Johnson v The Queen [2014] VSCA 286

CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Theft, false accounting and obtaining property by deception - Submission of a false document to ASIC - Co-offender convicted of similar offences - Whether judge failed to have regard to burden on applicant caused by hardship on family caused by imprisonment - Contention not advanced to sentencing judge - Romero v The Queen (2011) 32 VR 486 applied - No cogent expert evidence for such hardship - R v Zander [2009] VSCA 10 applied - Parity -Whether judge failed to have regard to lesser sentences imposed on co-offender - Whether manifestly excessive - Early guilty plea by co-offender - Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 - No error disclosed - Application dismissed.

2 On 2 October 2013, the applicant pleaded guilty, before a judge of the Trial Division, to seven charges. On 17 April 2014, he was sentenced as follows:[1]

contrary to s 83 Crimes Act 1958

contrary to s 176 Crimes Act 1958

Submit a False Document to the Australian Securities and Investments Commission contrary to s 1308(2) of the Corporations Act 2001 (Cth)

s 74 Crimes Act 1958

contrary to s 83 Crimes Act 1958

Theft contrary to s 74 Crimes Act 1958

Obtained financial advantage by deception contrary to s 82 Crimes Act 1958

9 years' imprisonment with a non-parole period of 6 years

3 On 21 May 2014, the applicant applied under s 278 of the Criminal Procedure Act 2009 for leave to appeal against his sentence. His proposed grounds were as follows:

Ground 1: The learned sentencing judge failed to apply the principle of parity.

Ground 2: The learned sentencing judge failed to adequately evaluate the differences between the applicant and Murray.

Ground 3: The learned sentencing judge erred in failing to accept there were exceptional circumstances of family hardship.

Ground 4: The learned sentencing judge failed to place any or sufficient weight on:

(a) The applicant's prospects of rehabilitation;

(b) The substantial reparation he made;

(c) The applicant's remorse;

(d) The applicant's cooperation with authorities;

(e) His high degree of acceptance of responsibility for his actions;

(f) His motivation to save the company for the benefit of employees and clients.

4 On 28 August 2014, Whelan JA refused leave to appeal against sentence.

5 The applicant has elected, pursuant to s 315 of the Criminal Procedure Act 2009, to have his application for leave to appeal against sentence determined by this Court.

6 At the hearing of the renewed application, the applicant applied for leave to file amended proposed grounds of appeal. Those proposed grounds are as follows:

1. The sentencing judge erred in the manner in which he had regard to the circumstances associated with the applicant's family hardship and the prospect that imprisonment would be a greater burden on the applicant.

1. The sentencing judge erred in imposing a sentence on the applicant which, when compared with the sentence imposed on his co-offender Scott Murray, gave rise to a disparity which in all the circumstances was manifestly excessive.

1. The sentencing judge placed undue weight on the co-offender's cooperation with authorities.
2. The sentencing judge failed to place any or sufficient weight on:
   1. The applicant's prospects of rehabilitation;
   2. The substantial reparation he made;
   3. The applicant's remorse;
   4. The applicant's co-operation with authorities;
   5. His high degree of acceptance of responsibility for his actions;
   6. His motivation to save the company for the benefit of employees and clients;
   7. The greater offending undertaken by the co-offender, Scott Murray;
   8. The likely greater burden of imprisonment on the applicant by reason of the state of his mental health and family hardship.

7 The amended proposed grounds changed the trajectory of the application. As the applicant said at the hearing, there were now only two issues to be considered: (a) family hardship and (b) parity. Before Whelan JA, it was simply contended that the sentencing judge failed to take into account the impact of imprisonment on the applicant's family. At the renewed hearing, the applicant abandoned that ground and contended instead that the sentencing judge had failed to take into account the impact on the applicant himself of the hardship caused to his family by his imprisonment. Secondly, before Whelan JA, it was contended that the sentencing judge had failed to take into account principles of parity and, separately, had failed to take into account other considerations. At the hearing of the renewed application, the applicant contended that, in failing to give proper consideration to principles of parity, the sentencing judge failed to give any or any due regard to those considerations which were themselves recast and amplified.

