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[2004] NSWCCA 450
respondent. Leave to appeal was granted to Stephen Arthur Mungomery; his appeal was dismissed, and the Crown appeal was dismissed.
Mungomery admitted a prolonged series of workplace frauds involving more than $1 million. The sentencing judge made important errors in explaining how the individual counts and cumulative sentences were assessed. The Court nevertheless upheld the five-year sentence on the most serious count, rejected the argument that the guilty-plea discount had to be quantified, and said judges do not have to distinguish every earlier sentencing case. It considered the other two count sentences too low, but dismissed the Crown appeal because of the Crown's position on the overall sentence and the circumstances of the case.
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In R v Mungomery [2004] NSWCCA 450, the New South Wales Court of Criminal Appeal considered an offender's appeal against sentence and a Crown appeal concerning the same sentencing disposition. The Court granted Stephen Mungomery leave to appeal, dismissed his appeal, and dismissed the Crown appeal (Hulme J at [59]).
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Mungomery pleaded guilty to three counts of defrauding his employer, Coal and Allied Industries Limited, while he was an officer of that company. Each offence carried a maximum penalty of ten years' imprisonment under s 176A of the Crimes Act, as described in the judgment (Hulme J at [9]). The charged amounts were $21,000 on 5 July 2002, $4,390 on 25 March 1998, and $19,840 on 20 August 1998 (at [9]).
The court also took account of numerous similar offences on Forms 1. Those offences involved $8,340.21 for Count 1, $348,675 for Count 2, and $599,270.70 for Count 3 (at [10]). The methods included false expense claims and invoices for work that had not been done. Some invoices were submitted under the names PDY Consulting Services and SLM Solutions. The judgment linked those businesses to Mungomery through their registrations and addresses, and described the charged and Form 1 conduct as involving services that were not provided (at [11]-[14]).
Taken together, the conduct involved more than 100 transactions over almost four and a half years and slightly more than $1 million (at [15]). The judgment records that Mungomery had a gambling habit, had no prior convictions, admitted his offending in recorded interviews, and pleaded guilty at the earliest opportunity. It also describes his family circumstances, rehabilitation-related material, references, and arrangements to make partial reparation (at [17]-[20]).
The District Court imposed a five-year sentence, with a two-and-a-half-year non-parole period, on Count 3. It also imposed cumulative fixed terms of three months on Count 1 and six months on Count 2, producing an effective sentence of five years' imprisonment with additional fixed terms totalling three years and three months (at [21]). The Court of Criminal Appeal criticised substantial aspects of the sentencing judge's reasoning, but did not alter the sentences.
Hulme J identified errors in the sentencing judge's approach to sentencing on separate counts. In particular, he said the judge was required to determine a sentence for each count by reference to the criminality of that count and its associated Form 1 offences, while disregarding the criminality belonging to other counts and Forms 1. Only after fixing those sentences should the judge consider accumulation or concurrency under totality, applying R v Pearce (at [23]-[26]). Hulme J said the sentencing judge's remarks and approach to cumulative sentences were contrary to those principles.
The Court also disagreed with the idea that cumulative sentences should generally be minimal. Hulme J explained that cumulative sentences may impose a significant burden, but are used where a person has committed multiple offences, including to recognise that further offending should not go unpunished merely because one offence has already been committed (at [25]). Totality remains relevant and can require an adjustment to the overall sentence, but it does not justify treating cumulative terms as minimal in principle (at [26]).
Other sentencing remarks were also criticised. The judge had treated the disruption to Mungomery's wife and children as a matter required by s 21A. Hulme J said that provision did not have the effect attributed to it, and that the family circumstances were not within the exceptional category in which impact on an offender's family could be taken into account (at [27]). Hulme J also rejected the proposition that maximum penalties are reserved for repeat offenders, and described as incomprehensible the sentencing judge's characterisation of Mungomery as not a repetitive offender given the number and duration of the offences (at [28]).
