DPP v Page; DPP v Corker; DPP v Lynch [2006] VSCA 224

Instructed by the Solicitor for the Commonwealth DPP and

Ms A. Cannon, Solicitor for Public Prosecutions (Vic.)

1 I agree with the disposition of these matters proposed by Eames, J.A. and for the reasons advanced by him in his judgment.

2 The Director of Public Prosecutions for Victoria appeals against sentences imposed on Dale Robert Lynch and Daryl John Corker following their pleas of guilty each to 14 counts of corruptly giving a valuable consideration contrary to s.176(2)(b) of the Crimes Act 1958. The Victorian Director also brings an appeal with respect to sentences imposed by the same judge on Geoffrey Eric Page on 11 counts of corruptly receiving a valuable consideration contrary to s.176(1)(b) of the Crimes Act and one count of aiding and abetting the corrupt receipt of valuable consideration contrary to s.181(a) of the Crimes Act.

3 In addition, the Commonwealth Director of Public Prosecutions appeals against sentences imposed on Page with respect to Commonwealth offences which were dealt with on the same presentment.

4 Page pleaded guilty to one count of stealing Commonwealth property contrary to s.71 of the Crimes Act 1914, to one count of stealing Commonwealth property contrary to s.131.1 of the Criminal Code, to three counts of defrauding the Commonwealth, contrary to s.29B of the Crimes Act 1914, to one count of dishonestly causing a loss to the Commonwealth, contrary to s.135.1 of the Criminal Code and to three counts of obtaining property by deception contrary to s.134.1 of the Criminal Code.

5 The maximum sentences available for the state offences under ss.176(1), 176(2) and 181A were 10 years' imprisonment. The maximum sentences for the Commonwealth offences by s.29D of the Crimes Act, s.131.1 of the Criminal Code and s.134.1(1) of the Criminal Code were 10 years in each case. The maximum sentence under s.135.1(5) of the Criminal Code was five years and under s.71 of the Crimes Act 1914 was seven years.

6 The offences concerning the secret commissions related to the business of West Melbourne Smash Repairs and a related company which were operated by Lynch and Corker. Page had held a senior executive position with Australia Post since 1994 and at the time of these offences was the manager of the Parcels and Transport Business Unit for Victoria and Tasmania in which position he was answerable only to the state manager in Victoria. He oversaw a large budget and was responsible for subordinate staff. Australia Post had a policy that its employees were not to accept gifts of any significant value in the course of their employment.

7 Between 2001 and 2003 Page, in the performance of his function as transport manager, was able to determine which panel beaters would be given lucrative repair work for Australia Post vehicles. He arranged with a subordinate, one Wilkins, for the repair work to be given to the businesses conducted by Corker and Lynch. By October 2001 Corker and Lynch were being used exclusively for panel-beating work by Australia Post. The value of the business thus directed to them was substantial. In the 2000/2001 financial year they were paid $305,000 for work completed, which figure jumped to $1.1 m. in the 2001/2002 financial year, and in the 10 months between July 2002 and April 2003 $800,000 had been paid to the businesses.

8 During 2001 Page started to receive gifts in the form of cash and payments for goods and services on his behalf by Lynch and Corker. Wilkins also received gifts. The first gift was a delivery of cash in the sum of $20,000 which Page used to purchase a Harley Davidson motor cycle. He was concerned about receiving cash payments and thereafter he would select an item that he wished to have purchased on his behalf and Lynch would write a cheque to the supplier of those goods. The total value of the cash and gifts handed over by Corker and Lynch was $52,303, of which some $45,484 went to Page.

9 The range of goods provided to Page in this way included accessories for the motorcycle, the purchase of a ride-on mower, repairs to a motor mower, aluminium windows for an investment property, motorcycle training for his wife, a lounge suite, a customised tradesman's trailer, tools and so forth.

