DPP (C'th) v Goldberg [2001] VSCA 107

Court of Appeal (Vic)|2001-07-27|Before: WINNEKE, P., BATT and VINCENT, JJ.A.

Criminal law - Appeal by the Director of Public Prosecutions for the Commonwealth of Australia - Conspiracy to defraud the Commonwealth - Facilitation of tax evasion - Manifestly inadequate sentence - No specific error demonstrated - Role of the Court of Appeal on re-sentencing - Admissibility of fresh evidence - Dinsdale v. R. (2000) 175 A.L.R. - R. v. Duncan [1998] 3 V.R. 208 - R. v. Allpass 72 A.Crim.R. 561 - R. v. Carroll [1991] 2 V.R. 504 - Crimes Act 1914 (Cth) - (Vic) s.567A(4)

I have had the opportunity of reading, in draft form, the reasons for judgment prepared by Vincent, J.A. I agree with his Honour, and for the reasons which he assigns, that the sentences which the trial judge imposed upon the respondent are manifestly inadequate. I also agree in the substituted sentences which his Honour proposes.

I have had some doubt whether, in passages such as that quoted by Vincent, J.A. in which the sentencing Judge referred to the "principal beneficiaries", the latter did not mischaracterise the offending or seriously underestimate the role of the respondent; but I do not need to resolve that doubt since it has no effect upon my conclusion. I agree with the reasons of Vincent, J.A. in all other respects and with the disposition of this appeal which he proposes. This Court's intervention is justified in order to correct sentences which are, to my mind, so disproportionate to the seriousness of the crimes as to shock the public conscience.

The respondent pleaded guilty in the County Court at Melbourne, on 14 March 2000, to one count of conspiracy to defraud the Commonwealth between 1 January 1990 and 14 September 1995, contrary to section 86A of the Crimes Act (Commonwealth) 1914, (count 3), and one count of conspiracy to defraud the Commonwealth between 15 September 1995 and 19 June 1997, contrary to section 86 of the Act, (count 6).

His wife, Rita Goldberg, and a son, Herschel Goldberg, who were presented with him, pleaded guilty to the same counts and another son, Napthali Goldberg, to one of them (count 3). There were other charges on the indictment which were discontinued at the request of the prosecution and need not be addressed.

5 Although the conduct of the respondent, Rita Goldberg and Napthali Goldberg was, in each case, the subject of two charges, they related to a continuing criminal activity and have been treated throughout as amounting to a single crime carrying an applicable maximum penalty of imprisonment for a period of 20 years; the maximum penalty which could be imposed for an offence under each of the relevant provisions. It has also been accepted throughout that, by reason of the operation of section 16G of the Crimes Act, when regard is had to the abolition, in 1992, of a system of sentence remissions in Victoria, the maximum period of incarceration which, for practical purposes, the respondent could be required to serve would be in the vicinity of 13 years and four months.

After hearing a substantial amount of evidence and the consideration of extensive written and oral submissions presented on behalf of the prosecution and the four persons before the Court, the sentencing judge imposed upon the respondent a sentence of four years imprisonment on each count. An order for partial concurrency created in his case an effective sentence of five years imprisonment, commencing on 4 June 2000, in respect of which a non-parole period of two years and six months was fixed.

Rita Goldberg was sentenced to imprisonment for a period of six months on count 3, and a period of 12 months on count 6. An order for partial concurrency created an effective sentence of 15 months imprisonment, the service of the whole of which was suspended for a period of five years, upon her entering into a recognizance, without surety, to be of good behaviour.

Napthali Goldberg was sentenced to imprisonment for a period of nine months on count 3 and six months on count 6. An order for partial concurrency created an effective sentence of 12 months' imprisonment, the service of the whole of which was suspended for a period of three years, upon him entering into a recognizance, without surety, to be of good behaviour.

Herschel Goldberg was sentenced to imprisonment for a period of nine months on count 3, the service of the whole of which was suspended for a period of three years upon him entering into a recognizance, without surety, to be of good behaviour.