Those errors did not mean that the appeal should be allowed. On Count 3, Hulme J considered the scale, duration and planning of the offending, including about 60 instances involving approximately $619,000 when the associated Form 1 offences were included (at [39]). The judgment treated the amount involved in premeditated deception and the period over which the offences occurred as relevant sentencing considerations, referring to authorities including Hawkins and Woodman (at [40]). Hulme J also discussed the importance of general deterrence for offending that abuses the trust employers place in employees and can be difficult to detect (at [41]).
The Court then considered the limits on increasing a sentence by reference to Form 1 offences. Hulme J referred to the Attorney General's Application under s 37 and explained that the sentence remains one for the primary offence. The Form 1 offences may increase the weight given to personal deterrence and retribution, subject to the maximum penalty and totality (at [42]). He considered the effect of that approach on Count 3: although the charged amount was $19,840 and Mungomery had good prospects of rehabilitation, the Form 1 amount was much larger and retribution supported a substantial increase over the sentence that would have been appropriate without those offences (at [44]-[45]). On that basis, he rejected the claim that the five-year sentence on Count 3 was excessive (at [39], [45]-[46]).
Spigelman CJ addressed two further arguments. First, a sentencing judge is encouraged to quantify a guilty-plea discount, but is not required to do so; the failure to identify a precise discount was not error (Hulme J at [31]; Spigelman CJ at [2]). Second, sentencing judges need not identify and distinguish each comparable decision. Earlier sentences can guide the assessment and consistency matters, but prior sentences are not precedents that must be distinguished (Spigelman CJ at [5]; Hulme J at [35]-[36]). Spigelman CJ added that a judge may refer to an overall impression from relevant judgments and sentencing statistics rather than set out detailed comparisons (at [5]).
Finally, Hulme J regarded the sentences on Counts 1 and 2 as manifestly inadequate, but did not increase them. Count 1 and its Form 1 offences were much smaller than the offending underlying Counts 2 and 3, and totality limited the additional sentence that could be imposed (at [56]-[57]). He also considered the Crown's position that the effective sentence was within range and appropriate, and that it did not challenge the total effective sentence (at [30], [58]). The Crown appeal was therefore dismissed (at [59]).
This judgment describes the sentencing principles it applied as at December 2004. It does not provide a comprehensive account of the law before the cited authorities, nor does the text establish how later courts have treated the decision. The points below are therefore limited to the Court's description and application of the sources named in the judgment.
On separate counts, Hulme J relied on Pearce for the requirement to determine a sentence for each count according to that count's criminality, including its associated Form 1 offences, and then consider accumulation or concurrency in light of totality (at [23]-[26]). The decision applies that framework to criticise the sentencing judge's approach. It does not set out the full reasoning in Pearce or purport to restate every aspect of that decision.
For a guilty plea, Hulme J referred to Thomson & Houlton and stated that judges are encouraged to quantify the effect of the plea but are not required to do so (at [31]). Accordingly, the judgment treats the absence of a stated percentage or amount of discount as insufficient, by itself, to demonstrate sentencing error.
As to comparable sentences, Spigelman CJ's reasons emphasise that prior sentences are guides rather than binding precedents requiring distinction (at [5]). Hulme J accepted that prior cases can be useful, and criticised the sentencing judge's dismissal of Crown appeals as a source of assistance, but rejected the proposed obligation to identify and distinguish each case (at [34]-[36]). The Court's reasoning therefore recognises both the value of consistency and the limits on treating earlier fact-specific sentences as a prescribed checklist.
For Form 1 offences, the judgment relies on the Attorney General's Application under s 37. Hulme J described the permitted consideration as increasing the weight given to personal deterrence and retribution, while keeping the focus on the primary offence and observing the statutory maximum and totality (at [42]). He then said that, on this understanding, general deterrence, rehabilitation and protection of the community did not apply to determining the weight given to Form 1 offences (at [43]). That is Hulme J's stated reading of the cited principle in this case; the judgment does not discuss subsequent clarification or development.
