Croke v R

Court of Criminal Appeal (NSW)|2021-08-06|Before: Bathurst CJ, Beech-Jones J, Fagan J

[This headnote is not to be read as part of the judgment] The applicant, Michael Anthony Croke, sought leave to appeal out of time against his sentence for charges concerning his involvement in a conspiracy to have returned money seized by police on suspicion of it being the proceeds of the sale of illicit drugs in Australia. On 11 August 2011, the police stopped a Mr Sean Carolan at the Hilton Hotel foyer and searched a bag in his possession, finding $702,000 in cash. Mr Carolan told the police that he had been given the suitcase by a Mr Owen Hanson for safekeeping and/or a business investment. The police suspected this money to be the proceeds of unlawful activity and seized it. Shortly thereafter the police became aware of intelligence suggesting that Mr Hanson was under investigation in the United States of America for involvement in criminal activity, and it was subsequently ascertained that he was in fact involved in the importation and supply of drugs into Australia. Mr Hanson was eager to have the seized money returned to him. He was introduced to AZ, a person with criminal convictions relating to drug supply. AZ in turn recommended that Mr Hanson seek advice from the applicant, a lawyer with a practice in Sydney. The following day Mr Hanson, AZ and the applicant met to discuss how the money might be returned. From the date of the first meeting in August 2011 until November 2014, the applicant and his co-offenders invented a story to avoid the seized money being forfeited to the Crown as being either unlawfully obtained or the proceeds of crime. The applicant intended that in the event Supreme Court proceedings to have the money returned were successful, the money would be paid into his own trust account and ultimately distributed between himself and his co-offenders. During this time, the applicant gave legal advice as to the outline of the story required to enable return of the money. He suggested and drafted various forms of documentary evidence to show legitimate business activity between his co-offenders, including drafting a false statutory declaration and instructing the preparation of a false tax return. The applicant personally attended to police interviews of co-offenders and assisted where necessary with explanations. He filed process in the Supreme Court, seeking the return of the funds plus interest, and instructed counsel to appear and argue the case. At trial, the applicant was found guilty of one count of participation in a criminal group, two counts of perverting the course of justice, and three counts of making false and misleading statements. The applicant was sentenced to an aggregate term of 5 years and 9 months' imprisonment with a non-parole period of 3 years and 9 months. On appeal, the applicant argued that the sentencing judge erred in attributing the same level of responsibility to him as for his co-offenders, Mr Hanson and AZ. He also argued that the sentencing judge erred in attributing to him a high level of responsibility because he used his skills as a solicitor and because he breached his professional responsibilities. Additionally, the applicant argued that his sentence was manifestly excessive and that he had a legitimate sense of grievance as a result of the sentence imposed upon his co-offender, AZ. Did the sentencing judge err in attributing the same level of responsibility to the applicant as for Mr Hanson and AZ? i) The sentencing judge's conclusion on this issue was not affected by any factual error. This ground of appeal has not been made out: [81], [83] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan). Did the sentencing judge err in attributing a high level of responsibility to the applicant because he used his skills as a solicitor and because he breached his professional responsibilities? i) The sentencing judge was entitled to find the applicant used his skill and position as a solicitor in furtherance of the criminal activity and in breach of his professional obligations. This ground of appeal has not been made out: [87]-[90] (Bathurst CJ); [134] (Beech-Jones J); [135], [142] (Fagan J). Was the sentence imposed manifestly excessive? i) The question is whether the aggregate sentence is manifestly excessive, although the indicative sentences may provide some guidance: [110] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, referred to. ii) The sentence is not manifestly excessive. This ground of appeal has not been made out: [111] (Bathurst CJ); [134] (Beech-Jones J); [135], [143] (Fagan J). Did the applicant have a legitimate sense of grievance as a result of the sentence imposed on his co-offender AZ? i) Consistency in the punishment of offenders is a reflection of the notion of equal justice and finds expression in the parity principle which requires that like offenders be treated in a like manner, and allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances: [127] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, referred to. ii) An appellate court will interfere when it considers the disparity of sentences between co-offenders is such as to give rise to a justifiable sense of grievance or give rise to the appearance that justice has not been done: [128] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, referred to. iii) A sense of grievance is to be assessed by objective criteria: [128] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, referred to. iv) Courts should proceed with caution in considering the application of the parity principle when the same judge has sentenced the co-offenders: [129] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). Bond v R [2020] NSWCCA 277, referred to. v) The question is whether the relevant differentiation made by the sentencing judge was open in the exercise of his or her discretion: [129] (Bathurst CJ); [134] (Beech-Jones J); [135] (Fagan J). Lloyd v R [2017] NSWCCA 303, referred to. vi) The disparity was not such as to give rise to a justifiable sense of grievance. This ground of appeal has not been made out: [132] (Bathurst CJ); [134] (Beech-Jones J); [135], [143] (Fagan J).

Judgment

BATHURST CJ: The applicant, Michael Anthony Croke (the applicant), was charged on indictment with the following offences: "1 On the 4th day of April 2012, at Sydney in the State of New South Wales, did make a false assertion with intent thereby to pervert the course of justice. 2 On the 4th day of April 2012, at Sydney in the State of New South Wales, did publish a statement that was false or misleading in a material particular with the intention of obtaining a financial advantage. 3 On the 15th day of April 2012, at Sydney in the State of New South Wales, did publish a statement, namely a statutory declaration, that was false or misleading in a material particular with the intention of obtaining a financial advantage. 4 On the 14th day of May 2012, at Sydney in the State of New South Wales, did publish a statement, namely a tax return, that was false or misleading in a material particular with the intention of obtaining a financial advantage. 5 On the 28th day of May 2014, at Sydney in the State of New South Wales, did make a false assertion with intent thereby to pervert the course of justice. 6 Between the 9th of April 2012 and the 30th day of November 2014 at Sydney in the State of New South Wales, did participate in a criminal group with Andrew McManus, Owen Hanson and [AZ], knowing at the time that his participation in that group contributed to the occurrence of criminal activity."
The offences the subjects of counts 1 and 5 carry a maximum penalty of 14 years' imprisonment. The offences the subjects of counts 2, 3, 4 and 6 carry a maximum penalty of 5 years' imprisonment.
Following a trial by a jury the applicant was convicted of all the counts on the indictment. He was sentenced to an aggregate term of 5 years and 9 months' imprisonment with a non-parole period of 3 years and 9 months. In accordance with the requirements of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge stated that she would have imposed the following indicative sentences in respect of each offence (R v Croke [2020] NSWDC 460 (the sentencing judgment) at [90]): Count 1 - 2 years and 6 months Count 2 - 12 months Count 3 - 18 months Count 4 - 18 months Count 5 - 4 years and 6 months Count 6 - 3 years and 6 months
The applicant has appealed on the following grounds: "GROUND ONE: Her Honour erred in attributing the same level of responsibility to the applicant as for Owen Hanson and [AZ]. GROUND TWO: Her Honour erred in attributing a higher level of responsibility to the applicant because he used his skills as a solicitor and also because he breached professional responsibilities as a solicitor. GROUND THREE: The sentence imposed was manifestly excessive. GROUND FOUR The applicant has a legitimate sense of grievance as a result of the sentences imposed on the co-offender AZ." Ground 4 was added by leave at the hearing of the application.

