McCALL v REGINA

Sentences imposed 12The sentencing judge delivered detailed remarks on sentence on 17 September 2007. The sentences imposed as adjusted by the re-sentencing orders made on 25 September 2007 are in the following terms:- (1) Count 2 (attempt to obtain property or a financial advantage by deception): a sentence of imprisonment of 2 years to commence on 16 August 2007 and to expire on 15 August 2009. (2) Count 1 (obtaining property or a financial advantage by deception): an aggregate term of 5 years and 6 months commencing on 16 February 2009 and expiring on 15 August 2014. (3) A non-parole period of imprisonment of 4 years and 3 months to commence on 17 August 2007 and to expire on 16 November 2011. 13Thus there was a total sentence of 7 years, with a non-parole period of 4 years and 3 months. 14In imposing sentence, pursuant to s.16BA of the Crimes Act , the sentencing judge took into account 11 offences relating to the opening of bank accounts in false names contrary to s.24(1) of the Financial Transaction Reports Act 1988 (Cth) and 11 offences relating to the operation of bank accounts in false names contrary to s.24(2) of that Act. 15His Honour also made a reparation order under s.21B of the Crimes Act that the applicant repay to the Commonwealth the sum of $502,023.03. 16The sentencing judge held that that applicant was entitled to a substantial discount for the utilitarian value of the pleas of guilty which were entered in the Local Court and allowed a 20% discount on sentence.

The facts 17The facts in relation to the offences were the subject of agreement. A Statement of Facts was tendered at the sentence hearing. The recitation of facts by the sentencing judge in his remarks on sentence were not the subject of any complaint. 18Extracted and set out below appears paragraph 3.3 of the appellant's written submissions which summarises the material facts:- "A considerable amount of evidence was called going to the issue of why the applicant engaged in the fraud and the use to which he put the defrauded monies. It was the applicant's case; · he established a legitimate business, Aust-Asia Timber Pty Limited, in 2004. The business model was to import manufactured timber products from Asia, then warehouse and sell them in Australia. · The first major shipment of timber purchased for AUD$100,000 for sale by the applicant's business was rendered unfit for sale by water damage caused by a burst fire hose in November 2003. · The business relied on a private investor to assist fund the purchase of further timber products. · Initially, the ATO made mistaken GST refunds to his newly established company received in December 2003 and January 2004; · In March 2004, the applicant's company suffered significant financial losses arising out of the supply of defective timber products purchased for AUD$125,000. · The applicant sought to enforce the Chinese parties contractual obligations including engaging the assistance of the Chinese Consulate but was ultimately unsuccessful. · The defective stock was sold for AUD$21,000 and the applicant's business suffered a loss of AUD$104,000. · The business experience[d] further difficulty in May 2005 when it received a shipment of timber products purchased for US$81,000 from a Chinese supplier that was entirely defective resulting in a loss in that amount. · It was in the context of these losses and pressure from prospective purchasers to meet their order that the applicant, having experienced some frailty in the GST system, pursued a fraudulent course by way of claiming GST refunds to which he was not entitled. · It was the applicant's case that the defrauded monies were utilised to keep the business afloat so as regain liquidity and thereby maintain a properly ordered business in compliance with taxation obligations. · At the time of sentence, the applicant had restructured his business to avoid the risks associated with responsibility for the importation of timber product and associated overheads so that the business was profitable and viable and was capable of entering into an arrangement so as to endeavour to make good the reparation order sought by the Crown." 19By way of factual overview concerning the offences themselves, the applicant was involved in lodging 107 Business Activity Statements (BAS) in which rebates were claimed for creditable acquisitions said to have been made by 17 companies incorporated by the applicant and registered with the ATO for GST purposes. Each of the companies nominated a sole director and shareholder, whose identities were created by the applicant utilising false identity documents. 20None of the 17 companies operated any business or made any creditable acquisitions giving rise to an entitlement to rebate of GST. 21The BAS were lodged between 23 April 2004 and 29 April 2005 claiming, in total, GST refunds of $714,078. As a result of these claims, $530,257.33 was paid by the ATO to the applicant and deposited into the various false named bank accounts created and operated by him. 22In August 2005, the Commonwealth recovered an amount of $23,234.30 from bank accounts held in the names of three of the companies incorporated by the applicant, leaving an amount of $502,023.03 which had not been recovered at the time the applicant was sentenced. 23At the sentencing hearing, the applicant gave evidence as to the manner in which monies were obtained through his offending conduct. A number of documents were produced on his behalf and were tendered as exhibits in the sentence proceedings. On the application for leave to appeal, the applicant sought to rely upon the affidavit of his solicitor, Mitchell Cavanagh, sworn 18 October 2010 and four lever arch folders of documents which was said to establish that the defrauded monies were diverted into the business. That material was received on the voir dire for the purpose of this Court ultimately determining whether or not the material could and should be admitted in the event that this Court intervenes. I will refer to it further below.