The decision also applies proportionality between the sentence and the objective gravity of the offending, referring to Dodd (at [38]). It treats the amount involved in premeditated deception and the duration of the offending as relevant, referring to Hawkins, Mears and Woodman (at [40]). Its discussion of Veen v R (No 2) and the purposes of punishment occurs in the specific context of what Form 1 offences may add to the sentence (at [43]).
At [5], Spigelman CJ states: “Prior sentences are in no way precedents that need to be distinguished.” In plain English, a sentencing judge can use earlier cases to understand the range and promote consistency, but is not required to explain why every earlier case is factually different. The sentence remains an assessment of the particular offender and offending.
At [31], Hulme J states that “failure to identify the discount does not constitute error.” This concerns the guilty-plea discount. The judge should consider the plea, and quantification is encouraged, but the judgment says the failure to state a particular numerical discount is not, on its own, a legal error.
At [42], Hulme J says: “the focus throughout must be on sentencing for the primary offence.” This marks a limit on the use of Form 1 offences. Their presence can affect the sentence for the charged offence in the ways the judgment describes, but the sentence is not to become a separate punishment for all the Form 1 conduct.
At [45], Hulme J says that retribution required a substantial increase compared with the sentence that would have been appropriate without the Form 1 offences. In context, he was addressing the substantial sum and number of offences associated with Count 3. He also expressly cautioned that the comparison between the amount taken and years of ordinary earnings was not a measure for calculating the imprisonment term (at [45]).
At [8], Spigelman CJ concludes that the overall sentence, particularly the Count 3 sentence, was “fully justified” and that the threshold under s 6(3) of the Criminal Appeal Act 1912 had not been crossed. This states his conclusion on the offender's challenge, despite his agreement with Hulme J's analysis of sentencing principles.
The judgment is most directly relevant to sentencing appeals involving multiple dishonesty offences, where some offences are charged and other related conduct is placed on a Form 1. Its reasoning is especially pertinent when the sentencing remarks appear to combine the criminality of separate counts before fixing individual sentences, or treat accumulation as something that should generally be minimal (Hulme J at [23]-[26]).
It also addresses appeals alleging that a guilty-plea discount was inadequately explained or that a sentencing judge failed to discuss every comparable case (Hulme J at [31], [35]-[36]; Spigelman CJ at [5]). The judgment rejects those arguments in the abstract, while leaving open that a sentence may be challenged on other grounds supported by the particular sentencing record.
The factual context was sustained workplace fraud involving a position of trust, numerous transactions, false invoices, substantial sums and conduct lasting years (at [11]-[15], [39]-[41]). The Court's discussion of general deterrence identifies features of employee offending that can be difficult to detect and damaging to organisational trust (at [41]). Those observations should be read as part of the Court's reasoning about these offences, not as a conclusion that every workplace fraud requires the same sentence.
The judgment also concerns Crown appeals where the appellate court identifies a sentence as inadequate but the Crown does not seek to increase the total effective sentence. Here, the Crown expressly accepted that the effective sentence was appropriate, and the Court declined to increase the shorter sentences on Counts 1 and 2 (at [30], [56]-[59]). The outcome depended on that procedural and forensic setting, as well as totality.
The supplied judgment contains no account of decisions after 14 December 2004, so it does not establish how later courts have treated Mungomery. It would be unsupported to describe it as followed, distinguished, approved or limited by later decisions on the basis of this text alone.
Within the judgment itself, Spigelman CJ agreed generally with Hulme J's analysis and specifically addressed the guilty-plea discount and comparative sentencing cases (at [1]-[8]). Adams J agreed with Hulme J's orders and generally with his reasons, and also agreed with Spigelman CJ (at [60]). Thus, the three-judge Court adopted the disposition, with the Chief Justice and Adams J expressing agreement with the principal analysis.
The judgment itself discusses earlier authorities. It applies Pearce to the required sequence of sentencing on individual counts and then considering totality (Hulme J at [23]-[26]). It relies on Thomson & Houlton for the position that quantifying a plea discount is encouraged but not compulsory (at [31]). It discusses several prior dishonesty-sentencing decisions, including Giam (No 2), Jackson, Pantano, Mato and Rusu, and Carr, as comparisons illustrating that the cases relied on by Mungomery did not establish a benchmark (at [47]-[55]). These are the Court's treatments of authorities available to it in 2004, not evidence of later treatment of Mungomery itself.
The judgment does not provide later authorities that might clarify or alter its account of Form 1 offences, including its statement that general deterrence, rehabilitation and protection of the community do not determine the weight given to those offences (Hulme J at [42]-[43]). A contemporary analysis would need to check subsequent authorities and the current statutory framework rather than assume that the 2004 discussion is a complete statement of present law.
The judgment also leaves the precise practical method for assessing the sentence attributable to Form 1 offending at a high level. It identifies personal deterrence and retribution as relevant considerations, and maximum penalty and totality as limits, but does not prescribe a formula for quantifying the increase (at [42]-[46]). Nor does it decide how a sentencing judge should express that assessment in every case.
The decision recognises that comparable decisions can guide sentencing while rejecting a requirement to discuss each one (Spigelman CJ at [5]; Hulme J at [35]-[36]). It does not specify when a particular case or range of cases must be expressly addressed, or what degree of explanation is needed where the parties identify a close comparator.
Finally, the Court's refusal to increase the Count 1 and Count 2 sentences arose in a particular Crown appeal where the Crown accepted the overall sentence and sought no increase in it (Hulme J at [30], [57]-[59]). The judgment does not set out a general rule resolving every case in which a court identifies an inadequate component sentence but the appeal is confined by the Crown's position or by totality.
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CITATION : R v MUNGOMERY [2004] NSWCCA 450 revised - 17/12/2004 HEARING DATE(S) : 19 May 2004 JUDGMENT DATE : 14 December 2004
JUDGMENT OF : Spigelman CJ at 1; Hulme J at 9; Adams J at 60 DECISION : (i) Grant leave to appeal to Stephen Arthur Mungomery;(ii) Dismiss his appeal;(iii) Dismiss the Crown appeal.
PARTIES : Regina Stephen Arthur Mungomery FILE NUMBER(S) : CCA 60526/03; 60042/04 COUNSEL : Crown: B Walker SC; AJ Kimmins Respondent: D Frearson SOLICITORS : Crown: M Bosscher Respondent: S Kavanagh
LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0354 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :
SPIGELMAN CJ HULME J ADAMS J
Date Tuesday 14 December 2004 R v Stephen Arthur MUNGOMERY Judgment 1 SPIGELMAN CJ: I have read the judgment of Hulme J in draft. His Honour outlines the facts and issues that have arisen in this appeal. I generally agree with his Honour's analysis. 2 His Honour rejects the contention put in written submissions by the Applicant to the effect that his Honour erred in failing to identify the quantum of discount which he allowed for the guilty plea. Those submissions were correctly withdrawn at the outset of oral submissions for the Applicant. 3 Secondly, Hulme J comments on his Honour's observation: "I never find a great deal of assistance in perusing one after the other decisions that are Crown appeals and I do not propose to do so on this occasion." 4 This observation has to be read in the full context of his Honour's Remarks on Sentence. The sentence appears at the end of a long passage in which he notes that reference only on Crown appeals may be misleading because of the fact that they may reflect only the bottom of the range by reason, inter alia, of the principle of double jeopardy applied by courts of criminal appeal. 5 The principal thrust of the oral submissions made for the Applicant was that his Honour's statement that he took into account "the whole spectrum of various penalties" passed in connection with this type of crime was an inadequate statement of reasons because, for example, it does not identify what his Honour took into account or state where in the "spectrum" the particular accused was to be placed. In my opinion, this overstates the relevant role of other penalties in the sentencing process. Prior sentences are in no way precedents that need to be distinguished. They may be relevant as a guide and issues of consistency are of significance. Nevertheless, the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial Commission's database. 6 In any event the particular Crown appeals to which his Honour did refer, were appropriate, as Hulme J shows, as indicating the bottom of the range. 7 In any event nothing has been put forward to the Court to show that there is any relevant inconsistency between the sentences imposed in this case and any other case or cases. I agree with Hulme J's analysis of other cases. 8 The overall sentence, and in particular the sentence on Count 3 which his Honour imposed, is fully justified. The threshold required to be crossed under s6(3) of the Criminal Appeal Act 1912 has not been crossed. I am not satisfied that any other sentence is warranted. 