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Texts Cited: D A Thomas, Principles of Sentencing – The Sentencing Policy nd of the Court of Criminal Appeal Division – 2 edition nd (Heinemann Educational Books Ltd, 2 ed, 1979)

Parties: George Ghoubriel (Appellant) The Queen (Respondent)

Representation: Counsel Mr J Lawton (Appellant) Ms M Jones (Respondent)

Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 1 of 2016

Decision under appeal: Court: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 16 December 2015 Case Title: The Queen v Ghoubriel Court File Number: SCC 185A/14

Penfold J:

Introduction

1. I have had the benefit of reading in draft the judgment of Elkaim and North JJ. I agree with their Honours that the appeal should be upheld. However, I have reached the same conclusions as their Honours for slightly different reasons, and have a slightly different view on the appropriate replacement sentence.

2. I have not re-stated background information about this matter that is set out in the judgment of Elkaim and North JJ.

Appeal grounds

3. The two appeal grounds identified on behalf of the appellant were:

(i) That the Acting Justice erred when applying the principle of totality, namely only 2 days of concurrency with respect to all counts, such that the total aggregate sentence imposed was not just and appropriate and is manifestly excessive.

(ii) The sentence imposed by the Acting Justice on Count 3 was manifestly excessive.

4. Appeal ground (i) appears to confuse two different kinds of appeal grounds, being a ground asserting specific error by the primary judge, and a ground asserting that the total sentence is manifestly excessive. As for appeal ground (ii), it seems highly likely that if the sentence on Count 3 had been largely or entirely concurrent with another sentence, there would have been no complaint about it.

5. In truth it seems that the real basis for this appeal was that the appellant could not understand how, or perhaps why, the primary judge structured the sentence as he did.

General comments

6. The appellant relied on O’Brien v The Queen [2015] ACTCA 47 (O’Brien), in which the Court of Appeal (Murrell CJ, Wigney J and Walmsley AJ) said:

7. The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following: (a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale). (b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61]. (c) In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85]. (d) It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

8. In The Queen v Williams [2014] ACTCA 30, the Court of Appeal (Refshauge, Penfold and Gilmour JJ) made lengthy comments about the “manifest inadequacy” ground argued by the Crown in that appeal. After addressing (and rejecting) Crown submissions to the effect that manifest inadequacy or manifest excess may be established by pointing to errors made by the sentencing judge, the Court referred to the decision of the High Court in Bugmy v The Queen (2013) 302 ALR 192, saying:

9. ... at [24], [the plurality] went on: Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. [citations omitted] 14. The plurality in fact made it clear that within a range of sentences for the offence, the weight to be given to evidence and to the various purposes of sentencing is a matter for the sentencing judge, and emphasised that the Court of Appeal was not empowered to impose a new sentence because it would have weighted different considerations differently. It was only empowered to do so if the Court of Appeal was satisfied that the discretion had miscarried because in the result, the sentencing judge imposed a sentence that was below the just range of sentences. The statements by the plurality in our view specifically disclaim that the other grounds of appeal were “particulars” of manifest inadequacy to the extent that they identified errors made by the sentencing judge, as distinct from identifying matters that were relevant in the sentencing decision and that pointed to the sentence actually imposed being below the just range of sentences. 15. Gageler J said at [53]: The Director’s three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category. 16. His Honour noted that the appeal ground complaining about weight pointed at most to a circumstance which might be indicative of error in the second category referred to in House v The King (1936) 55 CLR 499 (House). His Honour did not suggest that the appeal ground concerned pointed to an error which might have caused the manifest inadequacy said to permit an inference of error. 17. The point made by the Court of Appeal in R v Ang was that, while particular aspects of the circumstances of the offence or the offender, or other applicable sentencing considerations, might be relevant to establish manifest inadequacy or manifest excess, they were not relevant as indications of the nature of the inferred error made by the sentencing judge, but as circumstances by reason of which the ultimate sentence might have been expected to be significantly higher or lower (see R v Ang at [22] to [25]). 18. In any event, it is not possible to assess, from a sentence which has been set following the instinctive synthesis that is required, what weight has been given to particular elements so as to determine that too little or too much weight has been given to any particular factor, unless the sentencing judge specifically says what weight has been given to it. This was not the case here, where the Crown did not identify any such remarks by the Chief Justice. As is made clear in House, any such errors can only be inferred, without being identified, by showing that the result is manifestly inadequate (or excessive). 19. Indeed, once it is conceded, as it was by the Crown at the hearing, that an error as to weight is not an error of the first kind described in House, which may permit re-sentencing even in the absence of manifest inadequacy or excess, then the sentencing judge’s alleged errors or considerations become irrelevant; what remains relevant is the matters that he or she was required to consider and the level of sentence that those matters could reasonably have been expected to produce.