The Director of Public Prosecutions has appealed to this Court against the sentence imposed upon the respondent, on the following grounds:

"1. The sentences of 4 years imprisonment on each count which were imposed on the Respondent are manifestly inadequate having regard to all the circumstances of the case and different sentences should have been passed. 2. The single non-parole period of two and a half years which was imposed in respect of the sentences is manifestly inadequate having regard to all the circumstances of the case and a different non-parole period should have been imposed.

...

4. The learned sentencing judge erred in that he failed to give sufficient weight to: (a) the nature, circumstances and gravity of the offences committed by the Respondent (b) the culpability of the Respondent as a principal offender who the learned sentencing judge found was in complete control of the money laundering enterprise (c) the lack of remorse on the part of the Respondent (d) the need for specific deterrence (e) the need to pass a sentence that would be calculated to deter other persons disposed to commit similar offences from committing such offences (g) the role played by the Respondent in facilitating the evasion of taxation by operating a money-laundering business (b) the profit earned by the Respondent (h) the total loss to the revenue resulting from the Respondent's activities (i) the period over which the offending occurred 5. The learned sentencing judge erred in that he gave undue weight to: (a) the avoidance of a trial resultant from the Respondent's plea of guilty given the finding of fact made by the learned sentencing judge that the case against the Respondent was "overwhelming" and that the Respondent's plea of guilty did not evidence remorse. (b) the Respondent's consent to the making of Reparation and Forfeiture Orders against him given the amounts of these orders would by far exceed the value of the Respondent's identifiable assets (c) the cultural and religious beliefs and lifestyle of the Respondent (d) the Respondent's mental and physical health both at the time of his plea and at the time of the offences were committed 6. The learned sentencing judge erred in finding as a matter of fact that the crime was not one of greed. This finding was against the weight of evidence."

A further ground (3) was abandoned in the course of the proceeding and need not be addressed. No appeal has been lodged against the sentences imposed upon Rita Goldberg, Napthali Goldberg and Herschel Goldberg.

With the exception of ground 6, I consider that the other grounds contain the single assertion, underlying grounds 1 and 2, namely, that the effective sentence imposed upon the respondent, whether assessed by reference to the maximum term set or the non-parole period fixed, was manifestly inadequate when regard is had to the totality of the circumstances, including those which arguably militate in favour of mitigation. The argument before the Court was conducted on this basis, with the assertions contained in grounds 4 and 5, being treated as statements of particulars to support the submission of manifest inadequacy. Neither of these grounds, it should be pointed out, raise a contention that the judge erred in law in directing attention to any of the matters mentioned.

The principles applicable to appeals against sentence by the prosecution are well established and have not been the subject of any controversy in the present proceeding. It has long been recognized that, particularly because they expose a respondent to double jeopardy in the criminal justice system, such appeals raise considerations of a different order to those presented by a proceeding in which an individual seeks the reduction of the sentence imposed upon him.

The proper approach to be adopted by an appellate court in dealing with such matters was recently restated by Kirby, J.[1]:

"For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across `time-honoured concepts' ... of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a `matter of principle', ... such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. ... This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate `tinkering' with sentences."

Clearly, an appellate court must bear in mind that a sentencing judge has been entrusted with a substantial discretion, before overturning a sentence imposed in the court below. It can only do so.

" ... if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance."[2]

The circumstances surrounding the commission of the offences by the respondent in this matter and which provide the background to this appeal need be set out in only a very brief form. The sentencing judge encapsulated the nature of the activities in which he engaged in the following extract from his sentencing remarks:

"Nachum Goldberg's modus operandi was as follows. He was a launderer of `black' cash, money that never goes through cash registers or into books of account or into the bank; money on which no tax is intended to be paid. Some merchants accumulate large amounts of black cash: $100,000 or more. It can be dangerous and inconvenient to have it lying around. It is difficult to invest or spend because of the risk of detection. The best thing to do is park it somewhere out of Australia where the Tax Office can't find it. This is where Nachum Goldberg could assist. He would take charge of the cash and, for a small consideration, somewhere between 2 and 6% depending on the amount, the money would turn up in an Israeli or Swiss bank account, in US dollars. During the period of these conspiracies, Nachum Goldberg laundered at least $42 million of such `black cash'".

