Ground 3 : The sentences individually and in combination are manifestly excessive.
Background
6 At the time of the commission of the offences the applicant was employed as a relationship manager for Westpac Banking Corporation. The total amount of money involved in the offences is almost $3,943,000. Westpac was the victim of the fraud. The applicant obtained the money during the period from February 2003 to January 2005. Approximately $237,000 was recovered leaving a shortfall of approximately $3.7M. The amounts involved in relation to the separate counts are referred to in agreed facts tendered on sentence.
7 The applicant's role as a relationship manager involved obtaining new lending for the bank and managing a large portfolio of business clients. The applicant's position with the bank was one of seniority and substantial trust. It is unnecessary for present purposes to describe in any detail the way in which the applicant perpetrated the frauds.
8 The sentencing judge found that the applicant had gambled unsuccessfully with most of the proceeds of the crimes on horse racing but had not retained any of the money so that at some time in the future he might have been able to gain access to it for the benefit of others in his family. He said that a major factor in sentencing those who defraud others is whether or not they are in a position of trust. His Honour found that the aggravating factors in this case included that the applicant abused such a position of trust, that the offence involved a series of criminal acts and that the offences were planned. Factors that mitigated the circumstances included the applicant's contrition and remorse, as reflected in the guilty pleas, that he was unlikely to reoffend and that he had good prospects of rehabilitation. The sentencing judge found special circumstances as the applicant had a gambling addiction requiring psychological counselling. His Honour discounted the sentences by 25 per cent for the early pleas of guilty.
Grounds 1 and 2
9 The Crown conceded that his Honour would appear clearly to have failed to impose sentences in conformity with ss 44 and 45 of the Act and that he failed to impose an appropriate sentence in respect of each of the eight offences so as properly to reflect the criminality involved in each, contrary to Pearce. The Crown agreed that his Honour purported to apply the totality principle, but that he appears to have failed to evaluate the criminality reflected in each of the offences in as much as he did not differentiate between the sentences imposed. This was so even though the offences involved sums varying between $50,000 at the low end and $1.84M at the high end with a median amount involved of approximately $500,000.
10 The applicant emphasised that his Honour did not set individual non-parole periods in relation to any of the offences. His Honour gave no reasons for this approach. However, that alone did not invalidate the sentences: see s 45(4) of the Act. Commencement dates were not specifically stated although it seems apparent that to the extent that some sentences were expressly stated to be cumulative upon certain others, his Honour's views were made clear. Moreover, an isolated failure to specify a commencement date does not in any event invalidate the sentence: see s 48(3) of the Act. His Honour purported to set a single non-parole period of 5 years. This was longer than any one of the individual sentences imposed. The applicant contended that there was no facility to do so. Nor does the Act contemplate the setting of a "global" non-parole period.
11 The applicant therefore contended that the sentence that his Honour apparently intended to impose could not be translated into a sentence in conformity with the Act. In other words, if his Honour properly imposed fixed terms of 3 years for the first group of offences, he could then have imposed terms with a non-parole period of 2 years and a balance of term of 1 year for the second group of offences. That would have produced a sentence with an effective non-parole period of 5 years with a balance of term of 1 year. However, this would have meant that the third group of offences would have needed to be sentences of 3 years with no non-parole period. The applicant submitted that the imposition of such a sentence was not possible under the Act.
12 As a result the applicant submitted that his Honour erred in failing to impose valid sentences in conformity with the requirements of the Act. As I have indicated, the Crown accepted that contention. Neither party proceeded to make any affirmative submissions on the significant issue of what, if anything should occur in these circumstances.
13 However, it follows from this that the applicant will have to be re-sentenced. In my opinion it is appropriate for this Court to re-sentence the applicant.
Ground 3
14 By reason of the success of the first two grounds of appeal, and the corresponding need to re-sentence the applicant, consideration of the third ground of appeal acquires a certain artificiality. The sentencing exercise in this Court must be undertaken afresh having regard to the accepted conclusion that the original sentences that were imposed were contrary to law. However, quite apart from the difficulties that led to that result, the effective period of imprisonment that his Honour intended to impose was clearly a non-parole period of 5 years imprisonment with a balance of term of 3 years. The thrust of the applicant's submission must therefore be taken to be that upon a re-sentence by this Court, any sentence that approaches or equates to a similar result but which is imposed according to proper principles would nevertheless remain manifestly excessive.
15 The applicant conceded that the offences were serious. They were acknowledged by him to involve significant breaches of trust. Some of the offences took place over a period of time. The total offending took place over a period of two years.
16 The sentencing judge allowed a discount of 25 per cent for the utilitarian value of the applicant's pleas of guilty. His Honour's approach suggests a starting point of 4 years for each offence having regard to the uniform imposition of 3-year terms for each offence. However, by way of example, the applicant draws attention to the dissimilarity between the circumstances of count 7, an offence involving $50,000 and committed over a relatively short period of time for which his Honour purported to impose the same non-parole period as he did for count 1 involving approximately $1.84M. Count 8 involved the sum of $500,000. Counts 2 to 6 involved amounts ranging from $180,000 to $473,000.
17 The applicant submitted that a total sentence of 8 years with a non-parole period of 5 years should be seen in the light of the fact that, in some cases, "it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct": see R v Moon (2000) 117 A Crim R 497. In R v McDonald (1994) 71 A Crim R 370, in the context of a gaol sentence imposed in relation to fraud offences, Burchett and Higgins JJ, with whom Spender J agreed, said at 379,
"[i]n a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed."
18 The applicant contended that the Crown submitted at first instance that the matters did not require a non-parole period "significantly higher" than three years. In fact, the Crown submitted, when asked specifically to comment upon a non-parole period of three years, that "[i]t should be higher than that, whether it's significantly higher than that is a matter for your Honour". The Crown submitted that it did not bind the sentencing judge in any event, a contention that I did not understand to be contested by the applicant. Either way, whether or not what was said amounted to a concession by the Crown in the court below, the applicant embraced it as an appropriate approach in this Court. The applicant also submitted that a non-parole period of 5 years was manifestly excessive in the circumstances of this case.
19 In contrast, the Crown submitted in this Court that it was open to his Honour "to impose the overall sentence" and that no error had been established by the applicant as to the overall sentence that was imposed. Alternatively, the Crown submitted that the appeal against sentence should in any event be dismissed on the basis that no less severe sentence is warranted in law having regard to s 6(3) of the Criminal Appeal Act 1912.
20 In my opinion the failure by his Honour to distinguish between or among the various counts, and to impose an identical non-parole period in each case, notwithstanding their significant differences, is an error but not one that has led to the imposition of an effective non-parole period that is excessive. In performing the re-sentencing exercise that is called for, I consider that a lesser sentence is warranted in law, but only to the extent that the statutory ratio should be varied, with the head sentence of 8 years reduced to 6 years and the effective non-parole period of 5 years remaining the same. In this respect I have had regard to what was said by Hoeben J in Dunn v Regina [2007] NSWCCA 312 at [40] - [41] as follows:
"[40] The submission in relation to s44 is, however, in a somewhat different category. I appreciate that the section does not create a statutory norm in relation to the proportion of the non-parole period as against the total term of the sentence and that special circumstances are required only where the proportion is to be less than three quarters. Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided. It is not clear here that his Honour appreciated that the combined effect of the sentences was to produce a non-parole period in excess of 80% of the head sentence. If he did he failed to indicate why he thought such a departure from the statutory ratio was appropriate.