10. That is, the sentences imposed by the primary judge in this case were either manifestly excessive, or they were not. Nothing is to be gained by suggesting that the sentences were, or that the total sentence was, manifestly excessive because the sentencing judge erred in applying the totality principle.

11. Furthermore, a breach of the totality principle is difficult to establish, either as a specific error or as the source of manifest excess or inadequacy, because there will always be a variety of ways in which multiple sentences can be structured to reach an appropriate result, that is, one that is neither manifestly excessive nor manifestly inadequate. Two examples will suffice.

12. In O’Brien, the Court said:

13. The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following: (a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill [v the Queen [1988] HCA 70; 166 CLR 59] at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18]. (d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

14. The Court in O’Brien rejected the appellant’s argument that although none of the individual sentences imposed on him was excessive, the aggregate sentence was excessive. The Court also declined to find that the primary judge had “erred in principle, either in relation to making the incident 2 sentences wholly cumulative on the incident 1 sentences or otherwise”. The appeal was accordingly dismissed

15. In The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 (TW), the Court of Appeal by majority (Refshauge and Lander JJ) upheld a Crown appeal against sentences imposed for 13 different offences, re-sentencing the respondent to increase his total sentence from imprisonment for seven years to imprisonment for nine years and seven months. The appeal was argued on the grounds that “the sentences were manifestly inadequate and that his Honour erred in making certain of the sentences wholly concurrent” (at [2]).

16. The majority concluded that the sentencing judge had fallen into error by determining the total sentence before his Honour determined the question of cumulation or concurrency (Refshauge J at [62] and [63]; Lander J at [125]). Lander J also found that the individual sentences were manifestly inadequate (at [124]), referring to the reasons given by Refshauge J, although it is not clear to me that Refshauge J in fact reached that latter conclusion.

17. In dissent as to the result in that case, I said:

18. Given the application of the totality principle discussed below, it is not in my view possible to say in the abstract that any aspect of Nield AJ’s approach to concurrency and accumulation was necessarily erroneous. Even more so than for most other claims of specific error, a claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise. In Markarian v The Queen 228 CLR 357 at [27], the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) noted more generally that: [T]here is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. (citations omitted) ... 85. The appellant’s claim that the sentences included some inappropriate concurrency implies that the totality principle was not applied properly; this is probably how the concurrency ground of appeal should have been formulated. 86. The classic statement of the totality principle from Mill v The Queen (1988) 166 CLR 59 (Mill) is set out in Refshauge J’s judgment at [62] above. Counsel for the appellant also referred to the requirement for a sentencing judge to fix an appropriate sentence for each offence before considering accumulation, concurrency and totality (Pearce v The Queen (1998) 194 CLR 610 at [45]), and the need to ensure that the totality principle is not applied so as to allow some of multiple discrete offences, in effect, to go unpunished in the sense that they add no further period to the total sentence (R v Wheeler [2000] NSWCCA 34 at [37], quoted at [50] above). 87. My understanding of how the totality principle as set out in Mill is to be applied is that the sentencing court should first decide on the appropriate sentence for each offence and identify the appropriate degree of concurrency or accumulation having regard to the relationship between the various offences. That combination of sentences and how they are to run will produce a head sentence, which the court must then “take a last look at ... just to see whether it looks wrong”, by reference to the totality of the criminal behaviour and the court’s assessment of “the appropriate sentence for all the offences”. 88. Where the preliminary formulation of the sentence needs to be adjusted in order to achieve what seems to be the appropriate total sentence, this can be done by increasing the concurrency of the various sentences or by reducing individual sentences. 89. The High Court in Mill indicated that increased concurrency is generally to be preferred to reducing individual sentences. Among other things the former approach makes the individual sentences more useful in contributing to the establishment of the range of appropriate sentences for offences of the relevant kind (as mentioned below, a particular issue in a small jurisdiction such as the ACT). 90. I am not convinced that the Mill adjustment process needs to be exposed at any level of detail by a judicial officer in the course of imposing sentence. The individual sentences for each offence will in any case need to be specified. Anything odd about the sentence, such as an unusually high degree of concurrency or of accumulation in respect of any particular offences, might need to be explained, for instance by reference to the impact of the totality principle or to the seriousness of the offences. The final total sentence can be assumed to reflect the judicial officer’s view of the appropriate total sentence having regard to the totality of the criminal behaviour, ... 91. I do not see, however, that the judicial officer needs to spell out his or her “first draft” of concurrency and accumulation in any great detail. Apart from anything else, it will be apparent to a judicial officer with any capacity for mental arithmetic where a particular set of individual sentences is leading him or her, and that result can be adjusted in the course of refining the head sentence without ever having to record the original concurrency and accumulation, let alone all the permutations and combinations that might be “pencilled in” by the judicial officer before an apparently appropriate structure is arrived at. 92. Accordingly, I am not convinced that the process described by Nield AJ was erroneous to the extent that he revealed a process of setting individual sentences, identifying what he considered to be the appropriate total sentence, and then structuring the individual sentences to achieve that result; among other things, this appears to be the last stage of the process described in Mill, which requires the court not to just “[do] the arithmetic [produced by the initial structuring of a set of appropriate individual sentences] and [pass] the sentence which the arithmetic produces”, but to identify the appropriate sentence for the totality of the criminal behaviour and to implement that by adjusting the length of sentences or preferably levels of concurrency.

19. In summary, however, no member of the Court of Appeal in TW accepted the argument that there had been an error in the use of concurrency in setting the sentence.

20. Given the fact that a manifest excess appeal ground is not made out by pointing to a particular error by the sentencing judge, and the fact that, as noted, it is difficult to identify that any particular approach to concurrency is necessarily erroneous, the appeal grounds in this case might have been better expressed as that the sentence on Count 3 was manifestly excessive, and the total sentence was manifestly excessive.

Consideration

17. Against that background, it is convenient to deal with the appeal grounds out of order.

Appeal ground (ii): Count 3

18. The submissions made in support of appeal ground (ii), that the sentence on Count 3 was manifestly excessive, amounted to the assertion that a deception that benefited the offender by an amount of $1,200 did not justify a prison sentence at all, especially since offences with a similar designation committed in Victoria in 2001 had produced only suspended sentences of two months imprisonment (at [30] below).

19. Comparison with earlier sentences imposed on the offender in another jurisdiction is, at least in this case, not particularly helpful to the offender. It draws attention to the fact that the offender was not deterred by the earlier sentences, and to the fact that, given the earlier offending, he has no claim to leniency in relation to the current offences.

20. Nor were any "comparable" sentences, or sentencing statistics, identified to support the argument.

21. The sentence on Count 3 is not manifestly excessive.

Appeal ground (i): the total sentence

22. Counsel made two unrelated submissions about whether the total sentence was manifestly excessive (appeal ground (i)). It is useful to deal first with the submission that the sentences were excessive because they were the first sentences on which the appellant had actually been required to serve any full-time custody. I cannot see that the fact that the appellant had previously been afforded leniency by having prison sentences suspended for similar offences gives him any claim to further instances of such leniency when it is clear that he has not responded to that earlier leniency. In Moutrage v Haines [2008] ACTSC 36 I said:

23. The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend. However, that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short custodial sentence, at least where the offences concerned are relatively less serious. This approach may be founded on a hope that a short custodial sentence might be sufficient to persuade the offender to change his ways, without exposing him for too long to those aspects of prison life that could have a negative rather than a positive effect on his long-term rehabilitation.

24. However, that appeal involved a relatively young offender, and sentences for offences carrying maximum imprisonment penalties of six months (on appeal, his immediate custodial sentence was reduced from seven months to four and a half months). A mature adult who repeats relatively serious offences cannot expect to stay out of prison indefinitely, nor even to receive a particularly short first custodial period.

25. Counsel’s more substantive submission, while conceding that neither of the sentences imposed on the first two counts was manifestly excessive, was that there should have been some concurrency between the sentences for those two offences given that they arose out of a continuing series of events involving the victim Ms Watt; instead of this, the two sentences were entirely accumulated, and separated by the sentence for Count 3, an approach which was not explained by the chronology of the offending or, apparently, by anything else.

26. However, while the sentencing approach was unusual, this does not mean that it has produced a manifestly excessive sentence.

