SENTENCING - Appeal by Crown against sentence - Conspiracy to dishonestly cause a risk of loss to the Commonwealth - Sophisticated and audacious deceit - Misuse of professional position - Lack of contrition - Sentence of two years' imprisonment with release after twelve months' on giving security by recognizance of $5,000 to be of good behaviour for twelve months - Whether sentence imposed was inadequate - Sentence fixed inadequate and disproportionate to objective gravity of offending.

SENTENCING - Number of particular errors not subject of discrete ground of appeal identified - Sentencing judge impermissibly used sentence that would have been imposed upon co-offender but for plea of guilty as starting point for respondent's sentence: R v Wong [2001] HCA 64; (2001) 207 CLR 584; Markarian v R [2005] HCA 25; (2005) 228 CLR 357 - Sentencing judge erroneously regarded fact that respondent and co-offender charged with different offences attracting different maximum penalties as irrelevant to question of parity - Sentencing judge erroneously utilised inappropriately low sentence of co-offender when applying parity principle - Sentencing judge erred in attaching weight to relative benefit obtained by respondent and co-offender - Benefit obtained relevant sentencing factor but of little or no weight in present case - Sentencing judge erred in weight given to fact that respondent would be imprisoned in Victoria when resident in New South Wales.

SENTENCING - Appeal by Crown against sentence - Discretion to decline to intervene despite finding of inadequacy - Residual discretion survives abolition of double jeopardy: R v Karazisis [2010] VSCA 350 - Crown not permitted on appeal to depart from position adopted at first instance in absence of exceptional circumstances - Delay in prosecution of respondent - Exercise of re-sentencing discretion would terminate respondent's present liberty - Refusal to intervene despite finding of manifest inadequacy.

SENTENCING - Crimes Act 1914 (Cth) - Relationship between head sentence and recognizance release order - Period before release on recognizance must reflect minimum period of imprisonment which justice requires.

SENTENCING - White collar crime - Significant tax evasion - Serious crime - Difficult to detect - General deterrence particularly important - Good character of lesser importance - Benefit obtained of limited importance - Imprisonment generally only sentencing option absent powerful mitigating circumstances.

1 On 29 May 2009, the respondent pleaded not guilty in the Supreme Court to two counts of defrauding the Commonwealth contrary to s 29D Crimes Act 1914 (Counts 1 of 2) and one count of conspiracy to dishonestly cause a risk of loss to a Commonwealth entity contrary to s 135.4(5) Criminal Code (Cth) (Count 3). The respondent also consented to a pecuniary penalty order in the sum of $27,441.57, which was made on 26 March 2010.

2 Following a trial of fourteen days, the jury, on 22 February 2010, acquitted the respondent on Counts 1 and 2, and convicted him on Count 3. On 15 April 2010, he was sentenced on Count 3 to two years' imprisonment and was ordered to be released after serving twelve months' imprisonment, upon giving security by recognizance of $5000.00 to be of good behaviour for twelve months.

3 The Director of Public Prosecutions (Commonwealth) has appealed against the head sentence and the order that the respondent be released after twelve months, contending that both were manifestly inadequate and that they failed to reflect the maximum penalty for the offence.

4 The appeal was heard on 29 November 2010. Following the conclusion of oral argument we dismissed the appeal. The following are our reasons for doing so.

5 The respondent was a prominent solicitor and a conspirator in a scheme to evade tax. The other conspirators were Messrs Wheatley, Egglishaw and de Figueriedo. The scheme related to the profits derived from a boxing match promoted by Mr Wheatley in January 2003 between Kostya Tszyu and Jesse James Leija. His promotion of this fight was undertaken as a joint venture with Melbourne Stadiums Ltd. The event was successful and the profits made were evenly divided between Melbourne Stadiums Ltd and Tripicity Pty Ltd, a company which was the trustee of Mr Wheatley's family trust.

6 At the respondent's trial, Mr Wheatley gave evidence that he had discussions with the respondent in relation to the Kostya Tszyu fight. Mr Wheatley said that the respondent told him that his share of the proceeds could be sent offshore and that he could then make up his mind whether he wanted to bring it back and pay tax or not.

7 The scheme the respondent proposed involved transferring $400,000 of Mr Wheatley's share of the proceeds of the fight to an offshore entity, Overseas Promotions Inc. Overseas Promotions Inc was a company controlled by Strachans. Strachans was a financial services organisation which managed companies and trusts and which provided other specialised financial services. At all relevant times Philip Egglishaw and Philip de Figueriedo were senior figures within the Strachans organisation. The respondent was aware of Strachans and of the services they provided.

8 On 28 March 2003 the respondent sent an email to Mr Egglishaw referring to his discussions with Mr Wheatley and then setting out a series of steps which he said he had suggested to Mr Wheatley and with which Mr Wheatley was 'comfortable'. The first step involved Mr Egglishaw writing to Mr Wheatley claiming a payment of $700,000 in relation to the share of the proceeds of the Kostya Tszyu fight. Mr Wheatley was to respond purportedly disputing the amount claimed on the basis that he had made less profits and therefore the claim should be reduced. Then, Mr Egglishaw was to reject this, whereupon Mr Wheatley would write to Mr Egglishaw saying he was going to refer the matter to the respondent for legal advice. The respondent and Mr Egglishaw were then to negotiate a fee of $400,000. This amount would be transferred to Mr Egglishaw through the respondent's firm's trust account. After these numbered steps were set out, the respondent's email went on:

Client W is comfortable with the whole arrangement. I have confirmed to him that the tax will be 11%. I have also confirmed that you will charge him US$1,000 for the transaction. I explained to W that this was a substantial reduction on your normal fee but has been offered by you because of the relationship.

I will charge W a similar amount for the legal advice.