8 The Crown opposed the application to rely on the amended proposed grounds of appeal. From what was said, it seems that its opposition was based on the issue of futility: in other words, as the proposed amended grounds could not succeed, it was futile to give leave to make them.

9 I would grant the applicant leave to rely on his proposed amended grounds of appeal.

10 On 22 September 2011, the applicant was charged. On 6-8 August 2012, a committal hearing was conducted. On 17 May 2013, the applicant entered pleas of guilty in relation to three charges on a 24 charge indictment in the Supreme Court. On 2 October 2013, which was the first day on which the matter was listed for trial, the applicant entered pleas of guilty in relation to the remaining charges, the subject of this application.

11 The offences occurred between 6 December 2007 and 22 June 2010.

12 The applicant was the sole director of Sonray Capital Markets Pty Ltd ('Sonray') which he established in April 2003. In addition, through RJ Equity Pty Ltd, a company associated with him, he was the majority shareholder in Sonray.

13 Sonray was a broker/adviser which offered to clients financial products, including leveraged financial derivatives known as Contracts for Difference (CFD's).

14 The co-offender, Scott Murray ('Murray'), the applicant's brother-in-law, was Sonray's Chief Executive Officer.

15 From December 2003, Sonray offered financial products to clients though a trading platform of a Danish based global bank, Saxo Bank ('Saxo').

16 Initially, Saxo required Sonray to deposit sufficient collateral with it to meet clients' trading.

17 Later, sometime between 2006 and 2007, Saxo relaxed the requirement and allowed Sonray to upload deposits into clients' trading accounts before Saxo received funds to meet them.

18 By 2008, Murray was in charge of the Sonray trading desk. The applicant was involved in seeking out new business and the development of an innovative trading platform for Sonray's use. He also did some trading.

19 In 2007 and 2008, Sonray was under heavy financial pressure due to a trading error made by Murray, unauthorised trading on behalf of clients by a rogue trader and expenses of developing a new trading platform.

20 In order to keep the clients' trading platform open, the applicant agreed with Murray to 'upload' deposits into client accounts, where no funds were deposited, to meet Saxo margin calls for more collateral in the accounts.

21 This was the background to most of the applicant's offending.

22 Around May 2008, the applicant and Murray agreed to use a 'friendly' account to shift money from the Sonray Client Account to its business operating account to help meet expenses. Between 8 May 2008 and 17 February 2009 Murray uploaded $3,790,000 to accounts in the name of an old school friend, Carey Anderson ('Anderson'). Murray transferred $3,675,000 from these accounts, through a bank account he controlled, to the Sonray Operating Account to meet business expenses. None of the transactions were authorised by Anderson or done with his knowledge. (Count 1)

23 In late 2008, the applicant agreed with Murray to upload deposits into the applicant's client accounts to place hedging trades to meet Saxo margin calls which threatened to close Sonray's trading platform. Between 14 August 2008 and 30 June 2009, Murray uploaded unfunded deposits of $6.85 million to the applicant's accounts. Murray made the majority of the trades. The applicant made some; mostly when Murray was unavailable. (Count 5)

24 As a by-product of the hedging (Count 5), Saxo paid Sonray commissions totalling $5,312,559. (Count 7)

25 In May 2009, Murray deposited $1.99 million, received from Asian Pacific Building Corporation Pty Ltd, a company associated with William Deague ('Deague'), who was a client, into Sonray's Operating Account rather than Client Segregated Account. With the applicant's agreement, the funds were wrongly retained and used to pay Sonray business expenses. (Count 2)

26 The applicant approved a Solvency Review report, submitted to the Australian Securities and Investments Commission in mid-2009, which falsely reported issued capital of $5.205 million, which represented the unfunded transfers from the Anderson accounts (Count 1) and the Deague deposit (Count 2) which were paid into Sonray's Operating Account. (Count 3)

27 Additionally, in December 2007, at the applicant's direction, Murray uploaded funds to the account of his father, John Murray, to repay a $441,000 loan the applicant and his wife owed to John Murray. (Count 4)

28 Between April 2009 and March 2010, the applicant directed staff to transfer 18 amounts totalling $301,649 from client accounts associated with him to the personal bank accounts of the applicant and his wife. The moneys were used to pay domestic expenses. (Count 6)

29 In Ayol v The Queen,[6] Weinberg JA said:

I would also note that although this renewed application for leave to appeal is by way of rehearing, the carefully expressed reasons of a judge of this Court who has refused such leave will ordinarily be given considerable weight. That is not because this is an appeal from [a judge of this Court]'s decision refusing leave. Of course, it is not. It is rather that his Honour's reasoning needs fully to be taken into account. In the event that no flaw or error in that reasoning can be discerned this Court would be slow to arrive at a different conclusion, and order that leave to appeal be granted.[7]

30 In the present case, the applicant, at the renewed hearing, relied on arguments that were, in part, different from those that he had propounded before Whelan JA.

Ground 1: impact of family hardship on the offender

31 At the sentence hearing, the judge was asked to consider the hardship that would be visited upon the applicant's family by reason of his imprisonment.

The law also makes clear that if the family predicament does not amount to an exceptional circumstance, that predicament does not otherwise attract some kind of 'residual mercy' as a mitigating factor.

What I have just said applies only in relation to the sentence I pass in relation to the State offences. In relation to the Commonwealth offence, I do have regard to the probable effect that a term of imprisonment will have on your family.[8] Apart from that, as the Crown accepted, I am able to (and do) take

into account your family circumstances as one factor among many in the synthesis of factors that inform my sentencing disposition on all counts.[9]

33 In Markovic v The Queen,[10] the Court distinguished the hardship which imprisonment places upon the offender's family from the effect on the offender of hardship caused to family members by imprisonment. The Court said:

The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor - for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the 'exceptional circumstances' limitation.[11]

34 On 21 October 2014, the applicant filed a document entitled 'Additional submissions in support of renewed application for leave to appeal against sentence ('Additional Submissions')'. In the Additional Submissions, the applicant drew a distinction between the impact of the imprisonment of an offender on his or her family and the impact of family hardship occasioned by imprisonment on the offender. He submitted that the judge had considered only the former and not the latter.

35 In the Additional Submissions, the applicant contended that there was cogent evidence that his imprisonment 'would be more burdensome by reason, in part, of the effect on [him] of the significant hardship caused to his family by his imprisonment.' He said that the judge did not take into account an important matter in mitigation which ought to have reduced the sentence that might otherwise have been imposed. He said that the failure of the sentencing judge to take into account the impact of family hardship on the applicant arose because the judge had misapprehended the force of a submission that had been made to him.

36 During the sentence hearing, the applicant tendered a report from Mr Jeffrey Cummins dated 29 November 2013. That report contains the following paragraph:

In the time I was assessing Mr Johnson it was my opinion he was severely depressed although I did not assess him as being acutely suicidal. I am aware the dosage of the antidepressant Lexapro was increased from 10mg to 20mg around October/November 2012. In my opinion it is inevitable Mr Johnson's mental health will deteriorate if he is incarcerated. In my opinion the prison authorities should be notified that it is my opinion his mental health will deteriorate upon him being incarcerated. As a result of the collapse of Sonray Capital Markets Pty Ltd he and his wife have lost their home and their holiday house and monies owed to them by Sonray Capital Markets Pty Ltd. He and his wife now have no assets. As indicated above, Mr Johnson should be receiving ongoing mental health treatment. In my opinion at the time of offending Mr Johnson's ability to correctly perceive his circumstances and to therefore engage in prudent decision making was compromised as a result of him suffering from a Depressive Disorder. In my opinion it is correct to state at times he experienced mood-congruent psychotic features and encapsulated delusional thinking as part of the Depressive Disorder. Nonetheless, I remain of the opinion at the time of offending he was not suffering from a specific Psychotic Disorder but at times his thought processes were so faulty, he was engaging in thinking which was out of touch with reality. In my opinion the serving of any jail sentence will be more onerous for Mr Johnson than for someone who does not suffer from the mental health problems from which he suffers.[12]

At the sentence hearing, the report by Mr Cummins was used to support a submission that the matters it contained should be taken into account by the judge 'when considering [the applicant's] moral culpability, and when he made dishonest decisions'.

The medical evidence also reveals that you have suffered depression as a result of your wife's illness, your offending and Sonray's collapse. You have been on medication for it since about 2011. I have also taken that into account. There was some fleeting suggestion made that a depressive reaction after the diagnosis of your wife's illness may have had some causal bearing on your offending. But [counsel], properly in my view, did not seek to advance any reliance upon the principles in the case of R v Verdins either to suggest that your depressive condition reduced your moral culpability for the offending, or that the depressive condition means that a given sentence will weigh more heavily on you than it would on a person in normal health.[13]

38 In the Additional Submissions, the applicant said that the sentencing judge went too far: he was correct in saying that the applicant had disavowed any reliance upon the report of Mr Cummins as supporting a submission that the applicant's depressive condition reduced his moral culpability; but, he was wrong to say that that report did not support a contention that the 'depressive condition [meant] that a given sentence will weigh more heavily on [the applicant] than it would on a person in normal health'.[14] In the Additional Submissions, it was said that: '[c]ounsel did not disavow [the] contention' that '[t]here was cogent evidence that the Applicant's imprisonment would be more burdensome by reason, in part, of the effect on the Applicant of the significant hardship caused to his family by his imprisonment'.

39 It is true that, at the sentence hearing, counsel did not disavow such a contention. But, more importantly for present purposes, he did not advance any such contention.

40 On the hearing of the application, the applicant referred to two aspects of the evidence adduced before the sentencing judge that, he said, supported his present contention. Andrew Marshall Rice and the applicant had daughters at the same school; they had become friends. Mr Rice attended all of the applicant's court appearances. The applicant's wife had suffered from a brain tumour. Mr Rice's wife had suffered similarly. Mr Rice gave evidence of the variations of the condition and of the support that was needed on a constant basis. He said it was hard for people suffering from the condition, and 'exceptionally hard for the people around them'. Mr Rice had spoken to the applicant of the care the applicant's wife needed and which he would not be able to provide when the applicant was in prison: 'obviously some parts of it I will be able to pick up but by no means can I replace what is needed day to day, minute by minute, hour by hour in regards to their family'.

41 Dr Elise Julien, a counselling and clinical psychologist provided a written report dated 24 November 2013, which contained the following observations:

At that time I observed and heard definite changes in Russell's mood levels. I was extremely concerned regarding Russell. He had managed emotionally for most of the time. However, by this time he has reported several episodes of feeling suicidal where he had felt extremely low and contemplated how he could end his life (eg drowning, walk in front of a car, try to obtain drugs). He had managed to think himself out of this state, reminding himself of Jill and the kids. He had also witnessed the aftermath of a suicide on family and close friends, after his best friend suicided some years ago.

At this stage I strongly recommended that Russell consult his GP regarding anti-depressant medication for his depression, low mood, and suicidal thoughts. I also suggested that Jill took control of giving him the tablets, as a safe guard.

42 In Romero v The Queen,[15] Redlich JA said:

In sentencing appeals, this court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivication of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[16]

43 In O'Connor v The Queen,[17] the Court emphasised the application of the R v Verdins[18] principles must rest upon specific expert evidence regarding the nature of the impairment and its past, present and future impact upon the offender. As Dodds-Streeton JA said in R v Zander:[19]

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between a mental disorder and the offending and other relevant matters.[20]

44 The following points should be noted. The evidence of Mr Rice was not the subject of any specific submission before the sentencing judge. The report of Dr Elise Julien was tendered together with reports of Dr Sally Lapin, Mr Jeffrey Cummins and Dr Bruno Martin. The reports having been tendered, counsel made the following submission:

Your Honour, whilst I'll only address Mr Cummins' report, I certainly commend to Your Honour the contents of the other reports. They state very directly as to the medical circumstances of Jill Murray and as to the circumstances of the family since the time of this offending. They are in my submission powerful evidence in support of the proposition that there will be hardship which amounts to exceptional circumstances such that Your Honour should take that hardship to the family into account as a mitigating circumstance. The point that I want to address Your Honour - I'm obliged to address Your Honour in relation to Mr Cummins is at p 9, Your Honour.

As is plain, the reports were used in support of contentions relating to the impact of the applicant's imprisonment on his family; they were not being used in support of any proposition relating to the impact on the applicant of the hardship that his imprisonment would visit upon his family.

45 Mr Cummins's report did not provide any support for the contention that, to use the words in Markovic, the applicant's 'anguish at being unable to care for a family member ... will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of [his] prospects of rehabilitation'.[21]

46 I would refuse to grant leave on this ground.[22]

Ground 2: the sentencing judge failed to apply the principle of parity and adequately to evaluate the differences between the applicant and Murray

47 Murray, the applicant's brother-in-law and co-offender, was convicted of ten dishonesty offences and sentenced to a total effective sentence of five years' imprisonment, with a minimum non-parole period of two years and six months.[23] The applicant contends that, given the sentence imposed on his co-offender, the sentence imposed on him offends the principle of parity.

48 In Postiglione v The Queen,[24] Dawson and Gaudron JJ said:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, 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". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.[25]

49 As the Crown explained in its submission, the contrast between the criminality in the charges of which the applicant has been convicted and those of his co-offender is not all that marked. In his written submissions, the applicant provided a chart which sought to compare the charges in respect of which he had pleaded guilty and had been convicted with those in respect of which Murray had pleaded guilty and had been convicted. In its submissions, the Crown provided a corrected version of that chart. As the corrected chart below helps demonstrate, the sentencing judge was justified in saying: 'Murray was also charged with a similar, but not entirely identical, range of charges to those with which you were charged'.[26]

Johnson Count Equivalent, partially equivalent, related or analogous count

False Accounting (Carey Anderson Accounts including entries for funding Operating Account and for hedging)

Count 1 (including only entries for funding of Operating Account)

False Accounting (Payments to Deague totalling $3.082 million)

False Accounting (Payments totalling $1.3 million to other clients)

False Accounting (hedging using RAJ Accounts ($6.85 million) plus six other clients' accounts (totalling $6.18 million plus)

(hedging using RAJ accounts ($6.85 million), plus Anderson Accounts and SKM 1, 2 & 3)

Johnson Count Equivalent, partially equivalent, related or analogous count

Obtain financial advantage by deception (commissions earned on hedging trades - $6,128,208)

(commissions earned on hedging trades - $5,312,559)

False accounting (uploading $2.414 million to Murray's accounts)

Part of Count 5 (hedging using SKM 1, 2 & 3 "Murray accounts").

50 The applicant conceded that the amendments that the Crown had made were accurate. It is true that the applicant was not charged with the second and third offences with which Murray was charged. Further, the particulars of the ninth 'Murray' charge formed part of the fifth charge against the applicant. The seventh 'Murray' charge and the fifth of the applicant's charges were of 'false accounting'. But the seventh 'Murray' charge included particulars that were not included in the applicant's fifth charge, and the latter included other particulars that were not included in the former.

