giving notice of the prisoner's intention to dispute the admissibility of large parts of the evidence in the Crown brief, including all of the evidence of Mr Howard, the principal Crown witness." 82 It is contended that his Honour, having noted the application of Div 3 of Pt 3 of the Criminal Procedure Act, gave no discount for the applicant's compliance and gave no reasons why he was not inclined so to do. His Honour did not state that he was not taking the applicant's compliance into account in his favour and his inclusion of these observations when referring to mitigation indicates the contrary. He was not obliged to formulate some arithmetical or individually quantified discount and his purpose in mentioning this matter was obviously to include it as a matter of mitigation. The error asserted by this ground has not been demonstrated. 83 GROUND 5

The sentences imposed on each count are manifestly excessive. 84 It is not submitted that his Honour omitted to take into account some factor favourable to the applicant that he should have. The applicant's written submissions referred to those which he took into account in some detail and contend nevertheless that the sentences were manifestly excessive "having regard to all of the circumstances outlined." It cannot be, and it is not, said that the applicant was lured into criminal activity in order possibly to keep a corporate ship afloat. He (as was Howard) was fully aware of the probable fate which awaited the HIH Group and, to continue the metaphor, his actions were more akin to those of piracy than of salvage. 85 The bribery of Howard and the production of false documents were crimes motivated by greed. No challenge was advanced against his Honour's finding that the applicant: "….did not curtail his extravagant lifestyle, including driving expensive cars, living in a residential apartment at Balmoral, staying at Hayman Island and gambling large sums at a casino." 86 It is true that at the first instance hearing the Crown Prosecutor referred his Honour to a number of cases including those of Howard and Adler which were described in a written submission as "sentencing comparatives". His Honour was not bound by the approach advanced by the Crown nor for that matter any approach advanced on behalf of the applicant. As was said by this Court in a joint judgment (Mason P, Wood CJ at CL and Sully J) in R v Rivkin [2004] NSWCCA 7 (the relevant passage is not included for publication in the authorized report at (2004) 59 NSWLR 284): "It is not, however, the case that much benefit is ever gained by an attempt to draw a comparison with other cases, having regard to the differences in the objective and subjective circumstances involved …. …… (it is) the responsibility of this Court to determine whether or not the sentence imposed fell within a proper exercise of sentencing discretion by reference to its own facts." 87 The applicant's offences manifested a high degree of objective criminality. Not only are such offences difficult to detect but as the applicant's submissions recognize, their prosecution is a matter of considerable complexity. A significant reflection of general deterrence was required. His Honour gave full weight to such matters as the applicant could seek to draw upon in mitigation and the sentences were neither individually nor cumulatively excessive. 88 I would grant the necessary extension of time and I would grant leave to appeal against sentence but dismiss the appeal. 89 BLANCH J: I agree with Grove J. 90 JOHNSON J: I agree with Grove J.

16/03/2009 - Coversheet - T Nield should be B Neild - Paragraph(s) 0 16/03/2009 - T Nield should be B Neild - Paragraph(s) coversheet and par 1

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.