27. A proper application of the totality principle would in my view have required the primary judge to consider whether the total sentence of just under 29 months with a non-parole period of 18 months properly reflected the appellant's criminality, but it is impossible to determine whether his Honour asked himself that question. Furthermore, whether he did or not, the question for this Court is whether his consideration, whatever form it took, resulted in the imposition of a manifestly excessive sentence.

28. That is not a question readily answered simply by an examination of how much concurrency between sentences was provided. For instance, if the sentences for Counts 1 and 2 had been respectively 12 months and 24 months, with the Count 2 sentence concurrent with the Count 1 sentence for nine months, the end result would have been the same but there would have been no basis for complaining about a lack of concurrency.

29. That is, the real issue in this case is not whether the sentence was structured "wrongly", but whether it is simply too long. This requires an examination not just the facts and circumstances of the offences, which are dealt with by Elkaim and North JJ (at [44]-[57] below), but also of the offender’s circumstances, and of comparable sentences and sentencing patterns to the extent that they can be identified.

30. As to the appellant’s personal circumstances, the primary judge had before him a pre-sentence report and a forensic psychiatric report. The pre-sentence report noted that the appellant, who is now 65, grew up with positive family relationships but his childhood in Egypt was difficult as a result of unrest in that country, and that he moved to Australia in his twenties, nearly 40 years ago. His physical health is not particularly good, and he takes medication for various problems. This has affected his capacity for employment and also brought extra financial burdens. His mental health is also in question – there have been various bouts of depression, and he has been medicated for many years with a low dosage anti-psychotic and an antidepressant. At one point he was diagnosed with schizophrenia, but that diagnosis has subsequently been questioned, including by the psychiatrist whose report was tendered at the hearing before the primary judge.

31. The appellant has a significant criminal history in the ACT but it consists almost entirely of traffic offences, except for the offences the subject of this appeal, and two offences described as “theft” and “passing valueless cheques” in 2003, for which he was fined a total of $700. In 2001 he was sentenced in Victoria for three offences of obtaining financial advantage by deception, which appear to have involved the appellant obtaining a total of just over $14,000. The sentences were two months imprisonment each, all concurrent and all immediately suspended with a 12-month good behaviour order.

32. As for comparable sentences and sentencing patterns, I have relied (in the absence of relevant submissions from either party), on the matter of R v Reid [2016] ACTSC 24 (Reid), in which I sentenced an offender to a total of 38 months imprisonment, with eight months to be served in full-time custody, for seven offences of obtaining property by deception. Those offences involved a total sum of just over $338,000 removed from the bank accounts of customers of a bank branch managed by the offender. In explaining the sentences I imposed, and in particular the imposition of a period of full-time custody, I referred to a number of other ACT sentences for the same kinds of offences, as follows:

33. The prosecutor submits that, in relation to offences of this kind, a custodial sentence is normally required, relying on the case of Chaloner that I have already mentioned. In fact Chaloner was a case in which the court concluded that such a sentence was not required in the circumstances of that case. It is worth mentioning that the factors mentioned in reaching this conclusion included that Mr Chaloner’s family had been facing a variety of health problems, both physical and psychological, that he was himself suffering stress and burnout, and that his financial difficulties included the fact that he was trying to pay off a loan from a bank other than his employer, a loan of which his employer would have disapproved. Mr Chaloner had acted on impulse, felt ashamed of what he had done, co-operated fully with police, had already, by the time he was sentenced, repaid a substantial part of the money from his superannuation and long service leave entitlements, and said that he intended to repay the whole amount. 75. The Crown also mentioned the ACT case of R v Tucker (2010) ACTSC, Refshauge J, 30 August 2010 (Tucker), in which Refshauge J noted that crimes involving fraudulent abuse of trust often produced long head sentences but relatively low non-parole periods, especially where there were a limited criminal history, good prospects of rehabilitation and a low risk of re-offending. All these factors are present to some degree in this case. 76. The prosecutor provided a table of sentences in what she saw as generally comparable cases, including Tucker, as well as the cases of [R v West [2015] ACTSC 134] (West); R v Diamond [2015] ACTSC 60; R v Foley [2001] ACTSC 109 (Foley); R v Dibley [2009] ACTSC, Burns J, 16 September 2013 (Dibley); R v Berry [2012] ACTSC, Burns J, 2 October 2012 (Berry); R v Wheeler [2013] ACTSC, Higgins CJ, 22 February 2013 (Wheeler); R v Cousins [2012] ACTSC, Higgins CJ, 26 March 2012 (Cousins); and R v Close [2013] ACTSC, Higgins CJ, 12 August, 2013 (Close). 77. West, Diamond, Foley, Dibley, Berry and Tucker all involved smaller amounts than that taken by Mr Reid, and four of those offenders were required to serve periods of full-time custody or periodic detention. Tucker, a 2009 case, involved a total amount of just over $58,000. Mr Tucker had had a difficult childhood and youth, and he used the money initially in the hope of repairing his troubled marriage. He had abused amphetamines at certain points, and was diagnosed with anxiety and a major depressive disorder which was said to have possibly affected his judgment. He had shown some remorse. Mr Tucker was sentenced to a total of 18 months imprisonment, with six months to be served in full-time custody. 78. The last three of the cases mentioned by the Crown, being Wheeler, Cousins and Close, involved amounts considerably larger than the amount in this case, the lowest of those amounts, in Wheeler, being nearly $520,000. All of those offenders were required to serve at least 12 months of their sentences in full-time custody. Mr Wheeler, whom the Chief Justice accepted as having a gambling addiction was sentenced to five years imprisonment, of which 12 months was served full-time and another six months as periodic detention. 79. Defence counsel submitted that suspended sentences and good behaviour orders, with or without a community service order, would be an appropriate sentence. In support of his submission he drew my attention to the ACT cases of R v Riordan [2015] ACTSC 26 (Riordan); R v Gibbs [2013] ACTSC 293 (Gibbs); R v CK [2014] ACTSC 188 (CK), where a deferred sentence was imposed; and R v Wsol [2015] ACTSC 112 at [27]; [28] (Wsol). 80. Riordan involved two charges arising from the dishonest taking of money from the offender’s employer. The offences involved a total of nearly $53,000, which was taken in several transactions over a period of about eight months. The offender had a troubled childhood involving physical and sexual abuse and then entered an abusive adult relationship. She had several children, including one who seemed to be an illicit drug user who was often in trouble with police and also had financial problems. 81. Ms Riordan had had contact with mental health services over a number of years, although there was no diagnosable mental health condition present at the time of sentencing. The money taken had been used to help her son with his debts and to try to improve the quality of life of her family. The sentencing Judge said that there was nothing indicating that she had made any luxury purchases or otherwise pursued personal enrichment. She was sentenced to imprisonment for 21 months, which was fully suspended subject to a good behaviour order and 300 hours community service. 82. The cases of Gibbs, CK and Wsol concerned offences constituted by the use of stolen credit cards, and involved amounts respectively of $1,400, $1,200 and $3,200. All three offenders had compelling personal circumstances involving such things as dysfunctional family backgrounds, childhood sexual abuse, substance abuse, and mental health problems over many years. 83. In my view, only Ms Riordan’s case is any way comparable to Mr Reid’s case, and it too is distinguishable to the extent that it involved a considerably smaller amount of money, a less offensive abuse of her position of trust, and an explanation for her offending arising from her personal circumstances that clearly engaged the sympathy of the sentencing Judge. None of the other three cases mentioned by counsel for Mr Reid involved any breach of a position of trust or authority, and all involved vastly smaller amounts of money; having regard also to the personal circumstances of the various offenders, I conclude that none of those three cases is properly comparable with the current matter. 84. The ACT sentencing database statistics provided by the prosecutor indicated that of all the 260 examples of the relevant offence recorded on the database, involving apparently 260 different offenders, 9% of offenders received only a good behaviour order, 2% received fully suspended prison sentences, 43% received partly suspended prison terms, and 45% received prison terms, presumably with non-parole periods. 85. I have not found anything in Mr Reid’s case that would distinguish it from the nearly 90% of cases in which offenders convicted of these kinds of offences are expected to serve some of a term of imprisonment. There will be a requirement of custodial time, although I propose to suspend the sentence in due course rather than to set a non-parole period.

34. This case is less serious than many of those mentioned in Reid in that it does not involve any breach of a position of trust or authority, only a willingness to take advantage of vulnerable victims. Like many of the offenders mentioned (but unlike Mr Reid), the appellant has had various difficulties in his health and personal circumstances, although nothing that appears to fall into the same category as the troubles that afflicted Ms Riordan.