In consequence, the Australian community was defrauded of revenue amounting to approximately $20,000,000.[3]

The techniques employed by the respondent were relatively simple, but effective. They were clearly the product of much thought and great care was taken in their execution. Consequently, they were used successfully for a number of years before his activities were detected. They were intended to conceal both the source and the destination of the money being "laundered" and in this respect, the respondent was spectacularly successful. Even after a very substantial investigation has been undertaken, it has still not been possible to identify any but a few of the respondent's "clients", or to ascertain the precise amounts of money involved, or the precise extent to which the revenue has been defrauded.

Until 6 March 1995, much of the "black" money handled by the respondent was paid directly into an account which was operated by him at a Chapel Street, Prahran branch of the ANZ bank. It was titled the "United Charity - Managers Account" and had the appearance of being operated for genuine charitable purposes. In fact, no charity was ever registered in Australia under that name and the account was used primarily, if not exclusively, for the transmission of money to various banks in Israel, including one at which his brother, who assisted him in the enterprise, was employed.

One of a number of remarkable features about this account and the manner in which it was operated, is that it was an internal bank management account. Moneys passing through it were relatively unlikely to attract the attention of regulatory authorities which would have little reason to suspect that they were other than normal inter-bank or intra-bank commercial transactions. Importantly from the respondent's perspective, the name of the actual holder would not be recorded on the Austrac data base.[4] How he came to secure such an arrangement is unknown to the Court, but it is highly unlikely to have been unintended and is suggestive of the possession of detailed knowledge of the bank procedures, a level of co-operation from within the bank itself, and an understanding of the Austrac operation and processes. When that account was closed following an internal bank audit, a second one was opened under the name "United Charity" and was operated until the respondent was subsequently charged..

As I understand the position, it is accepted that, between 1 January 1990 and 19 June 1997, a total of $39,894,808 passed through these accounts in cash and cheques. Indicative of the capacity of the respondent to obtain large amounts of "black money" at short notice and the preparedness of the bank to deal with him with minimal, if any, enquiry concerning his very suspicious activities, was the fact that he was, from time to time, requested to provide bank notes to restock the branch A.T.M. If he had sufficient on hand to assist, the respondent would deliver the cash in large plastic bags.

Some of the money that had been given to the respondent for "laundering" was used to purchase cheques drawn for substantial amounts in favour of Jewish charities on charitable trust accounts operated by other clients of Nachum Goldberg. They, in turn, would be in a position to claim a taxation deduction for purported donations whilst, in fact, recovering the value of the cheques, presumably less a commission fee. The bank would process these cheques through the United Charity accounts. This added to the appearance that the accounts were being used for charitable purposes and enabled the respondent to dispose of the cash involved with a minimum of difficulty. Somewhat surprisingly, in his otherwise full and carefully crafted sentencing remarks, the sentencing judge made no reference to the employment of this particular technique.

An additional attempt was made to provide a colour of legitimacy to the operation of the account through the purchase of cheques obtained by some visiting rabbis from the United States. These men collected relatively small amounts in genuine donations from members of the Jewish community in Melbourne and Sydney. The cheques would be exchanged with the respondent for American dollars that he would obtain through the ANZ bank branch previously mentioned. He could, it appears, secure this currency at a quite favourable exchange rate and, from time to time, provided a money changing service to some members of the Jewish community. Cheques so purchased would then be processed through the United Charity accounts and the proceeds forwarded to the various banks in Israel without regard being paid by the bank to the nominated payee.

Further, over the counter telegraphic transfers, using a number of false names and signatures, were arranged at the same branch, enabling an additional $8,376,707 be forwarded to bank accounts in Israel which were maintained under the name "United Charity".

The respondent operated this scheme for the period of seven years covered by the indictment and it is apparent, even from this very brief summary, that he was engaged in criminal activity of a very high order over a long period of time.