Appeal out of time 24The initial Notice of Intention of Appeal was filed on 21 September 2007. The period of the notice of intention to appeal was extended three times by the Court of Criminal Appeal until 31 July 2008. 25The grounds of appeal were filed on 28 October 2010, that is to say, more than two years after the Notice of Intention to Appeal (as extended) had expired. 26In the Crown submissions it was contended that the affidavit material from the applicant's solicitor fell short of providing a satisfactory explanation for the extensive delay. 27The Crown submitted that the extent of the delay and the absence of merit in the proposed grounds of appeal would lead this Court to the conclusion that an extension of time should be refused.

Grounds of appeal 28The grounds of appeal on sentence were in the following terms:- "Ground 1: The sentence is manifestly excessive. Ground 2: The sentencing judge fell into error in imposing a sentence that represented a conclusion that the offending was close to the upper end of the range of objective seriousness. Ground 3: The sentence does not give effect to the impact of the principle of totality. Ground 4: The sentencing Judge was in error to conclude that the applicant's motive carried 'little weight'. Ground 5: The sentencing Judge was in error by failing to have regard, when assessing the objective gravity of the offences, to the fact that the applicant diverted a significant portion of the ill-gotten gains into business expenses including for example the payment of wages, business rent and business debt. Ground 6: The sentencing Judge erred by failing to have regard to the deterrent impact of the reparation order as required by s.16A(2)(j) of the Crimes Act (Cth). Ground 7: Fresh evidence establishes that a lesser penalty is warranted in law." 29At the sentencing hearing, Ground 6 (failure to have regard to the reparation order) was initially argued but not pursued. 30In addition, Ms A Francis, who appeared on behalf of the applicant, stated at the hearing that Ground 7 (fresh evidence) was not pressed.

Remarks on sentence 31In his detailed remarks on sentence, the sentencing judge set out the relevant factual matters concerning the methodology that was adopted by the applicant and his submission of false claims. His Honour also set out an analysis of the applicant's evidence. 32In the remarks, under the subject heading, Assessment of the objective gravity of the offending, his Honour noted that the offences of dishonestly obtaining and attempting to obtain Commonwealth property were serious offences and that the maximum prescribed penalties were indicative of the seriousness with which the offences are to be regarded. His Honour also noted that in passing sentence, there was a need to ensure that the applicant was adequately punished for the offences: s.16A(2)(k) of the Crimes Act . 33After identifying the relevant principles to be applied in sentencing the applicant, his Honour set out a number of matters that were relevant to the objective gravity of the offences. These included the significant sums of money involved in the offences and that only a small amount of the money obtained had been recovered, leaving a substantial amount ($502,023.03) outstanding, that the offences were premeditated and were carried out by a sophisticated subterfuge and took place over a substantial period. 34It was noted that, despite the offender indicating an intention to repay the monies, and despite having earned income since his arrest, he had, in fact, made no attempt to do so. The sentencing judge referred to the applicant's evidence that, in pursuing the fraudulent transactions, it was his intention to improve the viability of the business in order to provide a foundation upon which the monies could be repaid. 35In relation to an issue as to whether the applicant had been moving money from the jurisdiction in order to avoid repayment, the sentencing judge ultimately concluded that he could not be satisfied beyond reasonable doubt that the applicant had attempted to transfer monies overseas in order to avoid repayment of monies obtained from the ATO. His Honour, however, noted that he had some misgivings about the applicant's evidence concerning his willingness to repay the ATO. 36His Honour noted that the offending commenced in March 2004 and continued over a period of approximately 15 months, that is, until 29 July 2005. His Honour also observed (AB259):- "The offences clearly occurred over a lengthy period of time. As can be seen from Table 2, the amount claimed was generally escalating over time. Additionally, as can be seen from Table 1, during the same period the offender was continuing to register more companies using false identities which he then used to claim false rebates." 37Accordingly, unsurprisingly, the sentencing judge determined that the length of time over which the monies were claimed, the escalating offending and the persistence despite inquiry by the ATO, all made the offending "... of an objectively high order" (AB259). 38In addition, the sentencing judge described the acts of the applicant as representing "... a high level of planning and organisation. The structure developed by the offender was a sophisticated one ..." (AB259). 39His Honour then turned to the question of "motive" . He observed that much of the proceedings on sentence were concerned with addressing the state of mind of the offender at the time of the commission of the offences. 40His Honour accepted that, based on the applicant's evidence, his decision to submit false claims for GST rebates arose because of financial difficulties arising from his inability to provide customers with timber goods. In due course, considerable pressure mounted on the applicant's ability to continue to meet payments of wages to staff. His Honour also noted that the applicant's evidence was that the monies improperly obtained were intended for and were in fact applied to the continuing operation of the business. The assertion that had been made by the Crown that the offending was motived by greed was, his Honour noted, rejected by the applicant. 41His Honour, in dealing with the submissions, then continued (AB262):- "The determination where on the continuum this case falls between the offender's misguided belief of necessity on the one hand and greed on the other is not easily resolved. The fact finding involves a detailed examination of the movement of monies from false accounts in the names of false companies in which the ATO had deposited the rebates. The difficulty in following the money trail from this point is that monies appear to be largely withdrawn in cash. ... It is clear that substantial cash amounts were deposited in these accounts which may be referrable to the cash that he had withdrawn from the false company accounts. Complicating the task is the fact that he also received a significant amount of money from cash sales in his business and ultimately, it is difficult to attributed these cash deposits to either the improperly obtained monies or the cash sales. A number of the banking records refer to direct debits to various named institutions. It is clear that a significant amount of money has been paid to companies where it is reasonable to assume both transfers relate to business expenses. However, the vast number of transactions are not so readily identifiable. One is left ultimately relying on the credibility of the offender with regard to his assertions that the improperly obtained monies were channelled into his business. I have significant misgivings about the credibility of the offender. ... ... Motive may be a mitigating factor if it impinges upon the moral culpability of the offender. This can include mental, emotional or medical problems or impulsive conduct. The degree to which motive may be pertinent must depend on the whole of the circumstances (R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at [177]). After considering all of the circumstances here, I do not accept the offender's evidence that the whole or the majority of the rebates claimed were intended to be or were, applied to his business. It is probable that a significant amount of monies were expended on outgoings of the business. However, the exact amount devoted to the business cannot be quantified on the material provided by the offender." (emphasis added) 42A little later, the sentencing judge stated (AB263):- "In the circumstances of the present case, the asserted motive of the offender carries little weight as a mitigating factor. The offences, as I have indicated, were pre-meditated, sophisticated and over a reasonable period of time. There were a number of lawful alternatives to the predicament in which the offender found himself. It is difficult to accept the offender's evidence to the effect that he was not properly able to reason through these alternatives at the time of the commission of the offences, and that he is only now able to see these alternatives with the benefit of hindsight ." (emphasis added)

The issues arising on the grounds of appeal 43The central issues arising from Grounds 1, 2, 3 and Grounds 4 and 5 may be summarised as follows:- (1) As to Grounds 1, 2 and 3:- (a) Whether the sentence of two years imprisonment imposed in respect of Count 2 was manifestly excessive. (b) Whether the accumulation of the sentence in respect of Count 2 on the sentence imposed in respect of Count 1 by a period of 18 months:- (i) failed to give effect to the principle of totality; (ii) failed to give effect to the sentencing judge's intention in respect of the accumulation of the sentences. (2) As to Grounds 4 and 5:- (a) Whether, in determining the objective seriousness of the offences the subject of Count 1, the sentencing judge erred in the assessment of the objective criminality of the offences. (b) Whether, in the event that this Court intervenes in relation to the sentence imposed in respect of Count 1, the Court, on re-sentencing, should admit the affidavit of the applicant's solicitor and the material to which the affidavit relates.

Grounds 1, 2 and 3 44For convenience of reference, I reproduce Grounds 1, 2 and 3:- Ground 1: The sentence is manifestly excessive. Ground 2: The sentencing judge fell into error in imposing a sentence that represented a conclusion that the offending was close to the upper end of the range of objective seriousness. Ground 3: The sentence does not give effect to the impact of the principle of totality.

Submissions for the applicant 45The arguments in support of these grounds were principally set out in the applicant's written submissions. At the hearing, Ms Francis drew attention to specific matters relevant to the three grounds. 46In relation to Count 2, the attempt offences, it was noted that the applicant is to serve an effective non-parole period of 18 months. The head sentence was 2 years. The period of 18 months imprisonment in respect of Count 2, to be served before the sentence in respect of Count 1 commencing on 16 February 2009, meant that the applicant was to initially serve 75% of the sentence in respect of Count 2. 47In her oral submissions, Ms Francis contended that an effective "non-parole period" of 18 months indicated error and that the accumulation of sentences also indicated error in sentencing. 48It was accepted in submissions that the overall non-parole period of 4 years and 3 months in respect of Count 1 represented a ratio to the total sentence of a little over 60%. Accordingly, the complaint made on behalf of the applicant was not in respect of "the overall ratio" . It was contended that the sentence imposed in respect of the attempt offence (Count 2) should have been made concurrent only to the extent of 6 months. Ms Frances contended that 18 months accumulation was contrary to what the sentencing judge had intended. 49The complaint was reinforced by the observation that the remarks on sentence did not explain why the applicant would be required to serve 18 months before the sentence in respect of Count 1 commenced. This fact was said to suggest oversight by his Honour when determining accumulation. 50It is to be noted that the sentence imposed in respect of Count 2 of 2 years was a sentence in respect of a series of attempts and that they relate to transactions that were different from those involved in the offence in Count 1. Ms Francis contended, however, that the attempt offences were part of the criminality for the offences the subject of Count 1 and that that fact indicated that the degree of accumulation of 18 months was excessive. In other words, the accumulation, it was argued, did not reflect the fact that the attempt offences were really part of one course of criminality. 51As regards the sentence on Count 1, Ms Francis submitted that the discount of 20% meant that the sentencing judge had adopted a starting point of about 7 years; and that this was excessive for an offence with a maximum penalty of 10 years.

Crown submissions 52The Crown submitted that the sentencing judge was correct to find that the crimes committed by the applicant were in the upper range of seriousness for this type of offence. In this respect, the Crown emphasised all those factors which indicated a high level of criminality and which are referred to in paragraphs [36] to [38] above. 53The Crown submitted that his Honour did not fail to give effect to the principle of totality. Reference was made to the totality principle as discussed by the sentencing judge. It was contended that the submissions for the applicant did not disclose any error in the application of the principles in Pearce v The Queen (1998) 194 CLR 610. 54The Crown argued that the applicant's submissions in respect of Grounds 1, 2 and 3 sought to challenge findings of fact and that the applicant had failed to establish that the relevant findings were not open on the evidence.

