McMAHON v R

Judgment 1HODGSON JA: I agree with Hoeben J. 2I note that the Court received submissions on the question whether "some other sentence" in s 6(3) of the Criminal Appeal Act 1912 is a reference to each individual sentence under appeal or to the overall effective sentence, noting the different views expressed in Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149 by Basten JA (favouring the former view) and Price J (favouring the latter). 3It is not necessary to resolve this difference in this case; but I would note that, even if the phrase were to be taken as referring to each individual sentence, it is not correct to say that the Court cannot, in considering whether some other sentence is warranted, take into account other sentences imposed on the appellant. For example: (1) The other sentences may be directly relevant to the criminality involved in the particular offence (for example, showing it to be part of planned ongoing criminal activity). (2) If a ground of appeal raises questions of concurrency or accumulation, other sentences must necessarily be considered. (3) Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 shows that there is not an absolute prohibition on adjusting an individual sentence by reason of considerations of totality. (4) Where, as in this case, a single non-parole period has been fixed in respect of a number of federal offences, as required by s 19AB of the Crimes Act 1914 (Cth), consideration of the adequacy of any individual sentence, which would ordinarily take into account the extent of full-time custody involved, must necessarily have regard to the totality. 4Further, if an application for leave to appeal is made, and error in one sentence is shown but no practical result would be achieved because no lesser total sentence would be imposed as a result of a successful appeal, it would be open to the court to refuse leave to appeal on that ground. 5HOEBEN J: Offences and sentence On 29 October 2008 the appellant pleaded guilty in the District Court to the following offences: (a) Five counts of making a false statement in an application for an Australian passport contrary to s10(1)(a) of the Passport Act 1938 (Cth). (b) Seven counts of departing Australia whilst an undischarged bankrupt without the consent of his trustee contrary to s272(1) of the Bankruptcy Act 1966 (Cth). (c) Two counts of making a statement capable of misleading an identifying cash dealer contrary to s 94(4)(aa) of the Financial Transactions Reports Act 1988 (Cth) (the FTRA). (d) Twenty seven counts of operating an account with a cash dealer in false names, contrary to s24(1) of the FTRA. (e) One count of attempting to open an account with a cash dealer in a false name contrary to s24(1) of the FTRA and s11.1 Criminal Code 1995 (Cth). These are collectively referred to as the "identity fraud offences". 6On 12 November 2008 the appellant pleaded guilty in the District Court to the following offences: (a) Fifteen counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception, contrary to s134.2 of the Criminal Code 1995 (Cth). (b) Twenty four counts of attempting to dishonestly obtain a financial advantage from a Commonwealth entity by deception, contrary to s11.1 and 134.2 of the Criminal Code 1995 (Cth). These are collectively referred to as the "tax fraud offences". 7In addition, thirty five summary offences relating to the making of false statements to the Australian Electoral Commission in applications for registration on the Electoral Roll were referred to the sentencing court pursuant to s 166 of the Criminal Procedure Act 1986 (Cth) to be dealt with as charges related to the identity fraud offences. 8The following maximum penalties apply to the offences: (a) 2 years imprisonment or a $5000 fine for each of the Passport Act offences. (b) 3 years imprisonment and/or a fine of $19,800 for each of the Bankruptcy Act offences. (c) 5 years imprisonment and/or a fine of $33,000 for each of the s29(4)(aa) FTRA offences. (d) 2 years imprisonment and/or a fine of $13,200 for each of the s24 FTRA offences. (e) 10 years imprisonment and/or a fine of $66,000 for each of the Criminal Code offences. 9On 24 July 2007 the appellant was committed to stand trial on the identity fraud offences following a paper committal. The appellant on 29 April 2008 waived the requirement for a committal on the tax fraud offences and was committed for trial in the District Court. On 4 July 2008 the trial was set down to commence on 17 November 2008 with an estimate of 5-6 weeks. He pleaded guilty to the identity fraud offences on 29 October 2008 and he pleaded guilty to the fax fraud offences on 12 November 2008. The trial did not commence. 10The appellant was sentenced by Tupman DCJ following a sentence hearing which took place over four days on 6, 7, April, 29 May and 4 September 2009. During the sentence hearing, the Crown tendered a number of exhibits. The appellant gave evidence during the sentence hearing and was cross-examined. 11On 25 September 2009 Tupman DCJ passed the following sentences. The identity fraud offences (a) 12 months imprisonment in respect of each of counts 1 - 5 inclusive (making a false statement in the course of obtaining an Australian passport), commencing 25 September 2009 and expiring 24 September 2010. (b) 18 months imprisonment in respect of each of counts 6 - 12 inclusive (leaving Australia whilst bankrupt without consent of trustee), commencing 25 March 2010 and expiring 24 September 2011. (c) 12 months imprisonment in respect of each of counts 13 - 14 inclusive (making a false statement to a cash dealer when identifying signatory) commencing 25 March 2011 and expiring 24 March 2012. (d) 12 months imprisonment in respect of each of counts 15 - 35 and 37 - 42 inclusive (opening an account with cash dealer in a false name), commencing 25 March 2011 and expiring 24 March 2012. (e) 12 months imprisonment in respect of count 36 (attempting to open an account with a cash dealer in a false name) commencing 25 March 2011 and expiring 24 March 2012. (f) 6 months imprisonment in respect of each of the 35 related summary offences pursuant to s 166 of the Criminal Procedure Act 1986 (making of false statements to the Australian Electoral Commission in application for registration on the Electoral Roll), commencing 25 September 2009 and expiring 24 March 2010. The tax fraud offences (g) 5 years imprisonment in respect of each of counts 1 - 15 inclusive (obtaining a financial advantage by deception) commencing 25 September 2009 and expiring 24 September 2014. (h) 4 years imprisonment in respect of each of counts 16 - 39 inclusive (attempting to obtain a financial advantage by deception), commencing on 25 September 2011 and expiring 24 September 2015. 