51 At the hearing, counsel for the applicant drew attention to a number of matters favourable to the applicant for which, he contended, the applicant received no benefit from the sentencing judge. He referred to the events which occurred both before and after Sonray went into liquidation. In mid May 2010, ASIC had required Sonray to reconcile its client moneys. The applicant had disclosed to officers of Saxo that there were deficiencies in the Sonray accounts. On 9 June 2010, the applicant confessed to Mr Takabatake of Saxo that fraudulent transactions had taken place. On 18 June 2010, the applicant told a senior member of staff that the deficiencies in the accounts were the fault of Murray and himself. When Saxo decided not to purchase Sonray, the applicant arranged for the appointment of voluntary administrators. Upon their appointment, the administrators conducted compulsory examinations pursuant to div 2 of pt 3 of the Australian Securities and Investments Commission Act 2001 (Cth). The lead investigator from ASIC gave evidence that the applicant had not sought to disguise his wrongdoing and had expressed remorse. Creditors commenced civil proceedings against Saxo, the auditors of Sonray and others. In June 2011, a mediation took place. At the sentence hearing, the applicant tendered a letter from the Mediator who spoke of the constructive and positive contribution made to the mediation by the applicant. He had sold his own home and his holiday home and, with the funds released, had made a contribution to the settlement with creditors that far exceeded any contribution made by his co-offender. He had apologised to creditors.

52 The applicant contended, given all that he had done and the fact that Murray had been found guilty of offending in addition to that of the applicant, the disparity in the sentences that they had received was manifestly excessive.

53 In Hilder v The Queen,[27] Maxwell ACJ said:

Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective cooffenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an appellant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.[28]

54 In his sentencing remarks, the sentencing judge considered the question of parity as follows:

[130] In submitting that you should receive a lesser sentence than Murray received, Mr Cahill relied on five main arguments:

(1) Murray's offending was greater and wider in compass than yours;

(2) Murray actively performed most of the criminal acts, whereas you primarily acquiesced in them;

(3) You actually took charge of and accepted responsibility for the problem when, in 2010, you appointed people to investigate the size of the financial hole in Sonray's accounts and actively tried to sell the business to save the clients;

(4) You made substantial reparation to the liquidators ($1.2 million) whereas Murray only repaid $190,000;

(5) Your family's hardship amounts to an exceptional circumstance, a factor not in Murray's favour.

[131] To an extent I have already dealt with a number of these matters.

[132] I am not persuaded that your different role to Murray constitutes any significant point of difference in your favour. For my part, I conclude that despite your different functions, your culpability was commensurate with his. At least I do not find, as the Crown's summary had a tendency to imply, that yours was worse. On the evidence before him, Lasry J was prepared to accept that you were the dominant personality as between yourself and Murray. His Honour appears to have regarded your relative positions as a mitigating factor in Murray's favour. In any event, based upon my own conclusions, I do not think that you deserve to be compared more or less favourably than Murray in terms of your culpability for the offending.

[133] For reasons I have explained, I do not regard family hardship as a distinguishing factor in sentencing you.

[134] On the other hand, I accept that you made greater reparation than did Murray, and that you did so from assets that may not have been available to the liquidator had you not volunteered them.

[135] In relation to taking responsibility and making admissions, it is clear that Lasry J was strongly influenced by Murray's cooperation with the authorities and his level of remorse. In addition to undergoing the coercive s 19 examination with ASIC, as you did, Murray also participated in a record of interview over two days on 27 and 28 September 2010. Lasry J describes Murray's cooperation in these terms:

In that record of interview and in your subsequent statements made on 14 July 2011, you effectively did work for the investigators and, I accept, provided those investigators with a candid account of what you had done in conjunction with Russell Johnson.

...

Your cooperation with the authorities was also highlighted by the evidence of Andrew Price who is the Senior Management Financial Services Officer with ASIC and the principal investigator. He agreed that he had volunteered to give evidence and part of the reason for that was that the speed with which the investigation was able to proceed given your cooperation was unprecedented. Mr Price is convinced of the truthfulness of what you told the investigators. He also expressed the strong view that you have shown remorse at all times in your conversations with him and he was satisfied that you were being truthful.

...

Your cooperation in this matter to date has been exceptional. It displays remorse, a willingness to accept responsibility for your actions and a desire to rectify that which you can in the circumstances.

[136] Murray waived the opportunity to have a committal and proceeded directly to a plea in this Court. He pleaded guilty at the first opportunity. But for his guilty plea which, Lasry J said, was inextricably linked to Murray's "very significant level of cooperation", his Honour would have sentenced Murray to 10 years' imprisonment with a minimum of 6 years before eligibility for parole.

[137] I have explained that, to an extent, your failure to plead guilty at the first opportunity needs to be set in a context. You began to take responsibility for what had occurred in certain ways even prior to the administration. You made certain admissions in the s 19 examination although, it must be remembered, those admissions could not be used against you in court proceedings. You exercised your right to dispute the charges and to have a committal proceeding. You provided a written apology to creditors at a mediation in a civil proceeding in mid-2011. You took legal advice at different points in time which meant that the Crown had to proceed against you. You also cooperated in another way.

[138] Although generally helpful to you, that context does not warrant a description of your post-offence conduct as amounting to an "unprecedented" or "a very significant level" of cooperation with the authorities, as did Murray's. In my view there is a marked difference between the level of cooperation which you gave to the authorities, and the extent to which I can be confident of your level of remorse, compared to that of Mr Murray.

[139] That leaves for consideration the extent and breadth of your respective offending. Mr Cahill pointed out that Murray pleaded guilty to ten charges whereas you pleaded guilty to seven. I have compared the two sets of charges.

[140] I accept that, in addition to being charged with the same seven counts (in substance) that you were charged with, Murray was charged with 3 additional false accounting charges. Those charges involved (1) uploading false deposits to the William Deague accounts in order to pay the Deague family, (2) making other payments through the Deague accounts to some of his clients, and (3) using some of Murray's own accounts (SKM 1, SKM 2 and SKM 3) to undertake substantial hedging trading with which you were not involved and of which you had no knowledge. In combination, these extra offences involved quite a lot of money.

[141] In that sense, I accept that Murray was sentenced for a range of offending which, to a degree, was wider in compass than yours. Additionally, I also accept that it seems that some of Mr Murray's offending was targeted to assist particular clients of his which might be thought to be designed to engender favour towards him.

[142] Like you, Murray was otherwise a person of good character and reputation. Lasry J was equally confident he was unlikely to reoffend.

[143] In the result there are similarities and differences between you. Some of those differences are favourable to you; some are unfavourable.

[144] It seems to me that Murray's additional offending would reasonably justify him being sentenced to a longer term of imprisonment than you before a discount was given for his guilty plea. But the weight of his contrition and the related issue of his cooperation with the authorities would reasonably justify Murray receiving a more substantial discount for his plea of guilty than one which you would deserve.

[145] My sentencing disposition aims to reflect these conclusions in so far as the principle of parity is to be applied.[29]

55 The different approaches taken by Murray and the applicant lie at the heart of the different sentences they received. Murray confessed his criminality, provided an extensive record of interview, waived his right to a committal proceeding, pleaded guilty and gave an undertaking to give evidence at the applicant's trial. Lasry J described his co-operation as having been 'exceptional'. Such conduct has always attracted large discounts from sentencing judges. In JBM v The Queen,[30] Weinberg JA said:

Further, public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. Offenders should be encouraged, so far as practicable, to admit their crimes and, in so doing, ensure that they can be successfully prosecuted.[31]

56 For reasons which are not clear, the approach of the applicant differed significantly. It is true that he made disclosure of the deficiencies in the clients' accounts both to Saxo and to members of his staff, and accepted responsibility. However, as the sentencing judge observed, his remorse only went so far. His participation in the ASIC hearing was compelled pursuant to coercive powers. His apology to creditors at the mediation was cautious; it did not involve a confession that, in addition to being negligent, he had been criminally delinquent. He went through a committal hearing; he did not plead guilty until October 2013.

57 In the circumstances, it is not possible to find any error in the sentencing judge's treatment of the question of parity. Faithful to what was said by Dawson and Gaudron JJ in Postiglione,[32] that treatment involved a consideration of 'due proportion' between the sentences. It involved proper regard having been given 'to the different circumstances of the co-offenders in question and their different degrees of criminality'.[33]

58 I would also refuse to grant leave on this ground.

[1] R v Johnson [2014] VSC 175 (Macaulay J) ('Sentencing Reasons').