Consideration 55Ms Francis contended that the 18 month period of accumulation commencing on 17 August 2007 before the commencement of the sentence in respect of Count 1 (16 February 2009) was not only manifestly excessive but that it did not represent what was intended by the sentencing judge as indicated by his Honour's expression, "a measure of accumulation" . It was, accordingly, submitted for the applicant that the period of 18 months was the result of inadvertence and was clearly not intended. 56I am of the opinion that error has been established in respect of the accumulation of the sentences and that leave to appeal should be granted in that respect. The principle of totality, in my assessment, required a greater degree of concurrency in the sentences. 57I do not consider the sentence for Count 1 was manifestly excessive, having regard to the amount of money involved, the length of the time of offending, and the degree of planning and organisation. 58I do not consider that the length of the sentence in respect of Count 2 was manifestly excessive. Whilst those offences were part of a continuing episode of criminality, they involved 14 transactions committed between February 2004 and January 2005 involving $183,000. Reference was made to the remarks on sentence at AB264 in which the sentencing judge stated:- "Here, the offences were part of a continuing episode of criminality, however, the culpability in the dishonest attempt to obtain false rebates must be reflected in the sentence imposed and consequently a measure of accumulation is required. In doing so, I take into account the principle of totality." 59The attempt offences involved separate acts of deception each involving significant amounts of money. Whilst occurring in the same period as the transactions the subject of Count 1, they were nonetheless discrete acts involving serious criminality. I do not consider that the sentence of 2 years in respect of Count 2 was excessive as claimed.

Grounds 4 and 5 60Grounds 4 and 5 are as follows:- Ground 4: The sentencing Judge was in error to conclude that the applicant's motive carried 'little weight'. Ground 5: The sentencing Judge was in error by failing to have regard, when assessing the objective gravity of the offences, to the fact that the applicant diverted a significant portion of the ill-gotten gains into business expenses including for example the payment of wages, business rent and business debt. 61The Crown observed that there was considerable overlap between these two grounds. It was contended for the applicant that his motive had a considerable bearing on the assessment of the objective gravity of the offences. In particular, reliance was placed upon the contention that the applicant's objective in carrying out the fraud was to maintain the viability of his business and ultimately to repay the debt to the ATO rather than having been done in the pursuit of individual greed.

Submissions for the applicant 62It was submitted for the applicant that the sentencing judge did not take into account when assessing the objective criminality of the acts constituting Count 1 the fact that the applicant had diverted a significant amount of the defrauded monies into the business and that the illegally claimed rebates were not made out of personal greed. 63In support of this submission, it was contended that the applicant's intended use of the money for the purpose of supporting the business was not only relevant to the issue of motive but it was a matter that was relevant in an assessment of the objective criminality of the offence. 64It was accepted on behalf of the applicant that his Honour's reference to the decision in El Chaar v Regina [2007] NSWCCA 16 as authority for the proposition that "it is no answer to the commission of a criminal offence that an offender was in financial difficulties and hoped to use the proceeds of crime to trade out of those circumstances" was undoubtedly correct ( Applicant's written submissions at [5.4]). However, Ms Francis of counsel for the applicant stated:- "... it is submitted that the relevance of this evidence went to something additional to motive but to the fact that the applicant was not, in fact, squandering the money upon an extravagant lifestyle thereby rendering a certain inevitability to both the loss of the monies and an associated inability to make good such loss. That the applicant was in pursuit of ongoing financial viability and relevant productivity in the small business community was clearly relevant to his subjective case but also to the objective criminality." 65It was noted in the submissions for the applicant that the sentencing judge was satisfied on the balance of probabilities that a large portion of the money went back into the business: Applicant's written submissions at [5.7]. 66However, it was stated that, to the extent that his Honour rejected the evidence as a mitigating factor, or at least treated it as carrying little weight, "... error was said to arise because, whilst it may be that such a motive loses some of its force as a mitigating factor in light of the ongoing nature of the fraud, the evidence was relevant in other ways in respect of which his Honour was silent" : Applicant's written submissions at [5.7].

Crown submissions 67The Crown contended that the submissions for the applicant in relation to Grounds 4 and 5, were directed to placing a "gloss" on the sentencing judge's findings that was unduly favourable to the applicant and did not fit within the context of his Honour's remarks on the issue of the applicant's motive when the remarks were read as a whole. 68The Crown observed that, whilst it was true that the sentencing judge concluded that it was probable that a significant amount of monies were expended on outgoings of the business, that finding was qualified by the statement that it was not possible to determine the exact amount devoted to the business. 69The Crown contended that the sentencing judge had good reason to reach the conclusion that he did on the question as to whether the offender had applied the whole or the majority of the rebates claimed in the business. It was noted in this respect that the assessment of the applicant's credibility was very much involved in the findings to which Grounds 4 and 5 were directed. 70Finally, the Crown contended that the applicant's arguments in support of Grounds 4 and 5 were essentially challenges to findings of fact and that findings on factual matters were within the sole province of the sentencing judge. It was contended that the evidence well-established the findings made and that Grounds 4 and 5 were not made out and should be dismissed.

Consideration 71The sentencing judge identified under the heading "Assessment of the objective gravity of the offending" the relevant sentencing principles. No criticism was made in that respect. 72His Honour then detailed at some length in sub-paragraphs (i), (ii) and (iii) at AB257 to AB260, the relevant matters taken into account in the assessment of the objective gravity of the offences. 73The sentencing judge carefully assessed the evidence on the issue of "motive" raised by the applicant. Ultimately, his Honour concluded that (AB236):- "... the asserted motive of the offender carries little weight as a mitigating factor." 74However, that conclusion was not made in isolation from other factors but in the context in which the applicant's acts (AB263):- "... were pre-meditated sophisticated and over a reasonable period of time. There were a number of lawful alternatives to the predicament in which the offender found himself ..." 75The above assessment was, in my opinion, well open as a matter of evaluation and judgment by the sentencing judge in all of the circumstances of the case. There is no error as asserted in Ground 4. That ground, accordingly, should be dismissed 76His Honour did not, in determining the objective criminality of the offence, specifically advert to the proposition that a significant amount of the monies were applied to the continuing operation of the business rather than for some other use consistent with personal greed. However, I do not consider that to be a matter of consequence in the circumstances of the case. His Honour carefully considered the applicant's state of mind when dealing with the issue of motive. The applicant's intention was, of course, directly relevant to the objective seriousness of the offence. As earlier stated, his Honour proceeded upon the basis that the evidence established that a significant amount of money paid to the applicant's companies were transferred for business expenses whilst a "vast number of transactions" , his Honour found, were not so readily identifiable. 77It is clear from the detailed discussion of the issue of motive that his Honour took into account, so far as the evidence permitted, that a significant amount of the monies in question were used for business purposes. The fact that his Honour did not expressly analyse the matter by distinguishing the applicant's case from a case of personal greed does not, in my assessment, indicate error. 78I accept the submission made by the Crown that the absence of an aggravating feature (eg, personal greed) is not of itself a mitigating feature, particularly, as in the present case, where there existed multiple factors which all indicated, on any assessment, that the offending was in the high range for such offences. 79There is, in my opinion, no substance to the contention that his Honour did not properly assess the objective criminality of the offence constituting Count 1.

Affidavit evidence 80On re-sentencing, the applicant relied upon his affidavit sworn on 1 March 2011 and that, referred to above, of his solicitor, Mr Mitchell Cavanagh, sworn on 18 October 2010. 81In respect of the latter affidavit, Mr Cavanagh gave evidence on information and belief, namely, information supplied by the applicant to him. Mr Cavanagh stated that the applicant informed him that he had examined bank account statements and that he marked each account statement with a view to identifying every transaction related to what was described as a legitimate business expense. 82Mr Cavanagh also stated that the applicant informed him that he had identified, collated and marked invoices and other documents obtained from the liquidator, BRI Ferrier, that related to particular expenses which were exhibited to his affidavit. 83I am of the opinion that the Court should not admit into evidence Mr Cavanagh's evidence nor the four volumes of material identified above for the following reasons:- (1) There is no explanation, by way of evidence or otherwise, as to why all of the above material could not or was not obtained for the sentence hearing which took place before the sentencing judge over a lengthy period of time, namely, on 23 February 2007, 1 March 2007, 5 April 2007, 25 May 2007, 8 June 2007, 3 August 2007 and 17 August 2007. (2) This Court could not act on the material to which Mr Cavanagh refers for the purposes of this Court determining the application in circumstances in which Mr Cavanagh is dependent upon the applicant having accurately and truthfully identified entries said to relate to legitimate business expenses. This is by reason of the adverse findings made by the sentencing judge as to the applicant's credibility. (3) The evidence comprising the four lever arch volumes is material which may well require detailed examination and be tested by cross-examination. That is a matter that could only be effectively undertaken by a referral of the proceedings back to the District Court for the taking of further evidence and the making of relevant findings of fact. 84During the course of the hearing, Mr Francis of counsel indicated that, if this Court were to determine that there was error in the accumulation of the sentences and that the sentence was reduced by the period of 6 months for which the applicant contended, then the applicant would not press for the matter to be remitted to the District Court for the purpose of receiving the evidence of Mr Cavanagh to which I have referred and the four volumes of material referred to in paragraph [23]. 85In the circumstances in which I have determined that the only appellable error is that in relation to the accumulation of the sentences and, given the position taken by the applicant's counsel as stated above, there is no appropriate basis for an order that the proceedings be remitted to the District Court for a hearing in respect of matters raised in Mr Cavanagh's affidavit or in the four volumes of material admitted on the voir dire.

Conclusion 86I have concluded that the extent of the accumulation of the sentences was excessive to the point of requiring the intervention of this Court in that respect. In those circumstances, I consider that the time for the application to seek leave to appeal should be extended. 87On the basis that the structure of the sentences resulted in an excessive accumulation, I am of the opinion that this Court should intervene and to re-sentence the applicant upon the following bases:- (1) That the sentence in respect of Count 1 commence 6 months after the commencement of the sentence in respect of Count 2. (2) That the commencement and expiry dates of the term of imprisonment of 5 years and 6 months imposed by the District Court in respect of Count 1 consequently be changed in order to allow for the 6 months referred to in (1). (3) That the aggregate non-parole period in respect of the sentences imposed by the District Court in respect of Count 2 and the sentence to be imposed by this Court in respect of Count 1 is redetermined. 88The overall sentence I propose is for a total of 6 years, with a non-parole period of 3 years and 9 months 89In determining the aggregate non-parole period on the basis specified below, the ratio of the non-parole period to the total term of imprisonment of 2 years in respect of Count 2 is lower than would be otherwise if the applicant was being sentenced with respect to that offence alone. However, the lower ratio is justifiable in circumstances in which the proposed aggregate non-parole period in respect of total aggregate of the sentences for both Counts 1 an 2 is, by my assessment, appropriate one in the circumstances of the case. 90Accordingly the orders I propose are:- (1) That time for the filing of the application for leave to appeal against sentence be extended. (2) Appeal allowed in part, namely, in respect of the accumulation of sentences in respect of Counts 1 and 2. (3) That the sentence imposed by the District Court in respect of Count 1 be set aside. (4) That the applicant be re-sentenced as follows:- (a) That, in respect of Count 1, the applicant be sentenced to a period of imprisonment of 5 years and 6 months to commence on 16 February 2008 and to expire on 15 August 2013. (b) That the applicant be sentenced in respect of Counts 1 and 2 on the basis of a non-parole period of 3 years and 9 months to commence on 17 August 2007 and to expire on 16 May 2011.

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: 20 April 2011