R v Hovan

The application 16 Mr Odgers SC, for the applicant, argued that the sentencing judge fell into error in a number of respects in his remarks and that, in any event, the sentences are manifestly excessive. I consider that one of the matters raised about his Honour's approach to sentence is sufficient to move this Court to intervene and to determine for itself the appropriate sentences. That being so, I find it unnecessary to decide the other matters raised by Mr Odgers. 17 As I have said, his Honour expressly referred to the applicant's pleas of guilty. He also said that he had "taken into consideration on his behalf" the assistance to the authorities. However, his Honour did not quantify the reduction of sentence which those factors had earned the applicant, either individually or in combination. 18 In recent years, this Court has recognised the desirability, as a matter of policy, of specifying the discount of sentence an offender earns by assistance to the authorities: see the observations of Buddin J in R v Halls (2002) 127 ACrimR 209 at [13], and the authorities to which his Honour there refers. On the other hand, it has also been recognised that where, as is commonly the case, that offender has also pleaded guilty, it "will often be appropriate" to specify a combined discount: R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at [160]. 19 Given that the applicant's pleas were entitled to recognition both for their utilitarian value and as an expression of remorse, and that his assistance to the authorities was valuable, I would have thought that a reduction of sentence of the order of forty percent was appropriate. The aggregate sentence imposed upon the applicant was four and a half years imprisonment. If that were the result after a forty percent deduction, the starting point would have been seven and a half years: a term which would be excessive for these offences, viewed purely objectively. The case is yet another demonstration of the desirability of transparency in the sentencing process in cases where there have been pleas of guilty and assistance to the authorities, at least by the specification of a notional starting point: cf. R v Waqa (No 2) [2005] NSWCCA 33, per Dunford J at [13].

Re-sentence 20 In the applicant's favour, I am mindful that it was always his intention to repay the loan the subject of the first charge and that, in respect of the second and third charges, his clients would have had no objection to his retaining the amount which he received. Nevertheless, the three offences involved dishonesty on the part of a man pursuing a profession which, in the public interest, demands a high degree of probity. The second and third offences also involved his dealing with money in such a way as to conceal its receipt from the receiver appointed by the Law Society. Further, those offences were committed while he was on bail in respect of the first offence. 21 We received further evidence by way of affidavit for the purpose of re-sentence. It is unnecessary to go to the detail of it. As one would expect, the applicant's situation has strained his relationship with his family and his current placement has compromised his contact with his children. The sale of the south coast property had run into difficulties, but it seems that they have been resolved and payment of the amount outstanding to AGC can be made. He has experienced particular difficulties in prison, partly due to the fact that a significant part of his practice as a solicitor was in the field of criminal law. 22 Leaving out of account the applicant's pleas of guilty and his assistance, I consider that the global sentence appropriate to represent the totality of his criminality is imprisonment for five years. Because of the pleas of guilty and the assistance, I would reduce that term by forty percent to three years. At the time of sentence the applicant had expressed his willingness to provide further assistance to the authorities, although he had not entered into a formal undertaking to do so. It seems, in any event, that that further assistance is not likely to be required. That being so, for the purpose of s5DA of the Criminal Appeal Act, I would not assign any part of that reduction of sentence to future assistance. 23 In determining the global sentence and the discount to be applied to it, I am not unmindful of the need to fix sentences appropriate for each of the charges in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. I would adopt the sentencing judge's approach of accumulating the sentences in respect of the second and third charges upon that in respect of the first, recognising that they represent discrete episodes of criminality. Like his Honour, I also find special circumstances.

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