Court of Appeal (WA)|2010-08-17|Before: Pullin JA

R -v- BALDOCK [2010] WASCA 170 (17 August 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- BALDOCK [2010] WASCA 170

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Sentence - Crown appeal - Defrauding the Commonwealth - Early plea of guilty - No personal benefit - High level of cooperation with authorities - Whether sentences manifestly inadequate - Whether total effective sentence infringed totality principle - Whether double jeopardy principle applies - Whether State legislation abolishing double jeopardy principle constitutionally invalid - Discount for past and promised future cooperation with law enforcement agencies - Whether conflation of the discount permissible

Crimes Act 1914 (Cth), s 5, s 16, s 16A, s 16G, s 17A, s 19AC, s 20(1)(b), s 21B, s 21E, s 29D

Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383

Bick v The Queen [2006] NSWCCA 408

Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Chan v The Queen (1989) 38 A Crim R 337

Chivers v The State of Western Australia [2005] WASCA 97

Clarkson v The Queen [2007] NSWCCA 70; (2007) 209 FLR 387

Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; (2001) 4 VR 285

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

F v The Queen [2005] WASCA 135

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Griffiths v The Queen [1977] HCA 46; (1977) 137 CLR 293

Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372

Jarvis v The Queen (1993) 20 WAR 201

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Little v The Queen [2001] WASCA 87

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR

Ly v The Queen [2007] NSWCCA 28

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mohlasedi v The Queen [2006] WASCA 267

Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

PSL Industries Ltd v Simplot Australia Pty Ltd [2003] VSCA 7; (2003) 7 VR 106

Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174

R v Baunach [1999] QCA 207

R v Brown [2001] QCA 553

R v CAK & CAL; Ex parte Commonwealth Director of Public Prosecutions [2009] QCA 23

R v Gallagher (1991) 23 NSWLR 220

R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338

R v Marshall [2010] QCA 29

R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10

R v Sittczenko; Ex parte Commonwealth Director of Public Prosecutions [2005] QCA 461

R v Talbot [2009] TASSC 107

R v Tsiaousis [2005] NSWCCA 240

R v Voyka [2006] QCA 493

R v Walters [2002] NSWCCA 291

Roffey v The State of Western Australia [2007] WASCA 246

Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119

Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214

Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119

South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130

Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 226 CLR 362

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

The Commonwealth v Mewett [1997] HCA 29; (1997) 191 CLR 471

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Bennett [2009] WASCA 93

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

The State of Western Australia v Cunningham [2008] WASCA 240

The State of Western Australia v Johnson [2009] WASCA 224

The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363

The State of Western Australia v Tran [2008] WASCA 183

The State of Western Australia v Wynne [2008] WASCA 195; (2009) 188 A Crim R 502

Vagh v The State of Western Australia [2007] WASCA 17

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

Williams v The King (No 2) [1934] HCA 19; (1934) 50 CLR 551

1 PULLIN JA & KENNETH MARTIN J: This appeal is by the Crown against allegedly manifestly inadequate sentences imposed in relation to five charges of being knowingly concerned in the defrauding of the Australian Taxation Office (ATO) contrary to s 5 and s 29D of the Crimes Act 1914 (Cth). These sections were repealed in 2001 and replaced by new offences of fraud created by the Criminal Code (Cth). However, the crimes in this case were committed before 2001 and were prosecuted under the Crimes Act provisions.

2 The respondent was a certified practising accountant with responsibility for the group tax affairs of various entities, collectively known as 'Goldfields', which were controlled by Kevin Pollock. In this position, first as an employee and, after November 1999, as an independent accountant, the respondent implemented a fraud by under-remitting and failing to remit tax instalment deductions to the ATO that had been withheld from Goldfields' employees. The aggregate of the unremitted amounts was $6.9 million. The respondent gained no personal benefit from the moneys withheld from the ATO. The sentencing judge found that the respondent was not the architect of the fraudulent scheme because he acted on the instructions of Kevin Pollock, but played a subordinate and important role in regard to it. However, he was well aware that the activities he engaged in were solely for the illegal evasion of tax due to the ATO. A reason for the respondent agreeing to participate in the fraudulent scheme was his fear of losing his job at a time when the respondent's wife was in a state of ill health.

3 The respondent pleaded guilty and signed a written undertaking pursuant to s 21E of the Crimes Act to give evidence against Kevin Pollock and two other persons.

4 The respondent had no relevant criminal history and a number of referees spoke well of him. A psychological report characterised the respondent as a man with a normal range of emotions and reactions and no evidence of any significant problems of any nature other than stress related to the current charges and to his wife's past medical problems. The sentencing judge said that there was no evidence that he was likely to reoffend and nor was there any evidence to indicate offending in the 10 years since the offences took place. The respondent was 54 years of age at the time he was sentenced, and therefore in his early forties when the offences were committed.

5 Written submissions were presented to the sentencing judge by both parties. The prosecution referred to the cases set out in the attached schedule as providing a range of sentences which might guide the sentencing judge in setting the appropriate penalty. The prosecutor submitted that a term of immediate imprisonment was the appropriate penalty and submitted that general deterrence is a predominant consideration for offences of defrauding the revenue. It is not in dispute that the sentencing judge took this factor into account and nor is it in dispute that the sentencing judge took into account all other factors he was required to consider by s 16A(2) of the Crimes Act.

6 Counsel for the prosecutor made submissions to the sentencing judge about what discount should be allowed for the undertaking pursuant to s 21E of the Crimes Act. Reference was made to R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, where the New South Wales Court of Criminal Appeal considered cases in New South Wales where discounts had been granted for pleas of guilty and assistance. The court there concluded that while there is no fixed tariff, discounts customarily range between 20% and 50% and that, generally speaking, a discount of 50% is regarded as appropriate to assistance of a very high order. In this State, this court has said that there is no tariff for such a discount but that it may be 'as much as 50% or even more': see The State of Western Australia v Tran [2008] WASCA 183 [75] - [77]; The State of Western Australia v Wynne [2008] WASCA 195; (2009) 188 A Crim R 502.