12The effective aggregate head sentence was 6 years commencing 25 September 2009 and expiring 24 September 2015. Her Honour then fixed a single non-parole period of 4 years commencing 25 September 2009 and expiring 24 September 2013. 13The appellant seeks leave to appeal against the severity of those sentences seeking that this Court either re-sentence him in respect of them or that it remit the matter to the District Court so that the appellant can be sentenced according to law. 14At the hearing of the appeal, a number of the grounds of appeal were abandoned. Those which were pressed were as follows: Ground 3 - The learned sentencing judge erred: (i) In failing to set appropriate sentences in relation to the individual counts. (ii) In failing to properly apply the principle of totality. (iii) In her approach to accumulation and concurrence. Ground 4 - Her Honour gave insufficient weight to the full repayment of tax, the subject of the charges. Ground 6 - In respect to character, her Honour having found that the appellant had an insignificant criminal record, her Honour erred in: (i) Having regard to findings of an ICAC Commissioner, (being a finding not established to any criminal (or civil) standard by a court of law; and (ii) Fusing prior relevant good character with her Honour's rejection of the appellant's evidence. Ground 8 - Her Honour erred in setting the non-parole period by reference to the percentage proportion of 60 - 66 percent. Factual background 15The appellant came before her Honour to be sentenced in respect of 81 separate charges with an additional 35 summary matters to be dealt with as related offences, i.e. a total of 117 offences. Like the sentencing judge, I do not propose to go into the facts behind each individual offence but to summarise the facts behind each group of offences as were agreed before her Honour. 16The appellant was an undischarged bankrupt from 23 June 1999 until 6 December 2005. Between October 1995 and 6 December 2005 he embarked on a course of accumulating false identity documents, some of which were in the names of people who existed but were at the time deceased and some of which were in the names of deceased's children. This was done to avoid the likelihood of conflicting identity documents. The first of such documents came into existence in October 1999 with the issue of a "camouflage passport" in the name of "Ian John Lord" bearing a photograph of the appellant and purporting to have issued from a non-existent country "British West Indies". 17By June 2004 the appellant had obtained four false named passports, opened 29 false named bank accounts and registered false names with the Australian Electoral Commission on 35 occasions. 18Twenty nine of the names he assumed were the names of, or derivatives of the names of deceased persons, including names he had obtained from obituary pages and from tombstones. The appellant then applied to obtain birth certificates in the names of the deceased. Two of the names he assumed were the names of former associates. 19In addition, he rented premises in false names, leased post office boxes in false names, travelled overseas using false names and opened bank accounts using false names. 20By October 2001 the appellant had commenced using the false names and/or the names of unsuspecting associates to gain control of companies, registered those companies for GST purposes and lodged false BAS forms on behalf of those companies. In all, a total of 30 companies (the subject of the tax fraud offence indictment), lodged a total of 105 BAS forms falsely claiming GST refunds totalling $676,620 to which neither the appellant nor the companies nor anyone else were entitled. 21In order to carry out the tax fraud offences the appellant obtained control of 32 companies by registering with ASIC the appointment of directors or secretaries, using assumed names, including the names of deceased children and the names of associates and in many cases providing false or non-existent addresses. 22Lodgment of the fraudulent BAS commenced on about 4 October 2001 and ceased on about 26 July 2002, a period of approximately 10 months. It was necessary for the appellant to maintain extensive records in order to keep track of companies he controlled, the BAS forms he had lodged and the names, addresses and telephone numbers he had assumed. 23It was the Crown's submission that the conduct in which the appellant engaged was systematic, frequent and required a significant degree of planning and sophistication. The frequency of lodgement of the fraudulent BAS forms can be seen from the following summary: 16 BAS forms were lodged in October 2001; 9 BAS forms were lodged in November 2001; 33 BAS forms were lodged in January 2002; 22 BAS forms were lodged in February 2002; 1 BAS form was lodged in March 2002; 1 BAS form was lodged in May 2002; 3 BAS forms were lodged in June 2002; 5 BAS forms were lodged in July 2002; 17 BAS forms were lodged by telephone on dates which could not be determined. 24The tax fraud offences came to the attention of the Australian Taxation Office in about December 2001 when the content of certain of the submitted BAS forms caused internal "verification checks" to trigger. ATO inquiries in March 2002 led to an associate of the appellant and the associate's accountant. The offending conduct ceased only when the appellant became aware of the investigation. Remarks on sentence 25Her Honour reviewed in a general way the factual background to the offences. She concluded that all of the false identities, false bank accounts and false addresses were obtained by the appellant for fraudulent purposes including to enable him to obtain passports, to travel overseas in contravention of his bankruptcy conditions and to enable him to acquire and gain control of companies which he then registered for GST purposes and in respect of which he lodged the fraudulent GST claims. 