9 HULME J: On 18 July 2003 Stephen Mungomery, to whom I shall hereafter refer as "the Appellant" pleaded guilty to three counts alleging that he, while an officer of Coal and Allied Industries Limited did defraud that company. Pursuant to s176A of the Crimes Act each offence rendered the Appellant liable to 10 years imprisonment. The dates of the offences and the amounts involved were as follows:- Count 1 - 5 July 2002 $21,000 Count 2 - 25 March 1998 $4,390 Count 3 - 20 August 1998 - $19,840 10 In connection with each count, the court was asked to take into account a number of similar offences on a Form 1. A summary of the Form 1s is as follows:- Count 1 - 4 offences, $8,340.21 Count 2 - 40 offences, $348,675.00 Count 3 - 61 offences, $599,270.70 11 The offending conduct, the subject of the first count and the four offences taken into account in connection therewith was the creation of false invoices or expense invoices and the false claiming of repayment of expenses that were not incurred. 12 The conduct, the subject of the second count and the offences taken into account in connection therewith was constituted by the submission purportedly by PDY Consulting Services of invoices primarily for "professional time, computer usage/programming time, meetings plus disbursements" and the authorisation by the Appellant of payment of those invoices. PDY Consulting Services was registered with the Queensland Business Registry in February 1999. The person carrying on the business was listed as "Stephen Moran" whose date of birth was the same as the Appellants. The postal address given was that of the Appellant's parents. The services charged for were not provided. 13 The offences, the subject of the third count and the Form 1 taken into account in that connection took a similar form although the invoices involved purported to be from an organisation trading under the name "SLM Solutions". That organisation was registered with the Queensland Business Registry on 24 July 1998. Particulars of that registration had the Appellant as the owner of the business and the business address as the address of the Appellant and his wife. 14 Particulars of the offending, the subject of the first count and the associated Form 1 indicate that it occurred in July and August 2002; that the subject of the second count and the associated Form 1 occurred in March 1998 and June 1999 to July 2002; that the subject of the third count and the associated Form 1 occurred between August 1998 and August 2002. 15 In summary, over a period of almost 4½ years by something over 100 transactions the Appellant defrauded Coal and Allied Industries Limited of amounts totalling slightly over $1,000,000. 16 The Appellant was born on 30 August 1967. He acquired degrees of Bachelor of Arts and Bachelor of Commerce and was then engaged in a number of apparently responsible positions before taking up employment with Coal and Allied Industries Limited. While employed by that company he filled positions of Manager of Business Analysis with a number of senior business analysts reporting to him and later as Manager, Corporate Development. He resigned in August 2002, then taking up a managerial role for another organisation at a salary of in excess of $100,000 per annum. 17 The inspiration for the Appellant's offending seems to have been a gambling habit which he took up not long after he joined the employ of Coal and Allied Industries Limited and when he first moved to Singleton prior to being joined there by his wife. Judge Christie found that the Appellant had committed the offences largely to either fund that gambling habit or otherwise to repay to the joint savings of the family money he had taken from that source in order to gamble. 18 It would seem that by October 2002 the Appellant's misdeeds were the subject of investigation. A search warrant was executed on 30 October 2002 at the Appellant's home and on 6 December 2002 and 5 February 2003 he participated in electronically recorded interviews. In the course of these he freely admitted his offending and it is conceded that, when charged, he pleaded guilty at the earliest possible opportunity. 19 The only other subjective matters to which I think it necessary to refer is that the Appellant married in 1995 and he and his wife have 2 young children. A psychiatric report did not suggest he suffered from any psychological problems other than incidental, and perhaps contributing to, his gambling. A substantial number of references attested to the high regard in which he was held by friends and relatives and their surprise at his conduct. It appeared also that the Appellant had made arrangements to make reparation in respect of something of the order of one-third of the proceeds of his criminality. 20 The Appellant had no prior convictions. 21 On 24 July 2003 Judge Christie sentenced the Appellant. In respect of the third count and after taking into account the Form 1 offences associated therewith he sentenced the Appellant to imprisonment for 5 years including a non-parole period of 2½ years, both such terms to commence on 18 July 2003. In respect of the first count, and taking into account the offences on the Form 1 associated therewith, he sentenced the Appellant to a fixed term of imprisonment for 3 months commencing on 18 January 2006. In respect of the second count and after taking into account the Form 1 offences, His Honour imposed a sentence of imprisonment for a fixed term of 6 months commencing on 18 April 2006. The effective sentence was thus one of imprisonment for 5 years including non-parole and fixed terms totalling 3 years and 3 months. 