7 The facts revealed that at the time of the sentencing hearing, the respondent had assisted in relation to asset confiscation information and had given an undertaking under s 21E to give 'full and frank evidence for the Crown' in accordance with statements dated 24 June 2003, 19 June 2009 and 16 July 2009 which were attached to his undertaking. The undertaking to give evidence related to three named persons. The respondent also agreed to provide further and other full and frank 'assistance' in terms set out in the undertaking. This undertaking related to any court proceeding that the Crown may nominate in respect of three persons identified in the undertaking. The significant statements were those given on 19 June 2009 and 16 July 2009, which was after the respondent entered his pleas of guilty in the Magistrates Court on 3 June 2009. A record of these pleas of guilty was made pursuant to s 47 of the Criminal Procedure Act 2004 (WA). Subsequently, when the indictment was prepared, convictions were recorded at the hearing before the sentencing judge on 7 August 2009.

8 A letter dated 3 August 2009 from the Australian Federal Police (AFP) to the sentencing judge recorded that the respondent had been cooperative and had provided 'extensive assistance' to the AFP and that in relation to a number of ongoing investigations, the information he provided was of 'intelligence value'. The letter also stated that the evidence provided by the respondent had been 'comprehensive and not able to be obtained from any other sources' and that the 'value of assistance is assessed as very high'. As a result, there was every reason for a substantial discount because the assistance was of a very high order. There is no dispute that the evidence that the respondent gives will elevate the prosecution of the persons referred to in the undertaking from a circumstantial case to a case supported by direct evidence.

9 Past cooperation as opposed to the promise of future cooperation was a general mitigatory circumstance to be taken into account along with other relevant circumstances such as, for example, his good character and lack of a record. However, the undertaking to give cooperation in future has to be separated out and given separate treatment because s 21E requires any reduction in sentence as a result of promised future cooperation to be specified.

10 The sentencing judge acknowledged that s 17A of the Crimes Act required a sentence of imprisonment not to be imposed unless no other sentence was appropriate. The sentencing judge referred to the nature and circumstances of the offences and the fact that the respondent had no relevant criminal history. His Honour noted that no reparation had been made, that the respondent's cooperation with the authorities was 'significant' and that the cooperation extended to 'linked assets proceedings'. The sentencing judge took into account the respondent's early plea of guilty, the evidence of prior good character and the background and personal circumstances of the respondent. His Honour acknowledged that general deterrence was a predominant consideration for offences of defrauding the revenue. His Honour then said:

Having regard to the factors bearing upon sentence canvassed in earlier discussion I am minded to give considerable weight to the need for general deterrence. It is for that reason and having regard to the principles in previously decided cases concerning fraud of this kind that I consider that a term of imprisonment must be imposed in order to satisfy the requirements of the Crimes Act, and no other alternative is appropriate.

I regard the absence of personal gain in accordance with the observations in Pearce's case as a matter going to the seriousness of the offence rather than to mitigation. It ameliorates the sentence that might otherwise have been imposed. I take account also of your role as an employee subject to directions. To my mind a term of 6 years could be regarded as a starting point for an offence of this kind. When I turn to the mitigating factors, I must take account of your plea of guilty, your good character and your domestic circumstances at the time and the present.

In other words, I must give weight to my findings in summary form and to what has been said on your behalf. I give weight to the fact that you were in a subordinate role which made it difficult for you to resist the directions of your employer to proceed with the scheme. That is certainly not a sufficient excuse for your wrongdoing but it can be properly considered as a matter in mitigation. I give considerable weight also to your prior good character and to the indications that you are unlikely to reoffend and fully appreciate the nature of your wrongdoing. I take account of the fact that you were under pressure due to the ill health of your wife at the time of the offending.

When I draw all these factors together I am provisionally of the view that a term of imprisonment of three years four months would be an appropriate disposition.

Having regard to the findings I have made, I will allow a discount of 40% in respect of your cooperation in the manner allowed for by s 21E of the Crimes Act. The term of 3 years 4 months that I would otherwise have imposed is thus rounded off and reduced to 2 years.

I apply the same reasoning to the remaining counts because to my mind they can all be placed within the same framework of wrongdoing and the mitigating circumstances mentioned earlier, notwithstanding that separate years are involved. Accordingly I have in mind to impose a term of imprisonment of two years in respect of each of the four other counts.

This would give rise to an effective aggregate term of imprisonment of 10 years if the terms were to be served cumulatively.

It is apparent from the decided cases that an appropriate sentence is to be fixed for each offence followed by consideration of cumulation or concurrence and then by questions of totality. To the extent to which two or more offences contain common elements it would be wrong to punish the offender twice, with the result that concurrence is appropriate where there is essentially one transaction or commonality is evidenced.

The totality principle enables a court to mitigate what strict justice would otherwise indicate that the overall sentence to be served is inappropriately long. The key factor is proportionality, with a view to ensuring that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. An appropriate result may be achieved by making sentences wholly or partially concurrent or by lowering individual sentences.

To my mind, the circumstances of the present case arguably bring into play the one transaction rule. However, in any event, having regard to the totality principle and the question of what is a just an appropriate measure of the total criminality involved, it is necessary in my view to take account of the fact that this was essentially an integrated course of conduct in which the various events were linked to a decision allegedly taken early on by your employer, and acted on by you, to carry the scheme into effect. Accordingly, I do consider that an adjustment is necessary pursuant to the totality principle.

With that thought in mind, and notwithstanding submissions of the prosecution suggesting an element of cumulation is appropriate, I am of the view that the proposed term for each of count 2, count 3, count 4 and count 5 should be served concurrently with the proposed term for the count 1 offence.

This would give rise to an effective aggregate term of imprisonment of two years.

11 The sentencing remarks therefore record that the sentencing judge specified pursuant to s 21E a reduction in sentence of 16 months. The sentencing judge then turned to consider the term to apply before the respondent was released under a recognisance release order pursuant to s 21B of the Crimes Act. The sentencing judge noted in effect that the same considerations relevant for the imposition of the proposed term of imprisonment must be revisited in determining whether to make such an order. His Honour referred to Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 in which the principles concerning the exercise of the discretion were identified. His Honour then said:

I will order that you be released after serving 6 months of the term on a personal recognisance of $5,000 to be of good behaviour for 18 months.