26In respect of the appellant's evidence her Honour said: "I did not find his evidence compelling and in many respects I found it to have been misleading and intentionally so. I reject the evidence that he gave that some domestic or urgent need to travel overseas on any of these occasions was the reason for him doing so. He gave evidence that this was connected either with the implementation of family law orders or something to do with the wellbeing of his children. The facts surrounding his actual travel during these periods and the application of logic do not support these assertions. He travelled overseas under these false passports to pursue business interests knowing that this was in contravention of his bankruptcy conditions and that he was doing so using falsely acquired passports." (ROS 9.8-10.1) 27Later in her remarks, her Honour said: "In his evidence the offender attempted to minimise his role in these offences to an extent, by placing blame on others. I do not accept his evidence in that regard. I did not find him to be a reliable witness. He gave what I find to have been a false or deliberately misleading piece of evidence on at least one occasion when referring to the loss of his passport while overseas and I also found his evidence to be at best unimpressive and more probably than not generally deliberately misleading. That does not aggravate the seriousness of his offences but to the extent that his evidence was an attempt to mitigate his own involvement and thus the objective seriousness of his fraudulent behaviour I do not accept it. I accept that he was a principal if not the principal in relation to this overall fraudulent behaviour." (ROS 13.8 - 14.1) 28In relation to the identity fraud offences, her Honour summarised her conclusions as follows: "They are the very basic facts surrounding each of the false identity charges which are the 42 charges contained in the indictment dated 28 October 2008. Not one of these individual charges is for a particularly serious offence in relative terms apart from counts 13 and 14. The maximum penalties are either 2 or 3 years and for counts 13 and 14 the maximum penalty is 5 years. It appears most often by looking at what statistics there are published by the Judicial Commission for these sorts of similar offences, they are generally dealt with in the Local Court by way of a fine or something other than fulltime imprisonment. Each of these offences, however, is a relatively serious example of offences which are capable of being committed under the particular section. They represent an ongoing course of conduct and there is significant planning and organisation, in particular the organisation and planning required to obtain the source documents which enabled the passports to be issued, thus enabling the false bank accounts to be issued or vice versa. In the case of each of them, they had as their purpose a deliberate fraudulent intent. The gravamen of these offences is represented not by the individual facts of any one of them but by the course of fraudulent conduct represented by them over a relatively lengthy period of time from 1999 to 2004." (ROS 10.3 - 10.8) 29In relation to the 39 charges which formed the tax fraud offences, her Honour said: "By way of summary, however, I accept that these 39 counts represent occasions month by month from October 2001 to July 2002 when the offender either did or attempted to defraud the Commonwealth of GST revenue by lodging what were in fact false Business Activity Statements saving GST refunds. He did this using a total of 30 different companies, lodging 105 different Business Activity Statements all of which are particularised in the individual counts." (ROS. 11.6) 30In respect of the tax fraud offences, her Honour noted that fraudulent refunds amounting to $293,772.38 were obtained by the appellant's companies and that those monies "in one way or the other flowed to the offender". In relation to the attempt charges, her Honour noted that the refunds claimed totalled $378,719 which would have been paid to the appellant's companies except that they were stopped by the ATO after investigations had been commenced. 31In relation to the tax fraud offences generally, her Honour said: "They were sophisticated and well planned frauds using numerous false identities, but those of people who had once actually existed. The frauds required significant planning on the part of the offender who also used the names and identities of unsuspecting colleagues and acquaintances to further lend credence to some of these claims. Each charge is a separate offence but they have been grouped in the indictment by company so that in relation to each company either a completed offence or an attempted offence there is only one charge which itself in most cases is in the nature of what has been called a rolled up charge because it covers more than one fraudulent Business Activity Statement in each count. For example, in count 1, relating to the company Auctionet, the amount of GST fraudulently obtained totalled $10,912 but comprised four individual business activity forms lodged for the period from July 2000 to December 2001." (ROS 13.2 - 13.6) 32Her Honour characterised the cash fraud offences as serious offences. She said: "I accept too from the authorities that amongst the reasons why they ought to be treated as very serious offences and why there should be an element of general deterrence involved in the sentence, is that tax collection is essentially based on trust and depends on the honesty of tax payers. The community as a whole benefits from the collection of tax. If it were not for tax collection including GST there could be no hospitals, schools, roads and the like. With respect I adopt the reasoning of the Court of Criminal Appeal in R v Stitt (1998) 102 A Crim R 428) that offences such as those before, committed by this offender, are even more serious than those tax frauds which involve false claims being made to achieve a refund of PAYE tax, that is tax already paid by a tax payer. In this case the GST, I accept, had