9 In his sentencing remarks his Honour described the steps set out in the respondent's email of 28 March 2003 as plotting a sophisticated deceit.[1] In order to lend credibility to the purported commercial dispute the respondent caused a Dibbs Barker Gosling (the firm of which the respondent was the Chief Executive Officer) file to be created and maintained. His Honour observed:

Viewed in isolation, it appears to be a normal solicitor's file concerning a normal commercial dispute. Amongst other things, it includes hard copies of emails. The email you sent to Mr Egglishaw on 28 March 2003 is not on the file.[2]

10 The steps set out in the email of 28 March 2003 were undertaken. In Mr Wheatley's tax return for the 2003 financial year he claimed the sum of $400,000 which had been remitted to Strachans as an expense. There was no such expense. In relation to the respondent's role in the conspiracy, the sentencing judge found that he wrote the email of 28 March 2003 as part of a calculated deception set up to afford the remittance of the $400,000 with legitimacy which it did not possess so as to enable Mr Wheatley to evade his tax.[3]

11 After Mr Wheatley became aware of the investigations into these matters, including as a result of the execution of search warrants at his home and office, he declared the $400,000 as a part of his taxable income. By not declaring it in the year in which it was earned, he evaded $194,000 in tax that year.

12 On 6 July 2007 Mr Wheatley pleaded to an indictment containing three counts. The sentence imposed on Mr Wheatley was referred to by the plurality judgment of the High Court in Hili v The Queen; Jones v The Queen ('Hili").[4] In that case, the Crown had relied on the sentence of Mr Wheatley to support its submission that Hili's sentence was manifestly inadequate. The joint judgment referred to Mr Wheatley's sentence in these terms:

[65] In the County Court of Victoria, Judge Wood had sentenced to two and a half years' imprisonment an offender who had evaded taxation of about $318,000 by what were described as "complex arrangements to funnel Australian earned funds offshore, under the guise of authenticity". His Honour had made a recognizance release order to take effect after 15 months' imprisonment. The offender, in that case, was a public figure. The sentencing judge found that the offender had been the subject of widespread public opprobrium for two years before he was sentenced. The offending was found to have been borne out of need, not greed. An appeal to the Court of Appeal of the Supreme Court of Victoria against the sentence was abandoned when the Court of Appeal informed counsel that consideration may be given to increasing the sentence that had been passed.

13 Only the third count on Mr Wheatley's indictment arose from the same facts as those applicable to the respondent, that being an offence charged under s 135.1 of the Criminal Code (Cth) ('the Code'). The sentence imposed on that count was 12 months' imprisonment. The sentencing judge stated that 'but for' Mr Wheatley's promise of future cooperation he would have imposed a sentence of 18 months on that count. The relevance of all this to the present matter is that in the present appeal, his Honour stated in his sentencing remarks that he made use of Mr Wheatley's 'but for' sentence as a starting point in determining the respondent's sentence. In that regard we observe that the High Court in Hili did not express any view as to the appropriateness of any of the sentences imposed on Mr Wheatley. We shall return to this matter later.

14 His Honour accepted the Director's submissions on sentence that the respondent's role as a solicitor in the relevant offending conduct was an aggravating factor and noted:

The apparent legitimacy of the $400,000 payment was enhanced by your position and reputation. The deception perpetrated was made more credible and less likely to be exposed because of who you were and the position which you held...

...Your conduct involved blatant dishonestly and the exploitation of your position as a solicitor. It is of the first importance that others similarly placed appreciate that the consequences of involving themselves in these sorts of deceptive manoeuvres will be severe.[5]

15 In sentencing the respondent, his Honour stated that the most important sentencing consideration was general deterrence.[6] His Honour then referred to a number of mitigatory factors. Firstly, the respondent had no prior convictions and previously had an unblemished character. His Honour also noted that the offence for which the respondent was convicted is the type of offence commonly committed by people of otherwise good character and in these circumstances good character does not carry the same weight as it otherwise would.[7] Secondly, his Honour found that the respondent's prospects for rehabilitation were excellent and there was no realistic possibility that he would offend in the future. On this basis his Honour did not consider that there was a need for specific deterrence.[8] Thirdly, the respondent consented to a pecuniary penalty order in the sum of $27,441.57. His Honour took the respondent's consent to that order into account on the basis that it constituted cooperation for the purposes of s 320 of the Proceeds of Crime Act 2002 (Cth).[9] Fourthly, the respondent resided in New South Wales, as did his children and grandchildren. Most, if not all, of his social connections were in New South Wales. His Honour found that the respondent's imprisonment in Victoria would impose considerable burdens on his family and on him, contact would be more difficult and the sense of separation was likely to be greater. Possible dispositions, such as home detention, could be more difficult to obtain and, if obtained, could be more burdensome.[10]

16 His Honour stated that it was because of the finding that prison would be more burdensome in Victoria that he ordered that the period before which the respondent could be released on a recognizance was to be twelve months.[11] His Honour indicated that if the respondent had been a resident of Victoria, he would have ordered that the respondent be required to serve 16 months before being released on a recognizance.

17 The Director contends that having regard to all the circumstances, the head sentence imposed and the order that the respondent be released after 12 months' upon giving security by recognizance were manifestly inadequate. It was submitted that the sentence imposed failed to adequately reflect the objective gravity of the offending and the importance of general deterrence.

18 The Director's counsel also identified several specific matters that, he submitted, contributed to the imposition of a manifestly inadequate sentence. We first turn to these specific matters.

(i) Inappropriate comparison with the sentences imposed on Mr Wheatley

19 His Honour accepted the submissions of the respondent that in contrast to Mr Wheatley, he had been convicted of only one offence in relation to one matter and that the period of Mr Wheatley's offending was considerably longer and concerned two matters.[12] For the Director it was submitted that while it was true that Mr Wheatley was convicted of three offences spanning two courses of conduct, the only relevant sentence for the purpose of sentencing the respondent was the sentence imposed on the s 135.1 count. Mr Wheatley's other convictions were irrelevant. As a consequence it was said that this distorted the view that his Honour should have taken of the sentence imposed on Mr Wheatley.

20 During his sentencing remarks his Honour said that 'all counsel before me conceded that the relevant starting point is the 18 month "but for" sentence' of Mr Wheatley. The Director's submissions refer only to what is said to be an erroneous aspect of that comparative process, rather than the process of comparison itself. As a number of things flow from the process of comparison that was undertaken, it is necessary to examine what occurred during the plea.