By s 22 of the Crimes Act it is open to the court to impose conditions and accordingly I will order and direct that throughout the 18 month period of the recognisance release order you are required to remain in Australia, to refrain from applying for or obtaining an Australian passport and to surrender possession of any Australian passport held by you.

GROUND OF APPEAL 1: The learned sentencing judge erred in law by adopting a two-tiered or staged approach to sentencing that caused the sentencing exercise to miscarry.

Particulars

The starting point for the sentence for Count 1 was not determined by a consideration of all relevant circumstances.
The learned sentencing judge 'double counted' certain mitigating factors.

The learned sentencing judge failed to properly take into account the fact that the Respondent's good character facilitated the commission of the offence.

GROUND OF APPEAL 2: The learned sentencing judge erred in law by failing to properly apply the principle of totality.

Particulars

The learned sentencing judge wrongly concluded that as the offences were part of an integrated course of conduct concurrent sentences were appropriate.
The aggregate sentence is not proportionate to the total criminality of the offences.

GROUND OF APPEAL 3: The learned sentencing judge erred in law by imposing sentences that are manifestly inadequate.

Particulars

The sentences imposed do not appropriately reflect the level of criminality of the Respondent.
The minimum custodial term imposed on the Respondent fails to provide a term that justice requires to be served in all the circumstances of the case.

The sentences imposed do not properly reflect the need for general deterrence.

The sentences imposed fall clearly outside the appropriate range of sentence established by comparative cases.

GROUND OF APPEAL 4: The learned sentencing judge erred by failing to specify in accordance with s 21E of the Crimes Act 1914 (Cth) the sentence he would have imposed but for the future assistance provided by the respondent.

13 The grounds therefore allege error in the approach to sentencing, error in that the individual sentences were manifestly inadequate, error in the fixing of the aggregate total sentence, error in the fixing of the pre-release period (as defined in s 16 of the Crimes Act) and, finally, error in the sentencing judge's specification, pursuant to s 21E, of the amount of the reduction because of the respondent's undertaking to cooperate with law enforcement agencies.

14 This ground alleges error in the approach to sentencing. The appellant submits that the sentencing judge sentenced the respondent by adopting a two-tiered or staged approach to the sentencing exercise in relation to count 1 which he then applied when sentencing for each of the other offences. The appellant submitted that the way in which the 'two-tiered' approach was employed revealed error.

15 In Markarian v The Queen [2005] HCA 25; [2005] HCA 25; (2005) 228 CLR 357 [39], Gleeson CJ, Gummow, Hayne and Callinan JJ, after discussing controversy in the cases about whether a two-stage approach was permissible or whether the 'instinctive synthesis' method was correct, said:

Following the decision of this court in Wong it cannot now be doubted that sentencing courts may not add or subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in an process of 'instinctive synthesis' as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends

16 McHugh J said it would be an error of law for a sentencing judge to determine a notional sentence for some other offence based on some other unknown objective circumstances and not for the actual offence committed [53].

17 The court held in Markarian that because of the number and complexity of the considerations which had to be weighed by the trial judge, it was not an appropriate case for an 'arithmetical process'. The court in Markarian's case was dealing with drug charges in circumstances where the appellant had a criminal history; where there was before the sentencing judge an optimistic pre-sentence report; where the appellant had made genuine progress towards drug rehabilitation; where there was evidence of the appellant's apparent contrition; where there was evidence of former addiction to drugs but evidence of efforts made to rehabilitate and where the criminality of the appellant had to be compared with that of a co-offender. In R v Gallagher (1991) 23 NSWLR 220, 228, Gleeson CJ said that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities and the personal risk to which he thereby exposes himself, will form a complex of interrelated considerations and an attempt to separate out one or more of these considerations will not only be artificial and contrived, but will also be illogical.

18 However, in Chivers v The State of Western Australia [2005] WASCA 97 [69], Pullin JA pointed out that what was said by Gleeson CJ in Gallagher's case could not apply in circumstances where s 8(5) of the Sentencing Act 1995 (WA) applied because that is a statutory direction to state in open court the extent of any reduction for an undertaking to assist law enforcement authorities. The same applies when s 21E of the Crimes Act applies. That was recognised in Markarian's case where the plurality said:

It is not useful to begin by asking a general question like was a 'staged sentencing process' followed. That is not useful because the expression 'staged sentencing process' may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account [24].

19 Furthermore, in simple cases, the quantification of the amount of discount given for a plea of guilty will not of itself amount to error: Chivers [27] (Steytler P, McLure JA agreeing) [66] (Pullin JA).

20 This was a relatively simple case. Two important factors were bound to have a very significant and separately identifiable impact on the penalty. They were the plea of guilty and the future cooperation with the authorities. Another highly significant factor was the fact that the respondent did not personally gain the benefit of the money withheld. The use of a staged approach and the identification of a starting point was not per se an error. The error alleged in ground 1 is that the sentencing judge said '[t]o my mind, a term of 6 years could be regarded as a starting point for an offence of this kind' and having done so then referred to mitigating factors which should have been taken into account in determining the 'starting point' of 6 years. In other words, the 6 year starting point was arrived at after taking into account only some of the relevant factors which should have been taken into account and synthesised in arriving at the starting point. The appellant agreed that there would have been no error in identifying a starting point if the sentencing judge had taken into account all relevant factors bearing upon an appropriate sentence, leaving aside the reduction to be allowed due to the undertaking and any discount for the pleas of guilty.

21 The whole of the complex of interrelated matters such as good character, his past cooperation, the delay in prosecuting, the amount involved, the need for general deterrence and the other factors set out in s 16A(2) were matters which should have been taken into account when identifying a starting point. This would have produced a proper starting point for the application of a discount for the early plea of guilty and the reduction for promised future cooperation as required by s 21E of the Crimes Act. The fact that the sentencing judge did not take into account all the general mitigating factors before arriving at a starting point was an error. Ground 1 should be upheld.

22 The appellant contends that the sentencing judge erred in ordering that the sentences be served concurrently. This order was made when the sentencing judge considered totality. The principles concerning totality are not in dispute. After fixing an appropriate sentence for each offence, the question of totality then arises. In sentencing an offender for a number of offences, a judge must ensure, applying the first limb of the totality principle, that any aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved having regard to the circumstances of the case, including circumstances referable to the offender personally: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308, 339 - 340; Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA). This is achieved by appropriate orders for cumulation or concurrency of sentences or even the reduction in the length of appropriate sentences, although the former is the preferred method: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.

23 Where a number of offences arise either out of substantially the same acts, circumstances or series of occurrences in effect out of one transaction, it may be appropriate to make terms of imprisonment concurrent. These offences were not part of one transaction. However, that does not mean that a concurrency order may not be employed to arrive at the appropriate total sentence. An example is provided by R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52 where sentences for separate crimes committed over five years were made concurrent. The ultimate question under the first limb of the totality rule is whether the sentencing judge settled upon a just and appropriate total sentence for the total criminality involved.

24 Consideration of this issue of totality will be deferred, given that it is necessary to consider what an appropriate sentence might be in view of the fact that ground 1 has been upheld.

Ground 3 - whether sentences were manifestly inadequate

25 The first part of this ground involves a submission that the sentencing judge erred by imposing a manifestly inadequate sentence in relation to each count. In a sense it is not necessary to consider this ground because the error revealed in ground 1 means that it is necessary to consider the appropriate sentence to impose. However, because the case was advanced on the basis that the sentence imposed was inadequate, since the sentence fell outside the range of sentences established by comparative cases, those cases will have to be borne in mind when considering what is the appropriate sentence to be imposed in relation to each count. In written submissions, the appellant submits that the sentence was inadequate because the sentence fell 'outside the appropriate range of sentences established by comparative cases'. That is a proper basis for alleging error. Comparative cases would be cases of fraud under s 29D or under the new provisions in the Criminal Code. In The State of Western Australia v Atherton [2009] WASCA 148 [17] - [20] Pullin JA said:

An allegation that a sentence is manifestly inadequate is an allegation that there is an implicit error. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J said:

'Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive (325).'

However, this does not mean that the Court of Appeal decides what it thinks the appropriate sentence might be, compares it with the sentence imposed by the sentencing judge and then as a result of that comparison, declares whether or not the sentence under review is manifestly excessive or manifestly inadequate. To do that would be to declare that the sentencing judge erred because he or she arrived at a sentence which was different from the sentence arrived at by the Court of Appeal. That is an impermissible approach. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, the Full Bench of the High Court said at [15]:

'Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.'

When Gleeson CJ and Hayne J in Dinsdale said that the conclusion that a sentence is inadequate or excessive frequently does not admit of amplification, it is possible they had in mind cases where there is no range of sentences established by other cases. So, for example, in The State of Western Australia v TIK [2009] WASCA 122, there were no other cases suggesting a range of sentences for one of the offences. See [44]. It was not therefore possible to refer to the range of sentences customarily imposed. This is not such a case. Here, the District Court regularly sentences offenders for these type of offences charged and many such sentences are reviewed on appeal. In Chan (1989) 38 A Crim R 337, 342, and Vagh v The State of Western Australia [2007] WASCA 17 [47], it was said that it is necessary in determining whether a sentence is manifestly inadequate, to consider, among other factors, the standards of sentencing customarily observed with respect to that offence.

In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, which was an appeal concerning a charge of possession of methylamphetamine with intent to sell or supply, McLure J said:

'In determining whether a sentence is within a sound discretionary range, it is proper to have regard to decisions in comparable cases. Indeed, part of this Court's role is to ensure an appropriate level of consistency in the sentences imposed in this State [46].'

This accords with what Gleeson CJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [8].

26 In this case, in the appellant's written submissions in support of ground 3, reference was made to only two cases, namely R v Pearce [2001] NSWCCA 447; (2001) 48 ATR 390 and Cappadona. It seems remarkable that only two cases were referred to because this type of offence has been dealt with in courts around Australia on many occasions. In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 [36], Pullin JA said:

The submissions on behalf of the State were remarkable, in that no reference was made to any cases in this State to indicate the range of sentences customarily imposed in Western Australia for either of the two offences, ie aggravated robbery and extortion. It is unsatisfactory for any party to an appeal, contending that a sentencing judge imposed a sentence that was outside the range of sentences customarily imposed and therefore manifestly inadequate or manifestly excessive, to do so without making any effort to put before the court material showing what that range of sentences might be. There may be rare cases where there is no evidence of a range of sentences, but this is not one of those cases.

This was repeated in Atherton [22]. These observations apply with particular force where a State or the Commonwealth is appealing.

27 The appellant is better resourced than convicted persons and in the case of the Commonwealth, it has the advantage of being involved in every case in every State in Australia where this type of offence is prosecuted. It is therefore unsatisfactory if there are other comparable cases for the Commonwealth to present only two cases to this court and then allege that the sentences were manifestly inadequate as outside the range of sentences customarily imposed. If the two cases of Pearce and Cappadona are truly the only comparable cases reflecting the range of appropriate sentences, then the sentence imposed by the sentencing judge here does not fall outside the range suggested by those two cases. However, during oral submissions, counsel for the appellant said these were the two 'principal cases' - suggesting that there are others. This presumably included the few other cases referred to the sentencing judge and perhaps cases the court might itself uncover by its own research after it reserved its decision.

28 There are several reasons why it is unsatisfactory to leave the court to carry out its own research to identify comparable cases. They are that:

(a) the court may not uncover all relevant cases. Appeal courts are under constant pressure to dispose of cases in heavy lists. There is a limit to the work that the court may perform;

(b) if there are many cases then the decision the court makes about the selection of cases as comparable is a decision made without hearing from the parties. In Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385, which was referred to the sentencing judge, the court identified a number of cases to provide a guide to the appropriateness of the sentence under review but it did not refer to, or have cited to it, Pearce which is said to be one of the two principal comparable cases. (Cappadona was apparently cited but was not referred to in the reasons.) It is not satisfactory to leave the court to carry out its own research after the hearing, to select a list of cases which provide evidence of a range of sentences customarily imposed, to make decisions about which cases should be included and which cases should be excluded from that list, to then compare the sentence imposed by the sentencing judge with that range and then to determine the appeal without the parties having input in that process. Technically this is not procedurally unfair because the court is only attempting to do what the parties should have done. However, that process does mean that decisions are made without the parties making submissions about them. The solution is not to return to have a further hearing about what the court has uncovered. That would promote laziness in the parties' preparation and would convert appeal hearings into preliminary hearings. The solution is that the parties should carry out more research. If the court detects that the appellant has not carried out sufficient research then the safest course is to direct a party to carry out the work and allow the other party to make submissions about the list created.

In R v Marshall [2010] QCA 29 [24], a member of the court requested the Crown, which was the respondent, to file a schedule summarising the sentences imposed or considered on appeal over 10 - 12 years. That was a case of social security fraud. The respondent then filed a 45 page schedule of such cases. A schedule of that length may provide too much information which in turn creates its own problems. The comments made above may cause concern to parties and worry them about what they are to do when presenting an appeal based on alleged manifest excess or inadequacy in sentence. All that can be said to allay that worry is that submitting that a sentence is manifestly excessive or manifestly inadequate without citing any cases or citing only one or two cases is not satisfactory, and that overwhelming the court with an excessively long list of indiscriminately chosen cases would also be unsatisfactory. The task of an appellant is to satisfy the court that a proper effort has been made to present a sample of cases which are representative of the types of sentences customarily imposed in circumstances similar to the case under review; and

(c) a failure of the parties to identify sufficient comparable cases induces the parties at the hearing to trade pointless generalities. Thus, counsel for the appellant after stating that Cappadona and Pearce were the two 'principal cases' (ts 35) then said that the sentence imposed 'does not properly reflect the criminality involved and it must necessarily give undue weight to subjective factors and features' which was answered by counsel for the respondent submitting that '[t]he sentence that had to be imposed at the end of the day needed to be one which adequately reflected the public opprobrium to this type of offending and to meet the requirements of justice'.

29 It is now necessary to examine the two cases which the appellant said were the 'principal cases' providing guidance, namely Pearce and Cappadona.

30 In Pearce, the appellant was convicted after trial of three counts of defrauding the Commonwealth. The appellant deducted tax from the wages of employees but failed to remit the tax to the ATO. The amount of unremitted tax over three years was estimated to be approximately $6.5 million. The appellant was in 'middle management' and did not derive any personal benefit from the fraud. After correcting an error in approach by the trial judge, the court imposed sentences of 16 months, 2 years and 2 years, to be served cumulatively. The three sentences to be served cumulatively made up the head sentence of 5 years 4 months. There are important differences between Pearce and this case. Most importantly, there was no plea of guilty and no undertaking to cooperate.

31 There was also a reduction of one-third in the sentence in Pearce's case, because of s 16G of the Crimes Act (which has since been repealed). That section provided that if a federal sentence was to be served in a prison of a State or Territory where State or Territory sentences were not subject to remission or deduction, the court imposing the sentence was obliged to take that fact into account in determining the length of the sentence and to adjust the sentence accordingly. When using the sentence in Pearce's case as a comparable case for a person charged with an offence where as here the sentencing judge would not apply s 16G, it is not appropriate to assume that the Pearce sentence should be adjusted upward by 50% for the reasons explained under the next heading.

32 Section 16G of the Crimes Act was repealed on 16 January 2003 by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2003 (Cth). The Explanatory Memorandum gives the following explanation as to why s 16G was introduced into the Crimes Act. It was introduced in 1989 following the abolition of remissions in New South Wales. The inclusion of s 16G was intended to address concerns that the New South Wales abolition of remissions would result in higher sentences being imposed on federal prisoners in that State. However, as more jurisdictions abolished remissions (at the time only Western Australia and Tasmania still had some form of remission), s 16G had the effect of reducing the maximum applicable term for all Commonwealth offences by one-third. The Minister noted that the Western Australian legislation abolishing remissions was intended to commence in 2003 and that the Tasmanian Attorney-General had signalled an intent to remove automatic remissions. The Minister said that the provisions had created intra-State disparity between Commonwealth and State prisoners and that this was contrary to Commonwealth sentencing policy which promotes the maintenance of intra-State parity of sentences. The Minister noted that there had been judicial criticism of s 16G and that because of the abolition of remissions in most jurisdictions, it was appropriate that s 16G be repealed.

33 Following the repeal of s 16G, in R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155, Hulme J expressed the view that the repeal had the logical consequence that there would be an increase in sentencing levels of 50%. However, that view has not found favour and has been expressly disapproved of in many cases since: see for example R v Tsiaousis [2005] NSWCCA 240 [10] - [13]; Clarkson v The Queen [2007] NSWCCA 70; (2007) 209 FLR 387 [265].

34 In R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, Wood CJ reviewed authorities that had been delivered by that court concerning the way in which the repeal of s 16G should be taken into account. His Honour said [19] - [21]:

[T]hey establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range ... to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range.

I am not persuaded that Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it.

... [I]t does not follow that the starting point selected in the pre-repeal cases involving federal offenders would necessarily have been the same had the section not been in force.

35 Wood CJ said that what is required by s 16A(1) of the Crimes Act is that a sentence be imposed that 'is of a severity appropriate in all of the circumstances of the case' including those that are identified in s 16A(2) and (3): R v Bezan [24]. His Honour also said that while it is likely that there will be 'some' increase in sentences, the extent of the increase will only become apparent as further sentences are imposed that are free of the s 16G constraint. Nothing has been advanced by way of submission from the Commonwealth about whether the cases do reveal an increase.

36 One factor militating against such an increase is that it would create two categories of prisoners. Disparity in sentencing is considered to be a very serious deficiency in a system of criminal justice and as tending to undermine public confidence: Griffiths v The Queen [1977] HCA 46; (1977) 137 CLR 293, 326; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 306. Always applying is the underlying principle of equal justice, which is 'a fundamental element in any rational and fair system of criminal justice': Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; see also The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [24] (Wheeler & Pullin JJA, Owen JA agreeing).

37 In Cappadona, the respondents, Mr and Mrs Cappadona, pleaded guilty to eight charges under s 29D of the Crimes Act. The respondents were involved in the management of a construction company that made overtime payments to workers in cash without deducting and remitting tax to the ATO or declaring the payments. The total amount of the fraud was estimated to be $3.5 million and took place over 5 years. The respondents pleaded guilty at the earliest possible stage and cooperated fully with the investigation. The sentencing judge sentenced Mrs Cappadona to 12 months' imprisonment but the sentence was suspended. Mr Cappadona was sentenced to 2 years' imprisonment on each charge to be served by periodic detention. On appeal, Mrs Cappadona's sentence was not adjusted. Mr Cappadona's sentence was reduced to 18 months' imprisonment on each charge to be served concurrently but it was ordered to be served by full time detention. The case shows the significance and impact on sentence where there is both an early plea of guilty and a promise of cooperation. The amount involved in Cappadona was $3.5 million which was less than the amount involved here, but the systematic fraud in Cappadona extended over five years as opposed to only three years in this case.

The comparison of the total sentence in Cappadona and Pearce and in this case

38 Because so much reliance was placed by the parties on Cappadona and Pearce, the following table allows for an easy comparison between the head sentences imposed in those two cases and this case showing the starting point. The table also shows the adjustments made to that starting point at each stage until the final result is produced.

3 years 4 months (also reflects good character, past cooperation subordinate role, significant stress, low risk of reoffending)

Double jeopardy resentencing reduction - reduction to

Future cooperation (s 21E) - reduction to

39 If the effect of the double jeopardy reduction is taken out of the Cappadona sentence, the sentence would have been 2 years. The adjustment to be made because of the s 16G reduction is not so easy to deal with. As Wood CJ said in Bezan's case, the starting point of 5 years selected in Cappadona may not necessarily have been the same had s 16G not been in force and the authorities referred to above make it clear that it is not appropriate to simply assume that a sentence comparable with Cappadona should simply be increased by 50%. Nevertheless, taking out the adjustment because of s 16G would result in 'some' increase in sentence if s 16G had not been in existence in Cappadona's case. The only other observation to make is that the reduction for cooperation in Cappadona was relatively modest and certainly not a reduction in the order of 40%. It was a reduction of only about 10% on the starting point sentence.

40 There are other cases concerning offences against s 29D of the Crimes Act. There are many of them. In Thompson, some of them are referred to along with other cases of fraud or stealing involving State offences. The range of cases identified Thompson appears to suggest a very high level of imprisonment. However, as mentioned the two cases said to be the principal cases providing guidance in this case are not referred to in the list of cases described in the reasons in Thompson. That may have been deliberate, or it may be an exemplification of the problems of the court carrying out its own research as referred to above. In Thompson, sentences in relation to different offences are referred to and relied on. Care has to be taken to take into account the maximum penalty prescribed by Parliament for those offences. One case not referred to by the parties is R v Gladkowski [2000] QCA 352; (2000) 115 A Crim R 446 where there were 23 counts of defrauding the Commonwealth and 11 counts of attempting to defraud the Commonwealth over a period of years. In that case, the accused pleaded guilty and provided cooperation, producing a sentence of 2 1/2 years' imprisonment with release on recognisance after 8 months. The case of R v Walters [2002] NSWCCA 291 and Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527 which were referred to the sentencing judge by the prosecutor (see schedule) do not provide guidance, because in both cases there was a plea of not guilty, there was no reduction for promised future cooperation and the accused in each case gained the benefit of the fraud.

41 The conclusion to be drawn in looking at the cases referred to the sentencing judge, and in other cases not referred to by the parties, is that there is a remarkable range of sentences. Each case appears to turn on the individual circumstances and if any conclusion had to be drawn, it would be the broad conclusion that the penalty tends to be much reduced where the convicted person does not personally receive the proceeds of the fraud, where there is an early plea of guilty and where there is cooperation with the authorities.

42 The observations made above will provide guidance when looking at the appropriate sentence for each count.

Ground 3 - whether there was error in the fixing of the pre-release period

43 Ground 3 also alleges error in the exercise of the sentencing judge's discretion in fixing the minimum custodial term before release on recognisance. The pre-release period as a result of the sentencing judge's order, represents 25% of the aggregate head sentence. By s 19AC(2) of the Crimes Act, the court was obliged to make a recognisance release order because the aggregate sentence did not exceed 3 years. According to R v Ruha [2010] QCA 10 [46], what was said in Bertilone may be applied to the fixing of the pre-release period (or minimum term to be served) before release on recognisance: but see R v Woods [2009] NTCCA 2; (2009) 24 NTLR 77 [23] - [25]. The sentencing judge was correct when he directed himself that when fixing the pre-release period, the considerations which he had to take into account were the same as those applicable to the setting of the head sentence: see s 16A(2) and Ruha [45]. However, it does not follow that the same weight should be afforded to each matter in imposing the sentence of imprisonment and in making a recognisance release order. The differences between the function of the sentence of imprisonment and that of the recognisance release order must be taken into account in assigning weight to the relevant factors: Ruha [46].

44 In Bertilone, Buss JA (McLure & Miller JJA agreeing) considered authorities dealing with the ratio between the non-parole periods and head sentences in relation to Commonwealth drug importation offences in various States, many of which suggest that the non-parole periods are normally set at 60% - 66% of the head sentence. In Western Australia, in Mohlasedi v The Queen [2006] WASCA 267, Roberts-Smith JA (Pullin & Buss JJA agreeing) rejected a submission that there was a normal or prima facie standard of 50% of the head sentence for a non-parole period in relation to a Commonwealth drug importation case.

In my opinion, the principles to be applied in determining the non-parole period for a Commonwealth drug importation or related drug offence are as follows.

First, s 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non-parole period.

Secondly, neither s 19AB(1) nor any other statutory provision requires the non-parole period to bear any particular relationship to the head sentence.

Thirdly, my review of the case law reveals that, in general, the non-parole periods for Commonwealth drug importation and related drug offences have usually been about 60% to 66 2/3% of the head sentences.

Fourthly, the relationship between non-parole periods and head sentences which have customarily been imposed for Commonwealth drug importation and related drug offences is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge's discretion.

Fifthly, sentencing judges must determine the appropriate non-parole period in each case by applying the established legal principles set out at [31] - [33] above to the facts of the particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non-parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve.

Sixthly, sentencing judges must not determine the non-parole period in any case by applying automatically the general guide I have mentioned. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require [54] - [60].

46 In R v Marshall, Muir JA noted that in New South Wales, non-parole periods for social security fraud were commonly set in a range of 60% - 66% but 'that any such practice is far from uniform' and then added:

No such practice or norm exists in Queensland in respect of social security fraud. The research of counsel for the respondent and the cases from jurisdictions other than Queensland and New South Wales referred to above, strongly suggest that there is no such norm or practice in Western Australia, Victoria or the Northern Territory in social security fraud cases [42].

Muir JA noted that in Queensland, the tendency had been to recognise mitigating factors such as cooperation with authorities by setting a non-parole date earlier than the statutory half-way mark: R v Marshall [45]. In R v Woods [25], Riley J (Martin (BR) CJ & Mildren J agreeing) said that the reasons why a non-parole period will normally be in the range of about 60% - 66% of the head sentence 'do not apply to the making of a recognisance release order'.

47 The sentencing judge in this case did not make any express error in fixing the time for release on the recognisance release order. The question is whether the court may infer that some error occurred as the appellant submits. In view of the fact that ground 1 has been upheld, it is appropriate to defer further consideration of this issue until a decision is made about what the appropriate sentence should be.

48 The appellant submitted that the sentencing judge did not specify that the sentence was being reduced by reason of promised cooperation and did not state the sentence that would have been imposed but for that reduction. However, the sentencing judge did specify that the sentence was being reduced because of promised cooperation and he stated the sentence that would have been imposed but for that reduction.

49 His Honour said expressly that he would allow a discount of 40% in respect of 'cooperation in the manner allowed for by s 21E of the Crimes Act' and that '[t]he term of 3 years 4 months that I would otherwise have imposed is thus rounded off and reduced to 2 years'. The sentencing judge therefore 'specified' (pursuant to s 21E) that the sentence was being reduced by 16 months because of the undertaking. However, it may be noted that a 16 month reduction was only a 22% reduction on the starting point of 6 years. There was some suggestion during oral submissions that the 16 month reduction may have been a combined reduction for past cooperation promised and future cooperation. Only the reduction for the promise of future cooperation must be separated out and specified because of s 21E. Past cooperation, if it has occurred, is a mitigating circumstance to be taken into account with other general factors. The reason for the need to specify the reduction in sentence for the undertaking relating to future cooperation is because, if later, the court is satisfied that the person 'has failed entirely to cooperate in accordance with the undertaking', then it must substitute for the reduced sentence the sentence that would have been imposed on or fixed in respect of the person but for that reduction: see s 21E(3) of the Crimes Act. Cooperation generally was referred to by the sentencing judge and he mentioned a figure of 50%, but when he came to refer to cooperation pursuant to s 21E of the Crimes Act, the figure of 40% was referred to and a reduction of 16 months from 3 years 4 months to 2 years was specified. The sentencing judge therefore complied with s 21E but the error in relation to the starting point requires the subject to be revisited when determining the appropriate sentence.

50 Ground 1 having been upheld, the court has to consider the question of resentencing. Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal 'may' allow the appeal if a different sentence should have been imposed. If the court, having detected error, considers that it would not have imposed a different sentence, then notwithstanding the error detected in the sentencing judge's reasons, it may dismiss the appeal.

51 It is appropriate to begin with count 1. Taking into account all of the relevant considerations specified in s 16A, but excluding the plea of guilty and the effect of the undertaking to cooperate, an appropriate starting point is 5 1/2 years' (66 months') imprisonment. This is lower than the sentencing judge's starting point of 6 years but his Honour's starting point had not taken into account the general mitigatory factors of good character, domestic circumstances at the time of the offence, the subordinate role which made it difficult for the respondent to resist the directions of his employer, the indications that he was unlikely to reoffend and that the respondent fully appreciated the nature of his wrongdoing. The starting point of 5 1/2 years is higher than the starting point in the Cappadona case, but in Cappadona, the starting point had in effect been reduced by the Court of Appeal because it was imposing a sentence and had in mind the double jeopardy principle. When those factors are taken into account, 66 months seems an appropriate starting point as a sentence on count 1.

52 An early plea of guilty routinely attracts a discount in the order of 25% - 35%: Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [17]; Little v The Queen [2001] WASCA 87 [13]. The early pleas of guilty in this case warranted a reduction of 17 months, being approximately 25%. That brings the sentence down to 49 months. That is the sentence that we would have imposed but for the reduction for cooperation.

53 As to the undertaking to cooperate, a reduction of 25 months is warranted because of the strength of the comments made by the AFP about the value of the undertaking to the prosecuting authorities. The AFP letter is very clear on the considerable value of the undertaking. In percentage terms, that is a reduction of about 40% on the starting point of 66 months. The reduction of 25 months brings the sentence on count 1 to 24 months. That is the sentence which should be imposed in relation to count 1. The same factors would lead to the imposition of a sentence of 2 years in relation to counts 2 to 5.

54 If those sentences were ordered to be served cumulatively, the total sentence would have been 10 years. It is then necessary to consider issues of totality to 'ensure that the aggregation of the sentences is appropriate for each offence is a just and appropriate measure of the total criminality involved': Mill v The Queen (63); Postiglione (307 - 308).

55 A total sentence of 2 years is an appropriate reflection of the total criminality. Although the dollar amount involved was greater than in Cappadona, the offences occurred over a lesser period of time, namely three years as opposed to five years and 2 years is an appropriate total. The total sentence could be achieved by ordering concurrency of all sentences as the sentencing judge did (and as the court did in Cappadona), or alternatively by reducing the sentences in relation to counts 1, 2 and 5 to 8 months on each count (this being a permissible although least preferred method of proceeding: see Mill v The Queen) and ordering that each be served cumulatively on each other but concurrently on the sentences of 2 years on the other two counts. That would achieve the same outcome. There is no point in making such an adjustment. As a result, all sentences should be served concurrently.

56 It is then necessary to consider the fixing of the period before the respondent should be released on recognisance. This was a case where there were two very significant mitigating factors, namely the early plea of guilty and the cooperation with the authorities. These two factors have a considerable impact on the level of a sentence and carry substantial weight in fixing the pre-release period. Other significant factors bearing on the fixing of the pre-release period are the fact that there was no direct personal benefit derived from the money withheld; the lack of a criminal record; the fact that these offences occurred 10 years ago; the fact that the respondent was not a person who required a lengthy term in prison to serve as a personal deterrent; the fact that he has a stable family situation; and his good character. These latter factors show that the respondent has rehabilitated himself. Prospects of rehabilitation has been recognised as an important factor in other cases: see for example R v Marshall [39]. All those factors favour a short term before release. A pre-release period of 25% is appropriate.

Whether s 41(4)(b) of the Criminal Appeals Act applies

57 A question was raised during the appeal about whether s 41(4) of the Criminal Appeals Act applies to re-sentencing in relation to offences under the Crimes Act. Section 41(4)(b) abrogates the common law principle of restraint which is commonly called the 'double jeopardy' principle (as to which see The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [25] - [40]). This principle states that a prosecutor is required to establish a very clear error to succeed in an appeal against sentence and even where an error is established, an appellate court will usually impose a sentence towards the lower end of the range of available sentences: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [62]. The fact that s 41(4)(b) abrogates the common law principle was explained in Atherton [160] (Buss JA, Miller JA agreeing). The court must apply the same principles as those which apply in re-sentencing on an appeal by an offender: The State of Western Australia v Bennett [2009] WASCA 93 [68].

58 Section 68(1) of the Judiciary Act 1903 (Cth) provides that the laws of the State respecting the procedure for trial and conviction on indictment and the hearing and determination of appeals arising out of any such trial or conviction shall apply, as far as they are applicable, to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. Section 68(2) provides that the courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders charged with offences against the laws of the State, and with respect to the hearing and determination of appeals arising out of any such trial or conviction, 'shall ... have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth'.

59 The appellant submitted that s 41(4)(b) does apply to Commonwealth appeals. However, the appellant properly drew to the attention of the court the decision of the Tasmanian Supreme Court in R v Talbot [2009] TASSC 107, where the court considered the possible application of s 402(4A) of the Criminal Code (Tas) to a Commonwealth Crown appeal. Section 402(4A) is in nearly identical terms to s 41(4)(b) of the Criminal Appeals Act. The court (Blow J, Crawford CJ & Porter J agreeing) stated [19]:

The Commonwealth has not introduced any legislation preventing a court that allows a Crown appeal against sentence from taking into account the fact that an unsuccessful respondent is to be sentenced a second time for the same crime. Under the Crimes Act 1914 (Cth), s 16A(1), when a court is determining the sentence to be passed for a federal offence, that court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. Prior to the enactment of s 402(4A), it was clear that 'double jeopardy' in the re-sentencing process following a successful Crown appeal was to be taken into account in favour of the respondent ... In my view s 402(4A)(b) is inconsistent with the general requirement in s 16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution, s 109. Counsel did not submit otherwise at the hearing of the appeal.

60 The Commonwealth pointed out that the conclusion appears to have been reached without any submissions or argument from the Crown as to whether there was any inconsistency. Further, the court did not consider s 80 of the Judiciary Act. As a result, the appellant submitted that the decision in Talbot should be approached with caution and not be followed.

61 The Commonwealth also drew to the attention of the court the decision of Neave JA in R v ONA [2009] VSCA 146 who concluded that it was possible that s 109 of the Constitution would prevent the operation of State law (ie law prohibiting a sentencing court from taking into account the effect of sex offender registration consequent upon conviction for a relevant sexual offence) because of the 'operational inconsistency' that might arise as between the State law and the factors listed in s 16A of the Crimes Act. Ashley JA and Mandie AJA agreed generally with the reasons of Neave JA but they specifically refrained from concurring with Neave JA about the constitutional point. The appellant raised this case on the basis that it might possibly be argued that it would apply by analogy. Neave JA did not refer to s 80 of the Judiciary Act.

62 As a result of the submissions, s 78B Judiciary Act notices were served. No State or Territory sought to make submissions to the court. The respondent submitted that the reasoning in Talbot's case should be followed.

63 The appellant referred to the three ways in which inconsistency may arise under s 109 of the Constitution: first by direct inconsistency, secondly, in circumstances where the Commonwealth intends its legislation to 'cover the field' and thirdly, where there is 'operational inconsistency' between State and Commonwealth legislation. The appellant submitted that there was no direct inconsistency because s 16A of the Crimes Act sets out a non-exhaustive list of factors to consider in sentencing without explicitly dealing with the question of double jeopardy. Secondly, the appellant submitted that the Crimes Act does not cover the field in relation to the consideration of principles that a court may take into account in sentencing. Thirdly, the appellant submitted that there was no operational inconsistency between the two laws because the court simply follows s 80 of the Judiciary Act and applies the common law as modified by s 41(4)(b). Section 80 of the Judiciary Act provides that:

So far as the laws of the Commonwealth are not applicable ... the common law in Australia as modified by ... the statute law in force in the State ... in which the court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in ... criminal matters.

64 Those submissions should be accepted. The reasoning in Talbot did not consider the points referred to above. The decision should not therefore be followed. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135], the plurality said that intermediate appellate courts should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of uniform national legislation unless they are convinced that the interpretation is plainly wrong: see also Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492. The decision in Talbot is plainly wrong.

65 If, contrary to the above conclusion, the double jeopardy principle did apply, then the decision to dismiss the appeal concerning the adequacy of the individual sentences, the order for concurrency and the pre-release period would have been further fortified.

66 In the exercise of the discretion pursuant to s 31(4)(a) of the Criminal Appeals Act, the appeal concerning the adequacy of the individual sentences and the order for concurrency should be dismissed. The appeal against the order fixing the period before release on recognisance should also be dismissed. As a result, the individual sentences, the order for concurrency and the recognisance release order would be undisturbed.

67 However, the appeal should be allowed in part by setting aside the sentencing judge's specification of 16 months as the reduction in sentence pursuant to s 21E. In lieu, pursuant to s 21E, 25 months is now specified as the period of reduction in relation to each individual sentence and 49 months is specified as the sentence which would have been imposed on each count, but for that reduction.

R -v- BALDOCK [2010] WASCA 170 (17 August 2010)

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R -v- BALDOCK [2010] WASCA 170 (17 August 2010)

Legislation Cited (8)

Cases Cited (45)