never been paid, the companies had never in any real sense traded and were never in a position to charge the GST, let alone had it ever been collected. The expenses claimed had never been incurred and the offender was paid funds to which he had never been entitled at all. The honest tax payers of Australia in effect funded his greed and did so at the expense of those things which they expect that their taxes will fund, those things which maintain the common good for the community. In addition, I accept that the uncovering of these offences, given the complexity of the matters and the sophistication of the fraud must have been at considerable cost to the Commonwealth and thus to the taxpayer. It is for this reason that taxation fraud is to be treated as a very serious offence, particularly so when it is well planned and sophisticated as it is here. I do not accept the submission made on behalf of the offender that these GST frauds can be regarded as somewhat less serious because they are limited in time to a period of only 10 months. Whilst the actual charges cover only a ten month period, in fact I accept the planning for them went back further including the acquisition of those false identities which are the subject of the other charges." (ROS 15.3 - 16.2) 33While still on the subject of the seriousness of the offences and general deterrence, her Honour said: "So far as these funds actually received by the offender are concerned, I accept that there have been orders made under the Proceeds of Crime Act by consent, for payment by the offender of just in excess of $355,000 by way of pecuniary penalty order. He has, as I understand the evidence, paid some of that order and it is anticipated that he will pay it all in due course, as I understand the evidence, as a result of the sale of some property in Northern New South Wales. Whilst this order, if it is paid, has the effect of enabling the Commonwealth to recoup the lost funds, I accept that pursuant to s 320(d) of the Proceeds of Crime Act , I am not entitled to take that fact of itself into account in assessing the appropriate penalty. I do and am entitled to take into account the fact that the offender consented to these orders when assessing his cooperation and also in relation to issues of contrition and remorse. Even if it be the case that in due course these funds are paid to the Commonwealth by the offender and he has lost these funds, nonetheless he made personal gain out of these offences and did so over a significant period of time. He had the funds and he used them for his own purposes. There has also been further loss to the Commonwealth in the expense it has taken to investigate and prosecute these offences. For all of these reasons, I accept that these GST fraud offences in particular are serious and there must also be a real element of general deterrence contained in the sentence. That is because, as I have said, they are easy to commit and hard to detect and the community as a whole should know that tax fraud is not just part of some great Australian game but rather a very serious offence which will give rise to a gaol term for those who commit it." (ROS 176.8 - 17.6) 34Her Honour made specific reference to s16A of the Crimes Act 1914 (Cth) in relation to the assessment of the seriousness of the offences and general deterrence. In accordance with s16A, she also had regard to the appellant's subjective case. Her Honour noted that at the time of sentence, the appellant was aged 49 and had been born one of 5 siblings in Northern New South Wales. He was qualified as a lawyer but had not practised since 1985. He had 5 children from h is first wife, who now lives in Sweden. Those children are aged between 16 and 21. From about 1985 the appellant had worked in the finance industry in Europe until his return to Australia in about 1996. 35The appellant's first marriage broke up in 1999 and he remarried in 2005. They live in Northern New South Wales and have a son aged 18 months. 36Her Honour accepted that as a result of a disagreement with a former partner the appellant was severely assaulted in December 2006. While the appellant recovered from the physical effects of the attack, there was evidence before her that he suffered from post traumatic stress disorder as a result of it. 37In relation to the appellant's character, her Honour said: "The offender does have prior criminal convictions so he cannot claim to be a person of prior good character. They include a conviction in January 2000 and maliciously destroying or damaging property which were dealt with by way of deferred sentence bonds under s558 of the Crimes Act . These convictions were confirmed on appeal to this court. There are also two motor vehicle offences, a mid range PCA and a drive whilst cancelled, occurring in December 1998. They do not aggravate his commission of these offences and in a large part are irrelevant to the appropriate sentence for these offences but they do disentitle him to be treated as a person of prior good character. In any event there are serious limitations to the extent to which, if at all, any prior relevant good character would have operated as a matter of mitigation in relation to these offences of fraud. What's more, as I have said, I have found him to be a misleading witness who in fact was prepared to give false evidence in relation at least to his so called lost passport. I also in this regard take into account the findings made by the ICAC Commissioner in April 1997 as set out by the Crown in their written submissions, which in general terms reflect my own assessment of this offender as a witness. He thus does not come to court as a person of prior good character and I do not find him to be such. In fact to the extent that I was able to assess his character at all, either from the material tendered or by my own assessment of his evidence in the witness box, I found him to be a person who can be best described by the Australian idiom as "conman" or confidence trickster. Of course his crimes go beyond mere tricks and amount to serious crimes, but his conduct over a number of years and his evidence in the witness box and conduct generally it seems to me reflect a degree of manipulation commonly seen in the well entrenched confidence trickster.' (ROS 20.3 - 21.2) 38Her Honour took into account the effect of the appellant's imprisonment on his family but did not regard that as exceptional. She took into account that the appellant had pleaded guilty to these offences and gave that appropriate weight ( Carter v The Queen (2007) 173 A Crim R 458 at 476). 39Although her Honour gave weight to his remorse and contrition, taking into account the plea of guilty and his consent to the proceeds of crime orders, she noted that she could not give significant weight to those matters. This was because the appellant continued to give false evidence in his own sentence proceedings and attempted to minimise his role and involvement in the offences. 40Her Honour also had regard to specific deterrence. She had regard to the appellant's intelligence but noted that this was part of the reason why he was able to commit the offences in such a systematic and calculated way. Her Honour was of the opinion that his situation upon his release would be somewhat different to when he returned to Australia in 1996. He would not be under the same financial pressures as he was then. Her Honour was of the opinion that his fraudulent behaviour and offending would be well known to the community generally and particularly in northern New South Wales. She thought that the appellant's opportunities to engage in criminal behaviour involving companies and financial transactions would thus be limited upon his release and accordingly that his prospects of rehabilitation were somewhat improved. She thought that he would benefit from a period of supervision in the community upon his release to improve those prospects of rehabilitation. 41In relation to the difficulties in sentencing for so many offences, her Honour said: "It is a very difficult exercise attempting to set appropriate sentences for these offences taking into account the overall criminality represented by them all and also attempting to comply with the dicta of the High Court in R v Pearce . That and cases following it are authority for the proposition that every sentence imposed by a court should of itself be the appropriate sentence for the particular offence and there should then be consideration of accumulation and concurrency for both traditional reasons and also to give rise ultimately to the principles of totality. It seems to me that this is not only a virtually impossible task in this case with 81 separate offences and 35 summary offences, but also unnecessary. There is no benefit either to the individual or to the system in this case in attempting to analyse each of the individual GST fraud cases and then affix an appropriate sentence to each of them. It would be quite an artificial exercise. Each of the completed offences counts 1 to 15 was in fact itself a rolled up offence, each for a different amount, some lesser than the others, ranging from $5,528 for count 3 to $42,740 for count 4 and a range in between for each of those 15 offences. Each, as I have said, involved a different company. Some were for only one Business Activity Statement claim, others for up to 5. The same applies to the other counts 16 to 39 for all the attempt charges. The gravamen of these GST offences is the overall fraudulent conduct. It seems to me appropriate, therefore, to treat counts 1 to 15 as one group, namely the completed GST frauds and affix the same sentence to each of them, but order that they be served concurrently. Similarly, to treat each of the attempt offences as one group, affixing a slightly lower penalty because they did not actually lead to any loss to the Commonwealth but ordering that they too be served concurrently with each other." (ROS 23.4 - 24.3) 42In line with that approach, rather than look at the individual offences, her Honour divided the offences into categories, in relation to which she made an assessment of their relative seriousness. At the top in level of seriousness were the 15 counts of dishonestly obtaining a financial advantage from the Commonwealth. Next were the 24 counts of attempting to dishonestly obtain such a financial advantage. The remaining groupings were the Passport Act offences, the Bankruptcy Act offences and lastly, 30 offences contrary to the FTRA. 43Having passed sentences in relation to each group of offences, her Honour applied the principle of totality as follows: "That would give rise to an overall total of 12 years imprisonment. That seems to me excessive both to reflect total criminality and also excessive when compared with the sentences imposes for these sorts of offences in other cases. I then looked to what the overall sentence should be to reflect the total criminality and I will then effect a degree of partial accumulation to give rise to those findings. Overall I have concluded that it should be a head sentence of 6 years. There should be for Commonwealth offences a non-parole period of between 60 and 66 percent. It seems to me in the circumstances there is nothing in reality to reduce this non-parole period between 66 percent and I am proposing to set a non-parole period overall of 4 years. In particular I am not convinced by the argument put on behalf of the offender that the fact he gave evidence in the assault trial as the victim of it will lead to his suffering any harsher treatment or conditions in custody than might otherwise be the case. I propose to give effect to what I then see to be the appropriate overall penalties by way of a partial accumulation of the two major sentences, that is, the 5 year sentences and the 4 year sentences and then setting some partial accumulation of the smaller sentences, but ordering that they be served within the overall non-parole period." (ROS 28.2 - 28.8) Appeal Ground of Appeal 3 - The learned sentencing judge erred: (i) In failing to set appropriate sentences in relation to the individual counts. (ii) In failing to properly apply the principle of totality. (iii) In her approach to accumulation and concurrence. 44The appellant submitted that in grouping the offences as she did, her Honour had failed to follow the direction of the High Court in Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610. The appellant relied specifically on the following passage of the plurality: "45 To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 45By way of illustration, the Court's attention was drawn to the amounts of money involved in some of the tax fraud offences which because of her Honour's approach, received the same sentence. In following that approach, the appellant relied upon R v Alimic [2006] VSCA 273 where the Court said: "10 ... Ordinarily in a case of this kind the relative gravity of offences of the sort in issue is to be assessed by reference to the amount of money involved in each offence". 46The specific illustrations to which the Court was taken were: Count 15 where there was a single act of lodging a false BAS statement for the sum of $488 and in respect of which the appellant received 5 years imprisonment. Count 11 which involved the submission of two false BAS statements in the sum of $4,733 for which the appellant also received a sentence of 5 years imprisonment. Count 4 which involved the submission of five false BAS statements totalling $42,740 for which the appellant also received 5 years imprisonment. Count 16 which was an attempt to defraud for the sum of $5,012 where a single fraudulent BAS statement had been submitted and for which the appellant received a term of imprisonment of 4 years. Count 32 which was an attempt to defraud the Commonwealth for the sum of $57,060 which involved the submission of six false BAS statements for which the appellant received a sentence of 4 years imprisonment. 47The appellant submitted that because of her Honour's failure to pass sentences for each specific offence, having regard to the relative criminality of each specific offence, it was not possible for her Honour to appropriately determine to what extent the sentences should be made concurrent and should be accumulated so as to achieve a proper result by reference to the principle of totality. The appellant submitted this was the very kind of error which Pearce pointed out could be "masked" by such an approach. 48The appellant's submission misunderstands what was said in Pearce. An application of the principle as submitted by the appellant, would not only produce a result which her Honour correctly characterised as "artificial" but could well produce a result significantly more adverse to the appellant. Given the level of criminality involved in these offences, particularly the tax fraud offences but not excluding the detailed planning over a long period of time involved in the identity fraud offences, passing 81 separate sentences which had regard to those matters could well result in total sentences significantly in excess of the 12 years initially determined by her Honour. 49The proper approach in Pearce was considered by the High Court in Johnson v The Queen [2204] HCA 15, (2004) 78 ALJR 616 where the plurality said: "26 The first matter to be noticed in this regard is that the joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime unto which the sentencing is effected. ..." 50In a case similar to this, although the facts were not as complex and the planning not as substantial, this Court provided further guidance as to how the principle in Pearce should be applied. R v Knight [2004] NSWCCA 145 involved an appeal from sentences passed in respect of 32 offences, contrary to the Crimes Act 1914 (Cth) and the Criminal Code (Cth). For convenience in that case, those offences had been grouped together for the purpose of allowing appropriate sentences to be passed. 51In respect of that process, Howie J (with whom Grove J and Simpson J agreed) said: " 31 The contention that in some way the applicant was disadvantaged because of the application of Pearce is in my opinion completely misconceived. The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences: the totality principle. Johnson v The Queen [2004] HCA 15 makes it clear that this principle was neither established nor affected by the decision in Pearce . The significance of Pearce , in this regard, was to indicate the preferred manner in which sentences are to be structured in order to achieve compliance with the totality principle. In particular this Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed. Johnson merely confirms that compliance with the totality principle can also be achieved by decreasing a sentence that is to be made wholly cumulative with a sentence for another offence." 52The appellant's submission based on examples of particular offences where comparatively small sums of money were involved, takes the offending out of its context and involves, as her Honour appreciated, a high level of artificiality. 53For convenience, the Crown collected the tax fraud offences under the name of the company used for that offence. In relation to the actual fraudulent receipt of monies, there were 15 such companies. In relation to each company there were often a number of such fraudulent transactions. Although the amount of money relating to one particular company might have been modest, the level of criminality, involving as it did planning and the acquisition of companies over a long period of time before the fraudulent claim was made, was in reality the same in respect of each company. It is not without significance that the 15 sentences of 5 years imprisonment in respect of each company were all to be served concurrently. This was an entirely appropriate response by her Honour. It favoured the appellant. The same situation prevailed in relation to the 24 attempt charges with respect to the tax fraud offences. Although the amounts of money varied, the level of criminality was identical in relation to each company. 54As indicated, not only was her Honour's approach in accordance with principle, it tendered to favour the appellant. Ground of Appeal 3 (i) has not been made out. 55Grounds of Appeal (ii) and (iii) raise the same issue and can be dealt with together. 56The appellant submits that her Honour erred in partially accumulating the tax fraud matters. The appellant submits that because those offences arose out of the same sequence of events, covered the same time period, involved the same offending conduct and involved the same person (the appellant) they should have been made fully concurrent. 