10 Count 12 involved a secret commission received from one Mark Beachey who was an independent contractor to Australia Post responsible for maintaining its motorcycle fleet. Soon after he purchased his motorcycle Page arranged for further work to be done on it which was organised by Beachey and paid for by him, to the sum of $2,628.

State offences: Page

11 Having pleaded guilty, Page was sentenced on the State offences to an aggregate of 3 years' imprisonment, and the learned judge ordered that 32 months of that sentence be suspended for a period of three years. In the result, he was to serve four months of the sentence imposed.

12 The breakdown of the sentences was as follows. Page was sentenced to 21/2 years' imprisonment on the first of the 11 counts of corrupt receipt of valuable consideration, which related to the payment of $20,000 cash. As to each of counts 2, 3, 4, 5, 7, 8, 10, 11 and 12 he was sentenced to one year's imprisonment. On counts 6 and 9 he was sentenced to six months' imprisonment. Count 6 involved a payment of a fee of $230 for Mrs Page's motorcycle riding course, and count 9 nail guns to the value of $1,128.

13 All of the State sentences were ordered to be served concurrently by Page, save that six months of the sentence on count 10 was to be served cumulatively. That related to payment for a ride-on mower which was valued at $5,000.

Commonwealth offences: Page

14 The theft of Commonwealth property involved in count 13 involved a large ATCO portable hut which was housed at Western Mail Centre at Maidstone but was unused. In 2001 Page arranged for it to be transferred to his holiday house at Peterborough. In arranging for its transportation Page enlisted the assistance of his secretary, Susan Hughes, and another employee of Australia Post, one Merrifield, who controlled the keys to the Western Mail Centre. The ATCO hut was valued at $8,040.

15 Count 14 related to the theft of an air-conditioning system which had been installed at the Western Mail Centre in 1992 at a cost of $13,541. Page had that removed and installed on the investment property which he owned in Hoppers Crossing. In achieving that result he also enlisted the services of employees Wilkins and Merrifield.

16 Counts 15 to 17 related to the payments made to Azzopardi as an employee with Australia Post in a period where Azzopardi, who had experience as a builder, was being used by Page to perform work on his own home, on the investment property and on his beach house. Azzopardi was paid $64,571 wages in the 14 month period for which he was not in fact performing any work for Australia Post, but performing private work, including for Page. He also had his mobile phone bills paid by Australia Post in the sum of $2,085. In all, Australia Post was defrauded to the extent of $69,372 in payment of wages. Count 17 involved payment of Azzopardi's fuel bill of $5,731.

17 Counts 18 and 19 related to payment by Australia Post of a Sony projection system valued at $17,030 which was installed at Page's home together with accessories of $350. That occurred in July 1999. In the following year Page decided to upgrade his home entertainment system and Wilkins was directed to purchase a video projector equipment at a cost of $14,397, paid for by Australia Post.

18 Counts 20 and 21 involved the fraudulent use of the bankcard which was issued by Australia Post for business purposes only. Counts 20 involving $2,103 and in the second case $4,234. From time to time Page directed Wilkins to use the card for private purposes including such matters as a bottle of Grange Hermitage, lighting and building materials. The wine was purchased at Page's request as a present for Azzopardi. The lighting was purchased for use at Page's 40th birthday party. Locks were purchased to place on the investment property of Page and building materials were used on Page's various building projects. Page's assistant, Susan Hughes, used the bankcard to purchase items for the benefit of Page including motorcycle boots and equipment, a vacuum cleaner, alcohol for the party, party supplies and trees. Page's 40th birthday party on 1 November 2002 involved meat and alcohol and party supplies to the value of about $1,500, paid on the Australia Post account. The trees were for Page's home.

19 These Commonwealth offences occurred over a period from 1999 to 2003.

20 Page was dismissed by Australia Post on 12 May 2003. In February 2003 acting on information provided by a whistleblower, investigators from Australia Post commenced their investigation which eventually led to the prosecution of a large number of employees of Australia Post. Also charged in due course were Lynch and Corker. Wilkins, Hughes and Azzopardi pleaded guilty in April 2005 and all gave undertakings to assist the prosecution. Each of them received a wholly suspended sentence of imprisonment. They were sentenced by another judge, not the judge who sentenced the respondents.

21 Page was sentenced as follows:

On count 13, the theft of an ATCO hut and count 14, the theft of air-conditioners, Page was sentenced to one year's imprisonment;

On count 16, the payment of wages and telephone accounts of Azzopardi, Page was sentenced to 3 years 6 months' imprisonment.

On Counts 15, 18 and 19 which related to defrauding the Commonwealth, respectively as to the wages of Azzopardi of $573, and two Sony projector systems, Page was sentenced on each to 3 years' imprisonment.

On counts of obtaining property by deception (counts 17, 20 and 21) Page was sentenced to 3 years' imprisonment.

22 All of the sentences were ordered to be served concurrently, save for six months of the sentence on count 18 (relating to one of the Sony projectors) which was ordered to be served cumulatively. This produced a head sentence on the Commonwealth offences of 4 years' imprisonment. Pursuant to s.21(6) of the Commonwealth Crimes Act his Honour ordered that Page be released after serving four months upon entering a recognisance in the sum of $1,000 to be of good behaviour for 4 years.

23 His Honour directed that the Commonwealth sentences and the State sentence were otherwise to be served concurrently, leading to the result that the period of imprisonment actually to be served by Page was four months.

The Appeals concerning Page

24 The Directors of Public Prosecution appeal with respect to the sentences imposed on Page on grounds that the individual sentences were each manifestly inadequate, that insufficient orders as to cumulation were made and that the order for the release of Page after serving four months' imprisonment all constituted the sentences being manifestly inadequate. The particulars of manifest inadequacy on which particular reliance was placed concerned the failure to sufficiently take into account general deterrence, failure to give sufficient weight to Page's role in the offending and to his breach of trust, and his Honour placing too much weight on Page's payment of a pecuniary penalty order of $105,000. In addition it was contended that the learned judge erred in finding that the Crown had made a concession that there was little prospect of Page re-offending, erred in finding that the crimes were victimless and there had been no loss to anyone, and finding that Page had not gained from the commission of the offences.

25 The pleas of guilty were not entered at an early stage by any of the respondents. A two day contested committal hearing was conducted on 1 and 2 August 2005 and subsequently Hughes provided a further statement to authorities implicating the respondents. Azzopardi also provided a further statement in October 2005 and the trial concerning the respondents was listed for hearing over three weeks commencing 10 July 2006.

26 Page had been initially presented on 43 counts but on 5 July 2006 agreement was reached with the prosecuting authorities and on 10 July 2006 he pleaded guilty to 21 counts. On the same day both Lynch and Corker pleaded guilty to 14 counts, they both initially having been presented on 17 counts.

27 The learned sentencing judge said that by agreement with counsel for the parties he would annex to his sentencing remarks the prosecution's summary, which had been handed to him in this case. Even allowing for that convenient course having been taken, it must be said that the sentencing remarks in this case were very brief and provide limited insight into his Honour's reasoning as to the structuring of the sentences, and, in particular, for imposing what seem to be unusually low sentences of actual imprisonment, given the seriousness of the offending.

28 His Honour noted that neither Lynch nor Page had prior convictions and that Corker had only one prior conviction, for possession of amphetamines, which had no significance to sentencing. He noted that each respondent had pleaded guilty. His Honour said -

"This is a first foray into criminal offending and one which whilst a singular breach of trust on the part of Mr Page was in the end not entirely profitable for any of you except perhaps the added work that you Messrs Lynch and Corker because of the greater volume of repair work that came your way as a result of Mr Page's direction of such to you"

29 A number of character witnesses gave evidence on behalf of Page attesting to his community involvement in junior football with Hoppers Crossing Football Club and as to his general reputation. His Honour regarded that as strong evidence of good character.

30 As to the payment of $105,000 by way of pecuniary penalty order pursuant to s.320 of the Proceeds of Crimes Act 2002 (Cth) his Honour referred to s.320(a) which states -

"A Court passing sentence on a person in respect of a person's conviction of an indictable offence may have regard to any co-operation by the person in resolving any action taken against the person under this Act."

His Honour said that he gave this matter "significant weight".

31 When pronouncing sentence on the respondent his Honour stated expressly that -

"The term of imprisonment actually served by Mr Page would have been eight months longer if it had not been for his co-operation."

32 Particular (j) of the ground of appeal asserts that his Honour gave too much weight to the respondent's co-operation in paying a pecuniary penalty order of $105,000. Before us Ms Abraham, for the Directors, conceded that his Honour was entitled to treat the payment of the pecuniary penalty as evidence of co-operation. However, his Honour also said that:

"Further, I am satisfied that there has been no gain by you as a result of offending, and the subsequent dealings with the Commonwealth Director and his nominees".

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:

"In short, the unsuspended portion of the sentence is the period before the expiration of which release of the offender would be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify. The purview of the word "desirable" is wide. But before the question of the desirability of suspension can arise, proportionality and appropriateness (in their technical senses) must already have been decided, and decided without reference to the power to suspend".

53 Where a period of three or less years of imprisonment is within the range of sentences that are open, a decision to suspend all or part of that sentence may involve sentencing error which will be amenable to correction on a Crown appeal. In some circumstances, it will not be open to the sentencing judge in a sound exercise of the sentencing discretion, to make an order for suspension of all or part of the sentence. The objective gravity of the offence and the need for general deterrence together with circumstances personal to the offender are factors which will limit the appropriate range for the exercise of the discretion as to how much of the term of imprisonment should be served in custody.

54 In this case I am persuaded that the orders made as to the periods to be actually served by Page are so disproportionate to the aggregate sentences imposed, and so low, as to manifestly fail to reflect the need for general deterrence of such offending.

55 In concluding that I would not interfere to increase any of the individual sentences, nor, in particular, the orders as to cumulation for Page, I am giving particular weight to the fact that this is a Director's appeal and that double jeopardy principles apply. I also have regard to the fact that although defence counsel on the plea submitted that a wholly suspended sentence was appropriate for the State offences the prosecutor did not then submit that a head sentence of three years would be manifestly inadequate for that offending. In having regard to that matter I do not suggest that a prosecutor is obliged to nominate an appropriate sentence to a judge, but where silence might mislead the judge as to the position being taken by the Crown in response to defence submissions as to the appropriate range for sentencing then failure to correct that misunderstanding might be a relevant factor, one closely related to the double jeopardy principle, when an appellate court is asked to re-sentence on account of sentencing error on the part of the judge, or else in exercising its discretion, generally, on a Director's appeal.

56 I would confirm all sentences on the Commonwealth offences and the order as to cumulation. That retains the head sentence for the Commonwealth offences of 4 years' imprisonment, but I would set aside his Honour's order as to the recognisance, and in lieu therefore I would order that the respondent Page serve 18 months' imprisonment before being released upon security by recognisance of $1,000, to be of good behaviour for three years.

57 On the State offences with respect to Page I would confirm the sentences imposed on each of counts 1 to 12. I would affirm the order as to cumulation. That retains the aggregate sentence of three years' imprisonment for the State offences. I would set aside the order as to suspension of sentence and in lieu thereof I would direct that 18 months of the sentence be suspended for a period of three years.

58 That would produce the result that for the State offences the respondent Page would be required to serve 18 months' imprisonment before being released with the balance of the sentence, namely, 18 months, being suspended. I have proposed identical terms of actual imprisonment for both Commonwealth and State sentences although the head sentences are different. His Honour adopted a similar approach, which must have been to the benefit of the respondent. Having regard to the principles discussed earlier, in particular double jeopardy, it seems appropriate to retain that approach.

59 I would order that the Commonwealth and State sentences be served concurrently. That would produce the result that the respondent Page would be required to serve 18 month's imprisonment before being released on the suspended sentence under the State offences with 18 months suspended, and on the Commonwealth offences to be released after 18 months imprisonment, and with the balance of 2 years 6 months to be subject to the recognisance to be of good behaviour for 4 years.

Appeals concerning Lynch and Corker

60 The Director submitted that the sentences for Lynch and Corker were each manifestly inadequate, that there was insufficient cumulation of each sentence and that the order suspending 32 months of the aggregate sentence of 36 months all rendered the sentence manifestly inadequate. A complaint of manifest inadequacy was particularised by asserting that the judge:

"(a) failed to adequately reflect the gravity of this offence generally and in this case in particular;

(b) failed to give sufficient weight to the nature, circumstances and gravity of the offences committed;

(c) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(d) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(e) gave insufficient weight to the maximum penalties applicable to this offence;

(f) failed to give sufficient weight to the Respondent's motivation for the offending;

(g) failed to give sufficient weight to the financial gains made by the Respondent from the commission of the offences;

(h) gave too much weight to factors going to mitigation;

(i) erred in finding that the Crown conceded that there was little prospect of the Respondent re-offending; and

(j) erred in finding the crimes were victimless and that no loss had been caused to anyone."

61 Ms Abraham, counsel for the appellant, submitted that there was a failure to give appropriate weight to the factor of general deterrence, when regard is had to the fact that there were 14 separate incidents which took place over an 18 month period and that the obvious purpose, which was achieved, was to gain a substantial proportion of the lucrative panel-beating business of Australia Post. Counsel for the respondent submitted that it was incorrect to assert that the purpose of the respondents was to obtain a monopoly of the business. In my view, even accepting that the respondents did not want a monopoly of the business of Australia Post, it is plain that they benefited very greatly at the expense of their competitors, and intended to do so.

62 It is now said in an affidavit which was filed before us that by virtue of the two respondents being in custody the business has suffered severely and may well collapse if they were to serve any extended period of imprisonment. One of the two businesses they conduct will close, it is said, if they have to serve further imprisonment. The withdrawal of one major client by virtue of their convictions for these offences, means, the witness deposed, that they have already lost 50% of their business. Those consequences to their business are unfortunate but, in my view, given the nature of the conduct in which they engaged, it can hardly be an answer to the imposition of an appropriate sentence of imprisonment that the advantages they gained over their competitors by virtue of the payment of secret commissions will be lost to them.

63 Mr Holdenson submitted that the period of suspension of sentence was within the judge's discretion and no error in approach has been shown. On behalf of Lynch it was submitted that he pleaded guilty, was of previous good character, had a longstanding ethic of hard work, had a family, and, as attested by character witnesses, had previously enjoyed a good reputation and had contributed to the community. As the judge accepted, he was unlikely to re-offend.

64 As to Corker, the same submissions were made as for Lynch. It is submitted that he had only one prior conviction, which the judge held, rightly, to be irrelevant. He had a good work ethic, and was unlikely to re-offend.

65 Mr Holdenson submitted that the judge must have accepted a submission made by counsel that Lynch and Corker were merely hands-on workers, with no management experience and business skill. They had purchased this business when, while they were its employees, it had gone into liquidation leaving them with no superannuation or holiday pay. Having, by dint of good work, gained business with Australia Post, then, so it was submitted to the judge, they understood that if they were to continue to retain work from Australia Post they would have to make payments to Page and his cohorts.

66 Although such a submission was made to the judge it is unclear what he made of it. No evidence was led to support the assertion made from the bar table, but nor was the assertion expressly disputed by the prosecutor. In his sentencing remarks the judge quoted at length a passage of the submissions by counsel for these two respondents. In that passage counsel said "It was made apparent to them that gifts had to be given for that work to continue. Gifts were given and the work escalated". That was not so strong as an earlier submission, which his Honour did not quote, where counsel said "they were under no illusion, as they were informed by Wilkins, that unless that money was forthcoming the business would go elsewhere".

