Mr Carr said that he had 'great parents'. His mother, in particular, idolises him. He said that "She will do anything for me". She even hand tailored his suits. It is obvious that his mother has great dreams for him as a famous and successful individual. Subsequently, Mr Carr has always strived to meet that ideal because "I just cannot disappoint my mother". His mother was particularly proud of him when he worked for Spencer Gulf Telecasters Ltd. She was proud of his somewhat glamorous lifestyle of flying around negotiating various business deals. He in turn thrived on her admiration. It seems that he cannot separate himself from her fantasies. Mr Carr has a great capacity for denial. He copes with life problems by ignoring them, thereby creating an alternate reality which others would perceive as lies. The more he is stressed, the more he retreats into a world of self-deception. He also goes into a state of inaction when stress strikes. As a result, his problems become bigger and more insurmountable.
23 The respondent's wife gave evidence before the sentencing judge but she could throw little light on either the motivation of the respondent for committing the offences or what had happened to the proceeds. It was her opinion that the respondent had no ability to manage money and that he tended to fantasise in relation to his financial situation. She indicated that she was not aware of circumstances in which the respondent left his position with Sturrock although she thought that it was because of a dispute over fees. She said that she agreed to sign the deed because her husband had told her that, if she did not, Sturrock would go to the Law Society. The respondent's wife gave evidence that she received no money from the sale of the Hawkes Nest property after it was sold in June 2001.
24 The respondent is aged 49 years. He is married and has three children, a son aged 17 and twin daughters aged 15. His wife gave evidence that she was confident that her relationship with the respondent would survive his incarceration and that both she and he had received marriage counselling after the disclosure of the offences. She believed that since the respondent's arrest he accepted reality and realised the seriousness of his conduct. She said that she would support the respondent and insist that he undergo any therapy necessary to help him overcome his denial. She gave evidence that the family finances were "a shambles" and she anticipated having to sell their home.
25 The psychiatric report indicated that, since the respondent's arrest, he had been suffering from an adjustment disorder with anxious mood. The respondent was receiving two different forms of psychiatric treatment: he was being prescribed anti-depressant medication for depression and receiving psychotherapy to help him confront his denial. The psychiatrist indicated that the respondent needed long-term therapy in order for him to confront his problems and that his prognosis was moderately good.
26 There was also before the sentencing judge a reference from the Dean of Newcastle detailing the respondent's involvement with Christchurch Cathedral in Newcastle and his participation in its community activities. The respondent had given generously of his time and resources both to the cathedral and to the Newcastle Grammar School where his children have attended as students.
27 There was also tendered a letter from the General Manager, Corporate Affairs for Prime Television Ltd indicating that the company intended to continue to use the services of the respondent when he was released from custody.
28 The major thrust of the appeal by the Director of Public Prosecution is the contention that it was erroneous for his Honour to have made the sentence for the second charge totally concurrent with the sentence for the first charge, it being a separate and serious act of criminality committed in entirely different circumstances and against a different victim than that in the first offence. It was submitted that as a result the sentence imposed failed to comply with the proper approach for sentencing for multiple offences as laid down in Pearce v The Queen (1998) 194 CLR 610 and was manifestly inadequate.
29 Mr Byrne SC for the respondent has challenged the last assertion, particularly having regard to the respondent's age and character. He relies upon the extensive delay in the prosecution of the first, and more serious of the offences as a mitigating matter. In this regard he relies upon the decision of this Court in R v Todd [1982] 2 NSWLR 517 at 519 where the importance of fairness to the offender was stressed in cases of extensive delay between offence and sentence. In the present case the defrauding of Sturrock was discovered in 1996 but he was not charged until 2001.
30 In that regard the sentencing judge found the failure of the victim of the first offence to report the matter to police as "a little unsettling". I do not view it in the same light. It seems to me to have been a compassionate course adopted by the owner of the business in recognition of the lengthy and valuable service performed by the respondent to him and his father over a number of years. The owner even took the step of refusing to co-operate with the investigation by the law society into the conduct of the respondent, presumably in the hope that the respondent would be able to retain his practicing certificate. I do not have any difficulty in understanding why, when the respondent proved himself unworthy of such consideration by again defrauding a client, that the matter was then reported to police. It should be noted that, notwithstanding that no money had been repaid to Sturrock until after the respondent's arrest for the second offence, no action had been taken against him to enforce the deed.
31 I do not believe that the circumstance of the delay in this case is of very great moment in determining the appropriate sentence to be imposed for the first offence. There is nothing that indicates that the delay worked any injustice upon the respondent or had a significant detrimental impact upon him. But I accept Mr Byrne's argument that the sentence imposed for that criminality, in light of the respondent's plea and the delay in prosecution could not be said to be inadequate punishment for that offence. The maximum penalty was 10 years the sentence imposed was four years. Having regard to the length of time over which the acts giving rise to the offence occurred, the serious breach of trust involved (in that the respondent was both a solicitor and a director of the company), the amount of money involved and importance of general deterrence the sentence was an appropriate one for that offence.
32 I cannot however, accept the submission that the sentence imposed was appropriate to meet the overall criminality that was before his Honour and in my view that is because of the failure of his Honour to impose a cumulative sentence for the second offence. I acknowledge that it is a matter for the exercise of discretion whether a sentence for one offence should be made cumulative or concurrent on the sentence for another offence: Hammoud (2000) 118 A Crim R 66 at [7]. I also acknowledge that this Court must exercise restraint in interfering with the exercise of that discretion particularly when it is asked to do so on an appeal by the Crown; R v Institoris [2002] NSWCCA 8 at [95].
33 But with unfeigned respect to the sentencing judge, who is very experienced in sentencing as in other aspects of the criminal law, his Honour does not appear to have turned his mind to this issue. It was accepted on the hearing of the appeal that the Crown had made a submission to his Honour that the sentences for the offences should be cumulative. The sentencing remarks are lengthy and detailed in respect of both factual aspects and relevant sentencing decisions of this Court. But they are resoundingly silent on the question of the significance of a second serious offence committed after the first fraud had been discovered and when the respondent had been given, for whatever reason, the opportunity to reform himself without the loss of his good name or his profession. That was such a seriously aggravating feature of the second offence, that there had to be some mention of it and some discussion of how it impacted upon the assessment of the appropriate sentences and how they should be structured.
34 The Court should be slow to attribute error to a sentencing judge simply on the basis that the judge has failed to refer to a matter during the course of giving remarks on sentence. This is particularly so where the judge is as senior and experienced as the sentencing judge in the present matter. But there are occasions when the matter is of such importance to the exercise of the sentencing discretion that a failure to mention it at all is indicative of error, particularly where it is a matter that has been addressed by at least one of the parties. Further in this particular case the structure of the sentence is, as Mr Byrne has conceded, not in accord with the dictates of Pearce v The Queen, and current sentencing practice.
35 The failure to sentence in the way that Peace v The Queen requires, that is by fixing an appropriate sentence for each offence and then determining whether to accumulate them in whole or in part to reflect the totality of the criminality, is no matter of technicality. Nor is it mere pedantry to criticise the exercise of a sentencing discretion which does not accord with the view expressed by members of the High Court and which has been applied on numerous occasions by this Court. In R v AEM (Snr) [2002] NSWCCA 58, it was described as a "fundamental principle". However, I acknowledge that, if at the end of the day the overall sentence imposed were appropriate to reflect the totality of the criminality, there would be little reason for this Court to intervene simply to redress that error, particularly on a Crown appeal. But in the present case it confirms my view that his Honour's approach to an assessment of the totality of the criminality before him was erroneous.
36 In my opinion the totality of the criminality in the offences before his Honour could not be reflected in the sentence for the first offence notwithstanding its seriousness. Yet that is what the structure of the sentences imposed by his Honour asserts when the sentence for the second offence was made wholly concurrent with that for the first. If his Honour inflated the sentence for the first offence in order to incorporate the criminality for the second, then that was clearly an erroneous way of proceeding. But in my opinion the sentence for the first offence is clearly not excessive given the seriousness of the criminality that it encompassed.
37 The second offence was itself a very significant criminal act, albeit involving only one act of criminality, which was committed in breach of trust. It was clearly planned at least in so far as the respondent gave instructions to have the cheque paid to him personally. In no way could it be considered to be part of the course of conduct involved in the first offence. The second act of offending showed the respondent's manifestations of contrition in respect of the first offence to be as hollow as the façade he displayed as an honest, upstanding member of the church and local community. It disentitled him to any leniency in respect of that offence.
38 I am persuaded that the sentencing of the respondent miscarried when his Honour imposed a concurrent sentence for the second offence and that as a consequence the overall sentence imposed upon the respondent was manifestly inadequate.
39 What then should be this Court's response? Taking into account double jeopardy, it seems to me that the adjustment which should now be made to the sentence to address his Honour's error and the inadequacy of the punishment inflicted upon would be minimal in terms of the period which the respondent would be required to serve before being eligible for release to parole. But it seems that the consequence would be unduly harsh so far as the nature of the sentence to be served by the respondent is concerned. We have been informed that if the minimum period of imprisonment were increased, it would result in the prisoner being re-classified to maximum security. That fact would not be a relevant consideration in determining the sentence at first instance but it seems to me that it should be considered in determining whether now to intervene. This is particularly so where the increase to the non-parole period would be a relatively modest amount although no doubt a significant increase in punishment for the respondent.
40 I am prepared to give the respondent the benefit of the doubt that I feel about whether the sentence should be increased and would propose that the appeal be dismissed. This outcome should not be used to justify the result of any other sentencing discretion for like offences. Nor should the respondent and like persons who commit similar offences in positions of trust be regarded as other than criminals richly deserving of punishment in prison, whatever the nature of that imprisonment might be.