57The factual basis for this submission is not correct. Within the tax fraud offences, the attempt charges generally cover the period 1 December 2001 until 25 July 2002, whereas the charges where monies were actually received, relate to fraudulent BAS lodged with the ATO between 4 October 2001 and 19 February 2002. Moreover, with some slight overlap, the companies involved in the attempt charges are different from those involved in the offences where monies were actually received by the appellant. 58In any event, the level of accumulation between the attempt offences and those where monies were actually received is quite modest, i.e. 1 year. There is partial concurrency for the period of 3 years. This is entirely appropriate when one looks at the differences between the two sets of offences. 59What the appellant is in reality arguing for is that all of the tax fraud offences should be treated as a single course of criminal conduct. Not only is that inappropriate from a factual point of view but it is inappropriate as a matter of principle. Just because the appellant had resolved on a particular course of criminal activity through which to obtain money, does not mean every aspect of that activity should be regarded as a single course of conduct. 60Not only did the appellant use a number of different companies but the false claims were made at different times during the course of the criminal enterprise. To regard those matters as being merely a continuation of the same course of criminal conduct is incompatible both with a proper appreciation of the facts and established sentencing principles. 61In any event, the fact that the offences arose from a single course of criminal conduct does not require a sentencing judge to impose concurrent sentences for those offences ( Wilkins v R (1998) 38 A Crim R 445). It is erroneous for a Court to impose concurrent sentences on the basis that offences arose from a single course of criminal conduct where the overall sentence imposed does not reflect the total criminality involved in that course of conduct ( Gorman v R [2002] NSWCCA 516). 62In relation to totality, her Honour did exactly what was recommended by Mill v Queen (1988) 161 CLR 59 and Pearce , i.e. she fixed the sentence for each group of offences before taking the step of applying the principle of totality by determining the extent to which there should be accumulation and concurrency in those sentences. This had the effect of reducing the head sentence from 12 years to 6 years. 63Grounds of appeal 3 (ii) and (iii) have not been made out. Ground 4 - Her Honour gave insufficient weight to the full repayment of tax, the subject of the charges. 64To understand this ground of appeal, it is necessary to set out s16A(2)(f) Crimes Act 1914 and s320 of the Proceeds of Crime Act 2002 (Cth). 65Section 16A(2)(f) provides: "16A(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: ... (f) The degree to which the person has shown contrition for the offence: (i) By taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) In any other manner." 66Section 320 of the Proceeds of Crime Act 2002 (Cth) provides: "320 A court passing sentence on a person in respect of the person's conviction of an indictable offence: (a) May have regard to any co-operation by the person in resolving any action taken against the person under this Act; and (b) Must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence; and (c) Must have regard to the forfeiture order to the extent that the order forfeits any other property; and (d) Must not have regard to any pecuniary penalty order, or any literary proceeds order, that relates to the offence." 67The appellant submitted that the evidence was that through the sale of some property the appellant and his wife were taking steps to pay the amount of a forfeiture order of $355,000. It was common ground that the appellant had co-operated in this process and that he had paid $100,000 of that amount. 68The appellant submitted that there was no tension between s16A(2)(f) of the Crimes Act 1914 and s320(d) of the Proceeds of Crime Act 2002. In those circumstances the appellant submitted, that her Honour had failed to have adequate regard to the appellant's expression of contrition by taking steps to comply with the orders under the Proceeds of Crime Act . 69It is apparent from how her Honour treated the appellant's payment that she did take it into account in relation to contrition and that he did obtain some benefit from it. In accordance with s320(a) her Honour said in relation to that payment: "I do and am entitled to take into account the fact that the offender consented to these orders when assessing his co-operation and also in relation to issues of contrition and remorse." 70However, her Honour qualified the extent to which she was prepared to take those matters into account by reference to: "He made personal gain out of these offences and did so over a significant period of time. He had the funds and he used them for his own purposes. There has also been further loss to the Commonwealth in the expense it has taken to investigate and prosecute these offences." Her Honour also took into account, as a matter tending against genuine contrition and remorse, that the appellant had not been truthful when giving evidence in his sentencing proceedings. 71With the exception of the expense to the Commonwealth of prosecuting the offences, these are all matters which her Honour was entitled to take into account as reducing the extent to which she should take into account the appellant's contrition when doing his best to comply with orders made under the Proceeds of Crime Act . 72It is clear that her Honour took into account the fact that the appellant had consented to orders under the Proceeds of Crime Act to the extent to which she could and that otherwise she appropriately treated the question of contrition. This ground of appeal has not been made out. Ground of Appeal 6 - In respect to character, her Honour having found that the appellant had an insignificant criminal record, her Honour erred in: (i) Having regard to findings of an ICAC Commissioner, (being a finding not established to any criminal (or civil) standard by a court of law; and (ii) Fusing prior relevant good character with her Honour's rejection of the appellant's evidence. 