33 That remark seems to be contrary to the requirement of s.320(d) of the Proceeds of Crime Act 2002, which relevantly provides that the sentencing judge "must not have regard to any pecuniary penalty order ... that relates to the offence". The relationship between that paragraph and par (a) is by no means clear.
34 His Honour expressly referred only to paragraph (a), in mitigation of sentence. The complaint now made is that his Honour gave too much weight to that factor. It was submitted that his Honour gave a discount on sentence which was disproportionate to the circumstances of the case because the repayment was no more than a return of the proceeds of crime which Page should never have received in the first place.
35 Payment of a pecuniary penalty order does not reduce the criminality of the conduct of the offender.[1] It is not necessary to decide whether his Honour's remarks failed to apply s.320(d), because the more significant matter is that his Honour was plainly wrong to say that the respondent had made no gain by his dishonest actions. He had, at least, gained the benefit of the goods and services over a considerable period of time. His Honour's sentencing approach in this respect seems to me to be consistent with the overall impression one gains from his sentencing remarks, namely, that the seriousness of the offending was not given proper weight by his Honour.
36 The principles applicable to Crown appeals against sentence are well established: see R v Clarke,[2] Everett v The Queen.[3] It was submitted on behalf of the appellant that his Honour failed by his sentence to reflect the wide ranging and longstanding premeditated criminal activity of Page which involved the corruption of other employees, a gross breach of trust and was plainly motivated solely by greed. Page was well remunerated, his salary package amounting to $170,000 per annum.
37 The Courts have made many statements about the seriousness of white collar crime: see R v Jamieson;[4] R v McLean;[5] DPP v Bulfin.[6] As noted in Bulfin,[7] it is a feature of such offending that the offenders are likely to have no prior convictions, to have good character references, to have good prospects of rehabilitation. The position of trust of the offender is one reason why the offences are difficult to detect. For such offences these personal mitigatory factors must be given less weight than the factor of general deterrence. Ms Abraham submits that his Honour adopted quite the opposite approach, giving much greater weight to character evidence called on behalf of the respondents than to the factor of general deterrence.
38 It was significant, so it was submitted, that with respect to any of the respondents his Honour made no reference, at all, to general deterrence, in his brief sentencing remarks. Mr Carter submitted, however, that his Honour had been referred to the relevant authorities and stated that he had had regard to them when determining sentence. Thus, it was obvious that general deterrence was treated as a relevant factor, he submitted. In my view, however, it is significant that no reference was made to this factor, which ought to have been the critical factor for sentencing in a case such as this.
39 I agree with counsel for the appellant that this was a particularly serious instance of a breach of trust, involving dishonesty which ran between 1999 and 2003, and was exposed only by virtue of a whistleblower. It was a case which called for significant denunciation and for particular weight to be given to general deterrence.
40 The orders made as to cumulation of the sentences for Page seem to me to have been extremely generous. On the State offence only six months of the sentence on count 10 was made cumulative, that relating to payment by Corker and Lynch for the ride-on mower, to the value of $5,000. No explanation was given by the judge for making that the only sentence on which cumulation was ordered. It is difficult to see why that alone should be singled out rather than, say, in addition, count 7 for which a sofa, valued at $4,060, was purchased. It may be, of course, that count 10 represented the last instance of a corrupt benefit, that offence having been committed on 7 March 2003. As I have said, however, no explanation has been given by the judge.
41 As to the Commonwealth offences the situation as to cumulation is even more stark. Only on count 18 was an order for cumulation made, that being cumulation of six months of the sentence of three years imposed with respect to defrauding the Commonwealth of $17,300 with respect to the purchase of the Sony projection system. Count 19 involved identical defrauding in relation to yet another purchase of a Sony projection system, this time for a value of $14,397, and that being committed some 12 months after the offence in count 18. It is difficult to see why there was no cumulation of part of the sentence under count 19.