As I have earlier intimated, the plea proceeding in this case was of considerably greater length and involved substantially more evidence and analysis than is usually the case. A large number of relevant sentencing principles, factual circumstances, predictions and assertions were drawn to the judge's attention and debated. In due course, his Honour, when handing down sentence upon each of the persons before him, made it clear in a comprehensive statement of reasons, that he had directed his mind to all of these matters. None of the grounds of appeal assert otherwise.

The arguments advanced by the Director of Public Prosecutions in this Court were directed to demonstrating that the effective sentence handed down, both in terms of the maximum term and the non-parole period fixed, was so inadequate that it was apparent that some error had been made. He submitted that, carefully analysed, his Honour's remarks reveal that he fully appreciated neither the extreme seriousness of the criminal activity in which the respondent had engaged nor his role in it, on the one hand and, perhaps in consequence, attributed excessive significance to the various factors which militated towards the imposition of a reduced penalty, on the other.

In support of the first limb of these contentions, reliance was placed upon passages in the judge's sentencing remarks in which he referred to a number of persons whom he described as "the principal beneficiaries".

Some emphasis, in this context, was placed on the following passage:

"The second thing to be said is that the principal beneficiaries of this fraud are not before the court. Indeed, it is almost certainly true to say that, apart from Nachum Goldberg, the principal offenders are not before the court. Although the indictment names the four Goldbergs as the `conspirators', it is clear there were others, perhaps many others. A fraud of this kind requires not only an entrepreneurial intermediary willing and able to make the fraud work, but also tax evaders willing to employ the services of the intermediary. Indeed, the fraud the prisoners conspired to commit was committed not by them but by the tax evaders. It was their tax which was evaded, those whom the Goldbergs served. There are a number of such persons at large in the community today because of the prisoners' unwillingness to identify them. They are masquerading as reputable citizens, but they are in fact thieves. This was not a scheme which even pretended to be legitimate. It was blatant tax-evasion. So it needs to be understood that today's hearing does not close the book on this money-laundering operation. The book remains open so long as the co-offenders are at large. It also follows that it would be wrong to visit the whole of the consequences of this crime on the four prisoners. Their personal gain was but a fraction of the total loss to the revenue. As I say, they were the intermediaries. It was not their money which was laundered, nor their tax which was evaded."

The Director submitted that it is evident that his Honour placed undue weight upon the relatively small benefit derived by the respondent (approximately $800,000) from the operation of the scheme in comparison to that derived by its "principal beneficiaries" and appeared to undervalue seriously the role played by the respondent who, it had to be remembered, operated his own independent and criminally directed business.

I do not consider that it is reasonable to interpret his Honour's remarks in this or in other similar passages to which our attention has been drawn as demonstrating the presence of an identifiable error in his assessment of the true significance of the criminal conduct involved or the part played by the respondent in it. In the passage set out above, he specifically categorized the respondent as one of "the principal offenders". Whilst it is unclear what his Honour meant by his reference to visiting "the whole of the consequences" upon those who were before him, it does not appear to me that he did more than state the obvious in this passage. Those who had received the greatest financial benefits from the scheme were still at large and were protected by the silence of the respondent and the other members of his family. Those people were still masquerading as decent members of this community and it is understandable that the judge described them as thieves.

Also of relevance, on this aspect, is the following passage in his remarks:

"Tax evasion is not a game, or a victimless crime. It is a form of corruption and is, therefore, insidious. In the face of brazen tax evasion, honest citizens begin to doubt their own values and are tempted to do what they see others do with apparent impunity. At the very least, they are left with a legitimate sense of grievance, which is itself divisive. Tax evasion is not simply a matter of failing to pay one's debt to government. It is theft, and tax evaders are thieves. Nachum Goldberg's money-laundering was therefore a corrupt activity. His customers, all of whom are apparently still at large, are corrupt thieves. His wife and two sons were eventually corrupted."

Whether or not the level of seriousness that the sentencing judge correctly attributed to the criminal enterprise in which the respondent engaged, or the extent of his culpability with respect to it, was reflected in the sentences ultimately imposed however, is a matter to which I will return.

As earlier indicated, the Director's second limb of submissions rested upon a number of criticisms advanced by him concerning the significance that he contended was accorded by the sentencing judge to considerations taken into account in mitigation of the penalty to be imposed. They included his regard to the respondent's plea of guilty; the entry of the respondent into a reparation agreement and the making of forfeiture orders; and a number of specific matters personal to the respondent, some of which his Honour accepted could well increase the level of hardship under which a sentence of imprisonment would be served.

I can see little point in addressing these various complaints in detail as none, in my opinion, possesses substance. Nor do I consider that there is any value in embarking upon a recitation of the litany of well recognized principles and authorities in relation to the sentencing of offenders to which the attention of the Court has been drawn on behalf of the appellant and respondent. Suffice it to say, that the grounds of appeal do not raise any question with respect to the principles applicable in the circumstances and no identifiable error has been asserted or demonstrated to have been made with respect to the judge's awareness or understanding of any of them.

As I have indicated, the arguments advanced by the Director were directed essentially to the degree of importance which, it was claimed, he attributed to the various factors enumerated in grounds 4 and 5 of the Notice of Appeal. They rested upon a detailed analysis of the precise expressions employed by his Honour and on occasions, required the attribution of particular and problematic meanings and degrees of significance to them.

I do not consider that it is possible by reference to the terms in which the judge's remarks were expressed to identify an error with respect to the weight to be attributed to any of the relevant considerations, and will return to their combined effect in due course.

Nevertheless, it is perhaps worthwhile to make some brief observations with respect to the broad lines of arguments advanced before the Court concerning them.

First, although his Honour described the case against the respondent as "overwhelming" and found that he had evidenced no remorse for his conduct, it was, in my opinion, proper for him to regard the entry of a plea of guilty as a significant matter to be taken into account in mitigation of penalty. As Callaway, J.A. pointed out in R. v. Duncan[5], regard may, of course, be had to a plea of guilty on a number of different bases. It may, of course, evidence genuine remorse and can indicate that the prospects of rehabilitation of the offender are reasonable, in addition to reducing the importance of specific deterrence as a sentencing consideration in the particular case. Whether or not that is the situation, there are often, from the public interest perspective, good pragmatic reasons for a significant reduction in the sentence imposed to be made on this basis, as the courts have repeatedly recognized[6] and as the sentencing judge observed in his remarks.

Second, with respect to the significance of the entry of the respondent into a reparation agreement as a mitigating factor, as his Honour stated.

"Section 16A of the Crimes Act requires me to take into account the degree to which the prisoner have shown contrition by taking action to make reparation for loss or damage resulting from the offence. It is curious that reparation is to be taken into account only in the context of assessing demonstrable contrition".

Whether or not a distinction that is of practical significance can be made, or was intended to be made by the legislature, between the notions of remorse and contrition under Section 16A, I have serious doubts. The section, it is to be noted, contains no reference to remorse as a sentencing consideration. Apart from what I would anticipate would be the difficulty in attributing different meanings to the words contrition and remorse which would be capable of useful application on a day to day basis, I consider that it is highly unlikely that when setting out an extensive list of factors which a sentencer was required to take into account, the presence of remorse was deliberately omitted. However I do not need to arrive at a definite view on this matter as, in any event, it should also be borne in mind that Section 16A does not constitute a code with respect to the matters which a sentencing judge can take into account but rather lists a number of matters to which regard must be had.

The sentencing judge was entitled, in my opinion, to have regard to the reparation agreement as a mitigating factor in this matter whether or not it could be perceived as evidencing remorse or contrition. There was a practical benefit, viewed from the perspective of public interest, which his Honour was entitled to take into account in a fashion analogous to that recognized when a plea of guilty is entered. It is perhaps worthwhile setting out some of his findings on this aspect.

"Apart from it serving as a public acknowledgment by the prisoners of their indebtedness to the Commonwealth, it saved days, perhaps weeks, of evidence and argument. There is no certainty that the Commonwealth would otherwise have secured orders which are as favourable as those reflected in the agreement".

Third, there are many factors which are capable of affecting the level of hardship experienced by a person sentenced to imprisonment. They may relate to the age of the offender, cultural or religious isolation, physical ill health or infirmity, mental disorder and so forth. As an example, the courts have long had regard to the need for particular offenders to serve their periods of imprisonment in the generally more restrictive environment of a protection unit for one reason or another. It is reasonable to anticipate that a person, who, in accordance with cultural conventions or religious observances, dresses or behaves in some respects differently from those around him, may be subjected to discrimination or harassment by other prisoners. Little imagination is required to see how this might impact upon the degree of hardship associated with the sentence to be served. The significance attributed to such considerations in a specific case must, of course, be assessed in the light cast by all of the circumstances relevant to the offence and offender concerned.

Such perceived sources of additional hardship cannot provide immunity, either total or partial, from the imposition of a proper sentence. However, as in the present case, they can still assume relevance in the determination of an appropriate sentence as they bear upon the actual impact which a specific sentence may have upon the individual. In some cases, they may render one that would in ordinary circumstances be regarded as quite appropriate into one which would in all of the circumstances be perceived as unduly harsh.

His Honour took into account a number of factors in this context, relating to physical problems affecting the respondent, his mental state and the potential difficulties that he could encounter as a person who observed a strict form of Jewish religious practice in a prison environment. It was appropriate for him to have regard to each of these matters in the circumstances.

Ground 6 of the Notice of Appeal, which lacks substance in my view, contains the only assertion that the sentencing judge fell into error with respect to the factual foundation upon which the sentences were based. It is claimed that his Honour was wrong in finding that the crime was "not one of greed". However it is evident from perusal of his remarks that, when he employed the expression upon which the argument was based, he was concerned to emphasize that the acquisition of financial benefit was not the primary motivating factor that, in his view, influenced the respondent's conduct. This emerges from the following passages:

"I am quite confident there was no `distribution' by Nachum Goldberg among his family of any recognisable proceeds of the money laundering. To borrow a phrase used often during the plea, the benefits trickled down, not only to his wife Rita and to Napthali and Hershel, but to other members of the family as well. Nachum and Rita Goldberg have eight children and many grandchildren. There were few breadwinners. Nachum Goldberg played the role of the patriarch and `Minister of Finance', as one of the witnesses put it. Indeed, `Minister of Finance' may not be apt: it implies order and accountability. Nachum Goldberg is erratic, and accountable to no-one but himself. The lifestyles of the family - and I refer now to the extended family - were austere because of the rigours of the brand of ultra-Orthodox Judaism they practise. It is a fair generalisation to say they all lived comfortably but modestly. Apart from periodic trips abroad, there is no evidence of the high living one often finds in cases of major fraud, nor is there any reason to suppose such high living occurred whilst they were overseas. This was not a crime of greed in the accepted sense. Nor can it properly be characterised as a crime of need. Nachum Goldberg orchestrated the crime to satisfy a troubled ego.

...

In short, the psychiatrists describe Nachum Goldberg as a sort of orthodox Walter Mitty gone bad, a man with a grandiose and quite unrealistic view of his own importance and value within his community, desperate to be seen as "successful", who has sought wealth not for its own sake but to enable him to bestow largesse on others and thereby gain their admiration and approval, a dreamer and a fantasiser, a rather pitiful individual whose life has been characterised by mediocrity, contrary to his own perceptions. I have no doubt he was spurred on in his money laundering by the realisation that he had become enormously valuable to others."

In my experience, it is not at all uncommon for persons who engage in "white collar" crime to be motivated principally by a desire to achieve or maintain status and respect within their communities and families. Many of those who, as managers, accountants or solicitors, defraud their clients are influenced by such considerations and often they can point to extensive community service and family commitment. Frequently, they hunger for social standing and desire to be well regarded by those around them. It was clearly open to his Honour to find that this was the situation in the case of Nachum Goldberg and that the acquisition of financial benefit per se was only one of the factors which motivated his actions.

As I have indicated, I do not consider that any identifiable error has been demonstrated to have been made by the judge in the exercise of his sentencing discretion. However the question remains - were the individual sentences and the effective sentence imposed by him upon the respondent so manifestly inadequate in the circumstances, that it is apparent that some error has been made having regard to the high level of satisfaction which is required before so finding, that the intervention of this Court is required. I am of the view that the answer to that question must be - yes.

The scheme that I have outlined and which was operated entirely under his control, was carried on by the respondent for the seven years encompassed by the two counts on the indictment, but it is accepted that he had been engaged in activity of that kind since 1984. Accordingly, there can be no doubt that he acted during the relevant period with a full appreciation of the criminal character of his behaviour and of the significance of his conduct to the Australian community.

The respondent carried on a business operation, which required the commission of literally hundreds of overt acts, many of which were independently criminal, and which, as I have earlier mentioned, provided to his clients a means, at the cost of a relatively small commission payment, of avoiding a total of at least $20 million of income tax. It appears that these conspirators were all successful businessmen and that considerable discretion was exercised by the respondent both before they were accepted as clients and in his subsequent dealings with them. Apparently his preparedness to aid his fellow conspirators in their criminal design was communicated very discreetly and by word of mouth so that a high level of security was maintained. Whilst the acquisition of financial benefit was considered by the sentencing judge to be only one of the motivating factors for the respondent's conduct, he nevertheless did derive approximately $800,000 from this activity. The respondent performed his part in an extremely careful and calculated fashion and without any hint of the presence of any sense of moral unease or subsequent remorse. Finally, in this context, it is to be observed that he not only recruited members of his own family to assist him in his criminal enterprise but used his dominant position within the family to do so.

The maintenance and integrity of the revenue collection systems, upon which the administration of government and the provision of a wide range of necessary services to the community are dependent, is vitally important to the proper functioning of our society. It hardly needs to be emphasized that, from whatever perspective this conduct is approached, the activities in which the respondent engaged over a number of years, must be regarded as extremely serious indeed and his level of personal culpability as very high. From the point of view of the revenue lost, counsel before this Court were unable to identify any case in which a larger sum was involved. Those who engage in the type of activities pursued by the respondent must anticipate that penalties properly reflective of the criminality involved will be imposed upon them. The principle of general deterrence assumes considerable significance in the determination of an appropriate sentence in such cases.

In my opinion, both the individual sentences and the effective sentence imposed upon the respondent were manifestly inadequate. Neither the seriousness of his conduct nor the importance to be attributed to general deterrence as a sentencing consideration in a case of this type is properly represented in the disposition upon which the judge decided.

I am conscious of the increased disparity which would be created between the sentences imposed upon him and those imposed upon his three co-offenders if the sentences imposed in the court below were to be replaced by increased sentences. That consideration must be taken into account, both when considering whether there should be any intervention at all and as a moderating factor on the sentence to be substituted in the case of a Crown appeal against the sentence imposed upon one only of a number of co-offenders, once intervention is regarded as required. The exposure of the individual concerned to double jeopardy and increased punishment could, in some circumstances, be presumed as constituting an unfair discrimination against him and as inconsistent with the general principle of equality of treatment under the law.

On the basis of the judge's findings, the proper exercise of his sentencing discretion required the imposition of substantially different sentences upon Nachum Goldberg and the other members of his family. His was the controlling mind of the criminal operation. His three co-offenders became involved at his instigation, performed minor roles under his direction and were all heavily influenced by his dominant position in the family. Whilst the disposition that I propose will increase the disparity between the sentences imposed upon the respondent and his co-offenders, the difference in treatment is, I consider, justifiable in the circumstances and still reflects appropriately the different considerations applicable to them.

Of course, regard must be had to the different considerations which apply to intervention with respect to the maximum term set and the non-parole period fixed in this matter.[7] Whilst I consider that the differential between the maximum term and the non-parole period in this case fixed by the sentencing judge should be maintained, I am of the opinion that both the maximum and minimum terms should be increased.

Finally, it is necessary to refer briefly to the submission advanced on behalf of the respondent to the effect that in a case in which the Court undertakes the re-sentencing of a respondent, a fresh plea on his behalf should be allowed. The argument was based upon the view taken by the New South Wales Court of Criminal Appeal in R. v. Allpass[8] that an appellate court which re-sentences an individual consequent upon a successful Crown appeal must do so on the basis of the facts and circumstances existing at the time of re-sentencing. It was accepted that events which took place after the initial sentence was imposed could assume relevance in this situation. However I note that their Honours did not suggest that a fresh plea should be allowed in every case.