73The appellant's submission seems to be that her Honour took into account the findings of the ICAC Commissioner in a way not specified and that this was an error on her part. The appellant does not submit that her Honour should have made a finding that the appellant was a person of good character. The thrust of the submission seems to be "his character should not be impeached by findings not made in a courtroom and subject to the rigours of the Evidence Act 1995." 74The fact of the appellant's previous convictions meant that he could not be regarded as a person of good character. That is undisputed. What her Honour said about the findings of the ICAC Commissioner were: "I also in this regard take into account the findings made by the ICAC Commissioner in April 1997 as set out by the Crown in their written submissions which in general terms reflect my own assessment of this offender as a witness." Her Honour was there referring to the fact that the appellant had been untruthful when giving evidence in the sentence proceedings. 75I do not see how the findings of the ICAC Commissioner were relevant to the task before her Honour. To that extent, the appellant's submission is correct. That having been said, the only weight her Honour gave to the findings was that they confirmed the impression which she had already formed as to the character of the appellant. She had already determined for good and proper reasons that the appellant could not be regarded as a person of good character. 76In relation to offences of this kind where the need for general deterrence is strong, less weight is generally given to evidence of good character. In R v Williams [2005] NSWSC 315, (2005) 152 A Crim R 548 Wood CJ at CL said: "60 Upon any view the evidence as to his character and community contribution is prodigious, and he must be given some credit for it, although as Bray CJ observed in Regina v Thompson (1975) 11 SASR 217 at [222], where the need for general deterrence is strong, the courts generally give less weight to good character. 61 As was observed in R v El-Rashid NSWCCA 7 April 1995 per Gleeson CJ at 3 and in Regina v Rivkin at (2004) 59 NSWLR 284 at 410) the existence of good character is a circumstance that normally places the offender in the position whereby he or she is in a position to commit white collar crime. As a consequence the need for general deterrence may displace, to some degree, the benefit which might otherwise attach, although for the reasons identified in Cameron v The Queen (2002) 209 CLR 339, it is not to be ignored." 77I am not satisfied that the findings of the ICAC Commissioner made any contribution to her Honour's assessment of the appellant's good character. His previous convictions substantially disqualified him from any such benefit. There was no evidence of a positive kind as to good character. He had significantly eroded any reliance which he might be able to place upon good character by being untruthful in his evidence before her Honour. Finally, the very nature of the offence made considerations of good character of much less weight than would normally be the case. This ground of appeal has not been made out. Count 8 - Her Honour erred in setting the non-parole period by reference to the percentage proportion of 60 - 66 percent. 78The appellant submitted that her Honour's reasoning in following a "norm" of a ratio of 66 percent between the non-parole period and the head sentence was expressly disapproved by the High Court in Hili v The Queen [2010] HCA 45, (2010) 85 ALJR 195. 79This ground of appeal has been made out. In fairness to her Honour, the decision in Hili was handed down well after her Honour sentenced the appellant. Nevertheless, error has been identified in her Honour's reasoning process. 80The difficulty for the appellant is that he has not put forward any compelling reason why the approach followed by her Honour in fixing the non-parole period, albeit based on faulty reasoning, is not otherwise correct. 81Her Honour gave careful consideration to the rehabilitation of the appellant upon his release and his need for a period of supervision to improve his prospects of rehabilitation. Her Honour rejected the proposition that the non-parole period should be extended because the appellant had provided assistance to the police when he was assaulted. In those circumstances, a parole period of 2 years out of a total sentence of 6 years is appropriate. 82The appellant submitted that cases such as R v Corbett (1991) 52 A Crim R 112 at 116-117 suggested that because white collar crime was non-violent when compared with other offences, there should be a substantial gap between the head sentence and the non-parole period. A similar expression of opinion was given in Stitt v The Queen (1998) 102 A Crim R 428 at 432. 83Such an approach, in my opinion, is quite out of step with current community standards. The community now views white collar crime very seriously, having regard to the fact that it is easy to commit and difficult and expensive to track down. There is certainly no sentencing principle to the effect suggested by the appellant and by those cases. 84On the contrary, the expressions of opinion in Hili , which was itself a case involving tax fraud, are very much to the contrary. There the plurality said: "63 The applicant's offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud which this was, is offending and affects the whole community. As was pointed out in Ruha , the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognisance release orders that were made." 85The guidance provided by Hili in relation to the fixing of a non-parole period in relation to the total sentence was that each case depended upon its own facts and that the non-parole period should be fixed accordingly. ( Hili at [40], [44].) 86Although this ground of appeal has been made out and error has been identified in her Honour's reasoning, no error has been identified in the non-parole period fixed by her Honour. In my opinion, no less a non-parole period than that imposed by her Honour is warranted. 87The orders which I propose are that leave to appeal be granted and that the appeal be dismissed. 88GROVE AJ: I agree with Hoeben J.