22 In the course of his Remarks on Sentence, His Honour made a number of observations which bear repetition:- … I always say in respect of cumulative sentences, and it bears repetition it seems to me, that cumulative sentences represent an enormous burden to a prisoner and it seems to me that any cumulative sentence passed in relation to this prisoner and indeed any prisoner should be of a somewhat minimal nature, if I may be forgiven for using that expression, because the cumulative nature of sentences of course postpones the date upon which the prisoner would actually be released. That is not to say of course that in assessing what sentence should be passed in respect of each count, one does not take into account the overall criminality that is exhibited in the activity undertaken by the prisoner and of course to look at the question of totality in respect of sentences that would be passed in connection with all of the particular offences… … When I referred to R v Pearce in terms of cumulative sentences, I should have said that the principles in R v Pearce a High Court decision in 1998, required the Court to fix a discreet (sic) sentence in respect of each offence and then consider in the light of the principles of totality how, if at all, and to what extent, those sentences should be accumulated or made concurrent. The prisoner is a very young man with a young family and of course his absence from his family will cause enormous disruption, not only for the prisoner but to his wife and his children and I take that into account as of course I am required to take into account my reason of those matters set out in s21A…. … the third count represents the more serious of the three counts and I propose to pass what is generally described as the head sentence in relation to the third count. I do not know that much turns upon it but that is generally the manner in which I approach it. For a series of offences extending over this period of time, as well planned as they were, and netting to the prisoner as much as these did, having regard to the fact that the maximum penalty I think I am correct in saying is ten years, the prisoner, absent a plea of guilty it seems to me would be facing something of a head sentence of seven, seven and a half years. I emphasise that those maximum penalties are reserved for offences, the worst in their category, and these offences are not the worst in their category, although they are serious examples of this type of offence. Maximum penalties also are reserved for repetitive offenders and this man certainly does not fall into that category. Having regard to his age, having regard to what I have read here that leads me to have great confidence on behalf of the community that he has excellent prospects of rehabilitation, I have not the faintest hesitation in finding special circumstances that can assist the prisoner. And I need to give a not insignificant discount in spite of the strength of the Crown case I need to give a not insignificant discount for a plea of guilty at the earliest opportunity. Having regard to all of that I propose in relation to the third count to pass a head sentence of five years but I am prepared to find special circumstances that will enable me to ameliorate quite significantly the usual ratio between a non-parole and a parole period. I will then be required in accordance with the principles enunciated by the Hight Court in R v Pearce to pass some element of cumulative sentence in relation to the other two offences. But in accordance with my long held view as to cumulative sentences they will not be of course, of the same significance as the head sentence… 23 Anyone familiar with sentencing principles will recognise that the passages I have quoted from His Honour's remarks are replete with error. The decision of the High Court in R v Pearce to which His Honour referred makes it plain that His Honour was required to determine in respect of each count a sentence reflecting the criminality involved in the offences, the subject of that count, and taking into account the offences on the relevant Form 1, and disregarding the criminality involved in the offences the subject of the other counts and other Form 1s. 24 His Honour's approach as apparent in his remarks and in the sentences he imposed flies in the teeth of what the High Court decided. 25 His Honour's approach to cumulative sentences is equally wrong. It is contrary to principle to say that they "should be of a somewhat minimal nature". Certainly at times they may represent an enormous burden but they are only called for when a particular offender has burdened the community or members of it by the commission of a number of offences. They are imposed at least in part in an endeavour to protect the community from the consequences of an approach that once a person has committed one offence, he can commit others with impunity from further punishment. 