In this jurisdiction, the position is governed by the provision of s.567A(4) of the Crimes Act 1958 (Vic) which reads:

"(4) On an appeal under sub-section (1) the Court of Appeal shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal."

The effect of sub-s. (4)[9] was considered in R. v. Carroll[10] where the Court stated:

"If attention is directed to the words in that subsection which direct the court to pass another sentence warranted in law, it could be said that the court should pass a sentence under the law in force when its sentence is passed. If, on the other hand, attention is directed to the words "if it thinks that a different sentence should have been passed" and to the words "as it thinks ought to have been passed" the tense of the verbs naturally leads to concentration upon the law in force when the original sentence was passed. The language of s567A(4) is almost exactly the language of s568(4) which deals with the duty of the court on an appeal against sentence by a person convicted. If a sentencing judge has fallen into error according to the law at the time when he passed sentence, this court has always regarded it as its duty to intervene. When it does so, it regards it as its duty to pass such sentence as it thinks fit in accordance with the law at the time when it substitutes its sentence for the sentence originally passed. This has been the invariable practice of the court. It is a practice which enables the court to substitute a different sentence when some event occurs between the original sentencing date and the date when this court has to decide an appeal which demands some alteration in the sentence imposed. In such a case there may be no change in the law, but simply a change in the relevant facts. The principle however is the same."

This approach has been consistently adopted thereafter[11] As a matter of justice and fairness to the individual concerned, the Court will, when determining the sentence to be substituted following a successful appeal or deciding whether there should be intervention at all, take into account in his favour any subsequent change in the law or alteration in the factual situation upon which the original sentence was based . Seldom, if ever, would this be likely to necessitate the presentation of more than a very limited fresh plea, the court being concerned, when dealing with this question, to assess the possible impact of later events, the occurrence of which could not have been addressed at the earlier stage.

Counsel for the respondent were accorded the opportunity to present any further material which may have been admissible on this basis and have informed the Court that they do not seek to do so.

I am of opinion that the appeal by the Director of Public Prosecutions should be allowed and that the sentences imposed in the court below should be set aside and increased sentences substituted.

In lieu of the sentences imposed in the Court below, I propose that, on each count, a sentence of six years' imprisonment be imposed and that one year of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 6. That would create an effective sentence of seven years, in respect of which I would fix a non-parole period of four years and six months.

[1] Dinsdale v. R. [2000] HCA 54; (2000) 175 A.L.R. 315 at 330.

[2] R. v. Allpass (1993) 72 A.Crim.R. 561 at 562 per Gleeson, C.J., Hunt, C.J. at C.L. and McInerney, J. (NSW CCA) and approved in Lowndes v. The Queen [1999] HCA 29; (1999) 195 C.L.R. 665 at 671-2.

[3] This figure does not allow for sales tax payable but not paid on certain amounts, income tax saved by certain purported charitable gifts mentioned later and income tax payable but not paid on the commission charged by the respondent.

[4] Likewise with the requisitions for overseas drafts or telegraphic transfers to Israel which were not in the respondent's name, but in false names, and were supported by pre-signed signatures not matching the name of the purported applicant.

[6] See R. v. Thomson and Houlton (2000) 49 NSWLR 383 at 408-409, 411-413, 414-415, 417-418 per Spigelman C.J., Wood C.J. at C.L., and Foster A.J.A.

[8] 72 A.Crim.R. 561 at 562 per Gleeson, C.J., Hunt, C.J. at C.L. and McInerney, J.

[9] The sub-section has been amended since the judgment in R. v. Carroll was delivered but not relevantly for present purposes.

[10] [1991] 2 V.R. 504 at 511 per Young, C.J. Crockett and O'Bryan, JJ.

[11] See D.P.P. v. Bulfin [1998] 4 V.R. 114 at 141 per Callaway, J.A.; also D.P.P. v. WJW [2000] VSCA 170 at p.6 per Brooking, J.A.

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Parties

Cases Cited (1)