R v Giam

New South Wales Court of Criminal Appeal CITATION : R v Giam (No. 2) [1999] NSWCCA 378 FILE NUMBER(S) : CCA 60107/99 HEARING DATE(S) : 29 July 1999 JUDGMENT DATE : 26 November 1999

PARTIES : Regina (Appellant) Tony Giam (Respondent) JUDGMENT OF : Dunford J at 1; Hidden J at 32; Smart AJ at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0065 LOWER COURT JUDICIAL OFFICER : McGuire DCJ

COUNSEL : CK Maxwell QC (Appellant/Crown) P Byrne SC (Respondent) SOLICITORS : SE O'Connor (Appellant/Crown) Joanne Muller (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - cheat and defraud as a director - inadequacy; EVIDENCE - Court does not require evidence of its own proceedings, Evidence Act, s 144. Criminal Appeal Act 1912, ss 5D, 12; ACTS CITED : Crimes Act 1900, ss 176A, 178BB; Evidence Act 1995, s 144; Sentencing Act 1989, s 5(2) R v Giam [1999] NSWCCA 53; R v Holder and Johnston [1983] 3 NSWLR 245; R v Gordon (1994) 71 A Crim R 459; Pearce v The Queen (1998) 194 CLR 610; R v Thomas [1999] NSWCCA 168; Ryan v The Queen (1982) 149 CLR 1; R v Tolmie (1994) 72 A Crim R 416; CASES CITED: Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; R v Henry [1999] NSWCCA 111, 46 NSWLR 346; R v J (1992) 64 A Crim R 441; Re Beldan; ex parte the Attorney-General (1986) 21 A Crim R 159; R v Glenister [1980] 2 NSWLR 597; R v Pantano [1990] 49 A Crim R 328; R v Niass (CCA - 16 November 1988); R v Webster-Jones (CCA - 11 May 1992). DECISION : Crown appeal upheld. Respondent re-sentenced.

DUNFORD J HIDDEN J SMART AJ FRIDAY, 26 NOVEMBER 1999 R v Tony GIAM (No. 2) HEADNOTE This was a Crown appeal against sentence on the ground of inadequacy. The respondent was convicted by a jury on 6 counts of making false statements with intent to obtain an advantage contrary to s 178BB of the Crimes Act 1900, and 1 count that he being a director did cheat and defraud contrary to s 176A. On each of the 6 counts under s 178BB he was sentenced to a fixed term of imprisonment of 2 years and 9 months and on the count under s 176A and his Honour deferred passing sentence on the respondent entering into a recognisance in the sum of $1,000.00 to be of good behaviour for 5 years with further conditions relating to supervision by the Probation and Parole Service and the curbing of his gambling habits. The combined overall effective sentences were therefore 2 years 9 months in custody followed by 2 years 3 months of conditional liberty under supervision for 2 years 3 months. The respondent appealed against the convictions on the 6 counts under s 178BB and this Court held those counts were bad for duplicity, allowed the appeal, and ordered a new trial: R v Giam [1999] NSWCCA 53. There was no appeal in respect of the counts under s 176A. The Director of Public Prosecutions thereupon instituted the present appeal. HELD:

1. The former approach in sentencing for multiple offences whereby such sentences were structured so that the overall effective sentences were appropriate to the total criminality involved with less regard being had to the appropriateness of the individual sentences for the particular offences is likely to mask error and lead to anomalies, and should no longer be followed. Pearce v The Queen (1998) 194 CLR 610; R v Thomas [1999] NSWCCA 168, followed.
2. Notwithstanding that the Crown had not yet made a decision whether to proceed with a new trial of the respondent in relation to the 6 counts under s 178BB, it was appropriate for the Court to deal with this appeal. Ryan v The Queen (1982) 149 CLR 1; R v Tolmie (1994) 72 A Crim R 416, referred to.
3. Section 12 of the Criminal Appeal Act 1912 did not prevent the Court from taking into account that the convictions and sentences on the other 6 counts had been set aside.
4. The Court did not need to rely on evidence of the upholding of the earlier appeal, as this was a matter of the Court's own record. Evidence Act 1995 s 144, considered.

DUNFORD J HIDDEN J SMART AJ FRIDAY, 26 NOVEMBER 1999 R v Tony GIAM (No. 2) JUDGMENT 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed upon the respondent by his Honour Judge McGuire in the District Court at Sydney on 29 May 1998, following his conviction by a jury on a charge that he "being a director did cheat and defraud" contrary to the Crimes Act 1900 s 176A ("the Act"). That offence carries a maximum penalty of imprisonment for 10 years and his Honour deferred passing sentence on the respondent entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 years with further conditions relating to supervision by the Probation and Parole Service and the curbing of his gambling habit. 2 The respondent actually stood trial on 7 counts of which the subject charge was the seventh, the other six counts in the indictment being for making false statements with intent to obtain an advantage contrary to s 178BB of the Act, the maximum penalty for which offence is imprisonment for 5 years. 3 The jury found the respondent guilty on all 7 counts and on each of the other 6 counts, the Judge sentenced him to imprisonment for fixed terms of imprisonment for 2 years and 9 months, such sentences to be served concurrently, so that the overall effect of the sentences for all 7 counts was imprisonment for 2 years and 9 months followed by conditional liberty with supervision and conditions for a further 2 years and 3 months. 4 The respondent appealed to this Court against his conviction on the first 6 counts. Such appeal was heard on 10 March 1999 and judgment delivered on the same day, allowing the appeal, quashing the convictions for counts 1 to 6, and ordering a new trial, on the ground that the form of the first 6 counts was bad for duplicity: R v Giam [1999] NSWCCA 53. There was no appeal in respect of the seventh count. 5 The Court declined to interfere with the sentence imposed on the respondent for count 7, holding that it was not open to it to do so. Spigelman CJ said at [53]: "It is plain that his Honour took into account the totality of the criminality. The Appellant appeals from counts one to six only in circumstances where it is plain that his Honour has fashioned the sentence in a particular way to achieve a particular result. It is inconceivable that his Honour would have sentenced the Appellant to a recognizance only on the seventh count, if that had been the only charge."

and at [57]: "The only way that the considerable inconvenience associated with a retrial could conceivably be avoided in such cases is if the Crown were to lodge an appeal against the sentence with respect to the count on which a conviction was entered, but no appeal is brought". 6 On 15 March 1999 the Director of Public Prosecutions instituted the present appeal on the ground that the sentence for count 7 was inadequate, and the Notice of Appeal was served on the respondent on 16 March 1999.

Facts 7 The respondent was an accountant. In conjunction with his brother, a solicitor, he became involved in the implementation of an arrangement whereby large sums of foreign investment moneys from a Japanese investor were available through company structures within Australia. The principal company vehicle for the overseas investor was Jason Property Management Pty Limited. 8 Credit facilities were extended to the companies by the State Bank of New South Wales. "Set off" arrangements were put in place, whereby there was a combined overall overdraft limit of all of the companies within the Jason Property Management group. 9 The Crown case at the trial was that by falsely representing to the bank that he was the secretary of Jason Property Management Pty Limited, the respondent arranged for the set off facility to be extended to other accounts which had no connection with the overseas investor or with the business for which Jason Property Management Pty Limited had been set up. These other accounts were in fact for the benefit of the respondent and his family. The respondent plundered these accounts to the tune of many millions of dollars, which were expended on hugely extravagant gambling and a lavish lifestyle. 10 The first 6 counts alleged false statements made between 22 September 1988 and 19 February 1991 (both dates inclusive) and the seventh count (the subject of this appeal) was that between 19 February and 14 October 1991 the respondent being a director of Jason Property Management Pty Limited did cheat and defraud the State Bank in its dealings with that company. 11 This he did by affixing the company's seal as director to a "Security Over Deposit Agreement" with the State Bank of New South Wales whereby he and members of his family and companies owned by him were able to obtain credit from the Bank against the company's account notwithstanding that he had no authority to execute the document or enter into the agreement on behalf of the company. At that time the respondent knew that he was putting the Bank at risk of financial loss due to his level of gambling. 12 The respondent agreed in his evidence that he had been gambling heavily for some time prior to entering into the "Security Over Deposit Agreement", and that he had relied upon his overdraft to live. There was evidence that he had told a business associate that he had lost close to $10 million in gambling, and that he was having problems with the bank in relation to his overdraft. 13 On 14 October 1991 an officer of the State Bank contacted the respondent when a shortfall of around $7 million of credit funds against debit funds was discovered. The respondent told this officer that $10 million would be forthcoming from another company. No money reached the bank, and the bank terminated the "Security Over Deposit Agreement". A settlement was reached with the bank whereby the respondent sold a number of assets. The ultimate loss to the bank was $1.7 million. 14 It has been common practice in this state for some years when sentencing offenders for multiple offences to structure the sentences so that the total overall effective sentences were appropriate to the total criminality involved with less regard being had to the appropriateness of the individual sentences for the particular offences: R v Holder and Johnston [1983] 3 NSWLR 245 at 260 per Street CJ, R v Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ at CL. That is undoubtedly what his Honour had in mind in structuring the sentences as he did. 15 The High Court has now pointed out that such an approach is likely to mask error, can lead to artificial claims of disparity between co-offences, otherwise distort general sentencing practices in relation to particular offences or result in an offender being doubly punished for the same act: Pearce v The Queen (1998) 194 CLR 610 at 624. See also R v Thomas [1999] NSWCCA 168 at [14]. 16 The present case illustrates a further problem with the former approach also masking error in that the sentences for the lesser offences under s 178BB each carrying a maximum penalty of five years were disproportionate to the "sentence" for the more serious offence under s 176A carrying a maximum penalty of ten years; and the convictions (and sentences) for the lesser offences having been set aside, the remaining sentence for the more serious offence is prima facie inadequate for an offence of such gravity. As Spigelman CJ said in the passage quoted above in the respondent's conviction appeal, it is inconceivable that the respondent would have only received a recognisance on the seventh count if that had been the only charge. 17 At the time of the hearing of the present appeal (and presumably this is still the case) no decision had been made by the Director of Public Prosecutions whether to re-indict the respondent on the matters subject to the first six counts in the original indictment, which would presumably now become 12 counts. The Director presumably had in mind the suggestion by the Chief Justice that the only way in which the considerable inconvenience of a new trial could be avoided would be by the bringing of this appeal. One suspects that if this appeal is determined first the Director's decision whether to run a new trial will take into account the result of the appeal. On the other hand, Mr Byrne SC on behalf of the respondent submitted that the Court should not hear this appeal until after either the Crown elects not to proceed with the new trial in respect of counts 1 to 6, or that new trial is held and the respondent, if convicted, is re-sentenced. 18 In my respectful opinion the approach suggested by the Chief Justice is appropriate, it is consistent with the dicta of the High Court in Ryan v The Queen (1982) 149 CLR 1 particularly per Aickin J at 15, and is similar to what was done in R v Tolmie (1994) 72 A Crim R 416 where the Crown appealed in respect of sentences imposed cumulative to the sentences in respect of which the convictions had been set aside, on the ground that without the earlier sentences, the sentences appealed against were inadequate and the Crown appeal was heard without awaiting the outcome of the new trial; although this point does not appear to have been argued. 19 The Crown appeal for inadequacy on count 7 is before the Court and the Court should determine it now, dealing with it on its merits without speculating on what might or might not happen if there is a re-trial in respect of counts 1 to 6. At the same time it is important to bear in mind in determining such appeal that it is only count 7 that is before the Court, and we must be astute to ensure that we do not take into account the conduct which forms the basis of counts 1-6, as to do so would amount to sentencing the applicant for offences in respect of which he has not been convicted. 20 It was also submitted that in considering the appeal the Court could not have regard to the fact that the convictions and sentences on counts 1 to 6 have been set aside and reliance was placed on the provisions of s 12(1) of the Criminal Appeal Act 1912 which provides that in no case shall any sentence be increased by reason of, or in consideration of any evidence which was not given at the trial. It was said that evidence of the setting aside of the convictions on counts 1 to 6 was, of necessity, evidence which was not given at the trial. Assuming for the moment that it is a matter of evidence, that is of course correct, but in my view as it was evidence which was not available at the trial, it would satisfy the tests for fresh evidence laid down in cases such as Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259, and as it does not relate to the matters going to the commission of the offence or the personal circumstances of the respondent its admission is not prohibited by the provision of s 12(1); R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [84], R v J (1992) 64 A Crim R 441 at 448-9, Re Beldan; ex parte the Attorney-General (1986) 21 A Crim R 159 at 167. 21 But I am satisfied that the Court does not need to receive evidence of its own proceedings and the earlier conviction appeal and its outcome are matters of record in this Court. Section 144 of the Evidence Act 1995 provides that proof is not required about knowledge which is not reasonably open to question and is capable of verification by a document the authority of which cannot reasonably be questioned, and that a judge may acquire knowledge of that kind in any way the judge thinks fit. We acquire knowledge of these matters by looking at the Court file and/or by reading the published Reasons for Judgment. 22 In any event the Court does not need to, and, for the reason referred to above, should not take into account the fact that the convictions and sentences on counts 1 to 6 have been set aside, but must confine its consideration to whether the release on recognisance granted in respect of count 7, standing alone, is an adequate sentence for the criminality involved in that single count. 23 It was also submitted that the Court should exercise the discretion which it undoubtedly has to dismiss the Crown appeal on account of the delay in bringing it, some 10 months after the sentence was imposed. But there is no time limit for Crown appeals under s 5D and the limit of 28 days provided for in s 10(1) in respect of appeals by convicted persons cannot be applied by analogy. In the present case there was a very good reason for the delay, namely that whilst the sentence on counts 1 to 6 stood, the Crown had no cause to appeal and the appeal was instituted promptly on those sentences being set aside. I am therefore satisfied that the Court should deal with the appeal on its merits. 24 The respondent was born on 9 June 1956 and was aged 43 at the time of sentence. He is a married man with two young children and retains the support of his wife. He has no previous convictions, appears to be a man of otherwise good character and the learned sentencing judge accepted that he was a man of industry prior to his fall from grace. He qualified as an accountant and was working as Administrative Manager of his brother's legal practice prior to his involvement with Jason Property Management Pty Limited. Following his arrest he endeavoured to set up business with two partners in a seafood trading company which became defunct due to his court matters. He then did casual work as a mortgage financier for a company until he was sentenced to imprisonment in May 1998. He was in custody from 22 May 1998 until 10 March 1999, a period of close to ten months. 25 Since his release he has been working as a roof tiler's labourer on a casual basis averaging four days a week and earning $100 per day. There is before the Court a reference from the employer describing him as "hardworking, reliable and honest". He and his wife have also been attending church regularly since his release. Following his incarceration his wife has returned to full time employment. During his imprisonment he completed a Gambling Awareness Course and since his release he has been assessed by Mr Simon Milton, Clinical Psychologist who conducts the Gambling Treatment Program at St Vincent's Hospital. Mr Milton commented that Mr Giam appears to have abstained from gambling for some time and that his current circumstances would prohibit or deter him from gambling but his resolve would be tested should he be successful in his future business ventures. 26 As already noted, most of the family assets were sold to pay off a substantial part of the money which had been fraudulently obtained from the bank. At the conclusion of the hearing we ordered a Pre-Sentence Report from the Probation and Parole Service and his probation officer advises that since his release from gaol he has complied with the requirements of his recognisance and been co-operative with his supervising officer. He has also indicated that his period in gaol has been a sobering experience and he is apprehensive of the prospect that a further period in gaol would again place his wife and young children under emotional and financial stress. 27 Notwithstanding these favourable subjective circumstances, the amount obtained by the respondent's fraud in the period the subject of the seventh count and as a result of the fraud practised by him was massive and it was used for gambling and for living an expensive lifestyle by himself and his family. Courts have drawn attention in the past to the seriousness of white collar crime, and offences under s 176A in particular, as it involves not only fraud but also breach of the trust involved in being a director of a company. Such offences call for significant sentences, particularly where the amount fraudulently obtained is large: R v Glenister [1980] 2 NSWLR 597, R v Pantano [1990] 49 A Crim R 328. 28 In view of the respondent's need for a significant period of conditional liberty under supervision to monitor and guard against his former gambling habits, I am satisfied that special circumstances exist for the purposes of s 5(2) of the Sentencing Act 1989 and bearing in mind that, having regard to the principle of double jeopardy and that where Crown appeals succeed, the appropriate sentence is one which is at the bottom of the range, I consider that a proper sentence in this case would be imprisonment for a minimum term of 2 years with an additional term of 2 years. 29 The applicant has already served a term approaching 10 months in respect of counts 1 to 6, and although generally time served by way of sentence for convictions which have subsequently been set aside are not relevant to be taken into account in considering a proper sentence for another offence: R v Niass (CCA - 16 November 1988), R v Webster - Jones (CCA - 11 May 1992), there are exceptions to this principle, and in R v Tolmie supra, which in this respect is somewhat similar to the present case, credit was given for the time spent in custody serving the sentences which had subsequently been quashed. I therefore consider that the minimum term should be reduced by 10 months to allow for the time in custody already served, and similarly the additional term should be reduced by 8 months to take account of the time spent on conditional liberty under supervision since his release from custody in March this year. 30 I therefore propose that the Crown appeal be allowed, the order for the recognisance quashed, and in lieu thereof the respondent be sentenced to imprisonment for a minimum term of 14 months to date from the day on which he goes into custody with an additional term of 16 months. The date on which the respondent will be eligible to be released on parole will be 14 months after the day on which he goes into custody. I would further order that on the expiration of the minimum term, the applicant be released on parole subject to the conditions contained in the Regulations and the further conditions that he place himself under the direction of the Probation and Parole Service and obey all reasonable directions of such service, particularly with regard to any course of rehabilitation or counselling with regard to gambling habit, and that he totally refrain from gambling and not enter any establishment used for gambling. 31 I further propose that a bench warrant issue for the arrest of the respondent, such warrant to lie in the office for 7 days, and in the event of the respondent surrendering himself to the Metropolitan Remand and Reception Centre at Silverwater, or such other place as may be notified to him by the Department of Corrective Services within that time to serve the sentence, the warrant is not to be executed.

DUNFORD J HIDDEN J SMART AJ FRIDAY, 26 NOVEMBER 1999 R v Tony GIAM (No. 2) JUDGMENT 32 HIDDEN J: I agree with Dunford J.

DUNFORD J HIDDEN J SMART AJ FRIDAY, 26 NOVEMBER 1999 R v Tony GIAM (No. 2) JUDGMENT 33 SMART AJ: I agree with Dunford J. ***********

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