26 That is not to say of course that when cumulative sentences are being imposed, recognition should not be given to the overall length of sentence and some downward adjustment made upon the principal of totality. However, as I have said, His Honour's approach was quite wrong. 27 His Honour's statement that he was required by s21A to take into account the "enormous disruption, not only for the prisoner but to his wife and children" is also wrong. There is nothing in s21A to that effect nor were these circumstances such as to fall within the exceptional category where impact on an offender's family can be taken into account. 28 His Honour's statement that "maximum penalties also are reserved for repetitive offenders and this man certainly does not fall into that category" was wrong both in law and in fact. Maximum penalties are not reserved for repetitive offenders although such offenders are obviously more likely to have imposed upon them maximum penalties than are those offending for the first time. And how His Honour could say that the Appellant does not fall into the category of a repetitive offender notwithstanding the registration of SLM Solutions in July 1998 and of PDY Consulting in February 1999 and the commission of 60 or so separate offences which His Honour was asked to take into account in connection with the third count on the indictment is totally incomprehensible. 29 In support of the Appellant's appeal, three matters are relied upon. It is submitted:- (i) That His Honour gave insufficient weight to a plea of guilty by the Appellant. (ii) That the sentencing Judge failed to act upon three authorities to which he was referred by defence Counsel viz R v Giam (No. 2) [1999] 109 A Crim R 348; R v Finney [2002] NSW CCA 533; and R v Jackson [2001] NSW CCA 355. (iii) The sentences imposed were manifestly excessive. 30 The Crown has also lodged an appeal against all three sentences. However, it somewhat qualifies this by submitting that "the effective sentence imposed upon the Respondent is within range and appropriate" and "the Crown has no issue with the total effective sentence". 31 In support of the Appellant's argument in respect of the first ground it was submitted that the sentencing Judge erred in not identifying the quantum of the discount which he allowed. The decision of this court in R v Thomson & Houlton [2000] 49 NSWLR 383 makes it clear that while Judges are "encouraged to quantify the effect of the plea on the sentence" it is not mandatory that they do so. Thus failure to identify the discount does not constitute error. 32 That is enough to dispose of this complaint although it may also be observed that a comparison of the 5 year head sentence on the 3rd count with His Honour's reference in the passage quoted to the fact that "the Prisoner, absent a plea of guilty… would be facing something of a head sentence of 7, 7½ years" suggests that His Honour in fact gave a discount of the order of 28-33%. Such a discount would not be appealably inadequate. 33 The three cases which were referred to and which were said to be comparative were all Crown appeals. His Honour observed that sentences imposed in Crown Appeals were always at the very low end of the range and that "I never find a great deal of assistance in perusing one after the other decisions that are Crown appeals and I do not propose to do so on this occasion". 34 Such remarks display an approach which is, to say the least, unfortunate: Not uncommonly such appeals do provide an indication of either the sentence which should have been imposed at first instance or a sentence which is at the bottom of the range of appropriate sentences. Furthermore, attention to matters other than the actual sentences imposed in such appeals may have helped his Honour avoid at least some of the many errors which appear in his remarks. 35 However, despite the reference to Crown appeals which I have quoted, his Honour went on to say that "That does not mean that I do not take into account the whole spectrum of various penalties that are passed in this State in connection with this particular type of crime". Earlier he said that he had considered "some of the sentences to which I was taken in this particular matter" although it was not apparent which these were. He made some more particular reference to offences against the Social Security System but did not otherwise identify the prior decisions which he had in mind. It was submitted that it was incumbent upon him "to specifically identify the differences or points of distinction in relation to the three comparative sentences if he was not going to follow the factors identified therein". 