The sentencing judgment

The facts giving rise to the offences are conveniently set out in the sentencing judgment. I will deal with any challenges to the findings of the sentencing judge in dealing with the grounds of appeal.
On 11 August 2011, the police stopped a Mr Sean Carolan at the Hilton Hotel foyer and searched a bag in his possession, finding $702,000 in cash. The police suspected the cash to be the proceeds of unlawful activity. Mr Carolan told the police that he had been given the suitcase by a Mr Owen Hanson for safekeeping and/or a business investment.
Shortly thereafter the police became aware of intelligence suggesting that Mr Hanson was under investigation in the United States of America for involvement in criminal activity. The sentencing judge recorded that it was subsequently ascertained that Mr Hanson was involved in significant criminal activity, including the importation and supply of drugs into Australia.
The sentencing judge stated, and it was not disputed, that the money was part of the proceeds of the sale of illicit drugs in Australia. Mr Hanson had given the money to Mr Carolan to avoid the money being stolen by another criminal who was supposed to be laundering a substantial amount of the proceeds of drug sales in Australia through the Crown Casino.
Mr Hanson was keen to have the seized money returned to him. He was introduced to AZ, a person with criminal convictions relating to drug supply. AZ in turn recommended that Mr Hanson seek advice from the applicant, a lawyer with a practice in Sydney.
The following day Mr Hanson, AZ and the applicant met to discuss how the money seized might be returned. Mr Hanson told the applicant the money was the proceeds of illegal gambling. In response the applicant commented, "we will have to come up with a better story than that". He said that to be successful in having the money returned, they would require a legitimate source of funds in Australia.
The sentencing judge accepted that the bulk of her conclusions concerning the conversations which subsequently took place were based on the evidence given by Mr Hanson at the trial of the applicant. Her Honour stated (at [10]) that "[e]ven allowing for a warning to myself to assess his evidence with care, both because he was a co-offender and was expecting some benefit for his cooperation with the prosecution, [Mr] Hanson's evidence was compelling and corroborated by other evidence."
The sentencing judge stated that the first action taken by the applicant was to send a letter to the New South Wales Police demanding the return of the funds to his trust account on behalf of Mr Carolan.
The sentencing judge stated that after that first meeting, numerous conversations between the applicant and his co-offenders (AZ and Mr Hanson) occurred. Her Honour said that for most of the time, AZ was the communication conduit between Mr Hanson and the applicant. Her Honour stated that over time a story was fabricated to invent a legitimate Australian source for the funds.
The sentencing judge stated that in due course a Mr Andrew McManus was recruited by AZ to join the enterprise by claiming he was the Australian source of the cash. Mr Hanson was largely kept up to date with the developments by AZ via telephone conversations. Her Honour stated that the story which was to be provided to enable return of the money evolved over a number of meetings and conversations. Her Honour stated that AZ and the applicant would discuss the evolution of the story and the applicant would advise from a legal point of view what might be helpful. Her Honour said that AZ would keep Mr Hanson informed.
The sentencing judge stated that the applicant's suggestions included finding a source of the cash in Australia, discussing with Mr McManus the story in general terms and encouraging him to participate, including by sending the applicant an email with a version of the story in it, drafting a statutory declaration for Mr Hanson with a version to suit the story and suggesting documentary evidence to show a business relationship between Mr Hanson and Mr McManus.
The sentencing judge stated that the applicant was actively involved and suggested a course of action to retrieve the funds seized by police. Her Honour said that this involved the applicant coaching Mr McManus before a police interview and attending with him in the interview as his legal representative.
The sentencing judge described Mr McManus as an "enthusiastic participant" in the police interview: at [18]. Her Honour stated that he claimed he had provided $700,000 in cash as the legitimate proceeds of a concert in Perth. He said that he owed the money to Mr Hanson as Mr Hanson had loaned him that amount to secure an artist for another rock concert.
The sentencing judge stated that the applicant assisted during the interview where necessary with explanations.
Her Honour stated that next, the applicant prepared a false statutory declaration to be sworn by Mr Hanson to support the proposition that Mr Carolan had the money as part of a legitimate business agreement, and later suggested the preparation of false documentation to support the proposition that Mr McManus and Mr Hanson were involved in a legitimate business activity involving a rock band.
The sentencing judge stated that Mr Hanson signed the statutory declaration and instructed his accountant to prepare a document purporting to be a copy of a tax return. Her Honour stated (at [22]) that the applicant gave both documents to the police "to support both ends of the fictitious story that had evolved".
The sentencing judge stated that when police still did not return the money, the applicant filed process in the Supreme Court, seeking the return of the funds plus interest. Her Honour stated that the applicant instructed counsel to appear and argue the case. Her Honour said that Mr Hanson paid for the representation. The proceedings were dismissed, and what her Honour described as a three-year effort of the offender and his co-conspirators, had failed.
The sentencing judge stated in summary from the date of the first meeting in August 2011 until November 2014, the applicant with his co-offenders involved themselves in the process of inventing a story to avoid the money seized being forfeited to the Crown as being either unlawfully obtained or the proceeds of crime. Her Honour stated that the applicant intended the $702,000 confiscated be paid into his own trust account and ultimately distributed between himself and his co-offenders. Her Honour stated that all the participants had an expectation of financial reward, the details of which were unknown.
The sentencing judge thereafter made specific findings in relation to each of the counts on the indictment. Her Honour stated that the event the subject of counts 1 and 2 related to the police interview of Mr McManus on 4 April 2012. Her Honour stated that an email from the applicant to Mr McManus set out some basic requirements for the story to be told to the police, in response to which Mr McManus sent to the applicant an email containing a version of the story, including a statement that he would like the cash back quickly.
The sentencing judge stated that the applicant accompanied Mr McManus to the police interview and occasionally interceded in explaining issues. Her Honour said that notwithstanding the story is and was objectively far-fetched, it was a version pursued with vigour both by the applicant and Mr McManus. Her Honour stated that in that pursuit the applicant was seeking in conjunction with others to avoid the proceeds of crime being properly forfeited to the Crown (count 1). The sentencing judge stated that at the conclusion of the interview, either the applicant or Mr McManus gave to a police officer a printout of the email. Her Honour stated that the email was prepared in Mr McManus' words, on the applicant's suggestion, and that the applicant had discussed the need for such a letter in his conversation with AZ about the possibility of using Mr McManus, well prior to the interview. Her Honour stated that the handing over of the email was intended to support the false story given by Mr McManus, and that although it was not possible and unnecessary to decide who handed it over, the act was done with the clear intention of obtaining an advantage for the group.
In dealing with count 3, the sentencing judge stated that the applicant drafted a form of statutory declaration which he arranged to be sent to Mr Hanson for affirmation and return. Her Honour stated that the statutory declaration contained part of the false story as to why Mr Hanson had given the $702,000 to Mr Carolan. Her Honour stated that on 15 April 2012 the applicant gave the statutory declaration to the police in contemplation of the police interviewing Mr Hanson. Her Honour said that when the applicant gave the document to the police he knew the document contained false or misleading information and that he gave it to the police in an attempt to support the joint criminal enterprise by himself and others to have the $702,000 paid into his trust account.
The sentencing judge stated (at [36]) that from the first meeting with Mr Hanson, the applicant was aware the funds were from an illegal source as he was told it was from "illegal gambling". Her Honour stated (at [36]) that during conversations with AZ at his home on 5 March 2012, the co-offender acknowledged that Mr Hanson was involved in serious criminal activities, referring to "Mexicans" or a Mexican cartel. The sentencing judge concluded that at that time the applicant was aware that Mr Hanson had connections to a major international crime syndicate with connections to drug suppliers. Her Honour stated (at [36]) that it was "of little consequence if he actually knew that the money was the direct result of a particular supply of cocaine to Australia or some other criminal enterprise". Her Honour said that the applicant knew at least that the money was illegally obtained, and that Mr Carolan was holding it for safekeeping.
In respect of count 4, the sentencing judge stated that the event related to the applicant giving a copy of a false 2011 tax return in the name of Mr Hanson to the police on 14 May 2012. The false tax return purported to show a business relationship existing between Mr McManus and Mr Hanson which was the subject of proper reporting to the United States of America tax authorities. The tax return was fictitious and was never filed, nor intended to be. The sentencing judge stated that the applicant knew the document was false and contained misleading information. Her Honour stated that during a telephone conversation with Mr Hanson, the applicant suggested that some form of documentary proof of his involvement in the business with Mr McManus might be helpful to the joint criminal enterprise. Her Honour stated that the false tax return prepared by Mr Hanson's accountant appeared some time later. Her Honour stated that the applicant gave it to the police to support the false story, thereby assisting in the attempt to have the $702,000 returned for the financial benefit of him and others.
The sentencing judge described count 5 as relating to the applicant swearing an affidavit dated 20 November 2013 and relying on it in Supreme Court proceedings heard on 28 May 2014, in which the return of the $702,000 was sought. The affidavit annexed Mr McManus' email of 14 March 2012 which the applicant knew contained false and misleading information. The sentencing judge stated that the applicant used his position and knowledge as a solicitor to commence proceedings on behalf of Mr Carolan and to brief counsel to argue the proceedings in court. The sentencing judge found that both the applicant and Mr Carolan knew that Mr Carolan was not lawfully entitled to the money. Her Honour noted that the Supreme Court proceedings were dismissed, but stated that that was irrelevant to the finding that the action of the applicant was done with the intention of convincing the Court by lies and dishonest documents to make an order returning funds to Mr Carolan via the applicant's trust account. Her Honour stated that it was clearly the intention of the applicant to distribute the funds in a way that may have been agreed.
The sentencing judge described the offence the subject of count 6 as relating to the entirety of the applicant's involvement in the attempt to divert police from investigating and pursuing the source of the $702,000. Her Honour said that the preparation for the offence commenced from when the applicant first met Mr Hanson in August 2011, and the involvement in criminal activity from at least 9 April 2012.
The sentencing judge referred to the fact that on 9 April 2012, the applicant and AZ coordinated new details to be relayed to the police. Her Honour stated that the interview with AZ and the police occurred on 11 April 2012, with the applicant accompanying AZ to the interview. Her Honour stated that other than personal and legal support to his co-offenders, the applicant's involvement consisted of many phone calls and personal visits with co-conspirators, advice on legal issues and preparation of documents. Arrangements were made on the applicant's advice for Mr Hanson to have recordings of AZ's and Mr McManus' interviews before he spoke to police, in order to keep their stories consistent.
The sentencing judge stated that the applicant was well aware that Mr Hanson was involved not only in some form of illegal gambling, but serious international criminal activity. Her Honour referred in particular to a recorded conversation between the applicant and AZ on 5 March 2012, during which AZ said to the applicant, referring to Mr Carolan, "he would be smart enough to know that you … never, never … you don't want to fuck with Mexicans", stating that was in reference to Mr Hanson's involvement with the Mexican cartel. The sentencing judge noted that the applicant replied, "I wouldn't be … that would be horrible", which her Honour stated indicated without doubt that the applicant was aware as early as March 2012 that Mr Hanson was a significant player in international criminal activity, and involved not just in some form of illegal gambling, but was part of a criminal group that acted with violence and complete disregard for laws in Australia and other parts of the world.
The sentencing judge rejected the submission that the applicant's involvement was not as significant as that of AZ, or even Mr Hanson, who was the original source of the money. Her Honour stated that the applicant gave direction and advice to guide and support the false story that was created. Her Honour said (at [44]) that the legal advice he gave was "parroted" by AZ "in order to keep the other members of the criminal enterprise engaged in the same message, and to placate them when delay caused concern". The sentencing judge stated that (at [44]) without the applicant's presumed legal knowledge, the story would have been "even less credible than it became".
Her Honour stated that the Supreme Court proceedings required the money to be paid (however much was ordered) into the applicant's own trust account, whether Mr Carolan was still his client or not. Her Honour stated that the applicant was unconcerned that Mr Carolan was unhappy and wanted to sack him. Her Honour stated (at [46]) that the applicant "was scathing of [Mr] Carolan's place in the proceedings and dismissive of his ability to retrieve the funds without him".
The sentencing judge stated at [47]: "[47] Where the charges relate to an intention to pervert the course of justice, the applicant's personal involvement was to obstruct the investigation of criminal activity by the police and later the Crown, thus subverting the administration of the law." Her Honour said that all actions were to prevent proper forfeiture of proceeds of crime.
The sentencing judge stated that where the charges related to an intention to obtain financial advantage, there was evidence before the Court that initially, prior to the matters escalating to the point where Supreme Court proceedings were instituted, the applicant had an expectation of being rewarded the sum of $50,000 for his involvement. Her Honour stated that however, there was some evidence that Mr Hanson at least believed that the applicant would seek more than that. According to Mr Hanson's evidence, the amount was up to $100,000. Her Honour stated that at all times the applicant had a stated intention that if the Supreme Court proceedings were successful, he would have the funds paid into his trust account, its distribution being under his control. Her Honour stated (at [52]) that the applicant was expected to divide it amongst his co-conspirators and all "were expecting a cut".
The sentencing judge stated that although each step taken by the applicant constituted a separate offence, the objective gravity, the applicant's moral culpability and the consequences for the community could be assessed globally. Her Honour stated that as a whole she found the criminality to be high. Her Honour stated that the offending occurred over a period of nearly three years and was planned in detail at each stage. Her Honour stated that the applicant's involvement was necessary and without him the offending could not have occurred.
The sentencing judge stated that there was a prolonged attempt to hide the true position about the money and the associations of co-offenders from the police. Her Honour stated (at [55]) that the applicant had little regard for his reputation as an officer of the court, and that the manner in which he approached his task demonstrated "arrogance that his needs, either personally or to impress his clients was a need above the requirements of honesty and regard to the operation of the administration of justice in this state". Her Honour stated that his misuse of his experience and reputation as a solicitor to perpetuate the offending over a long period increased the objective seriousness of the offences.
The sentencing judge stated at [57]: "[57] General deterrence in the context of this decision means sending that message to all involved in the criminal justice system, including lawyers, that their assumed knowledge, privileged position, assumed trust and respect require correspondingly higher obligations to behave with honesty and respect to the system that provides them with employment and status." Her Honour stated (at [60]) that "[d]enunciation is an equally important sentencing consideration." Her Honour said (at [60]) that while she accepted the applicant "now feels his fall from grace keenly, because of the publicity this case has attracted, a consideration for the court must still be to denounce his conduct on behalf of the community".
The sentencing judge noted that the applicant's submissions conceded the fact that his profession was an aggravating circumstance. Her Honour stated that in relation to the pervert the course of justice and criminal group offences, it was also an aggravating feature that the offences were committed with the objective of financial gain.
In dealing with mitigating and subjective matters, the sentencing judge stated that the applicant was 70 years of age. Her Honour stated that his background was as contained in a report by a psychiatrist, Dr Furst. Her Honour said that although the applicant did not give evidence, much of what was in the report was not in dispute. The sentencing judge stated that up until the offences the applicant was a person of good character. Her Honour accepted that up until his conviction the applicant was thought of highly by many members of the community, including other lawyers. However, her Honour stated that the offences were committed over an extended period and that the leniency allowed for his prior good character would be diminished due to this consideration. Her Honour stated that it was because he was considered so highly in the community and because of his standing as a solicitor that the applicant was able to commit the offences with such audacity.
The sentencing judge stated that the applicant's health was not good. Her Honour said that he had been receiving treatment for many years for a range of medical conditions, including ulcerative colitis, type 2 diabetes and hypothyroidism. Her Honour said that the conditions were controlled by medication. Her Honour said that the applicant in recent times had been diagnosed with prostate cancer, with surgery recommended. Her Honour stated that she was satisfied that suitable arrangements could be made for the surgery, by a specialist of his choice, and for recovery while he is in custody. However, her Honour accepted that his age, other health conditions and the treatment required would be matters which would be more difficult to endure at least emotionally, while in custody.
The sentencing judge accepted that the applicant was suffering from acute anxiety and a high level of stress. Her Honour stated that that was not unusual for an offender who was placed in custody for the first time and is awaiting sentence.
The sentencing judge expressed surprise (at [70]) that Dr Furst reported the applicant was "shattered at his conviction and incarceration". Her Honour stated that the applicant, a solicitor of many years' experience, ought to have been more aware than the average person of the likelihood of a conviction once the matter got to trial. Her Honour noted that during many of the intercepted telephone conversations, the applicant expressed concern that his phone was off and he did not want to discuss his illegal activity on the telephone for that reason. Her Honour found (at [70]) that in those circumstances the applicant harboured "a real consciousness of guilt" with respect to his current offending and his involvement with his criminal associates. Her Honour stated that in those circumstances, she doubted that his surprise at his conviction was genuine. However, her Honour accepted that the change of circumstances for him, especially with his recently confirmed medical diagnosis, would be difficult to adjust to, and that his loss of livelihood as a solicitor is a significant loss to his future income earning capacity.
The sentencing judge accepted that the current custodial circumstances as a result of the COVID-19 requirements impose some hardship over and above the normal conditions of custody. Her Honour stated that she could not predict how long such a situation would continue for, but that it was a matter which required some consideration in ameliorating the sentence to be imposed. Her Honour also stated that the combination of the applicant's age, his general and mental health condition, current difficult circumstances and his good prospects of rehabilitation combined to support a modest finding of special circumstances in his favour.
The sentencing judge noted that one of the applicant's co-offenders, Mr McManus, who pleaded guilty to doing an act with intent to pervert the course of justice, received a 20 month Intensive Correction Order after an allowance of 25 per cent for an early plea, and a further 7.5 per cent for providing assistance to police, including giving evidence in the proceedings against the applicant. Her Honour stated that Mr McManus' level of criminality and moral culpability was less than that of the applicant as he was not an organising principal in the entire operation. Her Honour stated that Mr McManus was only involved in a portion of the entire project, albeit an important part of the story.
The sentencing judge stated that the sentencing statistics revealed that nearly all of the matters involving "pervert the course of justice" which resulted in a non-full-time custodial sentence were matters where pleas of guilty were entered at some stage. Her Honour noted at that time that the applicant had still not admitted the offence and could not receive the benefit of remorse.
The sentencing judge noted that she was referred to two cases which she said bore some similarity to the applicant's case, namely Hart v Attorney General for New South Wales [2016] NSWCCA 71 ("Hart") and Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 ("Einfeld"). Her Honour stated that in Mr Einfeld's case, the former judge lied to a court as to who was the driver of his car whilst the car was observed exceeding the speed limit and pleaded guilty only when the evidence of his dishonesty became overwhelming. The sentencing judge (at [80]) described "[p]erjury by a Justice of the Supreme Court [sic] is an egregious affront to the administration of justice." However, her Honour said that Mr Einfeld's involvement was in relation to a single event, compounded by his covering up of his original lies. Her Honour stated that his expected benefit, apart from a clear driver's licence, was mostly his own ego. Her Honour noted that Mr Einfeld was sentenced to 21 months full-time custody, after an allowance of 12.5 per cent for an early plea. The sentencing judge observed the lack of organisation and planning in that case compared to that which existed in the case before her.
In considering Hart, the sentencing judge stated that Mr Hart was a solicitor who told lies to the Court and police in order to ensure that his clients obtained a particular listing in the Local Court system. Her Honour said (at [80]) that Mr Hart was in effect "magistrate shopping" and using dishonest means to do so. Her Honour said that "[t]here was some but very modest financial incentive for him and some reputational advantage." The sentencing judge noted that Mr Hart eventually pleaded guilty, and after an allowance of 10 per cent for the plea was sentenced to a 2 years and 9 months head sentence. Her Honour noted that he pleaded guilty to five counts of perverting the course of justice with five similar counts on a Form 1, three clients being involved. Her Honour noted that each of Mr Hart's offences was unrelated to the others, his modus operandi was unsophisticated, and the planning limited compared to the degree of complexity involved in the present case. Her Honour noted that in some cases, Mr Hart instructed his clients to manufacture false information to receive a better outcome by having his clients' case placed before a magistrate perceived to be more lenient than others, although the result was still within the discretion of the magistrate. On other occasions, Mr Hart told clients to create letters containing false information to support their case to convince a magistrate to exercise discretion leniently. Her Honour stated that by contrast, the applicant personally manufactured false information and gave legal advice to his clients on how to subvert the legal and police investigation to achieve a result totally at odds with an outcome that would have been available without dishonesty. Her Honour stated that his criminality was at a higher level than that of Mr Hart.
The sentencing judge accepted that the applicant had good prospects of rehabilitation. Her Honour noted that he had shown no remorse but stated that there was little prospect he would be in a position to offend in that way again.
In determining the appropriate sentence, the sentencing judge noted (at [85]) that this Court "has consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected". Her Honour stated (at [85]) that the applicant's involvement was "pivotal". Her Honour said that he was equally responsible for the offending as was AZ. Her Honour stated that his expertise was different to AZ's, but necessary for the enterprise to commence and continue.
The sentencing judge noted that senior counsel for the applicant suggested that delay was a factor which might result in some mitigation of the sentence. Her Honour noted the submission was that in the five years which had elapsed since charges were laid, the applicant had not committed any further offences. However, her Honour stated that that did not assist him as she had already assessed that he had good prospects of rehabilitation. Finally, her Honour stated that the applicant deserved some credit for the cooperative approach by his legal team to the conduct of the proceedings, which facilitated the course of justice.
In those circumstances, the sentencing judge imposed the indicative sentences and aggregate sentence to which I have referred above.

Ground 1: The sentencing judge erred in attributing the same level of responsibility to the applicant as for Owen Hanson and AZ

a The applicant

Senior counsel for the applicant submitted that the applicant could be characterised as a service provider, very much at the direction of Mr Hanson and his Australian lieutenant, AZ. He submitted that Mr Hanson had possession of the money in the first place and was the person who gave the ultimate orders and who was going to receive the vast majority of the funds if they were ever returned. He noted the finding of the sentencing judge that the applicant would have control of the money in his trust account, but submitted that was subject to instructions from Mr Hanson and AZ. He accepted that the applicant provided some initiative, including stating that there needed to be a better story than "the money was from illegal gambling". However, he submitted that it remained the case that he was primarily a service provider to Mr Hanson, and very much at the direction of AZ.
Senior counsel for the applicant referred in that context to the following evidence given by Mr Hanson at the trial: "Q. Do you recall [AZ], and if you don't just say so, speaking to you about another solicitor who is an ex-heavyweight detective that he was using on the side. A. Yeah, I recall that he was in contact with - with another gentlemen that didn't get along with Michael Croke. Q. And could this conversation at that point perhaps be a reference to that other solicitor. The ex-heavyweight detective? A. Yeah, that could be it. Q. And then over at 182, just after that conversation, you ask, 'How about - how about - how about AB is he gonna help or not?' See that? Top of the page? A. Yeah. I see that. Q. And [AZ] says, 'Oh he's happy to help if we need him but we don't really - the problem.' And you say, 'You have someone better?' And he says, 'This is on a different - this is on a different side the bloke I've got. Yeah he's gonna get someone.' 'Gotcha.' 'Yeah, he's - from a different angle he's helping.' 'Yeah - but - but - yeah. But the other bloke - no because we've already said it's yours now. The thing is, if we then go around and say well you got it off - then it just they have to go and investigate more and everything.' Do you see that? A. Yes. Q. You've asked whether AB is going to help again, is that correct? A. Correct. Q. And [AZ] says, 'Well he's happy to but he doesn't have to be the best way to go about it.' Is that right? He's got someone who is going to help? A. Yes."
He also referred to evidence given by Mr Hanson of communications with AZ in which AZ was critical of the manner in which the applicant was performing his role. He submitted that it was not open to the sentencing judge to simply dismiss the evidence as AZ "big noting himself" (at [45]) because AZ did not give evidence and Mr Hanson gave no evidence to that effect. It was submitted that in those circumstances the sentencing judge erred in stating that the applicant was an essential part of the conspiracy in the context of having equal standing with Mr Hanson and AZ.
Senior counsel for the applicant submitted that this evidence demonstrated the applicant was not essential to the conspiracy as another solicitor was involved, and that it further showed the applicant was a service provider, not the principal.
It was also submitted that the evidence established that AZ was much closer to Mr Hanson than the applicant and the person who introduced Mr McManus into the conspiracy.
Senior counsel for the applicant also submitted that any finding in respect to remuneration had to be made beyond reasonable doubt. He submitted that there was no evidence that the applicant was to receive more than $50,000. He submitted it was speculation by AZ that the applicant might seek a greater amount.
He also submitted that the evidence did not establish that the applicant knew that Mr Hanson was involved in international drug dealing. He submitted that it was speculation from the reference to "Mexicans" that the applicant knew that Mr Hanson was involved in an international drug syndicate. He submitted that the evidence of Mr Hanson was that he specifically did not tell the applicant he was involved in international drug dealing. He submitted there was no basis to go beyond this evidence. It was submitted that it led to the sentence being inappropriately aggravated.
The evidence to which senior counsel for the applicant referred was as follows: "Q. And you said that shortly thereafter, on 13 August 2011, you went to his office, is that right? A. That's right. Q. And you said in your evidence yesterday that you told him that this money was from gambling. A. Yes, I told him it was from illegal gambling. Q. What did you actually say about the suggestion it was from illegal gambling? Tell us what you said. A. I told him that I - I ran - in the United States that I ran an illegal gambling site. It was betodog.com and that the client of mine wanted to pay me with a currency that he had in Australia. Q. And that's all you told him on that subject? A. I mean, as far as the gambling. Yeah. Q. You didn't tell Mr Croke that this money was from the proceeds of the importation of illegal drugs? A. No, I did not talk about the drugs at that point."
Senior counsel for the applicant also submitted that it was AZ who arranged the involvement of Mr McManus and that the false story was created by Mr McManus from matters peculiarly within his knowledge. He submitted it was wrong to conclude that the applicant inserted Mr McManus into the story.
He also submitted that contrary to the finding made by the sentencing judge, it was Mr Hanson and his accountant who came up with the idea of the fake tax return. In that context, it should be noted that in his evidence in chief Mr Hanson gave the following evidence: "Q. So in your evidence you've said that the tax return was false. How did it come about that a false tax return was created? A. Later - later on I - I spoke to Michael Croke and [AZ], I believe it was a three-way call, it might have been a conference call. I received a call from them, on my burner phone again. That's when we discussed, Michael just said, 'Hey, we're going to need to somehow show that, you know, you have some large amounts of money in bank accounts as well as we gotta draft up something, if possible, a tax return.' And I said, that's not a problem, I have the perfect guy that will do that. My accountant will do that. And that conversation was pretty brief. And then we had another conversation around the same time regarding the split of the 700,000 if we would get it returned."
Senior counsel for the applicant submitted that in cross-examination of Mr Hanson it was put to him that it was not true that the applicant suggested he should create a false tax return and that his evidence that he was pretending when he told AZ that it was his idea was a lie. He pointed to the fact that the evidence that he was pretending was implausible, noting that Mr Hanson at the time of giving evidence was serving a sentence in the United States of America for offences under the Racketeer Influenced and Corrupt Organizations Act, 18 USC ss (1970) for illegal gambling, racketeering and the importation and export of cocaine and was giving evidence with the protection of a certificate under s 128 of the Evidence Act 1995 (NSW).

b The Crown

In her written submissions the Crown submitted that there was no error in the finding by the sentencing judge as to the amount the applicant was to be rewarded for his involvement. She referred to the finding by the sentencing judge which I have set out at [35] above. She submitted that those remarks did not constitute a finding of the actual reward to be received as distinct from a summary of the evidence given at the trial. She submitted that the relevant finding was that the offences were committed for financial gain and that that finding was only made with respect to the perversion of justice offences and the offences of being involved in a criminal group (counts 1, 5 and 6; see at [39] above).
She submitted that the sentencing judge was not obliged to make a finding that the applicant was to be remunerated no more than $50,000. She pointed out the evidence of Mr Hanson that the applicant was initially to receive $50,000 but thereafter requested an increase of $100,000, and to a telephone intercept of a conversation in which AZ participated and said, "Croke doesn't deserve much … But I know what he's like. He'll put a fuckin' $100,000 out, $200,000". She submitted that it was open to the sentencing judge to find that it was not possible to make a finding of how the money might be distributed.
The Crown also submitted that the sentencing judge made no error in relation to the applicant's knowledge of Mr Hanson's involvement in international criminal activity (see at [31] above). She said that it was open to the sentencing judge to take into account the conversation concerning "the Mexicans". She also referred to the transcript of a further telephone intercept tendered at the trial in which the applicant said, "[w]ell, I could imagine. I can imagine if Owen [(Mr Hanson)] got dirty, he could cause him some grief", and to AZ's response, "[o]h, mate, if he - you know what I think, if he wanted to, yeah, I think. Imagine those crazy Mexicans".
It was submitted that this evidence coupled with the applicant's comment at the initial meeting with Mr Hanson and AZ, namely "we will have to come up with a better story than that", justified the conclusion reached by the sentencing judge on this issue.
The Crown also submitted that there was no error in the finding that the applicant inserted Mr McManus into the story, planning the fabrication of the story with supporting documents and attributing responsibility for the fraudulent tax return.
The Crown pointed first to the express finding by the sentencing judge that AZ recruited Mr McManus (at [14]). She noted the finding made by the sentencing judge that the applicant discussed the story with Mr McManus in general terms and made suggestions in relation to it (see at [14]-[18] above) noting those findings were not disputed. In relation to the false tax returns, she submitted that the sentencing judge was entitled to accept the evidence of Mr Hanson which I have set out at [63] above.
The Crown submitted that the sentencing judge in these circumstances was entitled to attribute the same level of responsibility to the applicant as to Mr Hanson and AZ. She submitted that the applicant's role was both pivotal and essential. She submitted that he was a principal in the sense that the exercise could not have been done without his participation as a solicitor. She submitted that in those circumstances there was no error in attributing to the applicant the same level of responsibility as to Mr Hanson and AZ.

Consideration

As is apparent from the submissions the applicant relied on, what he asserted were a number of factual errors in support of this ground. It first seemed to be suggested that because AZ told Mr Hanson that he had an "ex-heavyweight detective" who was a solicitor to help from another angle and that he was critical of the applicant in a conversation with Mr Hanson, AZ played a more significant role in the conspiracy than the applicant. In particular, the applicant contended that the sentencing judge erred in describing the evidence of AZ as AZ "big noting himself" (at [45]).
Two things may be noted. First, the "ex-heavyweight detective", if he existed, did not participate in the scheme. Second, the fact that AZ grumbled about the applicant's performance did not lead to the applicant being removed his role. Further, there was nothing to suggest that AZ was responsible for instructing the applicant as to the manner in which he used his position as a solicitor to implement the scheme. As her Honour found, whether or not AZ was big noting himself or actually had another solicitor on the side and was concerned about the applicant's performance, did not alter these facts. It seems to me that this complaint is immaterial.
The next complaint was that her Honour was in error in finding that the applicant was to receive more than $50,000. The difficulty is, her Honour did not make such a finding. The sentencing judge said that the applicant's initial expectation was that he was to receive $50,000 but there was some evidence that he wanted more than this (see at [35] above). That was supported by the conversation involving AZ to which I have referred at [65] above. The sentencing judge made no specific finding as to the amount that would be received by the applicant, merely finding in respect of counts 1-5 that the fact he was motivated by the prospects of financial reward was an aggravating factor. No complaint was made about this finding.
The third matter complained of was that the sentencing judge erred in stating that the applicant involved Mr McManus into the story. Her Honour expressly found that AZ recruited Mr McManus, and her remark that the applicant involved Mr McManus into the story (at [48]) is to be read in the context of her earlier unchallenged findings concerning the applicant's involvement with Mr McManus, which I have set out at [15]-[19] above. Her Honour did not err in this respect.
The next issue was said to be the finding by the sentencing judge that the applicant suggested to Mr Hanson that false documentation be prepared to bolster the story he told the authorities (at [21]). I have set out the evidence on which this finding was based at [62] above. Although senior counsel for the applicant submitted that Mr Hanson was lying when he gave evidence that he was pretending when he told AZ it was his idea to prepare the tax return and his evidence in this regard was implausible, the sentencing judge who had the advantage of seeing and hearing Mr Hanson give evidence, described his evidence as "compelling" (at [10]; see at [11] above). It was open to the sentencing judge to accept the evidence.
The final factual error contended for was that the sentencing judge erred in concluding that the applicant knew Mr Hanson was involved in international drug dealing, submitting that there was no basis to go beyond the evidence of Mr Hanson of what he told the applicant (see at [60] above). Senior counsel for the applicant described that evidence as Mr Hanson specifically stating that he did not tell the applicant he was involved in international drug dealing.
Her Honour's findings on this issue appear in two portions of the sentencing judgment. In the first part, her Honour expressed the view that from the first meeting with Mr Hanson, the applicant knew the funds were from an illegal source. That was not disputed. Her Honour inferred from the reference to "the Mexicans" that as at 5 March 2012, the applicant was aware that Mr Hanson was involved in a major international crime syndicate with connections to drug suppliers (see at [26] above). However, her Honour ultimately concluded that it was of little consequence if the applicant knew the money was the direct result of a particular supply of cocaine, stating that he knew at least that the money was illicitly obtained (at [36]; see at [26] above). The ultimate finding in that paragraph is not disputed.
The sentencing judge returned to the matter when she came to deal with count 6, namely participation in a criminal group. Her Honour concluded that Mr Hanson was a significant player in international criminal activity, not just in some form of illegal gambling, and that he was part of a criminal group that acted with violence and complete disregard for laws in Australia and other parts of the world (at [42]; see at [31] above).
There are a number of things to note. First, Mr Hanson's evidence to which I have referred at [60] above is that he did not tell the applicant at the meeting of 13 August 2011 that the money was from the proceeds of the importation of illegal drugs. The evidence went no further. Second, her Honour's finding concerning "the Mexicans" to which I have referred at [31] and [66] above was in my view sufficient to satisfy her Honour that the applicant was aware that Mr Hanson was involved in serious criminal activity. The case run at trial was that the applicant had no knowledge that the funds were the proceeds of any illegal activity. That plainly was rejected by the jury.
Third, although it may be doubted that an inference could be made from the reference to "the Mexicans" that the international criminal activity was drug dealing, her Honour stated it was of little consequence whether the applicant was aware the money was a direct result of a particular supply of cocaine or some other criminal activity. Her Honour's finding (at [36]) that at least the money was illegally obtained did not depend upon identification of the nature of Mr Hanson's illegal activity.
In these circumstances I do not think that the sentencing judge's conclusion on the issue the subject of this ground of appeal was affected by any factual error.
There remains to consider the principal matter raised in respect of this ground, namely, the applicant was a service provider to AZ and Mr Hanson. Although in one sense the applicant could be said to be providing a service to Mr Hanson by seeking to recover his money, the description of a service provider materially understates his role. I have set out the extent of his involvement earlier in this judgment. The applicant was at least equally involved with AZ in working out the story, providing advice as to how best to implement the scheme, preparing and presenting false documents, attending a police interview with Mr McManus and ultimately filing Supreme Court proceedings claiming relief to which he knew his client was not entitled. In each stage he wrongfully sought to use his skill and position as a solicitor to advance the scheme. In my opinion he was at least equally culpable as AZ.
It follows that this ground of appeal has not been made out.

Ground 2: Her Honour erred in attributing a high level of responsibility to the applicant because he used his skills as a solicitor and also because he breached his professional responsibilities as a solicitor

a The applicant

In his written submissions senior counsel for the applicant stated that it was correct that the offences were aggravated by the fact that he was a solicitor and in breach of his professional responsibilities. However, it was submitted that the sentencing judge erred in stating that the evidence demonstrated his skill, arrogance and audacity (see at [37] above). It was submitted in contrast to the finding made by the sentencing judge that the evidence demonstrated that the applicant was misconceived as to the law and was ignorant and incompetent. It was submitted that contrary to the conclusions of the sentencing judge, it was relevant that the activities were unsuccessful and did not result in the return of the money. Senior counsel for the applicant again referred to the fact that AZ considered sacking him.
At the hearing senior counsel for the applicant summarised his submission in terms that for all their efforts, the actual story that was put together and the actual case which was run in the Supreme Court was a pretty amateurish attempt to explain the source of the money.

b The Crown

The Crown submitted that the applicant was well aware of the falsity of the story that was presented. She submitted that the gravamen of the offending was that the applicant's attempt to use what he thought was his correct knowledge and skill to further the scheme, and that he relied on others' knowledge that he was a solicitor to accept more readily the fabrication and used his position to introduce fabricated evidence in the Supreme Court. The Crown submitted that the fact his legal skills were inadequate did not diminish the seriousness of his role.

Consideration

This ground can be dealt with shortly.
The sentencing judge was entitled to find that what the applicant did was both arrogant and audacious, acting not only in a criminal fashion but also in flagrant disregard both of his professional and ethical obligations and his duty to the Court. The fact that he believed he was entitled to do that and that he thought it could succeed showed both his arrogance and his audacity.
So far as skill was concerned, the applicant sought to use his skill and position as a solicitor in furtherance of the criminal activity. The fact that he was not particularly skilful does not mitigate the seriousness of the offence.
This ground has not been made out.

Ground 3: The sentence imposed was manifestly excessive

a The applicant

In his written submissions senior counsel for the applicant referred to the two cases the sentencing judge took into account, namely Einfeld and Hart. So far as Einfeld was concerned, he submitted that whilst the present case involved more counts, that was offset by Mr Einfeld's pre-eminence in the legal profession and the nature of the perverting the course of justice charge which involved providing a false statement to police when they were investigating his possible perjury. It was submitted to be more serious than the two perverting the course of justice charges for which the applicant was convicted. He also submitted that the perjury charge in Einfeld was much more serious than the charge of making false and misleading statements for which the applicant was charged. He stated that the Court in Einfeld considered it appropriate that Mr Einfeld's age, ill health, the extra-curial punishment of being struck off, loss of reputation and conditions of custody were taken into account. He also submitted that the Court found in that case that there was considerable planning. The finding in fact was that considerable planning went into the statement which led to the charge of perverting the course of justice.
Senior counsel for the applicant also submitted that the offences the subject of the appeal in Hart were much more serious than the offences in the present case, pointing out that in Hart there were five counts of perverting the course of justice involving three clients. It was submitted that in the present case a similar sentence as that imposed on Mr Hart was appropriate. It should be noted that Mr Hart received a discount of 10 per cent for his plea of guilty.
The applicant also referred to R v Irwin [1999] NSWCCA 361 ("Irwin"), where a Crown appeal against a sentence imposed on a former sergeant of police for perverting the course of justice was allowed. The proceedings involved the plan to tamper with items seized by police in an attempt to pervert the course of justice. The items in question were drugs which had been seized. The offender was sentenced to a sentence of 16 months imprisonment with a non-parole period of 12 months. The appeal was allowed, and Mr Irwin was resentenced to a term of imprisonment of 4 years with a minimum term of 3 years. The principal judgment of the Court was delivered by Newman J, with whom Studdert J agreed. Justice Newman described the case as falling into the category of the worst class of case and stated (at [55]) that had he been the sentencing judge, he would have passed a sentence imposing a much longer term of imprisonment.
Senior counsel for the applicant also referred to PO v R [2020] NSWCCA 129, where the offender pleaded guilty to attempting to pervert the course of justice by threatening a witness and indirectly a child victim who were to give evidence in respect of 18 counts of child sexual assault brought against him. The offence was found to be slightly above the middle range of seriousness and the offender was sentenced to 3 years imprisonment with a non-parole period of 1 year and 6 months. It should be noted that the offender received a discount of 25 per cent for his plea of guilty. He had no criminal history and the sentencing judge accepted that he suffered from chronic and complex post-traumatic stress disorder, persistent depression disorder, chronic borderline personality disorder and an adult autism spectrum disorder. The sentencing judge accepted that the latter condition had some effect on the applicant's offending behaviour. An appeal against the severity of the sentence was dismissed. The applicant in this case contended that those cases demonstrated that the sentence was manifestly excessive.
It was submitted that the sentencing judge failed to give sufficient weight to the applicant's physical and mental ill-health and the COVID-19 pandemic, given he was a high risk member of the community. It was also submitted that this was the first time the applicant had been in custody, which can be particularly burdensome. It was also noted that the applicant was classified as an "at risk inmate" although not in isolation, which was likely to be the case for the entire time he was in custody.

b The Crown

The Crown emphasised that the appeal was against the aggregate sentence imposed, not the indicative sentences.
So far as the cases said to be comparable were concerned, the Crown submitted that the offending in Hart was very different to the offending in the present case. She pointed out that the Hart offences involved the alteration by Mr Hart of details about his client's subjective case during Local Court proceedings for low level offending. She submitted that it involved discrete instances occurring over some months while Mr Hart was abusing alcohol.
In relation to Einfeld, the Crown submitted that Mr Einfeld had a subjective case which included late remorse and significant medical conditions. She submitted that the case was of little assistance given the marked differences in offences and the scope of the offending. She submitted that offending committed by a legal practitioner is aggravated because the offender is aware of the illegality of their actions, and their breach of professional obligations in doing so. She submitted that this does not necessarily bear a direct relationship to an offender's level of eminence in the profession.
She also referred to the fact that the perjury offence in Einfeld related to oral evidence for a speeding offence and that the offending was not as planned or prolonged as in the present case.
At the hearing the Crown submitted that Hart and Einfeld were not comparable to this case. She described the present case as a "unique case with unusual circumstances", stating that the period of deception was three years and that it involved attending a police station on two occasions to do a false record of interview. She noted that it involved false documents, false statutory declarations, a false tax return and a false affidavit filed in the Supreme Court proceedings.
In relation to Irwin the Crown first referred to the remarks by Newman J that had he been passing sentence at first instance, he would have imposed a sentence for a longer term, and submitted that in those circumstances, the result in Irwin supported the submission that the sentence in the present case was not manifestly excessive. She also submitted that nothing was said in Irwin to the effect that interference in the criminal justice system is more serious than an offence involving a civil action. She submitted that the facts in PO v R bore no resemblance to the present case and that the decision was of no assistance.
In dealing with the claim that the sentence was manifestly excessive, the Crown pointed out that the applicant was charged with six offences with maximum penalties of 14 years' and 5 years' imprisonment. She emphasised again that the criminal activity took place over a period of three years, involving a series of acts in an attempt to have the money returned. She pointed out that the offences were committed in circumstances of aggravation, namely that they were committed for financial gain, and that the applicant's subjective case did not reduce his moral culpability. She pointed out that in the present case the applicant showed no remorse and that general deterrence, specific deterrence, denunciation and the protection of the community are significant sentencing considerations.

Consideration

The principles to be applied in determining whether a sentence is manifestly excessive are well established. They were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] in a passage agreed to by the other members of the Court: "[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2021) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Because the applicant placed substantial reliance on what were described as comparable cases, it is also important to have regard to the use that can be made of such cases. The manner in which such cases can be used was summarised by the plurality in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 in the following terms (at [54]): "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." (Footnotes omitted.) See also Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [52], [83].
I have summarised each of the so-called comparable cases above. None of them in my opinion could properly be described as comparable or are capable of providing any real assistance in the present case. As the sentencing judge said, Einfeld involved a single act, although compounded by further lies. By contrast to Einfeld, the applicant carried out his wrongful activities for a period of three years and did so for the purpose of financial reward. Mr Einfeld in contrast to the applicant pleaded guilty and showed some remorse. Although Mr Einfeld's offence involved some planning, it was not nearly to the same extent as the applicant. I do not think that Mr Einfeld's prominence in the profession is a significant factor.
Hart involved false statements in respect of Local Court cases. In some cases, the statement was designed to have cases heard before a magistrate that Mr Hart perceived to be lenient, and in others, encouraging clients to manufacture false information to obtain a better result. There was nothing like the degree of planning in the present case and any financial reward was modest compared to what the applicant anticipated receiving and the total amount involved. Mr Hart received a 10 per cent discount for his plea of guilty. The case bears no real resemblance to the present case.
Irwin was a Crown appeal resulting in the resentencing of the respondent. In circumstances where at least the majority of the Court agreed that had they been in the position of the sentencing judge, a much longer term of imprisonment would have been imposed, this case provides no assistance to the applicant.
PO v R was a case quite unlike the present. The offender was sentenced after pleading guilty to an offence said to be slightly above the mid-range. He had significant mental health issues, one of which had some effect on his offending behaviour. The offence was serious but bears no resemblance to the planned activities of a practising solicitor to pervert the course of justice for financial gain to himself and his co-offenders.
Apart from these matters, the only matters relied upon were the applicant's health, the COVID-19 pandemic and the onerous conditions he would suffer in custody. Each of these matters were taken into account by the sentencing judge in reaching her conclusion.
In the present case the applicant was sentenced for six offences, two of which carried a maximum penalty of 14 years, and four of which carried a maximum penalty of 5 years. Whilst the submissions focused on the offences of perverting the course of justice, it must be remembered that the question is whether the aggregate sentence is manifestly excessive, although the indicative sentences may provide some guidance: see JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].
As was pointed out in JM v R at [40], a principal focus in dealing with this ground is whether the aggregate sentence reflects the total criminality involved. It is unnecessary to repeat what I have said concerning this issue in dealing with grounds 1 and 2. Suffice to say that the offences in the present case committed by a solicitor over an extended period of time strike at the heart of the administration of justice. I do not think that the sentence is manifestly excessive.