21 The relevance of the 18 month 'but for' sentence in relation to Mr Wheatley's conviction in respect of the s 135.1 count was first raised by senior counsel for the respondent who submitted:

For this offence Mr Wheatley got 12 months half suspended, and the but for penalty was 18 months half suspended, and that latter is we suggest a sensible starting point in deciding what penalty is appropriate for Mr Gregory.[13]

22 The submissions advanced on behalf of the Crown during the plea were somewhat less emphatic. The prosecutor's written submissions on the plea stated '... the sentence imposed upon [Mr] Wheatley is of some assistance to this court as a pointer to appropriate sentencing range'.[14] The prosecutor said:

... the range of the sentence that was given to Wheatley is something Your Honour can have regard to.[15]

23 It is apparent from the above extract from his Honour's sentencing remarks that his Honour interpreted the prosecutor's submissions as acquiescing to the position put on behalf of the respondent. The prosecutor returned to this question in reply and while submitting that strict parity was not appropriate, accepted that Mr Wheatley's 18 month 'but for' sentence in respect of the s 135.1 count was of some assistance to the sentencing judge.[16]

24 His Honour obviously understood the Crown's position to be that the 18 month 'but for' sentence applicable to Mr Wheatley was within the appropriate sentencing range in respect of the respondent. It is significant that the prosecutor did not indicate a specific sentencing range on the plea and did not rebut the suggestion by the respondent's Counsel that a sentence of less than three years imprisonment would be appropriate. He did not reject the use of Mr Wheatley's sentence as a relevant starting point in relation to the respondent's sentence.

25 On appeal it was at first submitted that the prosecution argument on the plea, properly understood, was that Mr Wheatley's sentence was not within the range available in the case of the respondent. We do not accept that the prosecution's argument on the plea made that clear. During oral argument senior counsel for the Director conceded, properly in our view, that the language employed by the prosecution during the plea was not sufficiently exact to permit his Honour to have so understood the prosecution's position. Had the prosecutor made clear, in accordance with the procedure discussed in McNeil Brown,[17] what it contended was the appropriate sentencing range, his Honour would have realised that the prosecution was opposed to the use of Mr Wheately's sentence as a proper starting point.

26 The respondent and Mr Wheatley were involved in a common criminal enterprise. The facts involving Mr Wheatley and the respondent overlapped. Each was charged with conspiracy, though the pleaded substantive offence, the subject of the conspiracy was different. They were, therefore, convicted of slightly different crimes.[18] Mr Wheatley was charged with conspiring to commit a breach of s 135.1 of the Code which carries a maximum penalty of five years' imprisonment while the respondent was convicted of a breach of s 134.5(4), which carries a maximum penalty of ten years' imprisonment. Moreover the mitigating and aggravating factors in each case were very different.

27 His Honour viewed the fact that they had been charged with different offences attracting different maximum penalties as irrelevant to the question of parity. With respect, that was not a distinction that could be ignored. The parity principle may be applied to reduce the sentence of one of the participants in a common criminal enterprise even though they have not been charged or found guilty of committing precisely the same crime. Practical difficulties in the application of the principle will often arise where they have not been charged with or convicted of the same crime.[19] The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied.

28 Thus, there are limitations upon the extent to which a judge may directly compare the sentences of people charged with different offences for the purpose of the principle. It is no part of the function of a sentencing judge to seek to alter the effect of the exercise of the discretion of the prosecuting authority as to the charge to be preferred by ignoring the difference in the charges laid.[20] Mr Wheatley was involved in a common criminal enterprise with the respondent. Yet, in what appears to be a comparatively clear exercise of prosecutor's discretion, either as part of the plea bargain or as a trade-off for Mr Wheatley providing assistance, Mr Wheatley was charged with conspiracy to commit a lesser offence than the respondent. Whatever the reason, the difference in seriousness of the charges could not be disregarded.

29 There are however more fundamental objections to the approach that his Honour was persuaded to adopt.

Using the co-offender's sentence as a check and not as a starting point

30 His Honour's sentencing remarks make plain that he made use of Mr Wheatley's 'but for' sentence as a starting point to which he effectively added aggravating factors and subtracted mitigatory factors. Such an approach is evident in the following extracts from his Honour's sentencing remarks:

[44] A consideration of your position as compared with that of Mr Wheatley is also important.

...

[47] There are aspects of the matter which suggest you should receive a greater penalty than Mr Wheatley.

[48] For these purposes, I leave aside the discount Mr Wheatley obtained for his cooperation. All counsel before me conceded that the relevant starting point is the 18 month 'but for' sentence.

[49] Mr Wheatley pleaded guilty and was entitled to a discount for that. Mr Wheatley was validly able to maintain that he was influenced by professional advisers, most notably you and Mr Egglishaw. Mr Wheatley demonstrated remorse and contrition.

[50] There are also aspects of the matter which suggest that you should be treated more leniently than him.

[51] The benefit derived by Mr Wheatley from the conduct was considerably greater in money terms than the benefit you derived. ...

[52] I accept your counsel's submission that in contrast to Mr Wheatley you have been convicted of only one offence in relation to one matter. The period of Mr Wheatley's offending was considerably longer and concerned two matters.

[53] The loss you have suffered in relation to your profession is more significant than that suffered by Mr Wheatley. The submission made on your behalf that your career in the law is finished seems to me to be well founded. I do not consider that a conclusion could be drawn that Mr Wheatley's career in sports and entertainment promotion and management is finished.

[54] Finally, the burden of imprisonment in Victoria will be greater on you than it was on Mr Wheatley, given that your residence, your family, and most, if not all, of your social connections are in New South Wales.

[55] When one considers these competing considerations, it seems to me that the sentence imposed upon you must be greater than the 18 month 'but for' sentence imposed upon Mr Wheatley. In substance, I have reached this conclusion for two reasons. First, Mr Wheatley pleaded guilty and must have received a reduction in his sentence for that. Secondly, your use of your position as a solicitor in the relevant offending conduct means that your offence is, in my view, more serious than his, notwithstanding that his financial benefit was greater. In all the circumstances, it seems to me that the appropriate sentence is two years' imprisonment.