35. Having regard to the circumstances of these offences, including the absence of a breach of a position of trust or authority, the personal circumstances, particularly the age and health problems, of the appellant, and the material canvassed in Reid and referred to above, I am satisfied that the total sentence imposed on the appellant is manifestly excessive.

Re-sentence

34. I also agree that the total sentence should be reduced to two years imprisonment, and the non-parole period to 16 months, as proposed by Elkaim and North JJ, and that the reduction in the head sentence should be achieved by providing for some substantive concurrency between the sentences.

35. However, I do not agree that the sentence for Count 3, involving an entirely separate incident with a different victim, should be wholly concurrent with the sentence for Count 2. Rather, the last two months’ concurrency should be achieved by providing for five months’ rather than three months’ concurrency for the sentences on the related Counts 1 and 2, or, at worst, four months’ concurrency between those two sentences and one month’s concurrency between the sentences on Counts 2 and 3.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Penfold J.

Associate: D Hoitink

Date: 5 December 2016 Elkaim and North JJ:

Introduction

36. The appellant appeals against a sentence imposed by Acting Justice Robinson on 16 December 2015. The appellant had previously pleaded guilty to three offences.

37. The three offences were:

Count 1: Obtaining property by deception between 30 July 2012 and 4 August 2012. He was sentenced to a period of imprisonment of 9 months commencing on 10 August 2015 and ending on 9 May 2016.

Count 2: Obtaining property by deception between 15 August 2012 and 22 August 2012. He was sentenced to a period of imprisonment of 18 months commencing on 8 July 2016 and ending on 7 January 2018.

Count 3: Obtaining property by deception between 3 January 2013 and 8 January 2013. He was sentenced to a period of imprisonment of 2 months commencing on 9 May 2016 and ending on 8 July 2016.

38. Each of the counts was an offence contrary to s 326 of the Criminal Code 2002 (ACT). The maximum term of imprisonment for each offence is 10 years or a fine of $150,000 or both.

39. The sentences were structured in such a way that the total period of imprisonment was 29 months ending on 7 January 2018. A non-parole period of 18 months was imposed, commencing on 10 August 2015 and ending on 10 February 2017.

40. In addition to the terms of imprisonment, reparation orders were made in the total sum of $94,200.

41. Following an amendment made by consent at the commencement of the hearing, the two grounds of appeal were:

(i) That the Acting Justice erred when applying the principle of totality, namely only two days of concurrency with respect to all counts, such that the total aggregate sentence imposed was not just and appropriate and is manifestly excessive.

(ii) The sentence imposed by the Acting Justice on Count 3 is manifestly excessive.

42. In effect, the appellant has two complaints about the sentences imposed: Firstly, that the sentencing judge made an error in applying the principle of totality because there was only two days of concurrency in the sentences. Consequently, the result was a manifestly excessive total sentence. Secondly, that the sentence imposed for Count 3 was manifestly excessive.

43. Notably the appellant does not assert that the individual sentences for Counts 1 and 2 were excessive. Rather he says that the absence of any degree of concurrency of the sentences has produced the error of a manifestly excessive total sentence. The facts behind the offences

44. The statement of facts placed before the sentencing judge commences at page 66 of the Appeal Book. The following is a summary.

45. Count 1: In July 2012 the offender met a Ms Watt at a club in Woden in the ACT. The appellant held himself out as a businessman. In fact his only income was from a disability support pension. They agreed to a business arrangement in which they would both contribute money to a business which purchased wine in New South Wales and resold it to restaurants in Canberra. The appellant was to be responsible for the purchase of the wine.

46. Under the agreement each of the appellant and Ms Watt were to pay $20,000 into an ANZ bank account. The account was in the appellant’s name. It did not then contain any funds. Ms Watt placed $17,000 in the account and later gave the appellant $3,000 in cash. The appellant made no contributions to the account. Rather he withdrew all the money that Ms Watt had put into the account. He spent it on personal matters not related to the proposed business.

47. The business did not eventuate and Ms Watt was deprived of her funds.

48. Count 2: In August 2012 the appellant again met Ms Watt at the same club in Woden where he proposed a new agreement. This time the agreement involved him providing finance to Ms Watt for the purpose of buying a property. However before this could occur, Ms Watt was required to transfer $114,000 (but with credit for the previously paid $20,000), to the appellant. Once again the appellant held himself out as a businessman.

49. Ms Watt, an assistant nurse living in a two-bedroom unit with her five children, wanted to improve her lodgings and so was attracted to the arrangement. She withdrew $80,000 from the redraw facility of her mortgage loan and transferred it to an account she held at the Commonwealth Bank. Over the next few weeks she paid $73,000 to the appellant pursuant to the new agreement.

50. No property was ever purchased and the appellant used Ms Watt’s monies for his own purposes. At one stage the appellant gave Ms Watt a cheque in her favour in the sum of $114,000 drawn on the ANZ bank account. Ms Watt deposited the cheque but it was dishonoured.

51. Count 3: On 4 January 2013, a Ms Khan was in the Magistrates Court Registry discussing legal proceedings in which arrears under a mortgage account were being pursued. The appellant overheard the conversation at the Registry counter. After Ms Khan left the counter he offered to help her with her financial problems.

52. Ms Khan told the appellant that she needed to pay $5,000 in order to satisfy the legal proceedings. She said she only had $1,000 available. The appellant agreed to provide the balance provided Ms Khan first gave him that $1,000.

53. Ms Khan gave the appellant the $1,000 later on the same day. The appellant gave Ms Khan a cheque payable to her for $1,000. The cheque was drawn on an account at the People’s Choice Credit Union. At this time the account was overdrawn.

54. The appellant and Ms Khan made their way to the Service One Credit Union for the purpose of depositing the $1,000 in cash that Ms Khan had earlier given to the appellant. The appellant asked Ms Khan to remain outside the premises while he went inside to make the payment. He did go inside but he did not make any payment. He kept the money for his own purposes.

55. The following day Ms Khan challenged the appellant about the $1,000. He said he had paid it into the wrong account.

56. On 7 January 2013 the appellant offered to provide Ms Khan with a cheque for $14,000 if she were to pay him $300 per week. The cheque would have met Ms Khan’s mortgage arrears. She agreed to the arrangement and gave the appellant $200 in cash as a first instalment. He gave her the cheque for $14,000. The cheque, after being deposited, was dishonoured.

57. The appellant received a total of $1,200 in cash from Ms Khan. He spent it for his own purposes.

The approach taken by the sentencing judge

58. Commencing at page 48 of the Appeal Book, his Honour first of all set out the facts of each offence. His Honour noted the personal circumstances of the appellant including his mental health problems.

59. A discount of “approximately 10%” was allowed for the pleas of guilty. His Honour also considered the appellant’s criminal history. He said:

This is far from the worst criminal record, particularly when one looks at the detail of it but it does not provide much scope for leniency with regard to the current offences.

60. His Honour’s comments about leniency can be well understood when looking at the appellant’s criminal history (AB 61). Besides driving offences, there are offences of dishonesty including offences committed in Victoria (AB 65). In 2001 there are convictions for three offences of obtaining a financial advantage by deception.

61. As already noted, there is no complaint about the individual sentences for Counts 1 and 2. In respect of Count 3, in his description of the facts, his Honour noted that:

....this was a crime of opportunity as opposed to the offender’s dealings with Ms Watt which preceded from some type of personal engagement between the two people..... I would not characterise this as a breach of trust. It was the exploitation of a friendship or acquaintanceship of some type. (AB 50)

62. His Honour also noted that Ms Khan was facing eviction when she fell prey to the appellant’s deceptive conduct.

Principles

63. It is first of all necessary, as the parties have done in their respective written submissions, to set out some relevant principles.

64. The question of whether or not a sentence is manifestly excessive was discussed recently in this court in Zradkovic v The Queen [2016] ACTCA 53. Commencing at paragraph 51 the Court said:

[51] A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61]. [52] When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.

65. Both parties referred the Court to the principles set out in Mill v The Queen [1988] HCA 70; 166 CLR 59, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v Wheeler [2000] NSWCCA 34.

66. In Mill, the High Court approved this statement of principle, quoting from nd Thomas, Principles of Sentencing, 2 edition:

The principle has been stated many times in various forms: ' when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. (pages 56-57).

67. In Pearce, McHugh, Hayne and Callinan JJ, in the High Court said this at paragraph 45:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

68. In Wheeler, Sully J said:

[36] The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. [37] It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.

69. It is also worth mentioning the comments of Button J in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] as follows (Hoeben CJ at CL and Garling J agreeing at [1] and [2]):

But it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences (though I appreciate that it is the submission of the Crown that many of these were erroneous as well), and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.

70. Penfold J made similar comments to Button J in R v TW (2011) 6 ACTLR 18.

71. In addition the High Court has said that manifest excess is to be inferred from the overall result. Gleeson CJ and Hayne J, in Dinsdale v R [2000] HCA 54; 202 CLR 321 at paragraph 6 said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

Consideration of the appeal

72. In respect of Count 3, the appellant submitted that the small amount of $1,200 involved in the deception did not justify a prison sentence, in particular noting that the earliest offences, in Victoria, which were of a similar nature had resulted in suspended sentences.

73. The approach taken by the courts in the earlier matters is of course relevant but more important is the fact of the offence relating to Ms Khan, coming after the earlier crimes, indicating that the appellant had not ‘changed his ways’. This called for a more stringent sentence.

74. In the view of this Court it cannot be said, against the background of the appellant’s criminal history and the facts behind Count 3, that the term of imprisonment of 2 months is manifestly excessive.

75. As noted in the authorities, the appellant is attacking a discretionary decision. Success requires a reaction by the appellate court that this discretion resulted in a plainly unjust result. This Court does not think that is the case here.

76. The maximum penalty was 10 years imprisonment. Offences of deception are clearly regarded as serious. The appellant took advantage of a vulnerable person, facing eviction, and no doubt initially very relieved at the arrival of a saviour to address her financial problems and allow her to reside in her home without threats from the mortgagee hanging over her head.

77. The amount taken by the appellant may have been relatively small but it was part of a deception which had greater aspirations, at least to the extent that Ms Khan may have continued to repay the dishonestly proffered $14,000.

78. Turning to the question of totality, notwithstanding the two-day overlap of sentences, the result of the commencement dates is an effective accumulation of the three sentences.

79. There can be no argument that accumulation of Count 3, being related to an entirely separate victim, is justified. In the view of this Court the same cannot be said in respect of Counts 1 and 2. Not only is there no concurrency between the respective sentences but they are actually separated by the sentence for Count 3.

80. The decisions in Nguyen and TW must remind an appellate court that it should not engage in an overly technical analysis of how an aggregate sentence is made up. The difficulty here is that there has been no aggregation.

81. The result is that there is a manifestly excessive sentence, this being a conclusion based on the overall sentence imposed, rather than based on the separate sentences imposed for each count.

82. There are of course instances where accumulation will be appropriate, especially where the individual offences have no relationship to each other. That is not the case with Counts 1 and 2. It is correct that each count referred to a different act of deception on Ms Watt. However the two acts of deception were part of the appellant’s improper dealings with Ms Watt and followed the consistent pattern of taking advantage of her.

83. Although his Honour referred to Mill in his sentencing remarks (AB 53), he has not actually achieved any degree of concurrency, other than the two days.

84. This Court is of the view that there should have been a degree of concurrency as between the sentences for Counts 1 and 2. The absence of concurrency creates a manifestly excessive sentence viewed in accordance with the above principles.

85. The Court accordingly thinks the appeal should be allowed in respect of Counts 1 and 2. The individual sentences should remain as imposed but there should be a degree of concurrency between them. The sentence for Count 3 should remain the same but its commencement date altered to recognise that it is an entirely separate offence to Counts 1 and 2.

86. To achieve the appropriate level of concurrency the starting date for the sentence for Count 2 should be 10 February 2016 and end on 9 August 2017. Further, Count 3 is to commence on 10 June 2017 and end on 9 August 2017. The non-parole period should be adjusted to a period of 16 months from 10 August 2015. This makes the appellant eligible for parole on 9 December 2016.

87. The orders of the Court are:

(i) The appeal is upheld in part.

(ii) The commencement date for the sentence for Count 2 is set aside.

(iii) In lieu thereof, the sentence for Count 2 is to commence on 10 February 2016 and end on 9 August 2017.

(iv) The commencement date for the sentence for Count 3 is set aside.

(v) In lieu thereof, the sentence for Count 3 is to commence on 10 June 2017 and end on 9 August 2017.

(vi) The non-parole period is set aside.

(vii) A fresh non-parole period is set to expire on 9 December 2016. I certify that the preceding paragraphs numbered thirty-six to eighty-seven [36]-[87] are a true copy of the Reasons for Judgment of their Honours Elkaim and North JJ.

Associate: V Wei

Date: 5 December 2016