Ground 4: The applicant has a legitimate sense of grievance as a result of the sentence imposed upon the co-offender AZ

The sentence imposed on AZ

AZ pleaded guilty to two charges similar to those for which the applicant was convicted. The first of these, namely making a false assertion with intent to pervert the course of justice, related to the same matters as count 1 of the charge against the applicant (see at [23]-[24] above). A Form 1 offence was attached to that charge, namely making a false statement with intent to obtain a financial advantage. This was not a count on the applicant's indictment.
In addition, AZ was charged with knowingly participating in a criminal group, the same charge as count 6 on the indictment with respect to the applicant. There was attached to this charge on a Form 1 the same offence as count 4 on the indictment presented in respect of the applicant, namely publishing a false statement (Mr Hanson's tax return) with intent to obtain a financial advantage. The Crown helpfully prepared a table summarising the position. For convenience it is set out hereunder: Seq Offence Maximum Indicative (Aggregate) penalty sentences sentence APPLICANT - Mr Michael CROKE 1 Make false assertion with intent to pervert course of justice (Plea by AZ) 14 years 2 years, s. 319 Crimes Act 1900 6 months 2 Publish false statement with intent to obtain financial advantage (McManus email) 5 years 12 months s. 192G(b) Crimes Act 1900 Publish false statement with intent to obtain financial advantage (statutory declaration by Hanson) 5 years 9 months 3 s. 192G(b) Crimes Act 1900 5 years 18 months TDF 05/05/20 - 04/02/26 NPP 3 years 9 months 4 Publish false statement with intent to obtain financial advantage (Hanson's tax return) (Form 1 AZ) 5 years 18 months EFR 4/02/24 s. 192G(b) Crimes Act 1900 5 Make false assertion with intent to pervert course of justice (Supreme Court proceedings) 14 years 4 years, s. 319 Crimes Act 1900 6 months 6 Knowingly participate in criminal group (Plea by AZ) 5 years 3 years, s. 93T(1) Crimes Act 1900 6 months CO-OFFENDER - AZ 1 year, 6 months 1 Make false assertion with intent to pervert course of justice (count 1 for applicant)2 14 years 1 year, 1 month (Before 55% discount 2 years, 4.9 months) (ICO) s. 319 Crimes Act 1900 TDF: 11/12/20 EXP: 10/06/22 7 Knowingly participate in criminal group (count 6 for applicant) 5 years 1 year, 4 months (Before 55% discount 2 years and 11.6 months) s. 93T(1) Crimes Act 19003 Form 1 offences attaching to Counts 1 and 7 respectively 3 Make false statement with intent to obtain financial advantage (AZ's police interview on 12.4.12) 5 years s. 192G(b) Crimes Act 1900 5 Publish false statement with intent to obtain financial advantage (Hanson's Tax return) (count 4 for applicant) 5 years N/A s. 192G(b) Crimes Act 1900

2 Counts 1 and 7 were on a joint indictment dated 4 November 2019 (AZ's ROS [3]). 3 It is agreed that AZ was sentenced for one count pursuant to s 93T(1) (see applicant's further submissions at [3]). The indictment was amended by hand to the sub-s (1) offence, instead of the 1A offence.

There were certain other charges preferred against AZ relating to a drug offence and recklessly dealing with proceeds of crime. The sentencing judge took the view that they did not warrant a custodial penalty.
As can be seen from the table, AZ was sentenced to an aggregate sentence of 1 year and 6 months, to be served by way of an Intensive Corrections Order. The indicative sentences were arrived at after allowance of a [redacted] discount of 55 per cent for the applicant's plea [redacted].
It is unnecessary to set out the facts on which AZ was sentenced. They are for all intents and purposes the same as those found by her Honour when sentencing the applicant. However, it should be noted that the sentencing judge described AZ's role as secondary to that of the applicant, but important. Her Honour stated that it was unlikely the offences as a whole would have been committed without AZ's assistance, but said that his importance to the group was of less significance than the involvement of the applicant who gave legal advice as to the outline of the story required and personally attended to the police interviews. Her Honour described the applicant as a person who liaised with police and was "a primary director and writer and scripter of the story as a whole". Her Honour subsequently said that AZ was a vital part of the criminal group, but also that each participant played a vital though very different role. Her Honour dealt in detail with [redacted] the basis on which she gave a discount of 55 per cent. There was no suggestion by the applicant in these proceedings that the discount was inappropriate.
Her Honour also indicated in sentencing AZ that [redacted] was relevant to his prospects of rehabilitation.
In dealing with the prospects of rehabilitation, the sentencing judge referred to the fact that AZ was not a person of prior good character but that she had read a number of references from his friends, acquaintances and family giving support for him as a person of reformed character with an understanding of his need to show his family a better side of himself. Her Honour noted that he regularly attended a psychologist. The sentencing judge also noted that AZ gave evidence in Court and said that he was trying to understand how he justified to himself his involvement in significant crime in the past and by coming to an understanding of his past, to better respond to temptations in the future. The sentencing judge stated that she found his evidence to be sincere.
The sentencing judge noted that at the time of sentence, AZ was 59 years of age and that although he had accumulated a significant criminal record, he had no convictions since October 2006.
The sentencing judge found that provided AZ's future drug use was limited, he had reasonable prospects of rehabilitation which she said would be enhanced by continued self-assessment and self-reflection with the assistance of a psychologist.

a The applicant

In written submissions filed on behalf of the applicant it was noted that the sentencing judge found that the applicant and AZ each had "different but equally important roles", though by contrast in sentencing AZ, her Honour found that the role of AZ was secondary to that of the applicant. It was submitted that the latter finding was not available on the evidence.
It was also submitted that the level of difference between the sentences was manifestly unfair, the sentence imposed on the applicant being virtually double that imposed on AZ after taking into account the applicable discounts and virtually treble when the Form 1 offences were taken into account. Senior counsel for the applicant acknowledged at the hearing that this was incorrect after he was made aware that AZ received a discount of 55 per cent, which he stated led to a starting point of 29 months for the offence of perverting the course of justice and 35.5 months for the offence of knowingly participating in a criminal group. However, he submitted that the disparity remained unfair when the Form 1 offences were taken into account.
The written submissions also referred to AZ's prior criminal convictions, pointing out that AZ was in custody from December 1998 to October 2006 whereas the applicant had no prior convictions and significant health issues.

b The Crown

The Crown submitted that it was open to the sentencing judge to make the following findings: (a) AZ's role was secondary to that of the applicant "but important". (b) The applicant gave legal advice of the outline of the story and attended to the police interviews. (c) AZ was a necessary but secondary contact between the applicant and the other participants. (d) Each participant played a vital but very different role. (e) AZ was an enthusiastic backer.
The Crown pointed out that the sentencing judge gave consideration to parity. She summarised the differences between the applicant and AZ in a further table of which it is helpful to set out: Applicant AZ 2 x Make false assertion with intent to pervert course of justice 1 x Make false assertion with intent to pervert course of justice Offences 1 x Participate in criminal group 1 x Participate in criminal group 3 x Publish false statement with intent to obtain financial advantage Form 1 N/A 2 x Publish false statement with intent to obtain financial advantage None Discount Verdicts after jury trial. 55% Discount No assistance Objective High (ROS [54]) "At about midrange but not above" (ROS p 11, [36]) Seriousness "Mr Croke's involvement [...] was objectively more serious" (ROS p 10, [34]) Moral "of a very high order" (ROS [55]) No explicit finding made Culpability AZ was "secondary, albeit necessary, conduit between Croke and other participants" (ROS [34]). Role Gave "legal advice as to the outline of the story required and personally attended to the police interviews. He liaised with police and was a primary director and writer and scripter of the story as a whole" (ROS [24]). Guiding the narrative of the story (ROS (36]). For example it was Croke who originally advised that a better story than illegal gambling would have to be come up with. The entire invention commences from that requirement" (ROS [36]). His importance to the group as a whole was of less significance than Mr Croke's importance in that he did not use his professional expertise to direct the offending as did Croke. This offender was not directly involved in the Supreme Court proceedings as a solicitor on record in the way that Croke was" (ROS [35]). "an enthusiastic lieutenant" ROS [36] "guiding participants in the course set by Croke " Aggravating Legal professional Financial gain Factor Financial gain • 59 years old • 70 years old • No convictions since 2006 • Character references give "glowing account of his contribution to their welfare" • Regularly attend psychologist to address changes needed in life Subjective • Range of serious medical conditions including prostate cancer that requires surgery • Does not wish to return to criminal activities Features • Treatment will be more difficult to endure in custody emotionally, but otherwise not a greater burden • Regular volunteer • Suffering from acute anxiety and high levels of stress. • Character references speak of honesty • High media interest, but not amounting to extra-curial punishment • Provided emotional and financial support to family • Motivations for not committing further offences are his family Mitigating "Unblemished" record (ROS [67]) Prior criminal antecedents, but not sufficient to aggravate (ROS 13-14) Factors Prior good character, but leniency allowed for this factor is diminished as it enabled commission of the offences with audacity (ROS [67]) Not a person of good character (ROS 13) No finding of remorse - still has not admit the offence (ROS [79], [83]) Insight (ROS 14) Did not seek to minimise involvement (ROS 14) Support of family and friends (ROS [83]) Pro-social support within the community (ROS 15) Good prospects of rehabilitation (ROS [77], [83]) Reasonable prospects of rehabilitation Little chance of re-offending (ROS [83]) (ROS 15) Special 65%. Found on the basis of: Circumstances • Age N/A - non-custodial sentence • General and mental health conditions, and "current difficult circumstances"

The Crown submitted that taking all these matters into account it could not be said that the applicant had a legitimate sense of grievance.

Consideration

Once again, the principles concerning this ground are well established. As was pointed out in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], consistency in the punishment of offenders is a reflection of the notion of equal justice and finds expression in the parity principle which requires that like offenders be treated in a like manner, and allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances.
An appellate court will interfere when it considers the disparity of sentences between co-offenders is such as to give rise to a justifiable sense of grievance or give rise to the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609-610. A sense of grievance is to be assessed by objective criteria: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 323 per Gummow J, 338 per Kirby J; Green v The Queen; Quinn v The Queen at [31].
This Court has emphasised on a number of occasions that it should proceed with caution in considering the application of the parity principle when the same judge has sentenced the co-offenders: see Bond v R [2020] NSWCCA 277 at [51] and the cases there cited. As was pointed out in Lloyd v R [2017] NSWCCA 303 at [96]-[97], the question is whether the relevant differentiation made by the sentencing judge was open in the exercise of her discretion.
I do not think that the applicant could be said to have had a justifiable sense of grievance in the present case. First, as senior counsel for the applicant accepted, the sentence imposed on AZ was imposed after a discount of 55 per cent for his plea [redacted]. Second, AZ was only charged with two of the offences for which the applicant was charged, although it would have been appropriate to increase the sentence on each of those counts having regard to the matters on the Form 1: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518; Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413.
Third, and critically, accepting the sentencing judge's conclusion in sentencing the applicant that the same level of responsibility could be attributed to each of the applicant and AZ, the applicant abused his position as a solicitor participating in a scheme with the object of deceiving both the police and the court. General deterrence looms large in those circumstances. Further, by contrast to the applicant who showed no remorse, the sentencing judge found that AZ demonstrated insight into his offending, finding his evidence on that topic to be sincere. Further, although AZ had a poor criminal history apart from the matters for which he was sentenced by the sentencing judge, he had not offended since his release from prison in 2006.
In these circumstances, in my opinion, the disparity was not such to give rise to a justifiable sense of grievance. The ground has not been made out.

Conclusion

The applicant sought leave to bring the application for leave to appeal out of time. Leave should be granted. I would make the following orders: 1. Leave to bring the application for leave to appeal out of time granted. 2. Leave to appeal granted. 3. Appeal dismissed.
BEECH-JONES J: I agree with Bathurst CJ and the orders he proposes.
FAGAN J: I agree with the Chief Justice. I respectfully adopt his Honour's reasons for finding no error in the learned sentencing judge's conclusions regarding primary facts.
Viewed as a whole, the applicant's conduct constituting the six counts was a determined attempt to subvert the law. Immediately upon receiving his initial instruction from Hanson that the $702,000 in cash came from illegal gambling, the applicant recognised that this was false. His response was forthwith to set about assisting his client to "come up with a better story". Over the next three years he persistently endeavoured to deceive first the police and then this Court, seeking to have the money handed over to himself and his client on the basis of falsified facts.
First, the applicant helped McManus to fabricate an account of business dealings between himself and Hanson that never took place. The applicant coached McManus for the presentation of this story to police. He accompanied McManus at the interview and intervened to assist him in trying to persuade the investigating officers to accept information from McManus that he knew to be untrue and that he had helped to invent. The applicant assisted another participant in the scheme, AZ, in a similar fashion and accompanied him, also, to a police interview. The applicant conveyed the contents of the McManus and AZ interviews to Hanson to enable him to maintain consistency in lying to the investigators. The applicant drafted a false statutory declaration for Hanson to swear and suggested that he have a fictitious business record created to support the declaration. He provided both the declaration and the fabricated document to police.
When the police were not taken in, the applicant filed in this Court a claim for an order that the money be returned to Carolan, knowing that the claim in Carolan's name would be supported solely by false evidence. He instructed a barrister to appear in this proceeding, briefing him with the evidence and putting him in the position of unwittingly trying to persuade a judge of this Court to accept it. Having orchestrated the concoctions of McManus, AZ and Hanson, the applicant supplemented them with his own false affidavit filed in the proceedings.
The learned sentencing judge found that the applicant knew Mr Hanson was a significant participant in international criminal activity. Her Honour was satisfied that the applicant's sustained endeavour to deceive the police and the Court was undertaken for the purpose of deriving for himself some share of the $702,000. At all times he knew that if the manufactured evidence was seen for what it was then that money would be forfeit to the Crown, as the law required. Overall, this was a very grave episode of offending of its type.
In connection with ground 1, the applicant attempted to diminish his criminality relative to that of Hanson and AZ by describing himself as a "service provider" and not a principal. Those names and classifications contribute nothing to the assessment of his wrongdoing. The "service" provided by the applicant was that of applying his legal skills and professional standing to the co-ordination of the attempted deception of the police and the Court. The applicant submitted that Hanson and AZ considered using another solicitor and that the applicant's importance in the enterprise was therefore diminished because he was not indispensable. Whether or not another corrupt solicitor might have been found to fill the applicant's shoes is of no consequence. It did not happen. These submissions carry no weight.
Relevantly to ground 2, upon admission to the roll of solicitors in 1984 the applicant would have sworn an oath of office that he would: truly and honestly conduct [himself] in the practice of an attorney, solicitor and proctor of the Supreme Court of New South Wales and […] faithfully serve as such in the administration of the laws and usages of this State according to the best of [his] knowledge, skill and ability.
As a solicitor, and therefore an officer of the Court, the applicant's first duty was to uphold the law and to support the integrity of authorities and institutions through which it is applied. Instead of advising and representing his clients within the law, he joined them in a criminal enterprise. He abused the respect and trust that would customarily be accorded to a legal practitioner by both the police and the Court. The learned sentencing judge was right to characterise his endeavour to subvert public office holders in the performance of their duties as arrogant. Contrary to the submissions made on the applicant's behalf, the breach of his professional responsibilities that contributes so greatly to the seriousness of these offences is not in the least reduced by ineptitude or inefficacy. The applicant did his best to derail the proper administration of the law, for financial benefit to himself and to the criminals with whom he acted in concert.
With respect to grounds 3 and 4, the Chief Justice has identified the significant differences between the objective seriousness of the applicant's conduct and that of the unrelated comparison offenders (relevant to ground 3, manifest excess) and that of the co-offender AZ (relevant to ground 4, parity). In making the comparisons that the applicant invited under these two grounds, it is relevant to allow for the circumstance that a number of the unrelated offenders whose sentences we were asked to consider had admitted their guilt, as had AZ. The applicant has never done so. He was convicted after trial by jury. The learned sentencing judge found that he has shown no remorse. The aggregate sentence passed was not excessive and no legitimate sense of grievance could arise from consideration of the sentence passed on AZ.

Amendments 25 November 2021 - Redacted version of judgment unrestricted on Caselaw 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. Decision last updated: 25 November 2021

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