67 If by quoting counsel without comment his Honour was accepting the submission that the two men were pressured into committing the offences that is at odds with his refusal to accept the remarks of the sentencing judge for the other offenders concerning "Mr Page's domination and overbearing manner". The judge in this case held "I am entirely satisfied that as between the three of you before me, there was mutual reciprocity of action".

68 It is said on behalf of both Lynch and Corker that the work they performed was done well and that Australia Post was not overcharged. Those factors seem to me not to be to point. Offending of this character is insidious. The community would strongly deprecate corruption of this kind in a major public institution, or elsewhere within the business community. I agree with counsel for the appellant that his Honour was wrong to suggest that no one suffered as a result of these offences. The reputation of Australia Post, in my view, must have suffered, and the competitors of the respondents lost the opportunity to compete on an equal footing for the business of Australia Post.

69 It was submitted that the prosecutor had tacitly conceded that a sentence not exceeding three years' imprisonment was appropriate in this case, because in response to defence counsel's submissions that wholly suspended sentences would be appropriate, the prosecutor did not contend that a suspended sentence was not open because the total effective sentence would have to exceed three years in any event. He merely urged that some actual time should be spent in custody.

70 As I said with respect to Page, I have given weight to that contention in concluding, in these cases, too, that the Court ought not interfere with the individual sentences or the order as to cumulation.

71 However, his Honour's exercise of the discretion to suspend all but three months of the sentence appears to me to be so much at odds with proper weight being given to sentencing principles relevant to this case as to render the sentence manifestly inadequate for both respondents.

72 In my view, just as in the case of Page, the failure of the judge to refer to general deterrence, at all, in his sentencing remarks does reflect the fact that he failed to give appropriate weight to this factor.

73 In concluding that the period of the suspension of sentence must be reduced I have regard to the submissions that Lynch and Corker were small-time offenders, placed into a difficult situation by Page's greed. As powerful as that argument is, there is no doubt that greed was the motivating factor in their own behaviour. Corruption of this kind is insidious and it frequently tempts and then captures less sophisticated offenders, people of previously good character. But such corruption of the fair playing field for the conduct of business no doubt harms many other unsophisticated people, people equally with good character and who are battling to maintain a business in a difficult economic climate. Whilst in some respects Lynch and Corker may be regarded as less serious offenders than Page, as indeed is the case, the profits that they were making by their corrupt conduct were very substantial and may well have continued indefinitely.

74 In my view, the appeals should be allowed, in part, against the sentences of Lynch and Corker. The individual sentences and the orders as to cumulation ought be confirmed but the sentences should be varied by substituting for the order as to suspension, that 27 months of the sentence be suspended, thus requiring the respondents to serve 9 months' imprisonment, with the balance suspended. That, in my opinion, is a very merciful sentence, having regard to the nature of the offending here, but it reflects a significant allowance being made for double jeopardy.

75 I have had the advantage of reading in draft the reasons for judgment of Eames, J.A. For those reasons I agree that each of the appeals should be allowed and the respondents re-sentenced in the manner proposed by his Honour.

- - -

[1] See Kovacevic v Mills (2000) 76 SASR 404 at 421; R v Burke (2002) NSWCCA 353 at [93].

[2] [1996] VICSC 30; [1996] 2 VR 520 at 522.

[3] [1994] HCA 49; (1984) 181 CLR 295.

[4] [1988] VicRp 79; [1988] VR 879.

[5] [2000] VSCA 217; (2000) 2 VR 118.

[6] [1998] 4 VR 114.

[7] At 131.

[8] (1991) 56 A.Crim.R. 441, at 443-4.

[9] [2004] VSCA 208, at [22]; see too Callaway, J.A. at [13] and R v Wall [1999] VSCA 88; (1999) 105 A Crim R 426, at 429 [15].

[10] [1998] 4 VR 540 at 547-8, per Batt and Buchanan, JJA.

[11] [1999] 2 VR 159, at 169 [38].