6 The Crown case was that the respondent and Ash used Crownstar members' funds held in the bank accounts of Crownstar International Pty. Ltd. and CC Travel Pty. Ltd. for their own personal use to the detriment of the companies' creditors. The offences may be grouped into four main categories. First, counts 1 and 7 related to payments to one Timothy Nolan. Mr Nolan and his wife had contributed to the investment scheme the subject of the counts before Judge Anderson. They lost their money, but it was agreed between Mrs Nolan and Ash that the money would be repaid. Those repayments, totalling $20,500, were made to the Nolans between November 2000 and September 2001 from Crownstar members' funds and were prayed in aid successfully before Judge Anderson as a circumstance of mitigation. We now know that it was a case of robbing Peter to pay Paul. Secondly, counts 3, 6, 8, 10, 13 and 14 related to the use of members' funds to pay a deposit and other amounts in connection with a house purchased at auction by the respondent and his wife in May 2001. Thirdly, counts 2, 4, 9, 11 and 12 related to the use of members' funds to pay legal fees incurred by the respondent and Ash that were not related to company business. Finally, count 5 related to Ash's use of $5,077 to pay for her 30th birthday party in June 2001.
7 No complaint is made of the sentence of three-and-a-half years' imprisonment, nor of her Honour's selection of a recognizance release order rather than a non-parole period.[2] The complaint is that the respondent's immediate release on recognizance did not reflect the gravity of his offending, his antecedents and the importance of general and specific deterrence. It is common ground that there were, and are, significant differences between him and Ash, so that parity is of little moment. Indeed, Mr Thomson argued that the difference between their sentences showed that the judge had properly taken the respondent's dominant role into account.
8 So far as the gravity of the offending is concerned, Mr Wraight emphasised that there were eight separate offences, including two rolled-up counts, which occurred over an 11 month period and involved the withdrawal of $142,789 from company accounts. The withdrawal of those funds involved blatant dishonesty and breach of trust and was made without regard to the interests of creditors and members when the companies were in financial difficulty.[3]
9 Turning to the respondent's antecedents, counsel concentrated on the offences dealt with by Judge Anderson[4]. Two weeks after beginning to serve Judge Anderson's sentence, the respondent began managing Crownstar International Pty. Ltd. from prison, despite having been disqualified from managing a corporation. Count 14 related to a payment on 17th October 2001, whilst the respondent was serving that sentence. Arrangements for the payment to be made by automatic debit from Crownstar International Pty. Ltd.'s bank account had been made on 7th September 2001, when the respondent was still on bail. The offences the subject of counts 10 and 13, and some of the conduct forming part of the rolled-up counts 7 and 9, also occurred when the respondent was on bail.
10 As we have seen, during the plea before Judge Anderson the respondent claimed credit for making restitution to the Nolans. That restitution was in fact made with company funds. Mr Wraight did not argue that that was a circumstance of aggravation in the technical sense, but he submitted that it was relevant to specific deterrence and the respondent's prospects of rehabilitation. I bear in mind that we are not hearing an appeal against Judge Anderson's sentence. The respondent is not to be punished twice, but his conduct, and his willingness to allow Judge Anderson to form a false impression, may properly be taken into account in the manner suggested by counsel.
11 There is no reason to think that Judge Douglas disregarded specific deterrence. It is clearly a relevant factor in the present case and would be an important consideration if the discretion were reopened. Little need be said about general deterrence. It is usually important when dealing with "white collar" crime and it should ordinarily impact on both the total effective sentence and the minimum term to be served before release on parole or recognizance.[5] Her Honour emphasized the importance of general deterrence but, Mr Wraight submitted, the respondent's immediate release demonstrated that insufficient weight was given to both those factors.
12 Mr Thomson's starting point was that this was not the kind of case that is appropriate for a Crown appeal. He referred to the statements of principle to be found in the judgments of Charles, J.A. in R. v. Clarke[6] and Maxwell, P. in Director of Public Prosecutions v. Josefski[7]. For reasons that will shortly appear, I am persuaded that the respondent's immediate release on recognizance was so manifestly inadequate to punish him and to effect general and specific deterrence as to reveal error of principle. This is, therefore, the kind of case appropriate for a Crown appeal. Whether the appeal should be allowed, taking into account double jeopardy, the Court's residual discretion and the circumstances that now prevail, is another matter.
13 It was properly conceded that the offences were serious, but the Crown did not allege that the scheme was set up by the respondent and Ash as a sham. It was not their intention to deceive investors and pocket the proceeds, nor was there an elaborate scheme to hide what they were doing. Most of the companies' employees knew that large sums were being withdrawn. The respondent ignored the opinion of the business analyst, referred to in [8] of the sentencing remarks[8], and deliberately chose to run his own race. Her Honour found that he made decisions based on an unreasonable optimism about his own ability.
14 The respondent pleaded guilty to offences for which the maximum custodial penalty is five years' imprisonment. He was not to be sentenced, and the appeal must not be determined, as if he had pleaded guilty to theft or to obtaining property by deception.[9]
15 Mr Thomson submitted that there were some mitigating factors. There was evidence that the respondent was involved in community projects, in particular at the school attended by his and Ash's children. At the time of sentence, it was more than three-and-a-half years since he had committed the offences and he had not been charged with any further offences. His convictions meant that he would not again occupy a responsible position in business, which bore on specific deterrence and the risk entailed in his immediate release. Importantly, by his plea, he had saved the State the cost of a three week trial and the witnesses the inconvenience of giving evidence.
16 Totality was, and is, an important aspect of this case. Mr Wraight conceded that that was so, but he submitted that the fact that Judge Anderson was misled about restitution to the Nolans moderated that principle. Mr Thomson, for his part, conceded that, if the respondent had been sentenced for all these offences in 2001, he would have been required to serve more than eight months in prison. The difficulties involved in sentencing an offender for contemporaneous or related offences at different times are exacerbated when the offender has been released, having served the sentence imposed on the first occasion. Sometimes it is necessary, on the second occasion, to impose a more lenient sentence than would otherwise have been appropriate.[10] If the respondent would have been required to serve (say) 18 months in prison if he had been sentenced for all the offences in 2001, it by no means follows that Judge Douglas should have required him to serve ten months when she sentenced him in 2005. Indeed, to have sentenced him on that basis would have betokened error.
17 The question is whether the principle of totality, together with all the other circumstances of the case, meant that it was open to the judge to adopt the disposition that she did, i.e. not to require the respondent to serve any additional time in prison. In my respectful opinion, giving full weight to the care with which her Honour approached her task, the immediate release of the respondent was not open. The offences were too serious, the antecedents too powerful a consideration and the circumstances of mitigation too slight for that to be so. The sentencing discretion is accordingly reopened.
18 In re-exercising the discretion, which might involve determining that no different sentence should be passed, the Court of Appeal takes account of the law in force now and the facts that are now established. That rule is important if the law changes between the time of sentence and the disposition of the appeal. It also permits the reception of evidence, on resentencing, that would not otherwise be admissible. As the Court of Criminal Appeal explained in R. v. Carroll[11]: