Giordano v The Queen; Giordan v The Queen; Cosentino v The Queen [2010] VSCA 101

1 I agree, for the reasons given by Mandie JA, that leave to appeal should be refused in the case of the applicants Giordano and Giordan. I also agree that leave to appeal should be granted in the case of Cosentino, and that he should be re-sentenced in the manner proposed by his Honour.

2 The Court has before it applications for leave to appeal against sentence by Massimo Robert Giordano[1] ('Mr Giordano'), Frank Giordan,[2] one of Mr Giordano's brothers ('Mr Giordan'), and Salvatore Cosentino[3] ('Mr Cosentino'). Each of them pleaded guilty to a number of counts arising from the same or a similar set of circumstances. The principal offences were, in respect of each of them, offences of dishonestly obtaining a financial advantage from the City of Whittlesea by deception in relation to false invoices presented to the City.

3 Mr Giordano was the principal offender. On 13 February 2003 he commenced employment with the City of Whittlesea as its Manager, Information Technology.

4 On 14 January 2005, Satellit Solutions Pty Ltd ('Satellit') was registered by ASIC with Mr Giordan as director. On 18 January 2005 Cos Computer Technology Pty Ltd ('Cos') was registered by ASIC with Mr Cosentino and his wife as directors. On 19 January 2005 a bank account was opened in the name of Cos and the signatories were Mr and Mrs Cosentino. On 27 January 2005 a bank account was opened in the name of Satellit in trust for the Giordan Family Trust. On 7 May 2007, 3G TEC Pty Ltd ('3G TEC') was registered by ASIC with Mr Giordano as sole director, secretary and shareholder and shortly thereafter a bank account was

5 An agreement was made between Mr Giordano and Mr Cosentino that false invoices be submitted in the name of Cos to the City of Whittlesea ostensibly in respect of IT equipment supplied to the City of Whittlesea. Mr Giordano created false order forms for the equipment and facilitated the processing of the false invoices so that payment would be made on them. A like agreement with the same purpose was made between Mr Giordano and Mr Giordan in relation to the submission of false invoices in the name of Satellit to the City of Whittlesea, again ostensibly in respect of the supply of IT equipment. False invoices were submitted to the City of Whittlesea in accordance with those agreements, and, in addition, Mr Giordano submitted false invoices in the name of 3G TEC to the City of Whittlesea and obtained payment thereof, again ostensibly in respect of the supply of IT equipment to the City.

6 Between 23 February 2005 and 27 August 2008, the City of Whittlesea made payments, in respect of the fraudulent invoices as follows:

• 35 payments totalling $874,875.64 by electronic funds transfer to the bank account of Cos;
• 12 payments totalling $294,624.00 by electronic funds transfer to the bank account of Satellit;
• 12 payments totalling $381,668.10 by electronic funds transfer to the bank account of 3G TEC.

7 On 26 August 2008, one Dorothy Trevan, a management accountant employed by the City of Whittlesea, discovered an anomaly in a transaction inquiry and investigations commenced. Certain payments were recorded on computer as having been made to 3G TEC but no hard copy documents could be located. On 1 September 2008, the computer data that had been found by Trevan on 26 August 2008 was found to be deleted but on the same date it was ascertained that the business address of 3G TEC was the same as Mr Giordano's home address. Inquiries continued and it was found that other computer records had been deleted, information as to 3G TEC being a creditor had been removed from the computerised creditor master file, most of the computerised records of purchase orders in respect of 3G TEC had been reset to $0, hard copy invoices in the name of Cos were missing as was the hard copy new creditor form for that company, the computerised record of most of the purchase orders in respect of Cos had been reset to $0 and information as to Satellit being a creditor had been removed from the computerised creditor master file.

8 The foregoing removal of documentation and deletion of computer information had been carried out by Mr Giordano. Mr Giordano was suspended from duty on 3 September 2008. The Forensic Services Division of PriceWaterhouseCoopers was retained by the City of Whittlesea the next day and members of that Division met with Mr Giordano and his solicitor on 12 September 2008 and, on 18 September 2008, Mr Giordano's solicitor provided them with some documentation. The police became involved and commenced an investigation.

9 In late September 2008, the full amount received by Cos on the basis of false invoices was refunded to the City of Whittlesea. Subsequently, all monies received by Satellit and 3G TEC on the basis of the false invoices were repaid to the City.

10 On 16 October 2008 the police executed a number of search warrants and interviewed each of the applicants. In substance, Mr Giordano and Mr Giordan made substantial admissions of their offences. At that time, Mr Cosentino made no comment answers to the questions put to him by the police.

11 Each of the applicants was subsequently charged with a number of offences and it is sufficient to say that they each pleaded guilty at the earliest reasonable opportunity.

12 After hearing a plea in mitigation on 14 and 15 September 2009, the County Court judge sentenced the applicants on 25 September 2009 to terms of imprisonment. So far as relevant, they were each sentenced on a variety of counts of obtaining financial advantage by deception over the relevant period.

13 The learned sentencing judge said that nearly all of the counts upon which the applicants were presented were rolled up counts. However, the judge said, there were three counts, namely, counts 2, 6 and 12, to which it 'was agreed' that the continuing criminal enterprise offender provisions contained in ss 6G, 6H and 6I of the Sentencing Act applied. The judge said that the maximum penalty for counts 2, 6 and 12 was therefore 20 years' imprisonment rather than the maximum of 10 years' imprisonment that applied to all the other counts. On its face, these comments would seem to have applied to all applicants to the extent that Mr Giordano and Mr Giordan were both charged with count 2 and Mr Giordano and Mr Consentino were both charged with count 6. However, according to the returns signed by the judge, I note that, whereas it is recorded that the Court dealt with Mr Giordano as a continuing criminal enterprise offender in respect of counts 2, 6 and 12, Messrs Giordan and Cosentino are not recorded as having been dealt with on that basis.

14 After outlining the circumstances of the offending, the judge turned to deal with each of the applicants in turn.

15 In relation to Mr Giordano, the judge said that he took into account his early pleas of guilty, his genuine remorse, good prospects of rehabilitation and the full restitution of all monies fraudulently obtained. The judge said that he took into account Mr Giordano's personal circumstances, including those referred to in a psychologist's report. The judge noted that, although the psychologist had said that Mr Giordano was to some extent suffering from a depressive disorder, and his counsel had said that no reliance was placed on the principles stated in Verdins,[4] he had nevertheless generally taken into account his mental condition. The judge noted his good employment history and the character references provided. He said that Mr Giordano's wife had left him and that he also had little or no remaining assets.

16 In relation to Mr Giordan, the judge said that he had taken into account his early plea of guilty, his genuine remorse, his good prospects of rehabilitation, his good employment history and the full restitution of the money that he had fraudulently received.

17 In relation to Mr Cosentino, the judge said that he had taken into account his early plea of guilty, his genuine remorse and his full restitution of the monies obtained. The judge referred to a report from Dr Ingram, treating psychiatrist, to the effect that Mr Cosentino suffered from depression. The judge said that Dr Ingram had also given viva voce evidence to the effect that Mr Cosentino had been suffering from significant and severe depression for a considerable period of time and that Dr Ingram had testified that depression was a severe psychiatric illness that is likely to have had a significant effect on Mr Cosentino's judgment in becoming involved in his illegal activity. The judge said that he accepted that Mr Cosentino's judgment was impaired by his mental condition and that this had contributed to him making unwise decisions and that, accordingly, his moral culpability was lower than what normally would have been the situation. The judge referred to Dr Ingram's opinion that a custodial sentence would lead to a significant deterioration in Mr Cosentino's depression and anxiety with an associated suicidal risk. The judge said that he accepted Dr Ingram's evidence including his evidence in relation to the likely effect of gaol. The judge said that the principles in Verdins 'have been triggered and there should be a sensible moderation in the application of both general and specific deterrence in arriving at an appropriate sentence'.

18 The judge referred to Mr Cosentino's good prospects of rehabilitation and noted that he ran a successful business with the assistance of his wife.

19 In relation to all of the applicants, the judge said that, against the matters in mitigation that he had mentioned, each of them had committed serious crimes. They had each played a part in perpetrating a significant fraud over a number of years against a public institution and that '[p]rinciples of denunciation, general deterrence and specific deterrence, all have their part to play in this sentencing exercise'. The judge said that general deterrence must loom large in the sentencing process in this class of white collar crime. The judge referred to the victim impact statement which, he said, had particular significance in the case of Mr Giordano.

20 The judge said he had given anxious consideration to the question of parity, taking into account the roles that each of them had played, their antecedents, personal circumstances, and prospects for rehabilitation. The judge said that Mr Giordano played the most significant role as the real facilitator of these frauds and that he had committed a serious breach of trust. The judge said that Mr Cosentino's role was next in line, having regard to the amount with which he was involved and the period over which the offences occurred. In relation to Mr Giordan, the judge noted that he was involved in only 4 of the counts of the presentment and that this had occurred over a much shorter period of time and that Mr Giordan had 'stopped voluntarily' in his criminal activities.

21 After discussion of the appropriate sentencing range, his Honour pronounced the various sentences that would be imposed.

22 In respect of Mr Giordano, the total effective sentence imposed was 5 years and 4 months with a non-parole period of 3 years and 7 months. In respect of Mr Giordan, the total effective sentence imposed was 2 years with a non-parole period of 1 year and 4 months. In respect of Mr Cosentino, the total effective sentence imposed was 3 years and 3 months with a non-parole period of 2 years. That result was reached as follows:

23 In respect of Mr Giordano, as shown in the above table, the judge directed that 1 month of the sentence imposed on count 1, 2 months of the sentence imposed on count 2, 4 months of the sentence imposed on count 3, 2 months of the sentence imposed on count 4, 6 months of the sentence imposed on count 5, 2 months of the sentence imposed on count 6, 4 months of the sentence imposed on count 10, 4 months of the sentence imposed on count 11, 2 months of the sentence imposed on count 12 and 1 months of the sentence imposed on count 13 be served cumulatively upon each other and upon the sentence imposed on count 8. As I have said, that resulted in a total effective sentence of 5 years and 4 months and a non-parole period was fixed of 3 years and 7 months. Mr Giordano was sentenced as a continuing criminal enterprise offender pursuant to s 6J of the Sentencing Act 1991 (Vic) in respect of counts 2, 6 and 12. The Court declared pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty, Mr Giordano would have received a total effective sentence of 6 years and 8 months with a non-parole period of 4 years and 5 months.

Ground 1: The total effective sentence and the non-parole period are manifestly excessive.

Ground 2: The learned judge erred in failing to give a sufficient discount for the applicant's early plea of guilty.

25 In respect of Mr Giordan, as shown in the table above, the judge directed that 1 month of the sentence imposed on count 1, 3 months of the sentence imposed on count 2, and 4 months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3.[5] As I have said, that resulted in a total effective sentence of 2 years and a non-parole period was fixed of 1 year and 4 months. The Court declared pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty, Mr Giordan would have received a total effective sentence of 2 years and 6 months with a non-parole period of 1 year and 8 months.

Ground 1: The learned sentencing judge failed to have sufficient regard to the principle of parity/disparity.

Ground 2: The learned sentencing judge erred in failing to have sufficient regard to the applicant's plea of guilty.

Ground 3: The learned sentencing judge erred in his consideration of the applicant's minimum non-parole period.

Ground 4: The sentence imposed is manifestly excessive.

27 In respect of Mr Cosentino, as shown in the table above, the judge directed that 6 months of the sentence imposed on count 5, 2 months of the sentence imposed on count 6, 5 months of the sentence imposed on count 7 and 3 months of sentence imposed on count 9 be served cumulatively upon each other and upon the sentence imposed on count 8. The Court declared pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty, Mr Cosentino would have received a total effective sentence of 3 years and 10 months with a non-parole period of 2 years and 6 months.

28 Mr Cosentino's proposed grounds of appeal, grounds 2 and 5 having been abandoned, are:

Ground 1: The learned sentencing judge erred in the exercise of his discretion in imposing sentence upon the applicant on count 6 on the basis that the maximum penalty for the offence the subject of count 6 was 20 years' imprisonment.

Ground 3: The learned sentencing judge failed to accord any, or sufficient, weight to the mental state of the applicant (both at the time of the offending and at the time of the imposition of sentence), and the consequences of same.

Ground 4: The sentence imposed is, in all the circumstances of the case, manifestly excessive.

Ground 6: There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the applicant), by reason of the deterioration in the applicant's mental state and psychiatric condition subsequent to the imposition of sentence, and the consequences of same, as evidenced in the affidavit material filed herein.

29 Under cover of ground 1, Mr Giordano submitted that all components of the total effective sentence, and the non-parole period, fell outside the range of a sound discretionary judgment having regard in particular to the numerous mitigating factors, namely:

(a) early plea of guilty

(b) genuine remorse

(c) cooperation with the City of Whittlesea prior to police involvement

(d) full cooperation with the police including admissions

(e) voluntary restitution to the City of Whittlesea

(f) consistent history of employment

(g) voluntary work

(h) no prior convictions or imprisonment

(i) evidence of good prior character

(j) devastating consequences of imprisonment including separation from wife and young child

(k) complete loss of assets

(l) the applicant was suffering from a depressive disorder and imprisonment was likely to lead to a deterioration of his mental health

(m) good prospects of rehabilitation.

30 It was submitted that, even accepting the aggravating circumstances of the offending, insufficient weight had been given to the above mitigating factors.

31 Mr Giordano further submitted that the high level of cooperation was of particular importance in a complex fraud case such as the present which was difficult to investigate and prosecute.

32 Under cover of ground 2, it was submitted that, in relation to the plea of guilty, the discount of 20 per cent on the total effective sentence and 18.8 per cent on the non-parole period was too little for the early pleas of guilty in this case. An early plea of guilty accompanied by admissions, remorse and good prospects of rehabilitation should have attracted a 'high',[6] 'substantial',[7] 'large' or 'very considerable' discount. Hardly anybody would plead guilty to serious crimes without a substantial discount. It was therefore submitted that there should have been a discount of 33 per cent for Mr Giordano or, at least, a discount significantly greater than the one given. In that regard, it was also submitted that the strength of the case against an offender was not generally relevant to the appropriate discount to be allowed for a guilty plea.

33 In relation to ground 1, the respondent submitted in answer that the total effective sentence and the non-parole period were well within range and reflected the fact that all mitigating factors were given appropriate weight by the judge in a most carefully crafted sentence. It was submitted that it had to be borne in mind that Mr Giordano was the mastermind of a series of sophisticated fraudulent transactions, involving 59 false invoices and the deletion of computer records, resulting in a financial advantage of approximately $1.5M over a period of three and a half years, and the offending constituted a gross breach of trust as an employee of the City of Whittlesea. It was submitted that the judge had correctly identified general deterrence as a powerful sentencing factor. In addition the applicant had qualified as a continuing criminal enterprise offender leading to a maximum term of 20 years in relation to counts 2, 6 and 12 (the other offences carried a maximum term of 10 years). Further, the applicant had expressly disavowed any reliance on the principles in Verdins.[8]

34 The respondent further submitted that while it was accepted by the judge that Mr Giordano's initial motivation was to assist his older brother (Tony Giordano) with some debts, the applicant was also motivated by greed. The respondent also referred to a victim impact statement that had been tendered on the plea showing that, despite full restitution of the monies fraudulently obtained, the City of Whittlesea had suffered additional cost and its employees considerable anxiety and stress as a result of these offences.

35 Finally, the respondent submitted that it could not be said that the sentence was one that no reasonable judge could have imposed and neither the total effective sentence nor the non-parole period could be categorised as 'obviously wrong'.[9]

36 The respondent repeated the above submissions in relation to ground 2. The respondent submitted that sufficient weight had been given to the plea of guilty in the circumstances of these serious offences and the need to emphasise general deterrence and that it was inappropriate to apply a mechanistic or formulaic approach to the question, such as that suggested on behalf of the applicant, because it 'flies in the face of instinctive synthesis and established legal principles'.

37 The respondent's submissions in relation to ground 1 should be accepted and I adopt them.[10] In my opinion, neither the total effective sentence nor the non-parole period were manifestly excessive.

38 In relation to ground 2, it is to be noted that the sentencing judge expressly referred to the early pleas of guilty by all of the applicants and the genuine remorse shown by them. His Honour made no express reference, in that regard, to the strength of the case against them. However, the question whether the strength of the case might be taken into account in relation to the discount appropriate for a plea of guilty was raised by the Court and debated by counsel.

39 In R v Ellis,[11] Street CJ (with whom Hunt and Allen JJ agreed) said:

This Court has said on a number of occasions that a plea of guilty will

entitle a convicted person to an element of leniency in the sentence. The

degree of leniency may vary according to the degree of inevitability of

conviction as it may appear to the sentencing judge, but it is always a factor

to which a greater or lesser degree of weight must be given.

When the conviction follows upon a plea of guilty, that itself is the result of

a voluntary disclosure of guilt by the person concerned, a further element of

leniency enters into the sentencing decision. Where it was unlikely that guilt

would be discovered and established were it not for the disclosure by the

person coming forward for sentence, then a considerable element of leniency

should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose

both the fact of an offence having been committed and confession of guilt of

that offence.

The leniency that follows a confession of guilt in the form of a plea of

guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.

40 The above passage was referred to with apparent approval by this Court in R v BF[12] and the Court there also noted, in relation to admissions, that the degree of weight to be given to an admission varied according to the likelihood of the offence being discovered and the likelihood of guilt having been established against the offender in the absence of this admission.

41 In R v Pajic,[13] Redlich JA (with whom Ashley JA agreed) referred to what was said by Street CJ in R v Ellis. His Honour recognised that '[o]ne of the matters which may affect the appropriate discount to be allowed for a plea of guilty is the strength of the Crown case,'[14] citing R v Donnelly,[15] in which Charles JA said that the assessment of an appropriate discount for a plea of guilty would vary greatly depending on many matters including the strength of the case against the accused.[16] Redlich JA went on to state, in Pajic, that the strength of the Crown case would have no bearing upon that part of the discount for a plea of guilty which was to be allowed by virtue of utilitarian considerations.[17] That statement was supported by authority in New South Wales, to which his Honour referred,[18] to the effect that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount for a guilty plea which is attributed to purely utilitarian considerations but only had bearing upon that aspect of the discount that related to the elements of remorse or contrition and prospects of rehabilitation as reflected by the plea of guilty.[19]

42 It might be thought that the foregoing statements assume a degree of precision that is impossible in the sound exercise of a sentencing discretion. As was said by the Court of Appeal[20] in DPP v Nguyen:[21]

A sentencing judge possesses a wide discretion in interpreting the quality and sentencing implications of a plea of guilty and may take into account a range of matters including the strength of the Crown case; the fact that witnesses and the victim's family and friends are spared the trauma of a trial; the community benefit in terms of the time, convenience and money saved; and the demonstrated remorse of the accused.

43 Thus, the appropriate discount for a plea of guilty in a given case as much involves the exercise of an intuitive synthesis of all relevant factors as does any other aspect of the exercise of the sentencing discretion. It is important to take into account the utilitarian value of a guilty plea but it is likewise relevant in considering the appropriate discount to be allowed for such a plea to take into account the strength of the Crown case, even if that be viewed as relevant only to the level of remorse reflected by the guilty plea.

44 In the end, it is not necessary to consider the relevance of the strength of the case in relation to the plea of guilty by Mr Giordano (or by the other applicants). The sentencing judge recognised that Mr Giordano was entitled to a significant or substantial discount for his plea of guilty reflecting both the utilitarian value of the plea and the genuine remorse reflected by the plea and generally and his Honour did not purport to take into account the considerable strength of the Crown case in arriving at the appropriate overall discount for the guilty plea.

45 Mr Giordano's submissions focussed attention on what was said to be the inadequacy of the percentage discount ascertained by a comparison of the actual sentence and the notional or hypothetical sentence stated by the judge pursuant to s 6AAA of the Sentencing Act 1991. The difficulty of hypothesising what sentence would have been imposed if the offender had not pleaded guilty was well explained by Kaye J in R v Flaherty (No 2).[22] His Honour there referred to the problem of hypothesising that sentence 'if all the other circumstances of the case were the same'[23] but I would add that presumably the 'other circumstances' that remained the same could not include matters that were inextricably or necessarily involved with the plea of guilty, such as, in a given case (like this one), the aspects of admissions, remorse and restitution. No doubt it would also have to be presumed that a not guilty plea would have carried with it a contested trial. These considerations highlight the difficulty and artificiality of the exercise under s 6AAA.

46 It seems to me that the sentence imposed properly reflects the criminality involved after taking into account all of the relevant mitigating circumstances including the plea of guilty. In other words, taking into account all relevant sentencing considerations, the sentence imposed was within range.[24] I do not think that it is helpful to advance an argument based on percentages. In any event, in the present case, it seems to me that the actual percentage discount reflected by a comparison of the sentence imposed with the sentence stated under s 6AAA does not betoken error. Nor is there anything in the judge's reasons to suggest that any of the relevant considerations was overlooked or given inappropriate weight. If, contrary to my view, it were thought that the percentage discount allowed was inadequate then it seems to me that the more likely explanation is that the judge erred, not in relation to the sentence imposed by him, but in relation to his estimation of the notional or hypothetical sentence stated pursuant to s 6AAA.

47 Under cover of ground 1, Mr Giordan submitted that a comparison of the respective individual sentences and orders for cumulation, and of the total effective sentence and the non-parole period, as between himself and Mr Giordano, revealed that the judge had erred in failing to impose sufficiently disparate sentences. It was submitted that important distinguishing features were that the offending of Mr Giordano involved a very significant breach of trust, that Mr Giordano had a greater role in the joint offending, that Mr Giordan had voluntary desisted from the joint offending after June 2006 and that Mr Giordan had alone made full restitution of all of the money obtained as a result of the joint offending. In addition, the maximum penalty on count 2 was 20 years for Mr Giordano but only 10 years for Mr Giordan. In aid of the foregoing, it was further submitted that the individual sentences imposed on Mr Giordan in relation to counts 1 to 4 were too close to the individual sentences imposed on Mr Giordano in respect of the same counts and that the approach of the judge to cumulation in relation to counts 1, 2 and 4 was erratic when compared with cumulation as to the same counts in relation to Mr Giordano. For example, there was the same degree of cumulation (1 month) in respect of count 1 and greater cumulation in respect of counts 2 and 4.

48 Under cover of ground 2, it was submitted that the 20 per cent discount on account of the plea of guilty did not take sufficient account of that early plea together with the other relevant factors, including Mr Giordan's admissions, remorse and prospects of rehabilitation and the fact that his restitution had gone well beyond what he himself had obtained as a result of the joint offending. All of the foregoing matters were also relied upon in relation to ground 3 in submitting that the non-parole period was excessive. In relation to this ground, Mr Giordan adopted the submissions advanced on behalf of Mr Giordano on the same topic.

49 In substance, all of the foregoing factors were relied on in aid of ground 4 (manifest excess).

50 As to ground 1, the respondent submitted that the judge had paid close attention to the principle of parity. It was submitted that Mr Giordan's total effective sentence of 2 years with a non-parole period of 16 months, as compared with Mr Giordano's total effective sentence of 5 years, 4 months with a non-parole period of 3 years, 7 months, appropriately addressed all of the factors relied upon by Mr Giordan, keeping in mind the relevant sentencing principles correctly referred to by the sentencing judge.

51 As to ground 2, the respondent submitted that appropriate weight had been given to the early plea of guilty. The respondent referred to the fact that Mr Giordan was a party to a sophisticated and fraudulent scheme over some 16 months involving the setting up of a company and the presentation of 12 false invoices for a very substantial amount in excess of $290,000. As to grounds 3 and 4, it was submitted that the non-parole period and the head sentence were both within range.

52 In relation to ground 1, I accept and adopt the respondent's submissions.[25] There are what might be thought to be some arithmetical inconsistencies in relation to the formulation of the sentences and cumulation in relation to Mr Giordan's individual counts as compared with the treatment of the same counts in relation to Mr Giordano. However I do not think that this has resulted in any material error because, in my opinion, a comparison of Mr Giordan's total effective sentence and non-parole period with that of Mr Giordano shows that the judge has properly reflected their differing degrees of criminality. In other words, Mr Giordan's total effective sentence of 2 years with a non-parole period of 16 months compared with Mr Giordano's total effective sentence of 5 years, 4 months with a non-parole period of 3 years and 7 months appropriately reflects the relevant differences involved especially as concerns their roles, the respective amounts involved and the duration of their offending.

53 In relation to grounds 2 and 3, I do not think that the judge gave insufficient weight to Mr Giordan's plea of guilty and I would repeat, mutatis mutandis, what I have said above in relation to the same ground concerning Mr Giordano.

54 As to ground 4, in my opinion the total effective sentence imposed was within range and not manifestly excessive.

55 Under cover of ground 1, it was submitted that the judge had erred by imposing a sentence on Mr Cosentino in relation to count 6 on the basis that he fell to be sentenced on that count as a continuing criminal enterprise offender and that the judge had thereby misapprehended the maximum penalty. It was submitted that it was a material error which necessitated the setting aside of the sentence imposed on count 6 and, consequentially, the setting aside of the total effective sentence and non-parole period resulting in a need to re-sentence him.

56 Under cover of ground 6, it was put on behalf of Mr Cosentino that his mental state had substantially deteriorated subsequent to the imposition of the sentence and a report of Dr Ingram dated 18 December 2009 was produced to the Court. It was submitted that this deterioration in Mr Cosentino's mental state had been much greater than had been anticipated in the evidence before the sentencing judge or by the judge himself on the basis of that evidence. It was submitted that the further report of Dr Ingram was admissible as 'new evidence'.[26] It was submitted that, on the basis of this new evidence, the sentencing discretion was reopened and a different and lesser sentence should be imposed.

57 Mr Cosentino also relied on all of the foregoing submissions in relation to grounds 3 and 4.

58 As to ground 1, the respondent accepted that Mr Cosentino did not fall to be sentenced as a continuing criminal enterprise offender and that the judge had been so advised by the prosecutor, immediately prior to sentence and that, despite the judge's opening remarks, it was evident from later references in his reasons for sentence that he understood this. Alternatively, the respondent submitted that it was not a material error and that the sentence imposed on count 6 simply reflected the amount involved and not a misapprehension as to the maximum sentence.

59 As to ground 6, the respondent submitted that there was no occasion to admit new evidence as the matters referred to by Dr Ingram's second report had been anticipated at the hearing and taken into account by the sentencing judge.

60 As to grounds 3 and 4, the respondent submitted that the judge had properly taken into account Mr Cosentino's mental condition in imposing sentence and that there was no basis for a contention that the sentences imposed upon him were manifestly excessive.

61 In relation to ground 1, the sentencing judge was informed towards the end of the plea hearing that the only person caught by the legislation relating to continuing criminal enterprise offences was Mr Giordano. That was recognised by the judge in his sentencing reasons[27] and confirmed in the returns signed by the judge. In my opinion, his Honour did not err as contended on behalf of Mr Cosentino. Accordingly, this ground fails.

63 In Eliasen,[28] the Court of Criminal Appeal[29] dealt with an application to lead evidence concerning the impact of imprisonment upon the applicant from a disease present but undetected at the time of sentence. The Court said that it was empowered, if it considered the case an appropriate one, to permit evidence of matters or events that had occurred since the date of the passing of the sentence to be placed before the Court with a view to the reconsideration of the sentence in the light of that additional evidence. The Court considered it appropriate in that case to hear the additional evidence and the Crown did not oppose that course.

64 Eliasen was followed in R v WEF[30] in which Winneke P said:[31]

The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R. v Babic [1998] 2 V.R. 79, per Brooking J.A. at 80-1.

However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence. ...

[Eliasen] has been followed by this court in a number of cases since Eliasen: see R. v Rostom [1996] VicRp 60; [1996] 2 V.R. 97; R. v Williams (unreported, 18 September 1995); R. v Morgan (1996) 87 A. Crim. R. 104; R. v Bell (unreported, 18 August 1997). In the case of Rostom, Charles J.A., speaking for the court at 99, explained that the basis for receiving the new evidence was to be found in demonstrating the true significance of facts in existence at the time of sentence.

65 In WEF the sentencing judge had been aware of the applicant's diabetic disorder but not a related renal disease so that the Court of Appeal was able to say that the additional evidence threw a new light on facts relating to the applicant's state of health at the time of sentence.

66 In R v Duy Duc Nguyen,[32] Redlich JA (with whom Maxwell P and Neave JA agreed) summarised the applicable principles, in the light of the cases as follows:[33]

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;[34]

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[35]

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;[36]

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[37]

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[38] or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[39]

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[40]

Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed.[41]

67 Whilst maintaining that the sentence should nevertheless stand, the Crown conceded that the evidence sought to be led on behalf of Mr Cosentino was admissible within the above principles. It is appropriate to examine the evidence that was before the sentencing judge and the 'new' evidence (including the viva voce evidence of Dr Ingram that the Court required to be given) to see whether that concession should be acted upon.

68 Dr Nicholas Ingram had been Mr Cosentino's treating psychiatrist since September 2005 and Dr Ingram's report dated 1 September 2009 was tendered to the sentencing judge. In that report, Dr Ingram said that Mr Cosentino had at the first appointment told him of increasingly severe depressive and anxiety symptoms. Since that time Dr Ingram had been treating Mr Cosentino with various antidepressants but none had been particularly effective. Dr Ingram said that there had been a deterioration in Mr Cosentino's depression in the last six months (that is, subsequent to the charges in this case). Dr Ingram said that he had recently been considering that Mr Cosentino may required electroconvulsive therapy (ECT). Dr Ingram concluded by saying that Mr Cosentino had a severe depressive illness that had been present for six or seven years, that had not responded to antidepressant medication and was severe enough to require treatment with ECT. Dr Ingram described a recent incident when he had admitted Mr Cosentino to hospital for ECT treatment but Mr Cosentino had discharged himself because he felt very anxious about having to share a room with another man (due to abuse received as a child) and he had panicked. Dr Ingram concluded 'I think this would be a significant concern if Mr Cosentino received a custodial sentence, as I think he would find it almost impossible to cope with the situation of being in prison in close association with a lot of other men and I think it would lead to a significant deterioration in his depression and anxiety with an associated suicidal risk'. Dr Ingram had earlier stated that Mr Cosentino 'occasionally had suicidal thoughts, though he had not felt that he would ever act on these'.

69 Dr Ingram gave sworn evidence on the plea on 15 September 2009. He confirmed the contents of his report. He was referred to his stated belief that a prison term would impact considerably on Mr Cosentino's illness and said:

I think there is a high chance that - he's severely depressed already, and I think this would be - worsen his state significantly.

70 In answer to a question from the sentencing judge Dr Ingram confirmed that gaol was likely to have an impact on his mental health. Dr Ingram was then cross-examined but mainly on the question of the possible contribution of his illness to his decision to participate in the subject offences.

71 In the reasons for sentence, his Honour repeated Dr Ingram's opinion as to the effect of a custodial sentence[42] and then said what I have summarised earlier above.[43] In particular, the judge said that he accepted Dr Ingram's evidence that Mr Cosentino had a severe depressive illness and that gaol would lead to a significant deterioration in his depression and anxiety and associated suicidal risk.

72 In a report by Dr Ingram dated 18 December 2009, sought to be tendered to this Court, Dr Ingram recounted what Mr Cosentino had told him about his mental state in prison. Dr Ingram commented:

His affect was depressed and anxious and there was a decrease in reactivity and engagement. There was a preoccupation with depressive themes and feelings of hopelessness and almost delusional thinking in regard to his ideas of worthlessness. He also mentioned visual and auditory hallucinations as described above.[44] He had limited insight into his situation and seemed to think that the way he felt was an automatic result of being in prison, rather than a manifestation of an underlying illness.

I feel that Mr Cosentino is suffering from a severe endogenous depression with psychotic features. There has been a marked deterioration since he has been in prison. Mr Cosentino is severely ill and is suffering from a severe depressive illness that needs more active treatment. Without treatment, there is a chance that the depression will become worse and I think there is then a real risk of suicide...

In regard to the reason for the worsening of Mr Cosentino's depression, this is not just the result of the fact that he is in prison, the natural decline that anyone may when in such adverse circumstances. To the contrary, his deterioration is the result of a significant exacerbation of his depressive illness, such that it has now reached psychotic proportions and as I have said I think he clearly needs immediate treatment. However, being in prison does contribute to his depression and it is clearly the main precipitating factor for his deterioration and if there were any way that his prison sentence could be reduced, this would also have a beneficial effect on his mental state.

75 In a further report dated 1 April 2010, following a further visit by Dr Ingram, he said that Mr Cosentino felt continuously suicidal and as though that he wanted to be dead and he had repeated this on numerous occasions during the interview. Further statements were made by Mr Cosentino about auditory and visual hallucinations that he was experiencing. Dr Ingram said that there had been a deterioration in his condition since he last assessed him and that:

Mr Cosentino is very seriously depressed and is at real risk of suicide. He is very agitated and feels constantly hopeless and can see no way out of his present situation, which seems interminable to him, apart from suicide.

Since I last saw him he has become even more hopeless and agitated than on my previous assessment and in fact seems tortured by his feelings. He said that he has been tried on two new antidepressants, but these seem to have made little difference and I felt that the only effective treatment is likely to be electroconvulsive therapy.

Although I feel his depression is largely endogenous,[45] I do feel his circumstances makes it worse and he is clearly not coping at all with being in prison and he is likely to do better in a non-prison environment.

76 In evidence to this Court, Dr Ingram said that he had expected a worsened depression but that Mr Cosentino's mental state had suffered a very marked and unanticipated deterioration with psychotic symptoms (auditory and visual hallucinations) and entrenched suicidal ideation. Dr Ingram said, in substance, that these symptoms arose from the illness and not from the effect of prison, although he conceded that he had no experience of the Victorian prison system or the effects of prison on the mental state of prisoners.

77 In my opinion, the new evidence from Dr Ingram falls within the limited circumstances in which the Court will accept evidence of matters that have occurred since the sentence was imposed because the evidence demonstrates the true significance of facts in existence at the time of sentence. Although the sentencing judge had before him evidence of Mr Cosentino's severe depressive illness and of the resulting deleterious impact that prison would have upon Mr Cosentino's mental health, it was not foreseeable that Mr Cosentino's mental health would deteriorate to the extent that it has. The unanticipated development of psychotic symptoms and suicidal ideation goes beyond what the sentencing judge was able to take into account on the evidence before him. Nor can the present state of Mr Cosentino's mental health be regarded simply as a matter relating only to events which have occurred after sentence when, on the evidence, it sufficiently appears that it is a development, albeit unanticipated, stemming from a severe depressive illness from which Mr Cosentino has suffered for a number of years.

78 In the light of this new evidence, I think that it is appropriate to reconsider Mr Cosentino's sentence in the light of Verdins principles. Of course that should not lead to the substitution of a sentence that inadequately reflects the criminality involved. In the present circumstances it is more appropriate, I think, that the non-parole period be reduced. On a re-sentencing, the total effective sentence should remain unaltered but I would reduce the non-parole period from 2 years to 1 year and 2 months.

79 In relation to grounds 3 and 4, I accept the respondent's submissions. In my opinion the judge properly took into account Mr Cosentino's mental condition on the evidence then before him and the sentences imposed were not manifestly excessive.

80 For the foregoing reasons, I would refuse leave to appeal in the case of Mr Giordano and Mr Giordan. I would grant leave to appeal in respect of Mr Cosentino, allow the appeal, set aside the sentence and re-sentence Mr Cosentino to a sentence unaltered except in relation to the non-parole period as indicated above.

81 I agree with Mandie JA that the Court should admit the evidence of Dr Ingram concerning the unexpected and dramatic deterioration of the applicant Consentino's mental state since he was sentenced. It accords with the principles stated by Crockett J in R v Eliasen and by Redlich JA in R v Duy Duc Nguyen, referred to by his Honour. This case meets the 'rare and exceptional' criterion required.

82 I also agree with the disposition of each of the applications as his Honour proposes.

[1] Mr Giordano was born on 27 August 1966.

[2] Mr Giordan was born on 4 March 1954.

[3] Mr Cosentino was born on 2 July 1962.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] In respect of Mr Giordan, there were two additional counts, namely, possession of a drug of dependence namely Cannabis L (count 14) and possession of a drug of dependence namely methylamphetamine (count 15) in respect of which Mr Giordan was fined $250 on each.

[6] See R v Duncan [1998] 3 VR 208, 215 (Callaway JA).

[7] See R v Howard [2009] VSCA 281, [16] (Nettle JA).

[8] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[9] See R v Abbott [2007] VSCA 32, [14] (Maxwell P).

[10] See [33]-[35 above.

[11] (1986) 6 NSWLR 603, 604.

[12] [2007] VSCA 217; (2007) 177 A Crim R 331, [53], [55] (Maxwell P, Ashley and Neave JJA).

[13] [2009] VSCA 53.

[14] [2009] VSCA 53, [19].

[15] [1998] 1 VR 645.

[16] [1998] 1 VR 645, 648.

[17] [2009] VSCA 53, [20].

[18] R v Thomson (2000) 49 NSWLR 383, 416 and R v Cameron [2005] NSWCCA 357, [21]-[24].

[19] So in Pajic, the discount for the plea of guilty was not reduced because of the strength of the Crown case because it was considered that the level of contrition had not been reduced by that factor - see too R v RLP [2009] VSCA 271, [42]-[43].

[20] (Maxwell P, Bongiorno JA and Ross AJA).

[21] [2010] VSCA 31, [28].

[22] [2008] VSC 270; (2008) 19 VR 305.

[23] [2008] VSC 270; (2008) 19 VR 305, [15].

[24] R v Burke [2009] VSCA 60; (2009) 21 VR 471, [31].

[25] See [50] above.

[26] Citing R v Eliasen (1991) 53 A Crim R 391, 394; R v Wooden [2006] VSCA 97, [4], [7] and [13] and R v Duy Duc Nguyen [2006] VSCA 184, [36]-[38], [43]-[44].

[28] (1991) 53 A Crim R 391.

[29] (Crockett, McGarvie and Phillips JJ).

[30] [1998] 2 VR 385.

[31] [1998] 2 VR 385, 388-389.

[32] [2006] VSCA 184.

[33] [2006] VSCA 184, [36]-[38].

[34] R v Eliasen (1991) 53 A Crim R 391, 394; R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 101; R v WEF [1998] 2 VR 385, 388; R v Wooden [2006] VSCA 97, [7].

[35] R v Smith (1987) 27 A Crim R 315; R v Eliasen, 394; R v Rostom, 99; R v WEF, 389; R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451, [2], [35_];_ R v McLachlan [2004] VSCA 87; (2004) 8 VR 403, [10]; R v SH [2006] VSCA 83, [9].

[36] R v Babic [1998] 2 VR 79, 80, 82; R v McLachlan, [10]; R v WEF, 388.

[37] Knights v R (1993) 70 A Crim R 105, 109-110; R v Maniades [1996] QCA 242; [1997] 1 Qd R 593, 597; R v Ahmed [2005] VSCA 279, [11].

[38] R v Ahmed, [18]; R v SH, [25]-[26].

[39] R v Eliasen, 396; R v Rostom, 103; R v SH [2006] VSCA 83, [25]. The reference to 'miscarriage of justice' is found in such cases as R v McLachlan, [10] and R v Ahmed, [11].

[40] R v Eliasen, 396; R v Rostom, 102-3. The test is different in NSW and Queensland. See R v Fordham (1997) 98 A Crim R 359, 377-8; R v Durocher (2003) NSW CCA 299; R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593.

[41] R v Eliasen; R v WEF; R v Rostom; R v Wooden; R v SH; R v Ahmed.

[42] Reasons for sentence, [68].

[43] See [17] above.

[44] Dr Ingram referred earlier in his report to Mr Cosentino having said that he heard voices especially at night in his cell and had over the last few weeks 'seen' people in his room 'threatening images that seemed real, though he had insight into the fact that they were products of his own mind'.

[45] For example, caused by biological not reactive factors.