31 It is implicit in a number of the judgments in Postiglione v R,[21] and was explicitly stated by Kirby J, that the 'parity' principle is in the nature of a check required of sentencing judges. Kirby J spoke of the sentencing judge approaching the sentencing task by determining what seems to be the appropriate sentence having regard to the objective criminality of the case and factors personal or special to the offender, then discounting any relevant considerations, such as, for example, the plea of guilty or cooperation with authorities, and then considering whether the resulting sentence needs further adjustment because it is out of step with the parity or totality principle.

32 While the law does not insist that the sentencing judge approach their task in a particular sequence,[22] the present case illustrates the inherent dangers of using the sentence of a co-offender as a starting point in the sentencing task and by increments or decrements, increasing or reducing that sentence by reference to other factors. [23] To do so is a form of two stage sentencing.

33 The accepted method for determining the correct sentence is by the 'instinctive synthesis' of all relevant considerations. In Markarian v R,[24] ('Markarian') McHugh J explained the difference between two stage sentencing and instinctive synthesis in these terms: [25]

By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

34 The two tiered method of sentencing was generally disapproved of in R v Wong and Markarian as apt to give rise to error.[26] As the Victorian Court of Criminal Appeal said in R v Young, [27] referring to the first tier:

What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence ... Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed? [Emphasis added].

35 Whether the ultimate sentence produced by the two tiered method is appropriate would thus depend on the first tier sentence being proportionate and a correct assessment being made of the quantum of the increments or decrements for each factor in the process. Where a co-offender's sentence is used as a starting point, the risk arises that no 'due proportion' evaluation is undertaken at the first tier.

36 The approach adopted by his Honour was a form of the two stage sentencing but one that lacked even the benefit of an initial assessment of the objective criminality of the offence.[28] By adopting Mr Wheatley's 'but for' sentence as his starting point, or first stage, and then considering the various differential factors as between Mr Wheatley and the respondent in the second stage of his reasoning, his Honour erred in principle. If the sentence imposed upon Mr Wheatley was disproportionate to the objective criminality of the offence, his Honour would also have been operating from the outset on an unsound base.

37 Even where an adjustment is considered necessary to comply with the parity principle, the duty remains to impose a sentence which is appropriate and just to the offence found and the offender before the court. The principle of parity does not extend so far as to permit the imposition of a sentence which is inadequate and outside the range because a co-offender has been sentenced to an inappropriately low sentence. 'A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered [by disparity] can no longer be regarded as a legitimate one'.[29]

38 The ambit of the application of the principle of parity was explained in the joint judgment in Farrugia v The Queen[30] in these terms:

Where the principle of parity is enlivened, or as in the present case, the principles of consistency of sentencing and parity coalesce, the Court's discretion is not fettered so as to require it to impose a sentence on an offender which exactly equates with the sentence imposed on the other offender. Where the co-offender's sentence is inappropriately low, the appellant's sentence is not to be reduced to the point where it too is manifestly inadequate. The Crown's submission accords with the well settled principle that where one co-offender has been given a manifestly inadequate sentence, that sentence cannot be ignored for the purpose of sentencing the other co-offender, but it should only be given such weight as is appropriate in the circumstances. Although the appellant and his brother are not co-offenders, the same principles apply to them. Accordingly, to address the injustice engendered by the discrepancy between the brothers' sentences without creating further injustice by imposing on the appellant an inappropriately low sentence, the appellant should be re-sentenced, taking into account Matthew's sentence as a relevant factor but only giving it such weight as is appropriate, given the inadequacy of that sentence.[31]

39 In our respectful opinion, his Honour fell into error in utilising Mr Wheatley's sentence on count three as though it was proportionate to the objective criminality of either Mr Wheatley or the respondent. Mr Wheatley's sentence was inappropriately low. It should have received little weight in sentencing the respondent.

(ii) Financial benefit obtained by the respondent smaller than that obtained by Mr Wheatley

40 The second matter identified by the Director was the fact that his Honour expressly gave the respondent the benefit of more lenient treatment because the $22,000 commission he received was 'considerably less than Mr Wheatley's benefit of almost $200,000'. The offence on which the respondent was convicted contained no ingredient of obtaining a 'benefit'. The gravamen of the offence was dishonestly causing a risk of loss to the Commonwealth. Hence, the Director's counsel submitted a comparison of the benefits obtained by the respondent and Mr Wheatley had little relevance to the sentencing task.

41 If it was intended to convey by that submission that the benefit received by each of them was an immaterial sentencing factor, the submission was unsound. The size of the benefit obtained by an offender from the commission of the offence is a relevant sentencing factor even if 'benefit' is not an element of the offence as it may have a significant bearing on the moral culpability of the offender or on the need for deterrence.

42 Counsel for the Director was right, however, to submit that the difference in the size of the benefits obtained by Mr Wheatley and by the respondent did not justify any distinction being drawn between them as to either their relative moral culpability or in the application of the principle of general deterrence. When proper regard is given to the nature of the conspiracy and the role each played, their respective benefits was not a factor which called for the respondent to be treated more leniently than Mr Wheatley. The benefit obtained by the author or promoter of an unlawful tax evasion scheme in respect of a single transaction may often be smaller than the benefit obtained by the client. The difference in benefit flows from the nature of the offence. It does not reflect the relative significance of the roles played by the respondent and Mr Wheatley in the commission of the offence. In this case, while Mr Wheatley received the bulk of the benefit from the commission of the offence, it was the respondent who was the guiding mind behind the operation directed towards the gaining of that benefit with its corresponding loss to the revenue. Once the facts of the case were properly assessed, the differential in benefit should not have resulted in a any notional decrement being made to the sentence of Mr Wheatley.

(iii) Reduction in mandatory period in custody due to New South Wales residency:

43 His Honour reduced the period before the respondent could be released on a recognizance from 16 months to 12 months, due to the fact that imprisonment in Victoria would be more burdensome because his family and social connections were in New South Wales. Senior counsel for the Director conceded that this was a relevant consideration but submitted that a 25 per cent reduction in the period that the respondent would be required to serve in custody, based solely on this consideration was excessive and unjustifiable. We agree. We shall return to the adequacy of the mandatory period which the respondent was required to serve.

44 In DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis[32] ('Karazisis') a five member bench of this Court considered the meaning of 'double jeopardy' in the context of ss 289(2) and 290(3) of the Criminal Procedure Act 2009 (Vic) ('the Act'). Karazisis is authority for the following relevant propositions:

(i) Section 289(1)(a) eliminates double jeopardy when considering whether there has been sentencing error.

(ii) Section 289(1)(b) removes double jeopardy as a discretionary consideration when the Court determines whether it is satisfied that a different sentence should be imposed.

(iii) When the Court determines to intervene and impose a different sentence, s 290(3) removes double jeopardy as a relevant consideration in fixing the sentence.

45 In R v Bui[33] this Court concluded that ss 289(2) and 290(3) of the Act as construed in Karazisis also applies to Crown appeals in respect of sentences imposed for federal offences.[34]

46 It has been demonstrated that his Honour erred in a number of respects in the process of sentencing the respondent. But those errors were not the subject of any discrete ground of appeal and it is therefore not enough that error is shown or that the court considers that a different sentence should be imposed. The sole basis upon which the appeal was brought was that the head sentence and mandatory period of custody are manifestly inadequate. Grounds 3 and 4 are merely particulars of that allegation, as they state that the head sentence and the order as to the mandatory period of custody before release failed to have regard to the maximum penalty under s 135.4 of the Code.

47 What reveals the manifest inadequacy of a sentence is consideration of all the matters that are relevant to fixing the sentence.[35]

48 The sentencing of Commonwealth offenders is governed by Part IB of the Crimes Act 1914 (Cth). In particular s 16A(1) of the Crimes Act 1914 (Cth) provides that a court must impose a sentence or make an order that 'is of a severity appropriate in all the circumstances of the offence'. Section 16A(2) sets out a non-exhaustive list of the factors to be taken into account when a court sentences a person for a federal offence. Such factors are to be taken into account to the extent that they are relevant and known to the court.

49 Section 16A, on its proper construction, accommodates the application of common law principles of sentencing [36] including those that give relevant context to the statutory requirement that the sentence be 'of a severity appropriate in all the circumstances of the offence'[37] as well as 'the need to ensure that the person is adequately punished for the offence.'[38]

50 While general deterrence is not specifically listed in s 16A(2), it is a factor which must be taken into account.[39] The maximum penalty for the present offence reflects Parliament's view of the gravity of the offence and is a consideration to which regard must be had in determining what is an appropriate sentence.[40]

51 In Director of Public Prosecutions (Commonwealth) v Goldberg[41] Vincent JA (with whom Winneke P and Batt JA agreed) referred with apparent approval to the following observation by the sentencing judge in that case:

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 the government. It is theft and tax evaders are thieves ...[42]

52 Further, as the High Court recently observed in Hili, detecting offending of this kind is not easy and serious tax fraud is offending which affects the whole community.[43] As Ormiston JA recognised in R v Liddell,[44] while the Australian Taxation Office is the ostensible victim, serious tax fraud will inevitably have a flow on effect to the incidence of tax to the honest taxpayer.

53 In seeking to ensure that proportionate sentences are imposed the courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime[45] and that good character cannot be given undue significance as a mitigating factor,[46] and plays a lesser part in the sentencing process.[47] In the case of taxation offences general deterrence is also given special emphasis in order to protect the revenue[48] as such crimes are not particularly easy to detect and if undetected may produce great rewards.[49] 'Deterrence looms large' as the present process of self assessment reposes on the taxpayer a heavy duty of honesty.[50] Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.[51]

54 In many if not most cases, imprisonment will be the only sentencing option for serious tax fraud in the absence of powerful mitigating circumstances.[52] A sophisticated degree of planning accompanied by a lack of contrition should ordinarily lead to a more severe sentence of imprisonment.[53] But despite the recognised importance of general deterrence, tax fraud has not always been as severely enforced as other forms of criminality. Over a decade ago this court, constituted by Winneke P, Brooking and Callaway JJA observed in R v Nguyen and Phan[54] that the seriousness of the offence of defrauding the Commonwealth of income tax 'has not always been sufficiently reflected in the sentence passed.'

55 This is reflected in the number of cases where very small periods of imprisonment have been imposed.[55] Whilst not directly arising in this case, there is a tendency to place a disproportionate emphasis on a dollar value concept of the loss.[56] The results are sometimes a lack of deterrence and proportionality.[57] Professor Freiberg has noted that the personal circumstances of the white collar criminal appear to weigh heavily in the judge's mind at the expense of justice in the abstract, or the effect on or interest of the victim(s), and that this persistent sentencing phenomenon is spread across jurisdictions.[58] Charles JA in DPP (Vic) v Bulfin[59] ('Bulfin') adverted to this serious risk in sentencing white collar criminals stating that:

the consequences of discovery and punishment and the havoc that a custodial sentence usually wreaks on the lives of the white collar criminal and his or her family, may have a tendency to distract attention from the importance that general deterrence ought to carry in the imposition of sentences.

56 Where this occurs, it is often reflected in an inappropriately large gap between the head sentence and the period that the offender is required to serve in custody before release on recognizance or on parole.

57 A sentence imposed for fraud upon the taxation revenue, is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of the incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be censured through manifest denunciation. When these considerations are not reflected in the responses of the courts, the criminal justice system itself fails to achieve its objectives.

58 The respondent's head sentence fell well short of meeting these considerations. The respondent had conspired with others in a sophisticated and audacious deceit implemented in conjunction with other knowing participants, in order to enable Mr Wheatley to evade his tax and thereby defraud the Commonwealth. His conduct involved blatant dishonesty motivated by greed. He used his professional status as solicitor to disguise the brazen dishonesty making the deceit more credible and less likely to be exposed. He showed no contrition for his conduct. He maintained during his trial that he believed the critical email to be bona fide. The respondent's offending called for condign punishment.

59 The current sentencing practice for white collar crime did not constrain the sentencing judge to impose the sentence which he did. The sentence fixed was egregiously disproportionate to the objective gravity of the offence. Giving full weight to all the factors in mitigation, the gravity of the offending was such that a much more substantial period of imprisonment was required.

60 On appeal, it was submitted on behalf of the Director that a head sentence of four to six years' imprisonment would have been appropriate. We agree that a sentence in that range would have been appropriate. But as we have said, no such submission was advanced by the Crown before the sentencing judge nor was it submitted that a sentence of the order urged on behalf of the respondent was outside the range.

61 We will deal with the consequence of this omission later in these reasons.

62 The Director, under cover of ground two, complained that the order that the respondent be released on recognizance after 12 months' was also manifestly inadequate.

63 The plurality judgment of the High Court in Hili states:

Division 4 of Pt IB of the Crimes Act, concerning the fixing of non-parole periods and the making of recognizance release orders with respect to federal offenders, makes exhaustive provision for the subject with which it deals. Because it makes exhaustive provision for that subject, State or Territory laws relating to the fixing of non-parole periods are not picked up by, and therefore are not applied by, s 68(1) of the Judiciary Act.[60]

64 The Crimes Act 1914 (Cth) makes no provision for fixing any relationship between the head sentence and a recognizance release order. On the contrary, the sentencing court has power to fix the recognizance release orders to take effect at any time during the period of the head sentences.[61] The High Court in Hili rejected the view that there was any 'norm' or standard period starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order.[62] The proportion which the pre-release period should bear to the sentence of imprisonment must be the results of application of conventional sentencing principles to the particular circumstances of each case.[63]

65 While there is a broad judicial discretion, the period before release on recognizance, like the non-parole period, must reflect the minimum period of imprisonment which justice requires the offender serve before his release. Referring again to the plurality judgment in Hili:

[40] The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order. As the Court of Appeal rightly said, ss 16A(1) and (2) 'make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment'. In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to 'make an order that is of a severity appropriate in all the circumstances of the offence'. What is the 'severity appropriate' is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen (citations omitted).

66 It is necessary that the deterrent and punitive affects of a sentence for serious tax fraud be reflected in both the head sentence and in any provision for earlier release from custody.[64] These considerations should not be unduly diminished by allowing release from custody before the offender has served a period in custody which appropriately reflects his level of criminality. The period that the offender must 'actually' serve in custody will be a matter of first importance.[65] As Charles JA stated in Bulfin,[66] the period which the offender is likely to have to spend in custody is:

much more likely to focus their attention and have a real deterrent impact... an unduly short non parole period would, in cases such as the present be quite subversive of the whole concept of general deterrence.

67 The order that the respondent be released after 12 months did not bear a reasonable relationship with the objective seriousness of the offence nor did it accord with the general moral sense of the community.[67] It did not sufficiently reflect the respondent's degree of criminality and hence the minimum period that justice required that he serve. It was manifestly inadequate. We agree with the submission advanced on behalf of the Director that the appropriate range was a period of between three and four years' imprisonment before the respondent was eligible for release.

68 There remains the question whether the appeal should be allowed and the respondent resentenced or whether the Court should exercise its residual discretion to decline to intervene.

69 This residual discretion survives the amendment of ss 289 and 290 of the Act, despite the fact that double jeopardy has been removed as one of the bases upon which it can be exercised. As the joint judgment of Ashley, Redlich and Weinberg JJA (with whom Warren CJ and Maxwell P agreed) observed in Karazisis:[68]

We find it unnecessary to determine whether the term 'double jeopardy' in both ss 289 and 290 is to be confined to 'anxiety and distress', in the sense spoken of in JW or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion.

That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the Court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in the House sense, and the Court is satisfied as well that a different sentence ought to have been passed...

The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the Court were to proceed to re-sentencing, it would in any event arrive at a sentence close to that imposed at first instance because the court would necessarily be giving a "discount" for double jeopardy.

However, as one learned commentator has pointed out, there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this Court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed.

Among the factors that might be relevant to the exercise of the court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. It is important to note that they are all far removed from double jeopardy, certainly in the sense in which that term is now understood in the context of the new provisions.

70 Accordingly, even if the sentence imposed below was manifestly inadequate or otherwise affected by sentencing error, the court may in its discretion decline to intervene. It is sometimes said that the discretion is to be exercised on the basis of mitigating unfairness or injustice.[69]

71 There are three particular factors present which bear upon the question whether the court should in its discretion decline to intervene. The first is the consequence of the position adopted by the prosecution on the plea in mitigation. In R v Clarke, [70] Charles JA referred in this connection, to the conduct of the Crown at the original sentencing proceedings as being a 'matter of significance.'

72 As we have already mentioned, the prosecution encouraged the sentencing judge to commence his assessment of the correct sentence by using the 'but for' sentence of Mr Wheatley and did not take issue with the respondent's submission on the plea that it provided some guidance as to the appropriate range which was said to be three years or less.

73 In Romero v The Queen,[71] ('Romero') Redlich JA with whom Buchanan and Mandie JJA agreed said:

In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.

74 Although these observations were made in the context of a prisoner's appeal, they apply with the same rigour to the Director in a Crown appeal. It would be most unusual for the Director to be permitted to resile from a submission as to sentence advanced on the plea in mitigation and to reformulate the prosecution position in a manner inconsistent with its position on the plea or to otherwise redress some deficiency in the manner in which the plea was conducted.[72]

75 Although an attempt by the Crown to depart from the argument it advanced on the plea in mitigation was sometimes also treated as objectionable on the ground that it infringed the rule against double jeopardy, that has never been the sole basis upon which the Crown was denied the right to change its position. The general principle limiting the right of a party to advance a different argument on appeal is quite distinct from the common law's objection to double jeopardy.[73] Double jeopardy was a broad principle which in part developed to integrate the novel innovation of Crown appeals into the common law legal tradition with the minimum of disturbance to that system's existing values.[74] There is a separate and accepted principle that the Crown is not a passive spectator to the exercise of the sentencing judge's discretion, but has a duty to assist the sentencing judge to establish the correct foundation upon which that discretion ought properly to be exercised:

[T]he Crown has a duty to assist in the sentencing task by ensuring there is an adequate presentation of the facts and by a fair testing of the defendant's case so far as it appears to require it. The Crown is under a duty to assist the Court to sentence on the correct factual foundation and so avoid error. The performance of that duty also ensures that the defendant knows the nature and extent of the case being made against him and has a fair opportunity of meeting it. A failure by the Crown to discharge that duty will contribute to error affecting the sentence.[75]

76 The restriction of the Crown on appeal reflects the broad common law principle applicable to appeals including those which involve the review of a discretionary judgment, that a party is bound by the conduct of its case. A party will not ordinarily be permitted to depart from the substance of the case it advanced at first instance. It is fundamental to the due administration of justice, which is concerned with expedition, finality and justice, that the substantial issues between the parties are settled at the court of first instance, and that the powers of the appellate court are exercised within the framework of the issues as so settled.[76] In this respect the Crown is in no different position to a private litigant.[77]

77 Nonetheless, there have been limited circumstances where the Crown has been allowed to change its position where it has remained silent at first instance i.e. it did not make a positive submission.[78] It is sufficient to state that in the absence of exceptional circumstances, a party will ordinarily be held to the position adopted on the plea and that this applies equally to Crown and offender appeals, as the above passage from Romero indicates. It is a necessary consequence of the supervisory function of this Court and the principles to which we have referred.

78 The second factor present which bears upon the exercise of the overarching discretion is delay. On the plea the Director had conceded that delay in the final resolution of the prosecution was a relevant sentencing consideration. The respondent would have realised he was the subject of an investigation when various search warrants were executed in June 2005. It was almost three years before he was charged, in April 2008. The respondent's trial was held in February 2010 and he was sentenced on 15 April 2010. The respondent's position therefore remained unresolved for five years. Though the respondent elected, as was his right, to have a contested trial, the delay has been substantial and must be given some weight.

79 Thirdly, it is relevant to the exercise of the discretion that if a sentence of the order proposed by the Director were to be imposed on re-sentencing, the respondent's present liberty would be terminated. He was at the time of the hearing of the appeal, the subject of a home detention order, made on 26th November 2010. His home release was expected to continue until his release on recognizance on 25 March 2011 upon the expiry of his minimum term of 12 months.[79] This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown's appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community. Prior to the abolition of the principle of double jeopardy as it applied to Crown appeals, that hesitation was partly founded upon the not unnatural distress and anxiety that such re-incarceration would cause to the offender and those close to him or her, and the fact that in such cases, more than any other, Crown appeals 'cut across time-honoured concepts of criminal administration'.[80] Although, as discussed above, the application of that principle has now been abolished by statute, the effect of returning an offender to custody on both their rehabilitation and on community confidence in the justice system more generally is still a relevant consideration which this Court ought to consider when it is called upon to exercise its discretion to re-sentence an offender.

80 We are satisfied that notwithstanding that the sentence was manifestly inadequate, this is an appropriate case in which to exercise the Court's residual discretion to decline to intervene. Accordingly, the appeal must be dismissed.

[1] R v Gregory [2010] VSC 121 (Whelan J) Sentence ('sentencing remarks') [16].

[4] (2010) 272 ALR 265 ('Hili').

[5] Sentencing remarks [34] and [43].

[13] Plea transcript 1247 at lines 20-24.

[14] Crown submission on the plea at [33].

[15] Plea transcript 1261 at lines 23-25.

[16] Crown submissions on sentence at [33]; plea transcript at 1256 lines 25-31; 1257 lines 1-9; 1261 at lines 23-25; appellant's written submission at [17].

[17] R v MacNeil Brown [2008] VSCA 190; (2008) 20 VR 677 ('MacNeil-Brown').

[18] See R v Farrugia [2011] VSCA 24; Jimmy v R [2010] NSWCCA 60; (2010) 240 FLR 27 [200]-[203] (Campbell JA), [244]-[246] (Howie J).

[19] R v Watson (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Sheller JA, Loveday J, 25 February 1992); Jimmy v The Queen [2010] NSWCCA 60 [203] (Campbell JA).

[20] Wurramarbra v The Queen (1979) 28 ALR 176; R v Howard (1992) 29 NSWLR 242; R v Formosa [2005] NSWCCA 363; Jimmy v The Queen [2010] NSWCCA 60 [201]-[203] (Campbell JA); [244] - [246] (Howie J); [267] (Rothman J).

[21] [1997] HCA 26; (1997) 189 CLR 295 [9].

[22] Markarian v R [2005] HCA 25; (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ) ('Markarian').

[24] [2005] HCA 25; (2005) 228 CLR 357.

[26] R v Wong [2001] HCA 64; (2001) 207 CLR 584, 611-612 [74]-[76] (Gaudron, Gummow and Hayne JJ); Markarian [37], [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[27] [1990] VicRp 84; [1990] VR 951, 960 (original emphasis).

[28] R v Baldock [2010] WASCA 170; (2010) 269 ALR 674, 681 [21] (Pullen JA and Kenneth Martin J).

1. [29] R v Wei Pan [2005] NSWCCA 114 [34]-[35] (Giles JA and Hoeben J). See also Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40, 42 (Howie J); Nguyen v R [2008] NSWCCA 308 [37] (Grove J); Gurney v R; Willetts v R [2011] NSWCCA 48 [83] (Whealy JA), Pavicevic v R [2010] ACTCA 25 [10] (Gray P, Refshauge and Ryan JJ); Dwayhi v R; Bechara v R [2011] NSWCCA 67 [21] (Johnson J).

[30] [2011] VSCA 24.

[31] Ibid [31] (Redlich and Bongiorno JJA).

[32] [2010] VSCA 350.

[33] [2011] VSCA 61 ('Bui').

[34] DPP v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28; R v Baldock [2010] WASCA 170; (2010) 243 FLR 120.

[35] Hili [2010] HCA 45; (2010) 272 ALR 465, 467 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[36] Johnson v R [2004] HCA 15; (2004) 205 ALR 346 [15] (Gummow, Callinan and Heydon JJ). For example the principle of 'totality' discussed in Mill v R (1988) 166 CLR 59.

[37] s 16A(1).

[38] Crimes Act 1914 (Cth) s 16A(2)(k). See generally Hili [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[39] DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370, 377 (Kirby P, Campbell and Newman JJ).

[40] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533 [71]-[74] (Maxwell P, Redlich JA and Robson AJA).

[41] [2001] VSCA 107; (2001) 184 ALR 387.

[43] [2010] HCA 45; (2010) 272 ALR 465 [63] (French CJ, Gummow, Hayne Crennan, Kiefel and Bell JJ).

[44] [2000] VSCA 37 [74].

[45] DPP v Thomas [1998] 3 VR 188 [47]; Emms v Barr [2008] TASSC 49; (2008) 187 A Crim R 390 [33]-[35] (Porter J); R v Jones, R v Hili [2010] NSWCCA 108 [13] (Rothman JA).

[46] R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 [410]; R v Lo [2007] NSWSC 105; (2007) 174 A Crim R 451, 461 [28] (McLellan CJ at CL).

[47] Hat v The Queen [2009] NSWCCA 228.

[48] Schneider (1988) 37 A Crim R 395; McGowan 4 /12/1985 CCA (Crockett J); Edwards [1988] VicRp 56; [1988] VR 481; Morris [1993] VicRp 68; [1993] 2 VR 192; DPP v Wright (1994) 74 A Crim R 152; Mileham (1994) 83 A Crim R 449; Nguyen and Phan [1997] 1 VR 386; DPP v Carter ]1998] 1 VR 601; Schwabegger [1998] 4 VR 649; DPP v Rowson [2007] VSCA 176 [24], [33].

[49] R v Jones, R v Hili [2010] NSWCCA 108 [13] (Rothman JA); Mouhamed (1995) 118 FLR 98, 101; Schwabegger.

[50] R v Jones, R v Hili [2010] NSWCCA 108 [13]; R v Hargraves [2010] QSC 188 [39] (Fryberg J).

[51] Professor A Freiberg, 'Sentencing White-Collar Criminals' paper presented at the Fraud Prevention and Control Conference convened by the Australian Institute of Criminology, Surfers Paradise, 24-25 August 2000, 13.

[52] R v Whitnall [1993] FCA 271; (1993) 42 FCR 512; Nguyen and Phan [1997] 1 VR 386; DPP v Carter [1998] 4 VR 601; Schwabegger [1998] 4 VR 649, 654; DPP v Thomas [1998] 3 VR 188, 200.

[53] R v Nguyen and Phan [1997] 1 VR 386; R v Gaitanis [1998] VSCA 57; DPP v Rowson [2007] VSCA 176.

[54] [1997] 1 VR 386, 389-390.

[55] Ken Devos, 'Penalties and Sanctions for Taxation Offences in Anglo Saxon Countries: Implications for Tax Payer Compliance and Tax Policy' [2004] RevenueLawJl 5; (2004) 14 Revenue Law Journal 32, 84; Professor A Freiberg, 'Sentencing White-Collar Criminals' paper presented at the Fraud Prevention and Control Conference convened by the Australian Institute of Criminology, Surfers Paradise, 24-25 August 2000, 6; Wright (1994) 74 A Crim R 152, 156 (Davies JA and White J).

[56] Professor A Freiberg, 'Sentencing White-Collar Criminals' paper presented at the Fraud Prevention and Control Conference convened by the Australian Institute of Criminology, Surfers Paradise, 24-25 August 2000, 9; Derick Vollrath, 'Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal cases' (2010) 59 Duke Law Journal, 1002.

[57] Ken Devos, 'Penalties and Sanctions for Taxation Offences in Anglo Saxon Countries: Implications for Tax Payer Compliance and Tax Policy' [2004] RevenueLawJl 5; (2004) 14 Revenue Law Journal 32, 84.

[59] [1998] 4 VR 114, 131-2.

[64] R v Ruha, Ruha & Harris; Ex parte Commonwealth DPP (2010) A Crim R 430, 443 (Keane and Fraser JJA and Atkinson J), cited with approval in Hili [25], [41] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[65] Whitnall [1993] FCA 271; (1993) 68 A Crim R 119, 126; DPP v Carter [1998] 1 VR 601; Schwabegger [1998] 4 VR 649.

[66] [1998] 4 VR 114, 131-2.

[67] SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249.

[68] [2010] VSCA 350 [99]-[105].

[69] R v Holder & Johnston (1983) 3 NSWLR 245.

[70] [1996] VICSC 30; [1996] 2 VR 520, 522.

[71] [2011] VSCA 45.

1. [72] DPP v Bourozikas [2009] VSCA 29, [30] (Vincent, Nettle JJA and Vickery AJA); R v CAK [2009] QCA 23 [19] (Atkinson J with whom Muir JA and P Lyons J agreed). See also, R v Casey & Wells (1986) 20 A Crim R 191, 195 (Crockett, McGarvie and Southwell JJ); DPP (Vic) v Bulfin [1998] 4 VR 114; DPP v Arvanitidis [2008] VSCA 189 [38]-[40] (Redlich JA); MacNeil-Brown [14]-[20] (Maxwell P, Vincent and Redlich JA).

[73] Cf. R v Wilton (1981) 28 SASR 362, 367-8 (King CJ); R v Sparos [2002] NSWCCA 52 [24]-[26] (Dowd J).

[74] R v Peel [1971] HCA 59; (1971) 125 CLR 447, 452 (Barwick CJ).

[75] Davey v R [2010] VSCA 346 [22] (Redlich JA).

[76] See Geelong Building Society (In Liquidation) v Encel [1996] VicRp 44; [1996] 1 VR 594.

[77] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 307 (McHugh J).

[78] R v Morris [1993] VicRp 68; [1993] 2 VR 192, 199 (Crockett J); MacNeil-Brown [20] (Maxwell P, Vincent and Redlich JA).

[79] DPP (Vic) v Leach [2003] VSCA 96; (2003) 139 A Crim R 64 [52]-[56] (Eames JA); R v Levis and Rawnsley (Unreported, QCCA, 26 September 1972) and other cases cited in Fiori Rinaldi 'Dismissal of Crown Appeals Despite Inadequacy of Sentence' (1983) 7 Criminal Law Journal 306.

[80] R v Peel [1971] HCA 59; (1971) 125 CLR 447, 452 (Barwick CJ).