Thursday, 12 DECEMBER 2002
R v Sydney Thomas FINNIE
Judgment
1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against sentences imposed by Coorey DCJ in the District Court at Sydney on 25 July 2002, after the respondent pleaded guilty to 10 counts of serious fraud offences contained in four indictments. There were also an additional seven matters involving further serious fraud offences contained in four separate Form 1's.
2 A summary of the counts in the indictments was provided as annexure A to the Crown submissions and is annexed to this judgment. In summary, the respondent was sentenced to imprisonment on counts 1 and 2 in the first indictment and counts 1, 2 and 3 on the second indictment for a period of three years, to commence on 26 January 2001 and expire on 25 January 2004 with a non-parole period of 18 months to expire on 25 July 2002.
3 On the remaining five counts in the third and fourth indictments, the respondent was sentenced to imprisonment for two years to commence on 25 July 2002 and expire on 24 July 2004, but these sentences were suspended on the respondent entering into a good behavior bond for the term of the sentences. The effect of the sentences was that the respondent was released from custody on the day the sentences were imposed, but subject to parole for a further eighteen months and subject to the suspended sentences for a further two years.
4 The notice of appeal by the Director is dated 28 August 2002 and was served on the respondent on 31 August 2002.
5 It is submitted that the sentences were manifestly inadequate for a number of reasons, namely:
1. The suspended sentences which his Honour imposed in respect of the third and fourth indictments were contrary to the provisions of section 12(2) of the Crimes (Sentencing Procedure) Act 1999 .
2. His Honour fell into error in allowing "too much credit" for the time the respondent had spent in custody prior to sentencing.
3. His Honour fell into error in that he failed to have appropriate regard to the principles outlined in Pearce v The Queen (1998) 194 CLR 610 and, in particular, failed to set discrete sentences for the different offences.
4. His Honour gave inadequate consideration to the extremely serious nature of the offences which, in total, involved the defrauding of an amount of over $636,000.
5. His Honour gave inadequate consideration to the respondent's criminal record which contained offences of a similar nature.
6. His Honour gave inadequate consideration to the clear need for general deterrence and, particularly in the light of the criminal record of the respondent, personal deterrence.
7. His Honour gave inadequate consideration to the fact that all the offences in the indictments, other than the first, were committed whilst the respondent was on bail in respect of the charges in the first indictment and, furthermore, in breach of a Supreme Court order prohibiting him from engaging in a wide range of financial dealings.
8. His Honour appears to have given too much discount for the guilty pleas, bearing in mind, in relation to the first indictment, that the trial had in fact lasted three weeks before the respondent changed his pleas to guilty, although it was noted that no specific amount of discount was quantified.
9. His Honour gave insufficient weight to the seven serious offences contained in the various Form 1's, and
10. His Honour gave insufficient weight to the fact that the respondent has shown little apparent remorse, and failed to pay any restitution.
6 As noted above, the respondent pleaded guilty to serious fraud offences contained in the four indictments. For convenience, they will be referred to as "the Glass indictment", "the Skyline indictment", "the Oldham indictment" and "the Dennis indictment".
7 In relation to the Glass indictment, Charles Glass had inherited a home unit on the Central Coast, he was getting very little rent for it, could not sell it and was experiencing financial difficulties. It appeared that Mr Glass was not a 'sophisticated investor' and in April he approached the respondent, who at that time was operating as a financial adviser in Wyee and who was also a neighbor, for assistance. The respondent advised him to raise money on the security of the unit by mortgaging it to Citibank. The money thus raised, or some of it, was to be then invested through the accused in an entity called the Fairmont Trust, which the respondent claimed would return interest at the rate of 19% by on-lending the money in respect of property. The Citibank interest rate was 15%.
8 Mr and Mrs Glass duly signed an application for finance to Citibank and left it with the accused who filled out the other details. The respondent forwarded an application for finance to Citibank with some supporting documents. However, the forwarded application was not the one that had been completed and signed by Mr and Mrs Glass. It contained false information inflating their financial situation and claiming that Mrs Glass was employed by a company at a certain salary, whereas she was in fact unemployed. Furthermore, the signatures of Mr and Mrs Glass on the document were forged. One of the supporting documents was from the alleged employer of Mrs Glass and the signature on that was also forged.
9 Citibank granted a loan of $80,000. The balance of this was, after deduction of fees, costs and the first month's instalments, sent to the accused who deposited it into the bank account of the Fairmont Trust. The moneys were never seen again.
10 It should be noted that the respondent originally pleaded not guilty to the Glass indictment. A trial commenced on 1 March 2000 and proceeded for three weeks. It was during the defence case, on 23 March 2000, that the respondent indicated that he was willing to plead guilty to some counts. He pleaded guilty to the second and third counts on the Glass indictment, namely the counts of fraudulently omitting to account to the Glasses in the sum of $71,698.50 and of using a false instrument. The first count on the indictment, namely the charge of obtaining a benefit from Citibank by deception, being a bank cheque in the sum of $78,044.50, was placed on a Form 1. The Crown elected not to proceed in relation to the two remaining counts in the Glass indictment. At the time he pleaded guilty the respondent was in custody in relation to other matters.
11 Evidence was given during the trial/sentencing proceedings that Mr and Mrs Glass had lost $93,000 as a result of the fraud perpetrated upon them by the respondent.
12 The Skyline indictment contained three counts: one count of dishonestly obtaining a valuable thing by deception, namely a cheque in the sum of $59,500; and two counts of dishonestly obtaining a financial advantage, namely two credit balances in the sums of $39,490 and $26,000. The three offences in question occurred between 4 September 1996 and 18 November 1996. It might be noted that this was after the respondent had been charged with the matters in the Glass indictment. There was also one count on the Form 1, namely, obtaining a benefit by deception.
13 This indictment concerned offences by the respondent using a pseudonym obtaining finance for the purchase of non-existent motor vehicles by providing false particulars about those motor vehicles and the purchasers. The four victims had approached the prisoner for assistance in refinancing their existing loans in light of their difficult financial circumstances. The proceeds of the mortgages subsequently taken out by the prisoner were directed into accounts over which he had control.
14 In relation to the first count, the respondent, using the name Warner, submitted a false loan application for the purchase of a Mercedes Benz. He had earlier made arrangements with Gary Stevenson, who worked at Skyline Auto Sales (Skyline) at North Gosford, to process any vehicles he was arranging financing on through the books of Skyline for the sum of $500. As a result of submitting the false vehicle documentation supported by false tax returns, Citibank approved the loan and in due course a cheque was paid to Skyline. Skyline then accounted for $59,500 to the respondent.
15 In relation to the second count, in mid-1996 Donald Connell, who was out of work having suffered a heart attack, approached the respondent. He spoke to him regarding the possibility of re-financing a loan on a property he owned at Booral and generally about his financial problems. Subsequently, the respondent attempted to process a loan in the sum of $39,000 for a car, using Donald Connell's name and certain documentation that he had obtained from Skyline. The respondent subsequently met Connell at Hornsby RSL Club and Connell signed certain documentation produced to him by the respondent who told Connell that the documents were "for the mortgage of your property". In actual fact Connell was induced to sign a Bank of South Australia loan contract for a non-existent Volvo for the sum of $39,990. In due course these funds were supplied to Skyline which then paid the respondent the sum of $39,490.
16 As a result of this deception, Connell believed his property at Booral had been re-financed. This had not occurred and in December 1996 the Commonwealth Bank took possession of that property.
17 In relation to the third count, Catherine Nosworthy and her husband, Paul, approached the respondent to re-finance an existing Commonwealth Bank loan as a result of Paul being unable to work due to sickness. The respondent undertook this task and subsequently, in February 1996, Nosworthy again approached him to organise a futher loan for an outstanding debt. He organised a $15,000 loan by financing the Nosworthy's vehicle through GMAC finance. The Nosworthys expressed concern to the respondent about their ability to repay the loan, but the latter stated he would re-finance their vehicle, repay the loan from GMAC and pay Mrs Nosworthy $6,000. Instead, he organised finance in Catherine Nosworthy's name for a car she didn't own, in the sum of $26,000. This sum was initially paid to Skyline and then a cheque for $25,500 was paid to the respondent who deposited it in an account of Falcon Music, an account operated by his son, Scott. In January 1997 the Nosworthys' car was repossessed. The respondent never paid Mrs Nosworthy the sum of $6,000.
18 The matter on the Form 1 attached to the Skyline indictment involved the respondent inducing Donald Connell to sign a loan application that Connell believed was a guarantee document. As a result AGC provided a cheque for $10,000 to Skyline Motors. The respondent duly received $9,500, which was paid into an account he operated.
19 The extent of loss in respect of each of these four transactions was $60,000 (Pollock), $39,000 (Connell), $26,000 (Nosworthy) and $10,000 (Connell).
20 In relation to the Oldham indictment, on 9 June 2000 the respondent pleaded guilty to two counts of making or publishing a false statement which he knew to be false or misleading in a material particular, with the intent of obtaining a financial advantage. These offences were committed between 22 October 1997 and 23 June 1998. There were two additional matters of obtaining benefit by deception contained on a Form 1.
21 The first count on this indictment occurred during the period 22 October 1997 - 9 January 1998. Jane Oldham responded to an advertisement in the Sydney Morning Herald about re-financing mortgages with a company known as Equity Mortgage Trust (Equity). The respondent (operating this time under a different pseudonym) was involved in this business of re-financing mortgages in some capacity with others. Documentation provided by the victim was subsequently used to support false mortgage applications made by the respondent to Bendigo Bank, Colonial State Bank and Metway Bank for $425,000, $427,000 and $425,000, respectively.
22 In relation to the second count, 'Steve' Muvcevski, was introduced to the respondent in September 1997 (who used the same pseudonym as with Oldham, namely 'Stevens'). The respondent was involved in organising a mortgage application, which was rejected by the Bendigo Bank. The following year the respondent submitted a loan application in Muvcevski's name without Muvcevki's knowledge for the amount of $445,000 to Elliott Tuthill Solicitors.
23 There were also two additional matters included on a Form 1. Both of these matters were offences of obtaining benefit by deception.
24 In relation to the Dennis indictment, on 9 June 2000 the respondent pleaded guilty to three counts of dishonestly obtaining cheques by deception, the cheques being of $36,478.45, $87,300 and $63,760.
25 These offences took place during the same period as the offences contained in the Oldham indictment, and involved submission of false loan applications to Bendigo Bank (either altered from the original shown to the applicant or created and signed without the applicant's knowledge) in the names of various clients who had sought re-financing of their existing mortgages. The respondent again operated under a pseudonym.
26 There were a further three counts of 'obtaining benefit by deception' contained in a Form 1 which involved the presentation of false mortgages and involved the sums of $87,950, $87,800 and $91,260.
27 In total, the Crown calculated the victims' losses to be $636,625. In his Remarks on Sentence, Coorey DCJ accepted this figure as being accurate.
28 The respondent was arrested in relation to the matters in the Glass indictment on 8 July 1996 and allowed bail. All the other offences were committed whilst he was on bail for the charges in the Glass indictment.
29 These offences, that is except for those in the Glass indictment, were also committed whilst the respondent was the subject of an order made by Sperling J on 28 November 1995 on an interlocutory basis (confirmed by final orders in 1998 for a period of 10 years) in proceedings no. 14738 of 1995 in the Common Law Division of this Court: Director-General of the Department of Fair Trading v Finnie & ors, which effectively prevented him from acting in any capacity as defined in the order, including working as a finance broker, credit provider or intermediary in any such field.
30 The respondent was born on 19 December 1940 and is aged almost 62 years. He has a number of previous convictions, all for offences of dishonesty. Those offences were: in 1964, embezzlement; in 1986, five counts of forging and five counts of uttering; and on 27 June 1997, he was sentenced to nine months periodic detention for obtaining a valuable thing by a false statement, the offence having been committed in 1991. An appeal against his conviction was dismissed on 19 October 1999, but, because of his failure to attend for periodic detention, he was arrested on 28 January 2000, the order for periodic detention was cancelled and he was ordered to serve a fixed sentence of full-time custody of 41 weeks to commence on 28 January 2000 and expiring on 9 November 2000. In addition to that, he failed to comply with the order made by Sperling J and, on 5 December 1997, he was committed to imprisonment for 14 days for contempt of his Honour's order.
31 According to a Pre-Sentence Report dated 2 June 2000, which was before the sentencing judge, the respondent only completed primary school leaving at the age of twelve and a half years. He started work as a spare parts salesman for successive motor vehicle dealerships, and eventually established his own dealership. After his business collapsed he became self-employed in 1983 as a financier, which, he said, continued until 1995. He established a company which employed his sons as directors and he and his wife have also been involved in their own natural therapy businesses.
32 His Honour, in sentencing the respondent, noted that there was evidence that he suffered heart and blood pressure problems and that whilst in gaol on remand, serving the earlier sentence, he had suffered because of his poor health. He referred to the blood pressure and the breathlessness that he had suffered at times whilst in his cell which he believed was caused by heart problems and which it appears was exacerbated because his cellmate at the time was a smoker. The evidence available at the sentence hearing indicated that the respondent was not presently suffering from prostate cancer, although there had been some suggestion to that effect.
33 His Honour said that the commission of the offences showed that the respondent had indulged in a premeditated course of dishonesty, the sentiment with which I agree, and went on at pp 9-10 to say:
"This prisoner is an industrious person, he had had a massive car dealership many years ago in Sydney, indeed I think it was the largest dealership, or one of the largest dealerships, or one of the largest franchises in Australia at the time. He has been a very successful businessman, he left school at a very early age in his life, he obviously has a lot of intelligence and a lot of industry, it is very sad that he used that on innocent victims who have suffered. I recognise that suffering, I recognise that those victims were used and misused by this (respondent)."
34 His Honour, as I have noted, effectively sentenced the respondent to three years imprisonment with a non-parole period of 18 months, but backdated the sentence to 26 January 2001, so that it expired on the day of sentencing, 25 July 2002. In respect of the matters in the Oldham and Dennis indictments, he sentenced the respondent to imprisonment for two years commencing that day, but suspended the sentences on the respondent entering into a good behavior bond for the term of the sentence, and ordered his release forthwith on condition that he enter into a bond.
35 The effect of the sentences was that the pre-sentence custody, assessed by his Honour at 18 months but which the Crown claims was only 10 months, was the only full-time custody to be served for these massive frauds on innocent people, most of them committed whilst on bail and subject to an order of this Court in its civil jurisdiction not to engage in the type of business which made such offences possible.
36 I turn now to deal with the various detailed submissions relied on by the Crown. It was submitted that his Honour was in error in suspending the two-year sentence imposed in relation to the counts on the third and fourth indictments, because they were to commence on 25 July, the date the sentence was imposed and the date the respondent was to be released to parole in respect of the period of imprisonment imposed in relation to the counts in the first and second indictments, and so the suspended sentences were to run concurrently with the 18-month parole period imposed for the sentences imposed for the first and second indictments.
37 The Crimes (Sentencing Procedure) Act 1999, which deals with suspended sentences, specifically provides, in s 12(2):
"An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment, but is not the subject of such an order."
38 The Crown submits that the respondent was clearly subject to the sentence of imprisonment imposed in relation to the first and second indictments when the suspended sentences were imposed.
39 In R v Edigarov (2001) 125 A Crim R 551, this Court rejected an argument that the phrase "some other sentence of imprisonment" should be read to refer only to sentences where the prisoner has not been released on parole. Wood CJ at CL said at 557:
"… the interpretation suggested would require the prohibition to operate in escrow to be reactivated if, and when, the parole for the other sentence was revoked thereby returning the offender to custody. I do not consider that the legislation contemplated or intended such an ambulatory operation of section 12(2).
Rather, it appears to me, it was intended to preclude suspension of a sentence during such time as any other sentence was in force which was expressed to be one of imprisonment, both during its parole and non-parole phases."
40 On behalf of the respondent, it was sought to distinguish that case on the ground that in the present case the suspended sentence runs longer than the earlier term of imprisonment and that in this case, unlike in the earlier case, the suspended sentences were imposed on the same day as the earlier offences and the question was raised: would the section have the same operation if the suspended sentences were imposed prior to the non-suspended sentences?
41 In my opinion, these points are not material points of distinction. The wording of the section and the reasoning of Edigarov, in my view, apply equally, irrespective of which sentences are imposed first in a single sentencing process and irrespective of whether the suspended sentences are longer in point of time than the non-suspended sentences. The practical difficulties adverted to in Edigarov in giving the section any other construction would, in my view, be equally applicable in the present case.
42 It was submitted on behalf of the respondent that if the Court came to the conclusion that there had been a breach of section 12(2), the appropriate remedy was to refer the matter back to the sentencing judge for the error to be corrected, pursuant to s 43 of the Crimes (Sentencing Procedure) Act. That, however, is not appropriate. The only correction that could be made, in my view, would be to delete the order for suspension of the sentences and impose a non-parole period, but there are other difficulties also.
43 Subsection (2) of s 43 entitles the sentencing court to reopen the proceedings on its own initiative or on the application of a party to the proceedings. It does not, by its terms, authorise this Court to remit the matter to the sentencing judge for that purpose, and neither does s 6(3) of the Criminal Appeal Act 1912. Furthermore, even if these sentences on the third and fourth indictments were not suspended, they would, in my opinion, still be inadequate and manifestly such as to require the intervention of this Court.
44 The Crown next submits that there was a failure to properly backdate the commencement date of the sentence, having regard to the actual time spent in pre-sentence custody.
45 As previously noted, the respondent was arrested in relation to the Glass matters on 8 July 1996 and granted bail. He was also granted bail when arrested and/or charged with the other matters and remained at liberty until 28 January 2000 when he was arrested for breach of his order for periodic detention and he remained in custody serving that sentence until 9 November 2000, after which, having in the meantime, on 23 March 2000, pleaded guilty and been convicted of the matters in the Glass indictment and not having applied for bail, he remained in custody for these matters until 17 May 2001 when he was arrested on a charge of pervert the course of justice. On this charge he was granted bail on 21 June 2001, five weeks later, but he continued in custody on these matters until he was granted bail by Coorey DCJ on 6 September 2001.
46 It can be seen from such history that he was in custody referable to the subject offences between 9 November 2000 and 6 September 2001, a period of approximately 10 months. The balance of his pre-sentence custody was referable to the cancellation of the order for periodic detention arising out of his 1997 conviction for obtaining a valuable thing by a false instrument.
47 It would appear that his Honour's reasoning for allowing 18 months' credit was the fact that he refused the respondent bail on 23 March 2000, but clearly bail was not sought at that time because the respondent was serving the sentence for the unrelated matter, so that an order for bail at that time would have been inappropriate.
48 Section 24 of the Crimes (Sentencing Procedure) Act requires that the Court, in sentencing an offender, must take into account any time which the offender has been held in custody in relation to the offence, and s 47(3) is to the same effect. They both refer to the offender being held in custody in relation to the offence for which he or she is being sentenced.
49 It is true that the sections do not refer to the offender being held in gaol "exclusively" for those offences, but as Gleeson CJ said in R v SAE (CCA - unreported - 3 April 1997):
"The usual principle is that allowance is made for pre-sentence custody, but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced."
50 A similar reference to pre-sentence periods in custody "exclusively referable to the offences for which the sentence is being passed" is to be found in R v McHugh (1985) 1 NSWLR 588 at 590G.
51 The reason for the allowance for pre-sentence custody being limited in this way is obvious. If it were otherwise, a person serving a sentence during a period whilst on remand for the offences for which he is being sentenced would have the benefit, in effect, of not serving those sentences if given credit for such periods when sentenced for the subsequent offence. It was therefore not appropriate to give the respondent credit for the period he was in prison in respect of the periodic detention offence.
52 There is also another problem, in that his Honour gave him credit for the period from 26 January 2001, although he was not taken into custody until 28 January 2001, and there is no explanation why his Honour allowed this extra period, albeit only two days, except that it appears that he was determined to bring about a result which would have the effect of the respondent being released immediately on completion of the sentencing proceedings.
53 There is, on the other hand, no reason why the applicant should not be given credit for the period whilst he was in custody, bail refused, in respect of the charge of pervert the course of justice because, at that time, he was really in custody on these matters, subject to this qualification that if he is subsequently convicted and sentenced for the pervert the course of justice matter, that period of custody should not be credited in relation to that sentence.
54 It is next submitted on behalf of the Crown that his Honour failed to have regard to the sentencing principles outlined in Pearce v The Queen (1998) 194 CLR 610, as explained in R v Hammoud [2000] NSWCCA 540.
55 It would appear that the person appearing for the Crown during the course of the sentencing proceedings may have, to a degree, misled his Honour in this regard, but, nevertheless, the principles set out in Pearce are clear and must be applied. Those principles require the Court to fix a discrete sentence in respect of each offence and then consider, in the light of the principle of totality, how, if at all, and to what extent those sentences should be accumulated or made concurrent.
56 Although his Honour fixed what was, in effect, a single sentence for all the offences in the first and second indictments and a further single sentence in respect of all the offences in the last two indictments, he did not make any attempt to fix discrete sentences or consider properly questions of accumulation or concurrency, and in this regard he failed to comply with the principles laid down.
57 Moreover, his Honour's approach to the question of accumulation and concurrency was erroneous in that, whilst it was appropriate to make the sentences referable to each indictment wholly concurrent to each other, it was not appropriate to follow that course in respect to the offences referable to the separate indictments because the separate indictments were referable to different and separate episodes of criminal activity and involved different modis operandi and different victims.
58 On the other hand, it was not appropriate to make such sentences wholly accumulative because of the principle of totality. Accordingly, the sentences appropriate to the separate indictments should be made partly accumulative by what might be described as a "stepping stage" process of commencement dates: cf R v Dorsett [2002] NSWCCA 326.
59 Next, I am satisfied that there is substance in the Crown's submission that his Honour gave inadequate consideration to the extremely serious nature of the offences which took place over a lengthy period, and in total involved the defrauding of an amount of over $636,000. The amount of money, whilst not determinative of the seriousness of the criminality, is relevant to a degree and particularly where the offences are premeditated, committed on a number of separate occasions and involve a degree of planning, and are for substantial amounts of money. The criminality is, in my view, extremely serious.
60 I have already referred to the criminal antecedents of the respondent and his breach of the Supreme Court order. These were also matters which, whilst not appropriate to increase the sentences beyond what was appropriate having regard to their criminality, were matters which deprived the respondent of any benefit which he otherwise might have been entitled to: Veen v The Queen (no 2) (1988) 164 CLR 465 at 477.
61 The Crown submitted that the discount apparently given for the pleas of guilty was too great and that his Honour did not specify what discount was being allowed, but this latter submission is erroneous and his Honour, at p 8 of his Remarks on Sentence, said that he was allowing a discount of 10 per cent because the community had been saved the expense of two long and expensive trials.
62 In view of the fact that the first trial in relation to the Glass indictment had proceeded for some three weeks before there was a change of plea to one of guilty, it would seem that his Honour was referring only to the last two trials and not to the earlier one. And no reference seems to have been made to the second indictment, the so-called Skyline indictment.
63 In any event, in my view, it would be appropriate in the present case to allow a discount of 10 per cent in relation to the matters in the Glass indictment and 20 per cent in relation to the matters in each of the other indictments, that is, because the plea of guilty came late in the day in relation to the former, and before the other trials had commenced, although they had apparently been set down for hearing.
64 Our attention has been drawn, on behalf of the respondent, to the matters in respect of which evidence was given in a closed Court during the course of the hearing. I am satisfied in relation to those matters that the respondent was entitled to favourable consideration and a reduction in his sentence, and I have taken that into account, as it would appear his Honour did, although he noted (at p 7) that the assistance was apparently not shown to be untruthful, but was not used, and it has not been established that it would be of any value.
65 The respondent is entitled to favourable consideration because of it, particularly in view of the fact that it will inevitably make his further incarceration the subject of more difficult conditions.
66 Finally, the Crown submits that there was insufficient weight given to the matters on the Form 1's. His Honour does not appear to have referred to the matters on the various Form 1's, but if he took them into account, it is apparent that he failed to increase the sentences in respect of the matters on which they were taken into account. The authorities establish that, in sentencing for an offence in relation to which the judge has taken into account additional offences, he or she should give due recognition to the gravity of those additional offences, and it is wrong in principle that there should only ever be little by way of addition to the penalty imposed for an offence charged when additional offences are taken into account: R v Barton [2001] NSWCCA 63, 121 A Crim R 185, R v Bavadra [2000] NSWCCA 292, 115 A Crim R 152.
67 Notwithstanding the detailed submissions that have been provided on behalf of the respondent and to which I have paid regard, when one looks at the overall result, one is left with the conclusion that, in respect of 16 serious fraud offences committed over a number of years involving a number of victims and over $630,000, the respondent was, in effect, sentenced to 10 months of full-time custody. In my view, such a sentence is manifestly inadequate and fails to have regard to the requirements of retribution, protection of the community, general deterrence and, more importantly in the circumstances of this case, personal deterrence.
68 Therefore, notwithstanding the principles that apply to Crown appeals, including double jeopardy and the Court's discretion, I am of the opinion that the Crown appeal should be upheld and the respondent should be resentenced.
69 In proposing the sentences which I do in substitution, I have regard, amongst other things, to the consideration that, when resentencing following Crown appeals, the Court sentences at the lower end of the appropriate range and also that in relation to the Glass indictment, the maximum penalties are higher than for the offences in the other indictments and the discount appropriate for the pleas of guilty are considerably less because of the late entry of the pleas. I also take account of the pre-sentence custody which I assess at 10 months.
70 I therefore propose that the Crown appeal be allowed and the respondent be resentenced as follows.
71 In respect of count 1 in the Glass indictment and taking into account the matters on the Form 1 referable to that indictment, a sentence of four years less a 10-month pre-sentence custody resulting in a sentence of imprisonment for a period of three years and two months to date from today and expire on 11 February 2006 and I would fix a non-parole period of 18 months from today to expire on 11 June 2004.
72 In respect of count 2 in the Glass indictment, I would sentence the respondent to imprisonment for a fixed term of two years to date from today and to be served concurrently with the sentence imposed on count 1.
73 In respect of the Skyline indictment, on count 1 and taking into account the matter on Form 1 in respect of that indictment, I would sentence the respondent to imprisonment for a term of two and a half years to commence on 12 April 2003 and expire on 11 October 2005 and I would fix a non-parole period of one year three months from 12 April 2003 to 11 July 2004.
74 In respect of counts 2 and 3, I would sentence the respondent to imprisonment for a fixed term of one year and three months, those sentences to be served concurrently with the sentences on count 1 of the same indictment.
75 In respect of the Oldham indictment, in respect of count 1 and taking into account the matter on Form 1 referable to that indictment, I would sentence the respondent to imprisonment for a term of two and a half years to commence on 12 August 2003 and expire on 11 February 2006 and I would fix a non-parole period of one year three months from 12 August 2003 to 11 November 2004.
76 In respect of count 2, I would sentence the respondent to imprisonment for a fixed term of one year three months to be served concurrently with the sentence imposed on count 1 of that indictment.
77 In respect of the Dennis indictment, in respect of count 1 and taking into account the matters on the Form 1 referable to that indictment, I would sentence the applicant to imprisonment for a term of two and a half years to commence on 12 December 2003 and expire on 11 June 2006. I would fix a non-parole period of one year from 12 December 2003 to 11 December 2004.
78 In respect of the second and third counts in that indictment, I would sentence the respondent to a fixed term of imprisonment of one year to be served concurrently with the sentence on count 1 of that indictment.
79 The total effect of these sentences would be head sentences of three years six months, plus ten months pre-sentence custody, a total of four years and four months and a non-parole period of two years plus the ten months pre-sentence custody making a total of two years and ten months. The earliest date on which the respondent would be eligible for release on parole would be 11 December 2004.
80 In fixing the non-parole periods, I am satisfied that there are special circumstances, in particular having regard to the period of the pre-sentence custody, the accumulation of sentences, the respondent's age, state of health and the conditions under which it is anticipated he will serve his sentences. Where I have not proposed non-parole periods, I have not done so because those sentences are concurrent with other sentences in respect of the same indictment for which I have fixed non-parole periods.