42 It is also difficult to see why counts 13 and 14 did not have orders made as to cumulation. Count 13 involved the stealing of the ATCO portable hut. That was an extremely calculated theft which involved utilising the services of other employees. Count 14 involved the appropriation of two Sony air-conditioners from Australia Post property and placing them in properties owned by Page. This offence occurred between 1 December 2002 and 30 December 2002, thus being committed more than two years after count 19.
43 In my view no rhyme or reason is shown for the order made as to cumulation of only one count.
44 Mr Carter submitted that even if it could be said that there was error in the approach taken to cumulation then, overall, the sentence was not one that merited interference, because some of the individual sentences could be said to have been inexplicably heavy, and in the end result a properly structured sentence would have fallen close to the head sentences which were in fact ordered.
45 Mr Carter submitted that the sums actually involved in the offending here placed Page's conduct at the lower end of "white collar" crime. In my view, while, of course, the amount of money involved in the offending must be relevant, it does not follow that when a relatively lower sum is involved than in some fraud cases, condign punishment is not appropriate. In this respect it is akin to saying that if a small bribe is offered then the bribery offence is less serious than if a large one had been offered, such reasoning as was rejected in DPP v Pangallo.[8]
46 Page's sheer persistence and duration of his thefts might well have resulted in substantial cumulation on many if not most of the counts for the Commonwealth offences. For reasons I will explain, however, I have decided that it would not be appropriate to make different orders as to cumulation.
47 Having regard to the matters advanced in mitigation of sentence, I am not persuaded that the individual sentences imposed on Page, under either the Commonwealth or the State offences, were themselves manifestly inadequate. I add that I am also not persuaded by Mr Carter's submission that some of the sentences were in fact too severe.
48 The primary complaint as to Page's sentences related to the period ordered to be served by way of actual imprisonment. Mr Carter submitted that once it was concluded that the aggregate sentences imposed were within range then it ought be difficult to challenge the exercise of discretion of the judge to limit the time of actual imprisonment. Mr Carter submitted that a suspended sentence, or one for which a recognisance release was ordered, is nonetheless a sentence of imprisonment and has deterrent effect, especially when the offender must spend time in prison. He was a 43 years old man with two children, who had retained nothing from his offending, and he had no prior convictions. There was evidence of remorse, which the judge accepted. There was substantial delay before sentence. Mr Carter submitted that insofar as the failure to plead guilty at an early stage was a negative factor, Page was entitled to negotiate an appropriate reduction in the number of counts, and once that was agreed he pleaded guilty. Whilst allowing for that explanation, it also appears to me that his decision to plead guilty must have been motivated by the fact that some of his co-accused gave new statements to police after the committal.
49 As to delay before sentence, in the interim the respondent had obtained employment and his employer gave character evidence on his behalf.
50 Given those mitigating factors and the pleas of guilty then the sentences imposed were within range, Mr Carter submitted, and ought not be altered, or even if the Court held that they were manifestly inadequate then in the exercise of its residual discretion the court ought not vary the sentences.
51 Those are powerful arguments. I acknowledge that Nettle, J.A. held in DPP v Oversby,[9] that it would be rare that where a sentence of imprisonment is imposed which is within range that it would be rendered manifestly inadequate by virtue of an order to suspend it in whole or part. I also acknowledge that, as was stated in DPP v Buhagiar and Heathcote,[10] a suspended sentence should not be assumed to have no deterrent effect, and that such a sentence may well serve the community interest by placing emphasis on rehabilitation. However, as was stated in that case, there may be instances where such an order so failed to provide a balance with other sentencing considerations, including the need for general deterrence, that it rendered the sentence manifestly inadequate.
52 By s.27(1) of the Sentencing Act 1991 the court is empowered to suspend a sentence in whole or part "if it is satisfied that it is desirable to do so in the circumstances". As was held by Batt, J.A. in R v Groom[11] the rationale applicable to the determination of a non-parole period is substantially applicable to the ascertainment of the proportion of the sentence, if any, that should be suspended. He added: