[2011] NSWCCA 67
Elias v The Queen (2013) 248 CLR 483
[2013] HCA 31
Gaggioli v R [2014] NSWCCA 246
Gilmour v R [2018] NSWCCA 295
Green v The Queen
Quinn v The Queen (2011) 244 CLR 462
[2011] HCA 49
Hanley v R [2018] NSWCCA 262
Ivory v R [2014] NSWCCA 181
Jimmy v R (2010) 77 NSWLR 540
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCCA 67
Elias v The Queen (2013) 248 CLR 483[2013] HCA 31
Gaggioli v R [2014] NSWCCA 246
Gilmour v R [2018] NSWCCA 295
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Hanley v R [2018] NSWCCA 262
Ivory v R [2014] NSWCCA 181
Jimmy v R (2010) 77 NSWLR 540[2010] NSWCCA 60
Jones v The Queen (1993) 67 ALJR 376
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17
Pham v R (2009) 193 A Crim R 190[2009] NSWCCA 25
R v ChandlerChandler v R [2012] NSWCCA 135
R v Formosa [2005] NSWCCA 363
R v Kerr [2003] NSWCCA 234
Rend v R (2006) 160 A Crim R 178[2006] NSWCCA 41
Ruttley v R [2010] NSWCCA 118
Shortland v R (2013) 224 A Crim R 486[2013] NSWCCA 4
The Queen v De Simoni (1981) 147 CLR 383
[1981] HCA 31
The Queen v Kilic (2016) 259 CLR 256
Judgment (14 paragraphs)
[1]
Pham v R (2009) 193 A Crim R 190; [2009] NSWCCA 25
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Formosa [2005] NSWCCA 363
R v Kerr [2003] NSWCCA 234
Rend v R (2006) 160 A Crim R 178; [2006] NSWCCA 41
Ruttley v R [2010] NSWCCA 118
Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Texts Cited: ---
Category: Principal judgment
Parties: John Alexander Humphreys (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr GD Wendler (Applicant)
Ms C Curtis (Respondent)
[2]
Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2014/196570
Publication restriction: ---
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: ---
Citation: ---
Date of Decision: 28 October 2016
Before: Her Honour Judge Girdham SC
File Number(s): 2014/196570
[3]
Judgment
SIMPSON AJA: I agree with the orders proposed by Johnson J, for the reasons stated by his Honour.
JOHNSON J: The Applicant, John Alexander Humphreys, seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Sydney District Court on 28 October 2016 for offences of recklessly dealing with proceeds of crime contrary to s.193B(3) Crimes Act 1900 (23 counts) and attempt to recklessly deal with proceeds of crime contrary to ss.193B(3) and 344A(1) Crimes Act 1900 (five counts).
[4]
The Offences, Aggregate Sentence and Indicative Sentences
The Applicant stood trial before her Honour Judge Girdham SC and a jury between 9 March 2016 and 31 May 2016 with respect to these 28 counts. The jury found the Applicant guilty of each offence.
Following a sentencing hearing between 23 and 27 September 2016, the Applicant was sentenced on 28 October 2016 to an aggregate term of imprisonment of nine years and two months, comprising a non-parole period of six years and three months commencing on 27 October 2016 and expiring 26 January 2023 with a balance of term of two years and 11 months commencing on 27 January 2023 and expiring on 26 December 2025.
With respect to each of the 23 offences of recklessly dealing with proceeds of crime under s.193B(3) Crimes Act 1900, her Honour nominated an indicative sentence of imprisonment of five years. For each of the five offences of attempting to recklessly deal with proceeds of crime contrary to ss.193B(3) and 344A(1) Crimes Act 1900, her Honour nominated an indicative sentence of imprisonment for four years and six months.
The maximum penalty for each of the 28 offences for which the Applicant was sentenced was imprisonment for 10 years.
[5]
Ground of Appeal
By Notice of Application for Leave to Appeal filed on 25 October 2019, the Applicant relies upon a single ground of appeal which asserts that he has a justifiable sense of grievance having regard to disparity between the sentence imposed upon Richard Barnes ("Barnes") by his Honour Judge Zahra SC on 14 December 2017 compared to the sentence imposed upon the Applicant by her Honour Judge Girdham SC on 28 October 2016.
[6]
An Extension of Time is Required
A Notice of Intention to Appeal Against Conviction and Sentence was filed on behalf of the Applicant within time on 2 November 2016. Thereafter, the Registrar granted the Applicant a number of extensions until 22 October 2018. The Registrar refused further extensions after that time. The present application was filed on 25 October 2019.
Section 10(1)(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time. In support of the application for an extension of time, the Applicant relies upon the affidavit of Monica Carmel McKenzie sworn 25 October 2019. Ms McKenzie states that the Applicant's matter was transferred to her solicitors' practice in May 2019. Thereafter, she took steps to gather materials before receiving a merit advice with respect to a sentence appeal only from counsel on 2 October 2019. Ms McKenzie was unaware as to why the Applicant's previous legal representatives had been in the matter for so long without producing a merit advice.
The discretionary power to extend the time limit in s.10(1)(b) Criminal Appeal Act 1912 constitutes legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard notwithstanding that it was not brought within time: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]. The interests of justice will often pull in different directions and include consideration of the adverse effect on the community generally occasioned by reopening a concluded criminal proceeding: Kentwell v The Queen at [32]. The present application relates to sentence only. Relevant to the determination of the interests of justice on an application to extend time are the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen at [33], [44].
The interests of justice test to be applied on the present application requires attention to be given to the merits of the Applicant's ground of appeal against the background of the substantial passage of time since Barnes was sentenced in December 2017.
The Crown submitted that the appeal has no merit and that an extension of time should not be granted. It is appropriate to consider the merits of the application for the purpose of determining whether an extension of time should be granted.
[7]
Prosecution of the Applicant and his Co-Offenders
The ground of appeal requires comparison of the aggregate sentence imposed upon the Applicant and that imposed by a different Judge at a later time upon a co-offender, Barnes.
Four persons were charged and committed for trial for offences in relation to which the Applicant and Barnes were ultimately sentenced. The Applicant, Barnes, Daniel Kiss ("Kiss") and Stephen Vickers ("Vickers") were each committed for trial with the Crown intending, at that time, that they be tried together.
Over the objection of the Crown, counts against Barnes and Vickers were severed from the indictment charging offences against the Applicant and Kiss. The counts against Vickers were later severed from the indictment charging him and Barnes because Vickers was unable to proceed with the scheduled trial for health reasons.
On 9 March 2016, the Applicant and Kiss stood trial before Her Honour Judge Girdham SC and a jury upon an indictment which charged each of them with 23 counts of recklessly dealing with proceeds of crime and five counts of attempting to recklessly deal with proceeds of crime. At the conclusion of the trial on 31 May 2016, the Applicant and Kiss were found guilty on all counts. As mentioned earlier, the Applicant was sentenced on 28 October 2016 to an aggregate term of imprisonment of nine years and two months with a non-parole period of six years and three months. On the same date, Kiss was sentenced to an aggregate term of imprisonment of 11 years and two months with a non-parole of seven years and eight months.
The trial of Barnes commenced before his Honour Judge Zahra SC and a jury on 5 April 2017 and concluded on 15 June 2017. Barnes was found guilty of all offences charged against him.
The offences for which Barnes was found guilty were, in substance, identical to those for which the Applicant and Kiss had been convicted save for the important fact that the Crown proceeded against Barnes on the more serious charge of knowingly (as opposed to recklessly) dealing with proceeds of crime under s.193B(2) Crimes Act 1900 (23 counts) together with attempting to knowingly deal with proceeds of crime under ss.193B(2) and 344A(1) Crimes Act 1900 (five counts). The maximum penalty for each offence of which Barnes was found guilty was imprisonment for 15 years as opposed to the maximum penalty for the Applicant's offences of imprisonment for 10 years for each offence.
[8]
Difference Between Charges Against the Applicant and Barnes
The explanation for the difference between the charges may be found in the sentencing proceedings concerning Barnes (T59-60, 27 October 2017/AB429-430). This understanding was confirmed by comments made by his Honour Judge Zahra SC when sentencing Barnes (see [79] below).
Judge Girdham SC had ruled at the trial of the Applicant and Kiss (by reference to s.4A Crimes Act 1900) that, in order to prove recklessness, the Crown had to prove that each accused had actual knowledge that the money was proceeds of crime and the jury was so directed (ROS6 at [55] below). During the sentencing proceedings for Barnes, the Crown acknowledged that, after the ruling made at the trial of the Applicant and Kiss, the Crown took the view that the proper charges to be brought against Barnes were charges involving knowledge so that an ex officio indictment was filed charging s.193B(2) offences against Barnes.
[9]
Facts of Offences
A 55-page document entitled "Crown Summary of Evidence at Trial" was tendered at the sentencing proceedings for the Applicant. This document was accepted by the Applicant as "a fair summary of some of the more pertinent evidence in the trial". However, there was some dispute between the parties as to the extent of the Applicant's role and the extent of the reward that he received.
References to sentencing remarks in the following narrative relate to the Applicant (and not Barnes) unless otherwise indicated.
Overview of Offences
In summary, the Applicant, together with Kiss, Barnes and Vickers participated in a sophisticated scheme to defraud the Commonwealth Bank of Australia ("CBA") by means of fraudulent loan applications. The money stolen from the CBA by means of the fraud was the proceeds of crime, the subject of each of the counts on the indictment. The scheme lasted for eight months between August 2008 and early April 2009 until it was discovered by the CBA. The total amount of money advanced on account of the fraudulent loan applications was $4,915,100.00. As a result of the scheme, the CBA suffered a loss of $4,770,500.00 (ROS3).
The scheme involved the submission of loan applications to the CBA in the names of fictitious persons and of companies with fictitious directors. On each occasion, the title to land at various locations in far and mid-west New South Wales was submitted to the CBA as security for the loans. However, the stated values of the land were falsely and grossly inflated. The land titles were obtained by Kiss by unknown means and he was never the registered proprietor of the lands. The values supplied in the applications ranged from between $245,000.00 and $288,000.00. Funds advanced were between $195,000.00 and $230,000.00. The blocks of land used as security had been sold off at auction by local councils for unpaid rates for prices ranging from $100.00 to $10,250.00.
Counts 1-23 related to 33 separate loans in respect of 23 different properties. In some cases, more than one loan was raised against an individual property.
Counts 24-28 related to five further applications to a total of around $1 million that were never approved because the CBA discovered the fraudulent scheme. Each of these counts represented a different property.
Thirteen loan applications relating to Counts 1-10 were in the names of fictitious persons with surnames Chang, Mitsos, Karas and Thanos.
[10]
Sentencing Remarks of her Honour Judge Girdham SC Concerning the Applicant
It is appropriate to set out parts of her Honour's sentencing remarks with respect to the Applicant before moving to aspects of the sentencing remarks of his Honour Judge Zahra SC concerning Barnes.
At an early point in the sentencing remarks, her Honour Judge Girdham SC explained the basis of the jury's verdicts concerning the element of recklessness, given directions at trial that the Crown was required to prove actual knowledge on the part of the Applicant before verdicts of guilty could be returned. Her Honour said (ROS6):
"Relevantly, during the trial I ruled that the Crown were required to establish the element of 'recklessness' as required in s 193(3) of the Crimes Act 1900, by proving actual knowledge pursuant to the extended definition in s 4 of the Act. The jury was so instructed. The verdicts of guilty meant the jury was satisfied beyond reasonable doubt that each offender was reckless based on actual knowledge being established upon each offence.
There is no issue that the sentence proceedings will proceed with reference to the available maximum penalty of ten years for each of the 28 offences, in order to avoid any breach of the principle in R v Di Simoni [1981] HCA 31; 147 CLR 383."
Her Honour then proceeded to make findings of fact with respect to the roles of the Applicant, Barnes and others along the lines of the narrative set out earlier in this judgment.
Her Honour outlined the way in which the Crown and the Applicant put their cases at trial (ROS9-10):
"The Crown case was reliant on the jury being satisfied beyond reasonable doubt that each of the accused was part of a joint criminal enterprise to obtain monies from the Commonwealth Bank dishonestly by the deception as to false valuations, and that the subsequent use by each of the accused of those funds amounted to dealing with the proceeds of crime.
Mr Humphreys, in his defence, agreed that he handled the loan applications and forwarded them to Darren Barnes at the Commonwealth Bank, and that he was directly involved in accessing and distributing the loan funds. He did not know that each one of these loan applications, individual applicants and the individuals behind the company entities were false. He did not know the rates notices and the contracts for sale which he sent off with the loan applications to Mr Barnes were false and contained false statements as to property values. He had no idea that the valuations drawn from them were grossly inflated and false.
His evidence was that he proceeded on the basis that the valuations were correctly stated and that he played no part in the scheme to deceive the Commonwealth Bank into advancing the loan funds by presenting false valuations and using Darren Barnes as the inside man to process them.
His case relied on what he told the police in the two interviews conducted with him by the police and in which he spoke about Mr Kiss telling him that this was a really good opportunity to buy cheap properties for his clients. He said that Mr Kiss would present him with a title deed but Stephen Vickers was the client manager who managed the processes and was putting the property transactions together."
[11]
Sentencing Remarks of his Honour Judge Zahra SC Concerning Barnes
His Honour Judge Zahra SC sentenced Barnes on 14 December 2017 for his offences under s.193B(2) Crimes Act 1900.
His Honour, of course, had available to him at that time her Honour's sentencing remarks concerning the Applicant delivered on 28 October 2016.
His Honour Judge Zahra SC made the following findings concerning the role of Barnes (ROS8-9):
"Consistent with the Crown case led at trial, I find that the accused role in the scheme was to process the loan applications using the false documentation he had been provided with.
The offender processed all of the applications in his capacity as a mobile lender, a role he had been undertaking for some years and in which he had significant experience. The accused well understood the bank procedures and policies and was aware of the requirements of his role as a mobile lender including the need to ensure the reliability of property valuations supplied to the bank in support of the loan applications.
The offender was required to generate loans and meet set targets for loan activity. Further the offender was expected to source his own clients, to meet clients and personally interview them and complete loan applications on behalf of the bank. The bank provided the offender with a car, phone services and a computer which was used to remotely access the bank's centralised computer systems. The evidence establishes that in the course of processing the loans the offender was required to meet each of the applicants and sight proof of their identity, relying on records such as leases, passport or other identification including Medicare card or driver licence. Further the offender was expected to verify a prospective borrower's financial capacity to repay the loan by obtaining documents to prove their income and assets such as payslips and taxation group certificates.
The evidence led in the Crown case revealed that the applications submitted by the offender the subject of each of the counts here were irregular in many respects. A substantial part of the Crown case involved evidence from a bank investigator, Mr Goss, setting out particular irregularities in each of the applications.
I find consistent with the Crown case led at trial that the accused did not inform the bank that Mr Humphreys was the person referring the series of loan applications to him for processing and that he did not inform the bank that he was offered and expected to receive benefits from Mr Humphreys and Mr Kiss for processing the loans.
The offender processed the loans contrary to the banks normal procedures by failing to make proper checks as to the identity of the applicants, their stated incomes and assets. The evidence establishes that the verification documents in relation to an applicant's identity and financial position and their assets and liabilities were meant to be sent to a records area in the Commonwealth Bank so they could be scanned and otherwise copied into the banks computer records. The evidence establishes that in relation to the loan applications, with very few exceptions, none of the verification documents for the loans were entered into the bank records system."
[12]
The Sole Ground of Appeal Alleging Breach of the Parity Principle
Applicant's Submissions
Mr Wendler, counsel for the Applicant, submits that there is a marked disparity between the Applicant's punishment and that of Barnes so as to give rise to a justifiable sense of grievance which, it was submitted, justified "mollification of an otherwise in range sentence".
It was submitted that the only difference between the crimes charged against the Applicant and Barnes was that Barnes was charged with the more serious offence in s.193B(2) (which carried a maximum period of imprisonment of 15 years) whereas the Applicant was charged with offences under s.193B(3) (which carried a maximum penalty of imprisonment for 10 years).
Counsel for the Applicant pointed to aspects of the sentencing remarks with respect to each of the Applicant and Barnes. Emphasis was placed upon the finding of his Honour Judge Zahra SC that Barnes' role was "crucial" as he used his special knowledge of the CBA's internal lending processes to access substantial monies and was in a position of trust.
Mr Wendler submitted that, unlike the Applicant, Barnes had maintained his innocence at sentence and thus did not demonstrate remorse. In addition, Barnes did not have criminal antecedents.
Reference was made to the subjective circumstances of the Applicant and Barnes and the differences between them.
It was submitted that there was clearly a marked difference between the punishment imposed upon the Applicant and Barnes.
Counsel noted the approach of his Honour Judge Zahra SC that he could not extend the application of the parity principle because of the differences between the offences charged against Barnes as compared to those charged against the Applicant, as a result of the exercise of prosecutorial discretion concerning charge selection (Barnes, ROS31-33 at [79] above).
Counsel submitted that the parity principle was capable of application in this case with reliance being placed upon Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [202]. The Court was taken, as well, to what was said in Jimmy v R at [262] concerning the fundamental importance of the equal justice principle which is capable of application even where the persons sentenced are not strictly co-offenders.
Mr Wendler submitted that the differences in the offences charged against Barnes and the Applicant was a "distinction without a practical difference" because the trial of the Applicant and Kiss had proceeded on the basis that the Crown was required to prove actual knowledge rather than mere recklessness, the difference between the mental element in the offences contained in ss.193B(2) and 193B(3). It was submitted that it was not realistic to suggest that Barnes and the Applicant were not co-offenders because they were charged with effectively the same offences, but with different maximum penalties.
[13]
Resentencing the Applicant
The Applicant is entitled to have this Court resentence him for the purpose of s.6(3) Criminal Appeal Act 1912. In exercising its independent sentencing discretion, this Court will have regard to the objective circumstances of the Applicant's offences, his subjective circumstances and all factors relevant to sentence, including the maximum penalty prescribed by s.193B(3) Crimes Act 1900.
The factual and other findings made by her Honour Judge Girdham SC concerning the objective gravity of the Applicant's offences and his subjective circumstances were not challenged and should be applied for the purpose of resentencing.
The legislative guidepost to be applied in the Applicant's case is the maximum penalty of 10 years' imprisonment contained in s.193B(3) Crimes Act 1900.
The proportionality principle is to be applied so as to take into account the significant disproportion arising from the markedly lesser aggregate sentence imposed upon Barnes for his offences under s.193B(2), which carried a much greater maximum penalty. Application of the proportionality principle does not entitle the Applicant to receive an identical sentence to that imposed on Barnes. However, a substantial reduction in the Applicant's aggregate sentence is appropriate to reflect application of the proportionality principle in this case.
I am satisfied that the Court should pass a lesser aggregate sentence in the Applicant's case.
The parties did not submit that the approach adopted by her Honour Judge Girdham SC was inappropriate in specifying what were identical indicative sentences for each of the 23 offences under s.193B(3) and identical indicative sentences for each of the five attempt offences. I will proceed in the same way for the purpose of resentencing.
With respect to each of the 23 offences of recklessly dealing with the proceeds of crime under s.193B(3), I nominate an indicative sentence of imprisonment for three years. With respect to each of the five offences of attempting to recklessly deal with proceeds of crime contrary to ss.193B(3) and 344A(1) Crimes Act 1900, I nominate an indicative sentence of imprisonment for two years.
Having regard to principles of totality, concurrency and accumulation, I am satisfied that an aggregate sentence of imprisonment of seven years should be imposed. A finding of special circumstances should be made for the same reasons adopted in the District Court. A non-parole period of four years and three months should be fixed.
[14]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 July 2020
On 14 December 2017, his Honour Judge Zahra SC sentenced Barnes to an aggregate sentence of imprisonment of six years, comprising a non-parole period of four years commencing on 15 June 2017 and expiring on 14 June 2021 with a balance of term of two years commencing on 15 June 2021 and expiring on 14 June 2023.
With respect to each of the 28 offences committed by Barnes, his Honour Judge Zahra SC nominated an indicative sentence of imprisonment of two years and six months.
On 29 January 2018, Vickers pleaded guilty before his Honour Judge Scotting to seven counts of recklessly dealing with proceeds of crime under s.193B(3) Crimes Act 1900. On 8 June 2018, his Honour Judge Scotting sentenced Vickers to an aggregate sentence of imprisonment of three years with a non-parole period of 18 months.
The Applicant's ground of appeal is based upon a suggested legitimate sense of grievance arising from a comparison of his sentence with that imposed on Barnes. To determine this ground, it is necessary to consider findings made on sentence concerning the two men and any pertinent differences between their offences and their subjective circumstances.
Twenty loan applications relating to Counts 11-23 were in the name of three companies, Vinton Holdings Pty Limited, Davidgrafik Pty Limited and Alexwells Holdings Pty Limited (with fictitious persons nominated as the directors and personal guarantors of the loans).
Five loan applications relating to Counts 24-28 were in the name Alexwells Holdings Pty Limited.
It was not in issue at trial that the loan funds obtained from the CBA were the proceeds of the crime of dishonestly obtaining a benefit by deception. In the case of each of the Applicant and Kiss, and Barnes at his trial in 2017, the trial was defended on the issue of knowledge.
The scheme involved the use of multiple forged and fraudulent documents including forged council rate notices and forged identity documents. Her Honour Judge Girdham SC found that the Applicant's offences attracted the aggravating factor of being a series of criminal acts, "namely the improper use of title deeds irregularly obtained; multiple false documentary representations in bank forms; false signatures; false and forged identity documents including passports; and false authority documents …" (ROS29).
In determining sentence, each of her Honour Judge Girdham SC and his Honour Judge Zahra SC considered the role of the various offenders and rewards received by them as a result of their criminal conduct.
It was the Crown case that Kiss conceived the plan. He provided the land titles and received most of the benefit from the scheme. Both sentencing Judges found that Kiss was at the top of the criminal enterprise.
The role of Vickers was to prepare and supply many of the documents used in the application process.
Role of Barnes
Barnes had worked for the CBA for several years and had acquired knowledge about the bank's systems and procedures which he utilised in committing the offences. At the time of the offences, Barnes was a mobile lender still employed by the CBA. His role was to manipulate the CBA's processes in order to ensure that the CBA would never have the land independently valued and he essentially took steps to ensure that the loans would be approved. These included falsely representing that the CBA had an existing valuation of the relevant land and ensuring that the loans were 80% or less of the valuation. These steps ensured that the CBA would not request an independent valuation as a condition of approving the loan.
Role of Applicant
At the time of the offences, the Applicant was a self-employed financial planner. He had undertaken tertiary studies and obtained a Bachelor's Degree in Business and Accounting. He was a certified public accountant. His role was to act as a conduit between Kiss on the one hand and Barnes on the other. He would receive documentation from Vickers and forward it to Barnes. However, he was also involved in the application process beyond merely handing documents to Barnes. Evidence of this was found largely in documents seized from the Applicant's home when police executed a search warrant there.
Particular aspects concerning the Applicant's role in the criminal scheme included the following.
Firstly, most of the money stolen from the CBA was deposited into the Applicant's Viridian Line of Credit account in the first instance. The CBA records show that a total of $2,929,442.29 in loan monies were transferred directly to the Applicant's Viridian Line of Credit account. Two further amounts totalling just over $387,000.00 were also transferred indirectly into the same account. In total, $3,316,719.09 passed through the Applicant's Viridian Line of Credit account. He was not the ultimate beneficiary of most of that money, but it was his job to disperse the money to his co-offenders and himself.
Secondly, telephone records show that during the period of the offending, there were close to 1,500 communications between the Applicant and Kiss, 513 communications between the Applicant and Barnes and no communications between Barnes and Kiss. Barnes gave evidence that he had never met Kiss. However, his Honour Judge Zahra SC placed little weight on the fact that Barnes had no connection to Kiss because they were both nevertheless part of the same joint criminal enterprise.
Thirdly, although the properties purchased were largely for the benefit of Kiss, the purchases were made in the name of shelf companies established by the Applicant. The Applicant was involved in instructing his solicitor, Peter Aked, to set up company trusts for the benefit of Kiss to make the relevant purchases. Costs Agreements show that Mr Aked was acting for both the Applicant and Kiss. The Applicant later lied to Mr Aked, who queried the source of the money that had been used to buy the properties after the CBA raised concerns about the Applicant's Viridian Line of Credit account.
Fourthly, the material seized under search warrant from the Applicant's home included copies of some of the fraudulent documents and handwritten notes regarding discussions with Kiss about borrowing money to purchase properties. This included an email in which the Applicant had asked Kiss to chase up Vickers as Barnes had arrived to take some files, but they had not yet been delivered.
Fifthly, the Applicant travelled to the United States of America with Kiss and they met with real estate agents there. Notes about this made by the Applicant were found in documents seized from the Applicant's home. The Applicant had a folder of real estate listings from the United States that he gave to police.
Sixthly, two items seized from the Applicant's house indicated that the Applicant advised Kiss to start buying properties "in trust or other name" and spoke of the need to make sure that Barnes was "protected and keep our options open there without risk". The Applicant also suggested that in relation to the "next 9 or so going through", one or two be valued.
Seventhly, police found on the Applicant's hard drive what were found to be detailed "ongoing reconciliation documents during the period of the loan activity". They were detailed records of where the illegally obtained money had been disbursed. Banking records show that the transactions recorded in those documents were real.
Benefits to the Applicant from the Offences
Her Honour Judge Girdham SC was unable to make a precise finding concerning the benefits which the Applicant received from his involvement in the scheme. The difficulty in working out precisely what the Applicant received from the scheme arose as most of the money defrauded from the CBA started off in the Applicant's Viridian Line of Credit account, with the bulk of it being applied subsequently for the benefit of others. Further, although it is clear that around $312,000.00 was used to pay off the Applicant's American Express credit card account, not all of the purchases that had been incurred on that card were for his benefit.
However, findings made by her Honour pointed to the Applicant receiving, at least, the following benefits for himself:
1. he went on a $100,000.00 trip to Las Vegas and Los Angeles together with Kiss and their girlfriends for four days at the end of February 2009, involving business class flights and luxury accommodation with the trip being paid for using the Applicant's American Express card which was eventually paid off using fraudulent funds from his Viridian Line of Credit account;
2. meals at high-end restaurants in Sydney and accommodation in luxury hotels in both Sydney and Melbourne paid for using the Applicant's American Express card with the card account paid off from the Applicant's Viridian Line of Credit account;
3. purchases from the online auction company, Grays, once again paid for by the Applicant's American Express card with that being paid from the Applicant's Viridian Line of Credit account;
4. a $4,000.00 suit;
5. the sum of $127,000.00 of the fraudulently obtained money was transferred from the Applicant's Viridian Line of Credit account to his company, Humphreys Financial Services Pty Limited;
6. the sum of $34,000.00 was paid onto the Applicant's MasterCard account from his Viridian Line of Credit account;
7. the sum of $300,000.00 was paid to the Applicant from the Chang loan funds;
8. as the Applicant acknowledged in his electronically recorded interview with police, the fact that the money deposited in the first instance into his Viridian Line of Credit account meant that he could reduce the monthly interest payment on that account and her Honour remarked that this must have been significant as that account had been in debit to the sum of around $900,000.00; and
9. a number of properties were bought in the names of shelf companies set up by the Applicant - her Honour accepted, however, that these had largely been purchased for Kiss and not the Applicant, although her Honour did not accept entirely a defence submission that a property purchased in the Applicant's company's name in Nowra was intended exclusively for the benefit of Kiss.
In addition, there was evidence that both the Applicant and Barnes were hoping, by their involvement with Kiss, to be rewarded by obtaining Masterton Homes as a client of their businesses.
There was also evidence that luxury vehicles and a boat had been purchased by shelf companies of which the Applicant was sole director. However, her Honour found that Kiss was the motor car enthusiast and that Kiss was the intended recipient of all the vehicles (ROS26-27).
Her Honour rejected a submission that the fact that Kiss had received most of the benefits from the scheme indicated that the Applicant's culpability was, by comparison, significantly lower because "the submission is predicated on the division of assets being complete, when it is apparent that at the time the offending was discovered, the enterprise was continuing" (ROS23).
Her Honour noted the effect of the jury's verdicts and referred to the maximum penalty for s.193B(3) offences (ROS20-21):
"The jury, by their verdicts, rejected the explanations given by Mr Humphreys in the two interviews about managing investments for Mr Kiss's clients and the sworn evidence of Mr Kiss. The evidence of each offender's involvement in the scheme as asserted by the Crown, that they did so with knowledge that the monies obtained were for proceeds of crime is overwhelming.
It is clear from the above that the offences committed by each offender are serious. It is necessary that I make an assessment of the relative seriousness of each offence, the assessment of which is part of the process of instinctive synthesis to be applied by a sentencing Judge. It is necessary to have regard to the maximum penalty and the nature of the criminal conduct prescribed by the offence (see Markarian v The Queen (2005) HCA 25 - 228 CLR 357 at 372).
The maximum penalty is imprisonment for 10 years. Such penalty invites comparison between the worst possible case and the case at bar, and in that regard, it provides, taken and balanced with all other relevant factors, a yardstick.
It has not been contended by the Crown that any of the offences for which the offenders stand to be sentenced fall into the worst case category."
Soon after, her Honour returned to the roles of the offenders, including the Applicant (ROS22-23):
"Central to the sentencing exercise is the fact that each offender is to be sentenced on the basis that they were participants in a joint criminal enterprise with respect to the offences. It is uncontroversial that participants in a joint criminal enterprise are equally responsible for all the acts in the course of carrying out the enterprise regardless of who commits them.
In order to take into account the level of culpability of each offender, it is desirable to identify the role played by each in the enterprise. It is to be accepted that if the objective criminality of one participant is demonstrated to be less than another participant, even if not to a very substantial degree, and that apart from any differences in the subjective circumstances of the offenders, the lesser objective criminality should be reflected in a lesser sentence, see R v Wright [2009] NSWCCA 3 and [28] to [30]."
Her Honour found that the Applicant's role was subordinate to that of Kiss (ROS24):
"I accept Mr Humphrey's role as being subordinate to that of Mr Kiss. Nevertheless it is apparent he was heavily involved in the scheme; he had a role in both the application processes, as well as the collection and distribution of funds. He also had input as to how the scheme would be best advanced."
Her Honour said with respect to the position of the Applicant (ROS27):
"I find it difficult to make a definitive finding as to the position of Mr Humphreys beyond reasonable doubt. I will venture to say he was somewhat subordinate to Mr Kiss. Nor can I be satisfied as to what he expected to receive as a result of his participation.
I am satisfied Mr Humphreys was integral to the success of the scheme [and] had expectations of receiving substantial reward. Mr Humphreys played an important role in the scheme, being operative in the management of it, receiving, processing and directing the applications and the collection and distribution of the funds. He was the facilitator of serious criminal activity - being the business of money laundering.
I will reflect these findings, as I must, when having regard to parity in the sentences to be imposed."
Her Honour made the following findings concerning the objective criminality of the offences (ROS28-29):
"In conclusion, each offence involved considerable and sophisticated planning. Counts 1 to 24 resulted in substantial loss committed for financial gain, and had involved a series of criminal acts namely the improper use of title deeds irregularly obtained; multiple false documentary representations in bank forms; false signatures; false and forged identity documents including passports; and false authority documents to facilitate transfer of the loan funds to Mr Humphreys' Commonwealth Bank line of credit account. The scheme also included making corrupt payments to Mr Barnes, the bank employee, which must be accepted as a feature which aggravates the gravity of the offending, see Tsakonas v R [2009] NSWCCA 258.
The features of the offending I have identified warrant the conclusion that each offender engaged in various serious criminal conduct exhibiting a high degree of criminality. Each offence is a serious example of an offence of its kind. Such a conclusion is required when regard is had, as it must be, to the premeditation and planning, the numerous offending acts which accompanied each offence, and the substantial amount of monies dealt with. In my view, each count attracts the same conclusion, the gravamen being the mental element which accompanies the wrongdoing and the monetary value of each offence being roughly similar.
Whilst no monies were advanced in relation to the attempted offences, the criminality was otherwise of high order."
Her Honour then turned to the Applicant's subjective case (ROS33-35):
"No oral or sworn evidence was taken on the sentence proceedings on behalf of Mr Humphreys and his subjective case was put by the tender of the pre-sentence report dated 3 August 2016; a report from Dr Lennings, clinical psychologist; numerous medical reports together with a number of reference letters, including from the offender himself and his wife. In the absence of evidence from the offender or the other authors, the Crown's submission is that little weight would be afforded to the untested statements therein, I am relying on R v Qutami [2001] 127 A Crim R 369.
As to S. 21A factors, it is submitted, on his behalf, that he does not have a significant record of previous convictions, S. 21A(2)(e). He is unlikely to reoffend, S. 21A(2)(g); and has good prospects of rehabilitation, S. s 21A(2)(h).
Mr Humphreys does have previous convictions for fraud, from when he was at university. They are old and have little significance to the sentencing exercise now before me.
The offender was born on 10 September 1969 and is 47 years of age. He is married with three children. He is educated to university level with a Bachelor of Business and Accounting, sub-majoring in property law. He attained a certified public accountants licence. This licence has been lost, together with his capacity to work in the industry by reason of his convictions. As a result of his participation in this joint criminal enterprise, he has lost his property portfolio, which he had been building since 1994. He was discharged bankrupt in 2015.
Since his involvement in the scheme, he first obtained employment as a part time cleaner for a period of 18 months and, more recently, he has performed ad hoc documentation work for a property development company and is said to be instrumental in the National Real Estate and Property Development Organisation, who, as at the date of that report, had offered him a fulltime position. There can be no doubting his work ethic. The offender consulted Dr Lennings on 15 September 2016 and did not display any symptoms suggestive of a psychological or neurocognitive disorder, rather he was assessed as psychologically tough-minded and having high self- esteem and generally presenting himself as a person who is a pro social member of the community.
Mr Humphreys, in his letter to the Court, addressed his health and submits that, 'Justice is poorly served by negatively affecting a person's health so much that it accelerates morbidity'. In the final paragraph he states, 'I apologise to the Court for the time and cost of running a case which resulted in a guilty verdict. I accept the position'.
The offender's health concerns are high blood pressure and sleep apnoea, both of which have been diagnosed since his convictions.
Whilst on remand pending sentence, he has received medication and treatment, both of which require to be monitored. Insofar as it was suggested that the CPAP machine would not be available to the offender in custody, due to the requirement for Wi Fi, I am advised that this is not so. There is the capacity for continued treatment and monitoring of both conditions in prison. In determining the appropriate sentence I will have regard to the fact that the offender has health issues which may impact on his comfort whilst in custody."
Her Honour made a modest allowance by way of a very late expression of remorse by the Applicant (ROS37-38):
"It is proper to take into account the time at which remorse was first exhibited and also the degree of insight that it reflects. Notwithstanding my reservations of expressions of remorse and how those expressions resonated in an acceptance of responsibility, they are very late. Notwithstanding, I have determined to make some modest allowance for it in the appropriate sentence.
The fact of remorse impacts upon the mitigating factors set out in s 21A(3) of the Crimes (Sentencing Procedure) Act, namely the offender's likelihood of reoffending and prospects of rehabilitation. Both Dr Lennings and the author of the pre-sentence report assessed the offender at low risk of re-offending. Notwithstanding those assessments were against the history which I have set out above, I am prepared to accept this is probably so, and as a result of his realisation as to the effect his offending is to have on his young family."
Her Honour addressed the issue of general deterrence, in the course of which reference was made to the hierarchy of offences under s.193B, a factor significant to this appeal (ROS42-43):
"General deterrence is a matter of significance. Each offence and their combination demonstrates the purpose of the participants in the joint criminal enterprise engaged in money laundering as a business. And they did so with a mens rea greater than mere recklessness. Whilst the graduation of the seriousness of the offences in s 193 bears upon the mental state of the offender and not the foundational crime, the nature of the crimes is not irrelevant.
Here those offences involved deliberate deception on the part of the joint criminal enterprise participants to induce a financier to provide a loan which would not otherwise have been provided. This offending strikes at the heart of the commercial finance and credit systems, given that the financial systems rely upon, and cannot properly function without prospective borrowers providing true and correct information. There is therefore a need to protect the integrity of the commercial finance and credit system."
Her Honour considered issues of accumulation, concurrency and totality before proceeding by way of an aggregate sentence with a finding of special circumstances being made to provide a lengthier period of support upon the Applicant's release and with a lengthier period on parole to "provide a disincentive for the offender to seek to enrich himself other than by legitimate means" (ROS44-46).
Her Honour returned to the issue of parity as between the Applicant and Kiss (ROS46):
"I should also indicate that I have made allowance for considerations of parity. I am of the view that Mr Humphreys' role, whilst integral to the success of the venture, was less than that of Mr Kiss, whom I am satisfied stood at the apex.
Furthermore, Mr Humphrey's subjective case is marginally better than that of Mr Kiss, and these differences will be reflected in each sentence and in their aggregate."
Her Honour then nominated the indicative sentences and imposed the aggregate sentence concerning the Applicant as mentioned earlier in this judgment before sentencing Kiss for his offences.
His Honour recounted findings made by her Honour Judge Girdham SC concerning the recklessness/knowledge issue regarding s.193B(3) Crimes Act 1900 (see [55] above) and her Honour's assessment of the roles of the co-offenders and the amount they received from their participation in the criminal enterprise (ROS15-17).
His Honour then moved to an assessment of the objective seriousness of the criminal conduct of Barnes (ROS18) (my emphasis):
"The offender participated in a sophisticated fraudulent scheme involving three other participants. Each of the participants had distinct roles. The fraud was perpetrated from August 2008 until early April 2009, a period of about eight months.
As I have indicated, the scheme involved the preparation of numerous documents containing false information that were provided to the offender. These documents included false employment statements and false statements of assets and liabilities of the applicants. There is no evidence that the offender played any role in the preparation of the fraudulent documents which were provided in support of the loan applications. The applicants were fictitious individuals and fictitious corporate entities.
Consistent with the findings of Girdham J, I find the evidence identifies a clear hierarchy of the participants. It was Mr Kiss who stood at the apex of the scheme. He had a close connection with Mr Vickers who prepared documentation. The handwritten applications and financial statements presented as written and signed by the applicants were prepared by Stephen Vickers. It was he who was responsible for arranging the payment and use of the loan funds advanced from property purchases by the company entities. It was he also who falsely represented that he was the agent for the directors of the companies and gave instructions to two solicitors firms. Mr Vickers gave the documentation to Mr Humphreys who in turn provided the documentation to the offender. I have earlier set out in detail the role of Mr Humphreys. In my view Mr Humphreys also occupied a position towards the top of the hierarchy of operatives within this criminal scheme.
There is no evidence that the offender played any role in the fabrication of those documents or in creating the false applicants or entities. The offender was however involved in the processing of the first 23 loan applications up to the time of settlement. The offender had a continuing role in the last five applications before the bank intervened.
In my view, also consistent with the findings of Girdham J, the evidence of the distribution of the proceeds of the monies is a useful tool in determining the hierarchy of operatives within the joint criminal enterprise here. Most of the money was used jointly by Mr Humphreys and Mr Kiss to purchase properties and other luxury items including expensive cars and overseas travel. They were major beneficiaries of the monies which were fraudulently obtained. Substantial amounts of money appear to have been used to repay debts."
His Honour then made important findings concerning the benefits received by Barnes and his use of inside knowledge of CBA practices (ROS2):
"The amount the offender received was a very small portion of the total monies advanced by the bank during the course of the fraudulent scheme. The co-offenders Mr Kiss and Mr Humphreys were the main beneficiaries of the monies and each received substantial payments. I am unable to determine with precision the extent Mr Vickers benefited and it is unnecessary here to do so. In my view the differentiation in the monies advanced provides some insight into the hierarchy of operatives within the criminal scheme here. The conclusion of the offender's role is not however an arithmetical process where the amount of money each received, when quantified, is then applied as a formula in determining the precise role and the extent of criminality of the participants and the culpability of each of the offenders in the scheme. Whilst it is some indication, it is by no means determinative.
In the case of the offender here his particular role was a crucial one and involved the use of his position and understanding of the banks processes to obtain substantial amounts of money and his conduct involved a substantial breach of trust.
The offender was able to use the experience he gained as an employee of the Commonwealth Bank over many years in order to circumvent the processes for the obtaining of loans and in particular circumventing the process of obtaining proper valuations before the bank advanced the funds. The offender was engaged as a lender since 2000. He would therefore have had a thorough knowledge of the banks practices in ensuring they retained a valid security for the loans they would advance.
The offender's role was significant and central to the success of the enterprise. Without the offender circumventing the processes for the valuation of the properties independent valuations would have been required. The offender used his ability to access the bank database and to manipulate the entry of data so that the bank would accept the false valuations contained in rate notices and noted on contracts for sale."
His Honour made the following additional finding concerning the role of Barnes (ROS22):
"The offender's role was not limited to the circumventing of the valuation process. He was also involved in the disbursement of loan funds to Mr Humphreys and Mr Kiss for purposes unrelated to the loan applications. The offender processed a number of authorities which directed the proceeds of the fraudulent activity to Mr Humphreys in a sum exceeding $2,250,000. The authorities directed payments to Mr Humphreys, Mr Daniel Kiss and his wife Karen Maloney."
His Honour noted that Barnes did not give evidence at the trial, but did give evidence at the sentencing hearing and made further findings concerning the objective gravity of Barnes' offences (ROS24):
"The offender did not give evidence in the trial. Whilst he gave evidence during the proceedings on sentence he maintained his innocence. Whilst such involvement of the offender in a crime of such scale against the likelihood of detection is puzzling, I am unable to make any findings that the offender was vulnerable because of financial pressures or that he acted for any other reason other than greed. As I have indicated when referring to the principles in R v Olbrich, if there are matters that I would take into account in favour of the offender I would need to be satisfied of those matters on the balance of probabilities. If I am unable to make such a finding the matter must proceed upon an assessment of the objective facts. That is the process I have undertaken here. The only conclusion that can be reached is that the offender was motivated by financial gain and greed.
The offending is objectively of a high order and the sentences imposed must reflect a significant component of deterrence."
His Honour then addressed the relevance of prior good character and outlined evidence adduced in Barnes' subjective case as well as addressing issues of remorse, risk of reoffending, prospects of rehabilitation and special circumstances (ROS24-28). His Honour made the following findings concerning these issues (ROS28-29):
"The presentence report notes that upon testing the offender is assessed as a low risk of reoffending. Further he is unlikely to benefit from a period of supervision by Community Corrections due to his low risk rating and lack of criminal factors that need to be addressed.
This is the first period in custody the offender has served. His imprisonment has and will be in the future a significant deterrent to further offending. The offender appears to be clearly traumatised by finding himself in custody and is suffering debilitating psychological distress.
The offender faces a lengthy period of imprisonment and will require assistance in transitioning into the community after serving his sentence. For these reasons I find special circumstances.
The offender has not expressed remorse. Whilst the offender continues to maintain his innocence and appears to have little insight into his offending I am of the view the offender has good prospects of rehabilitation and is unlikely to re-offend."
His Honour considered the issues of hardship in custody and delay, together with the question of accumulation and totality before indicating his intention to impose an aggregate sentence (ROS31):
"I intend to impose an aggregate sentence. This does not mean that considerations of accumulation are no longer relevant. The ultimate sentence imposed must reflect the total criminality. It is necessary to ensure that the aggregation of all sentences is a just and appropriate measure of the total criminality involved. The aggregate non parole period must reflect the minimum period of imprisonment required to be served by an offender having regard to all the purposes of justice."
Having regard to the Applicant's ground of appeal, it is appropriate to set out the entirety of what his Honour said on the issue of parity (ROS31-33) (my emphasis):
"Parity of sentence:
The parity principle recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance' Lowe v The Queen (1984) 154 CLR 606.
The Crown submits that the sentencing of the co-offenders Mr Kiss and Mr Humphreys are a 'useful reference point' (W/S 27 October 2017 [48]). The Crown however submits that the co-offenders were sentenced for offences under section 193B (3) of recklessly dealing in the proceeds of crime where the maximum penalty of 10 years is significantly lower than the maximum penalty for the offences for which the offender was convicted under s 193B (2) (being a maximum term of 15 years). The Crown goes on to note (at [49]):
'[49] The co-offenders were convicted and sentenced for the lesser offences involving 'recklessness' but the Crown relied at their trial on the extended definition of recklessness to prove actual knowledge for all charges. The jury received clear directions in relation to that aspect of the Crown case and returned verdicts of guilty.
[50] Regard must be had to the longer statutory maximum penalty for these offences. The fact that the more serious charges were laid does not entail 'prejudice' or 'aggravation' in charging or consequently, in the sentence to be imposed on the offender.'
As I have already noted, Girdham J, when assessing the state of mind of the co-offenders Mr Kiss and Mr Humphreys when passing sentence, noted that during the trial of the co-offenders a ruling was made that '...the Crown were required to establish the element of 'recklessness' as required in section 193B(3) of the Crimes Act 1900, by proving actual knowledge pursuant to the extended definition in section 4 of the Act. The jury was so instructed. The verdicts of guilty meant the jury were satisfied beyond reasonable doubt that each offender was reckless based on actual knowledge being established upon each offence'.
At the outset the offender was charged with the same offence involving the mental element of recklessness as was proffered against Mr Kiss and Mr Humphreys at their trial. During the proceedings on sentence here the Crown Prosecutor informed the court that subsequent to the conviction of Mr Kiss and Mr Humphreys the DPP determined that the proper charges against the offender were charges involving knowledge that the money was the proceeds of crime under s 193B(2) and a direction for ex officio charges was given in June 2016.
All four, being Mr Kiss, Mr Vickers, Mr Humphreys and the offender were committed for trial on the same charges. The trials were separated over objection by the Crown with the trials of Mr Kiss and Mr Humphreys ordered to be tried jointly but separate to the trial of the offender and Mr Vickers. When the offender's trial was listed to commence with Mr Vickers the trial involving the offender was separated from the trial of Mr Vickers because Mr Vickers' trial could not proceed at that time primarily because of his ill-health.
The Crown submits that in the separate trial of the offender the Crown was entitled to lay charges for the more serious offence and that the sentencing must proceed on the basis of the maximum penalty available for the offences for which the offender was convicted.
The result of the decision of the Crown to prosecute the offender for offences under section 193B (2), which attracts a significantly greater maximum penalty, is that the offender faces that greater maximum even though the Crown case is that the offender was effectively the employee of Mr Humphreys and Mr Kiss and that Mr Humphreys and Mr Kiss operated at the top of the hierarchy within the criminal enterprise here. The Crown has proceeded against Mr Kiss and Mr Humphreys for an offence which carries a substantially lesser maximum penalty. The separation of functions however does not permit the court to canvass the exercise of the prosecutor's discretion in a case in which it considers a less serious offence to be more appropriate. Here there was no submission at the time the offender was indicted before the jury that the exercise of the prosecutorial discretion to proceed with more serious charges against the offender was an abuse of process.
As the authorities indicate, it would be wrong for the court to try to apply an extended version of the parity principle when comparing sentences of two people involved in a common enterprise and factoring out the extent to which the difference in sentences is a function of the prosecutorial discretion.
Counsel for the offender submits in written submission that whilst there are different maximum penalties '...If the co-offenders were reckless, it is submitted that there is no doubt that they in fact knew the origin of the funds as their involvement was much more important than that of the offender'. Further the offenders '... were at the highest end of 'recklessness' whereas the offender was at the very low end of the scale of 'knowing' (W/S at 7.1).
In setting the sentence I have exercised caution in ensuring I have not incorrectly applied principles of parity."
His Honour then proceeded to nominate an indicative sentence of imprisonment for two years and six months with respect to each of the 28 counts before imposing an aggregate sentence of imprisonment for six years with a non-parole period of four years, with the latter period to expire on 14 June 2021.
It was submitted that it is difficult to appreciate how the Applicant does not have a justifiable sense of grievance when he has been convicted of lesser offences and received a greater penalty than Barnes who was convicted of offences which carried a greater maximum penalty, but then received a lesser sentence.
Mr Wendler submitted that his Honour Judge Zahra SC was wrong in stating that parity considerations did not apply as between the Applicant and Barnes. In practical reality, it was submitted that the Applicant was tried de facto for s.193B(2) offences despite being actually charged with s.193B(3) offences. Counsel contended that his Honour embraced an erroneously restrictive approach to the application of the parity principle, an approach criticised in Jimmy v R.
Counsel for the Applicant submitted that the parity principle is of wide application and is not to be withheld for technical reasons because the principle is part of the wider principle of consistency in sentencing. It was submitted that the Applicant's role in the joint criminal enterprise can fairly be described as equal to that of Barnes, or that Barnes' role was slightly more serious than that of the Applicant given the fact that Barnes approved the monies to be advanced to the Applicant. Without Barnes, the joint criminal enterprise to defraud the CBA could never have been accomplished.
It was submitted that the Court should intervene and reduce the Applicant's sentence so that it is either the same, or less than, that imposed on Barnes.
Crown Submissions
The Crown noted that this Court in Jimmy v R considered circumstances where offenders are not strictly co-offenders, in that they faced different charges arising out of their involvement in the same criminal conduct.
With respect to this category, the Crown acknowledged that application of the parity principle is not straightforward. It was noted that the decision in R v Kerr [2003] NSWCCA 234 was disapproved of in Jimmy v R at [130]. There, Campbell JA observed that the decision in R v Kerr should not be followed insofar as it "permitted the parity principle to undo the effect on sentence of different charges being brought against two participants in a common criminal enterprise".
The Crown noted that there were few cases where (as in the present case) a person has received a higher sentence than that imposed upon a co-offender who was sentenced for a more serious offence. Reference was made to the decision in Rend v R (2006) 160 A Crim R 178; [2006] NSWCCA 41. The Crown noted that, in Jimmy v R, Campbell JA said (at [160]) that Rend v R did not establish the correctness of the principle in R v Kerr.
The Crown pointed to a number of decisions in this Court where it has been said that the decision in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 does not permit a sentencing court to use the parity principle to, effectively, review the exercise of prosecutorial discretion: Ivory v R [2014] NSWCCA 181 at [61]; Gaggioli v R [2014] NSWCCA 246 at [33]; Dunn v R [2018] NSWCCA 108 at [22].
The Crown noted, however, that the parity principle has application where co-offenders are charged with different offences, but that the relevant comparison "is more broad and impressionistic" than would normally be the case: Dayment v R [2018] NSWCCA 132 at [65]; Hanley v R [2018] NSWCCA 262 at [56]; Gilmour v R [2018] NSWCCA 295 at [77].
The Crown accepted that the parity principle would appear to have application in this case in a broad and impressionistic sense, particularly given that Barnes was sentenced for more serious offences than the Applicant.
It was submitted that the difference between the sentence imposed on the Applicant and that imposed on Barnes was justifiable having regard to the differences between them. It was said that the lesser sentence imposed on Barnes can be explained by reference to his subordinate role within the common criminal enterprise and the lesser reward that he received by his participation in it. The Crown submitted that it cannot be said that Barnes' role was "equal to" or "slightly more serious" than the Applicant and that the opposite was, in fact, the case.
It was submitted that there was little to differentiate between the Applicant and Barnes as far as their subjective cases were concerned and the justification for the different sentences does not lie on that side of the case.
The Crown noted that both sentencing Judges had assessed the objective seriousness of the offences as being high. However, one matter relevant to the objective criminality of Barnes' offences, but which did not apply to the Applicant, was the breach of trust involved in him being an employee of the CBA.
The Crown noted the findings made by her Honour Judge Girdham SC concerning the respective roles of the offenders. Although her Honour was not called upon to assess the criminality of Barnes relative to that of the Applicant, it was noted that in the context of discussing the objective seriousness of the offences, her Honour referred to the fact that the scheme involved making corrupt payments to Barnes which indicated that her Honour perceived, consistently with the findings made later by his Honour Judge Zahra SC, that Barnes was subordinate to the Applicant and Kiss.
The Crown pointed to findings made by his Honour Judge Zahra SC that the rewards received by Barnes were far more modest than those received by the Applicant and Kiss.
The Crown noted that the findings of the two sentencing Judges were essentially consistent regarding the relative criminality of the Applicant and Barnes and that the sentences can be compared without the need to make allowances for different factual findings.
The Crown noted the approach of his Honour Judge Zahra SC which was to exercise caution in ensuring that he had not incorrectly applied the parity principle (ROS33) at [79] above).
With respect to the Applicant's argument that his Honour did not apply the parity principle and thereby erred, the Crown submitted that nothing turned on that as his Honour's judgment was not the subject of the appeal and that disparity is a ground that does not depend on demonstration of error: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Green v The Queen; Quinn v The Queen at [32].
The Crown submitted that the role of Barnes in the offences was undoubtedly critical and there were multiple steps that he had to take in order to manipulate the CBA's usual procedures in order to effect the fraud. It was submitted, however, that overall his place in the hierarchy of the criminal enterprise was low. He had a discrete and particular role for which he was paid by the Applicant and Kiss who were the principal actors. The Crown submitted that this was demonstrated by the relatively small rewards that Barnes received.
It was submitted that the Applicant, on the other hand, received hundreds of thousands of dollars, some of which was spent on luxury purchases. Further, the evidence obtained from the Applicant's home demonstrated that he was involved in the preparation of paperwork before it was handed to Barnes and that he gave advice to Kiss concerning applications for loans to avoid detection and that the Applicant then took control of most of the fraudulent monies and was responsible for their subsequent disbursements. These steps involved the Applicant meeting with a solicitor to set up shelf companies, of which he was a director, to assist Kiss in making purchases of luxury vehicles and properties.
The Crown submitted that the Applicant accepted, at first instance, that the evidence demonstrated his involvement in the application process as well as the expenditure of funds received, but that Barnes, by way of contrast, was involved in an admittedly critical, but confined step in the process.
It was submitted that her Honour Judge Girdham SC found that the Applicant planned to maintain some kind of an interest in the property purchased in Nowra and that his trip to the United States with Kiss to look at real estate demonstrated not only the way in which he used the fraudulent monies for greed, but also the extent to which he was Kiss' partner in the enterprise.
The Crown submitted that when regard is had to the relative roles of the Applicant and Barnes, the Applicant can have no justifiable grievance about his sentence being more severe than that imposed on Barnes.
It was submitted that an extension of time should not be granted and that, in any event, the appeal should be dismissed.
Decision
At the outset, it is important to note the structure of the money laundering offences contained in s.193B Crimes Act 1900:
"193B Money laundering
(1) A person who deals with proceeds of crime -
(a) knowing that it is proceeds of crime, and
(b) intending to conceal that it is proceeds of crime,
is guilty of an offence.
Maximum penalty - imprisonment for 20 years.
(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.
Maximum penalty - imprisonment for 15 years.
(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.
Maximum penalty - imprisonment for 10 years.
(4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory."
Barnes was charged with and convicted of offences under s.193B(2), each of which carried a maximum penalty of imprisonment for 15 years. The Applicant, on the other hand, was charged with and convicted of offences under s.193B(3), each of which carried a maximum penalty of imprisonment for 10 years.
Section 193B creates a series of offences with an escalating maximum penalty with the gravest offence being that contained in s.193B(1) followed by the offence in s.193B(2) and then an offence under s.193B(3). Knowledge that the "proceeds of crime" are proceeds of crime is an element of a s.193B(2) offence, but not a s.193B(3) offence. With respect to the latter offence, it is for the Crown to prove that the accused person dealt with proceeds of crime being reckless as to whether the relevant property was proceeds of crime. The terms "deal with" and "proceeds of crime" are defined in s.193A.
The cascading structure of offences contained in s.193B is confirmed by s.193E which provides for alternative verdicts so that, where a person is on trial for an offence under s.193B(2), and the jury is not satisfied that the accused person is guilty of the offence charged, but is satisfied that he or she is guilty of an offence under s.193B(3), the jury may find the person guilty of a s.193B(3) offence and the accused person is liable to punishment accordingly (s.193E(2)).
Insofar as recklessness is an element of a s.193B(3) offence, it is appropriate to note s.4A Crimes Act 1900 which provides:
"4A Recklessness
For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge."
Where a person is to be sentenced for offences under s.193B(3), it is necessary for the sentencing court to keep in mind the elements of an offence under that section so as to guard against the risk of error by reference to the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 by, in effect, sentencing the offender as if that person had committed an offence under s.193B(2): Atilgan v R [2018] NSWCCA 5.
Even in a case of a s.193B(3) offence where the Crown relies upon s.4A to prove recklessness by means of proof of knowledge, it remains necessary for the sentencing Judge to be conscious of the confines on sentence imposed by s.193B(3), where the lesser maximum penalty of imprisonment for 10 years is fixed. The maximum penalty is a most important sentencing yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The "spectrum" of conduct which constitutes an offence under a particular section is capped by the maximum penalty which is to be taken into account in identifying where a particular offence lies on that "spectrum": Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]; The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19].
The De Simoni principle operates for the benefit of the offender and is an aspect of the fundamental principle that no one should be punished for an offence for which the person has not been convicted: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [29].
In a case such as the present, the two offenders are to be sentenced for different offences where there is a substantial overlap in the conduct covered by the offences. As Basten JA said in R v Chandler; Chandler v R [2012] NSWCCA 135 at [7]:
"The judge sentencing each offender, whether the same judge or different judges, must sentence for the offence for which each offender stands convicted or to which each has pleaded. If one offence bears a lower level of culpability, as reflected in the maximum penalty, that is an important factor to be weighed in the sentencing. It may not be decisive: the same conduct may be a low range example of the more serious offence, but a high range example of the less serious offence. Taking such factors into account is only a 'difficulty' if one starts with a presumption of equal outcomes: such a presumption is not in conformity with the process which involves a weighing of different and often conflicting factors."
In approaching the present case, it is necessary to keep in mind the difference between the offences for which the Applicant and Barnes went to trial and at which each was convicted.
To focus upon the decision of this Court in R v Kerr provides, at the least, a distraction in the context of the present case. The decision in R v Kerr was confined in R v Formosa [2005] NSWCCA 363 (Simpson J, McClellan CJ at CL and Hoeben J agreeing) and Pham v R (2009) 193 A Crim R 190; [2009] NSWCCA 25 (Latham J, Giles JA and Mathews AJ agreeing) before being said to be wrongly decided in Jimmy v R. In Jimmy v R, Campbell JA said at [203]:
"There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:
1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa;
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa;
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar;
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [127]-[134]. However Nguyen stands as one example where that result arose."
In Jimmy v R, Howie J agreed with Campbell JA and observed (at [245]-[247]) (my emphasis):
"245 The principle of parity should not be confined to a consideration of the sentences imposed upon co-offenders in the strict sense, that is persons involved in and charged with the very same crime. There is nothing in the decisions of the High Court that so confine it. Where the courts have stated that the principle of parity applies only to co-offenders, it has usually been in situations where the applicant has sought to use the principle for an illegitimate purpose by seeking to compare the sentence imposed upon the applicant with a sentence imposed upon another offender who was not engaged in the offence committed by the applicant.
246 The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment.
247 In particular I agree, for the reasons given by his Honour, that R v Kerr [2003] NSWCCA 234 should no longer be followed insofar as the proposition for which it is generally cited. It is not the business of the courts to try to ameliorate the effects of prosecutorial decisions in charging, or not charging, persons involved in a criminal enterprise. The facts of Kerr do not, in my respectful opinion, justify the decision taken and this Court has not since Kerr was decided found or been able to envisage a situation in which a court would be justified in taking into account the effects of prosecutorial discretion when exercising the sentencing discretion. I have been concerned at the number of times that Kerr has been relied upon in this Court, at least when I have been a member of it, without any reference being made to the decisions that have raised doubts about its correctness."
Rothman J agreed with Campbell JA and Howie J and said (at [267]):
"Further to the above, I would also reiterate my agreement with the view expressed by Campbell JA and Howie J as to the appropriate treatment of the judgment of this Court in R v Kerr [2003] NSWCCA 234. It is fundamental to the system of justice operating in this State that it is for the prosecuting authority, alone, to exercise the discretion as to the charge to be preferred; it is for the accused, alone, to determine the plea to be entered; and it is for the sentencing judge, alone, to impose a proper sentence in all of the circumstances for the offence proved. It is no part of the function of a sentencing judge to seek to alter the effect of the exercise of the discretion of the prosecuting authority as to the charge to be preferred."
In Dwayhi v R (2011) 205 A Crim R 274; [2011] NSWCCA 67, with the concurrence of Whealy JA and Hidden J, I said at [137]:
"The legitimate grievance ground may be called in aid, in appropriate circumstances, where complaint is made concerning parity, proportionality or relativity between sentences of related offenders involved in the same criminal enterprise regardless of the charges that have actually been laid against the offenders: Jimmy v R at 85 [246]."
In Green v The Queen; Quinn v The Queen, French CJ, Crennan and Kiefel JJ said (at [30]) (footnotes omitted):
"In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."
In Elias v The Queen, French CJ, Hayne, Kiefel, Bell and Keane JJ said at [30] (footnotes omitted):
"Parity is concerned with the equal treatment of co-offenders. As Green v The Queen explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v The Queen is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct."
In a further passage from Elias v The Queen which bears upon the issues raised in the present appeal, their Honours said (at [35]) (footnotes omitted):
"Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the court has the power to relieve against the resulting abuse of its process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentence by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged."
These passages from Elias v The Queen have been applied by this Court in considering parity grounds of appeal: Ivory v R at [61]-[67] and Dunn v R at [22].
It is especially helpful to note the observations of Simpson J (McClellan CJ at CL and Fullerton J agreeing) in Ruttley v R [2010] NSWCCA 118 at [53]-[54]:
"53 This Court is familiar with complaints that depend upon a co-offender who is charged with a less serious offence and consequently receives a lesser penalty. It has consistently declined to extend its supervisory role, under the guise of the parity principle, to prosecutorial discretions: see, eg Pham v R [2009] NSWCCA 25, per Latham J.
54 This case, however, is different: KR was charged with a more serious offence, carrying a heavier penalty; he was nevertheless dealt with more leniently. That would, in my opinion, ordinarily give rise to the application of parity principles."
In the present case, the Applicant and Barnes were charged as persons involved in different aspects of the same criminal enterprise. Each of them was a critical participant in a process of sustained dishonesty.
The Crown determined to place the Applicant on trial for a series of s.193B(3) offences although reliance was placed upon the Applicant's alleged knowledge in proof of the element of recklessness. It was for these offences that the Applicant stood to be sentenced with each offence carrying a maximum penalty of imprisonment for 10 years.
Barnes stood trial for offences under s.193B(2) with each offence carrying a maximum penalty of imprisonment for 15 years.
The determination of the present appeal does not involve this Court revisiting or expressing approval or disapproval of the exercise of prosecutorial discretion which saw the two men charged with different offences arising out of the same criminal enterprise.
The question to be considered is whether, having regard to principles of proportionality, relativity and equal justice, the Applicant may be said to have a legitimate sense of grievance arising from the lesser aggregate sentence imposed upon Barnes for what were, on their face by reference to the maximum penalties, a series of more serious offences.
The principles emerging from Green v The Queen; Quinn v The Queen, and the endorsement in that case of what was said in Jimmy v R, makes clear that it is open to a person in the place of the Applicant to invoke these principles in support of his sentence appeal. It is not necessary for the Applicant to demonstrate error on the part of one or other of the sentencing Judges who sentenced Barnes and himself.
It is open to the Applicant to advance a parity or proportionality ground in this Court by reference to the sentence imposed subsequently upon Barnes: Jones v The Queen (1993) 67 ALJR 376; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at [108].
There are areas of difference between the objective gravity of the offences committed by the Applicant and Barnes. The Applicant was found to be at a high level of the criminal hierarchy involved in this scheme, although lying below Kiss, but above Barnes. The Applicant benefitted significantly and materially from these offences and certainly more so than Barnes. On the other hand, as an employee of the CBA, Barnes engaged in a breach of trust which was critical to the criminal enterprise using inside knowledge which he had gained working in that capacity. Although there are differences in the distribution of the proceeds of the offences, this distinction is not decisive for the purpose of the outcome of the present appeal.
The subjective cases of the Applicant and Barnes have understandable differences between them, but there is no significant factor which distinguishes between the two men in this respect. Her Honour noted the Applicant's "old" offences on his criminal history which were said to "have little significance to the sentencing exercise" (ROS38-35 at [63] above).
A critical difference between the Applicant and Barnes was that each of Barnes' offences carried a higher maximum penalty than that of the Applicant. This was no technical distinction and it was necessary for this feature to be apparent in the sentencing outcomes between the two persons. It is an unusual case where the person who commits the more serious offences (by reference to maximum penalty) attracts the lesser sentence. That is what occurred in this case. As Simpson J observed in Ruttley v R at [54] (see [132] above), such a case will ordinarily attract application of parity principles.
A similar scenario gave rise to a successful sentence appeal in Rend v R, where James J (Buddin and Hall JJ agreeing) said (at [106]-[109]):
"106 As I have already indicated, his Honour considered that because Wormleaton had been convicted of a more serious offence and had received a discount for his pleas of guilty and assistance, the principle of parity in sentencing did not apply. However, notwithstanding these differences between the appellant and the co-offender Wormleaton, I consider that it was still necessary for the sentencing judge to impose a sentence on the appellant such that there would be a due proportion between the sentence passed on the appellant and the sentence or sentences passed on Wormleaton Postiglione v The Queen (1995-1996) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ. The principle of due proportionality in sentencing co-offenders was applied in Postiglione, notwithstanding a number of differences between Postiglione and the co-offender Savvas.
107 The judge who sentenced Wormleaton quantified a combined discount for Wormleaton's pleas of guilty and assistance as 50 per cent, so that the sentence which would have been imposed on Wormleaton for the offence of armed robbery, absent the plea of guilty and the assistance, would have been five years.
108 I accept the submission by counsel for the appellant that the sentence imposed on the appellant of four years was unduly severe, when compared with a sentence of five years, which would have been imposed on Wormleaton but for his pleas of guilty and assistance. Wormleaton was sentenced for a more serious offence of armed robbery, whereas the appellant was sentenced for the less serious offence of robbery simpliciter. It is clear that Wormleaton took the leading role in the planning of the offence for which the appellant was sentenced, the preparation for the offence and the actual carrying out of the offence. At the time of committing the offence of armed robbery, Wormleaton was on bail and subject to a bond. The sentence imposed on Wormleaton was partly concurrent with the sentences imposed for the other offences committed by Wormleaton.
109 As, in my opinion, the challenge to the appellant's sentence based on Postiglione v The Queen has been made good, it is unnecessary to consider the remaining grounds of appeal against sentence. I would grant leave to the appellant to appeal against sentence and I would allow the appeal against sentence."
The decision in Rend v R was explained in Jimmy v R without criticism. The approach adopted by the Court in Rend v R is consistent with the principles explained in Green v The Queen; Quinn v The Queen and subsequent cases where the proportionality or relativity principle has been called in aid in support of a sentence appeal.
As Basten JA observed in R v Chandler; Chandler v R (see [122] above), there may be a case where an offender is said to have committed a low range example of a more serious offence while a co-offender has committed a high range example of a less serious offence. This appears to have been the submission made by counsel for Barnes at the sentencing hearing before his Honour Judge Zahra SC (Barnes, ROS33 at [79] above).
Even allowing for this approach, it is difficult to see how the sentencing outcomes in this case were reached without infringing the proportionality or relativity principle. Both the Applicant and Barnes were critical participants in a serious criminal enterprise where their own respective skill and experience played a vital part in the venture. Yet the Applicant received a significantly heavier sentence for less serious offences than Barnes who was to be sentenced for offences which carried a maximum penalty which was 50% greater than that which applied to the Applicant.
The present case is an unusual one given the charges brought against the two offenders and the sentencing outcomes which have given rise to this appeal. I am satisfied that the ground of appeal should be upheld.
As the Applicant's ground of appeal has merit and has been successful, an extension of time is warranted in the circumstances of the case.
I propose the following orders:
1. extend time for the Applicant to seek leave to appeal against sentence until 25 October 2019;
2. grant leave to appeal against sentence;
3. quash the aggregate sentence imposed at the Sydney District Court on 28 October 2016;
4. in its place, sentence the Applicant by way of an aggregate sentence to imprisonment for a period of seven years comprising a non-parole period of four years and three months commencing on 27 October 2016 and expiring on 26 January 2021, with a balance of term of two years and nine months commencing on 27 January 2021 and expiring on 26 October 2023;
5. the earliest date upon which the Applicant will be eligible for release on parole is 27 January 2021.
HAMILL J: I agree with the orders proposed by Johnson J and with his Honour's comprehensive reasons.