36 That proposition was not supported by authority and it is simply wrong. Commonly the determination of a particular sentence is a reflection of a great deal of experience built up over many years on the basis of cases long forgotten in their name or detail. Furthermore, while undoubtedly it is useful at times for sentencing judges to identify other cases which have provided some guide to them, the pressure of work which they are frequently under makes it utterly impracticable to impose the obligation suggested. 37 In support of the submission that the sentences imposed were manifestly excessive, reference was made to some 16 or so topics to which it is, or would be, appropriate to have regard in any sentencing of the Appellant. Many are referred to above but one may add to those the references to: (4) Genuine contrition, repentance and remorse. (5) The unlikelihood of committing further offences in the future. (6) The rehabilitation undertaken since the discovery of the offences. (7) The Applicant's difficulty in obtaining future employment. (11) The factors identified in the reports of Dr Curtis (psychiatrist) and Mr Papas (the author of a pre-sentence report). 38 The evidence encompassed by these topics was undoubtedly favourable to the Appellant and was entitled to weight. However, the authorities make it clear that proper weight has also to be given to the objective circumstances of an offence or offences. As was said in Dodd (1991) 57 A Crim R 349 at 354:- "… making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without that assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place". 39 Each of the 100 or so offences committed by the Appellant rendered him liable to imprisonment for 10 years. The fact that many were included on Form 1s meant that no separate penalty for them could be imposed but their presence argued in favour of the penalties for each of the 3 offences in the indictment being higher than they otherwise would have been. Even confining attention for the moment to the 3rd count and those on the Form 1 taken into account in connection therewith, the Appellant's criminality was gross. It extended over a period of about 4 years from March 1998 to July 2002 and involved 60 separate instances of fraud, most involving many thousands of dollars. It is a legitimate inference that the setting up of SLM Solutions occurred as an incident of that criminality and thus demonstrates that it was planned. When one adds to these matters the fact that the amount involved in these offences exceeded $600,000 in my view the sentence imposed in respect of the offence the subject of the third count was not excessive. 40 In this regard authority makes it clear that the amount of money involved in premeditated deception is an important, and the period of time over which offences are committed a relevant, factor in determining the extent of criminality - see Hawkins (1989) 45 A Crim R 430, R v Mears (unreported, NSWCCA, 14 March 1991), referred to by Wood CJ at CL and Sperling J in R v Woodman [2001] NSWCCA 310. 41 The cases in this area also stress the importance of general deterrence. Organisations, be they business or government, cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect. Commonly, offenders are able to continue their depredations for long periods. Often matters only come to light when the total amounts involved become too large to be overlooked. It seems to me an inevitable inference that there must be many cases where offending is never discovered - a factor also arguing for sentences which are substantial deterrents. 42 In concluding that the sentence imposed in respect of the third count is not excessive, I should acknowledge expressly that I have taken account of the substantial limitations which flow from the decision of this Court in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 wherein it was said, at [42 - 43]:- The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence. 43 Implicitly, these remarks seem to me to dictate that general deterrence, rehabilitation and protection of the community - the other 3 of the 5 well known sentencing purposes referred to in Veen v R (No 2) (1987-1988) 164 CLR 465 at 476, and which the Court cannot have overlooked - are of no application in determining the weight to be given to the Form 1 offences. 44 In this case the offence charged involved but $19,840 - in this area of offending a relatively small sum. Judge Christie regarded the Appellant as having "Excellent prospects of rehabilitation" and certainly the actions of the Appellant since discovery of his offending indicate no great risk of re-offending. Of course there remain the risks arising from the elements of his personality which contributed to the offences with which the Court is concerned but on balance, these matters indicate that personal deterrence does not require any long sentence. 45 Retribution is of more significance. $619,000 or thereabouts is a large sum of money. It is not inappropriate to bear in mind that the approximately $600,000 involved in the offences the subject of the third count and the corresponding Form 1 would represent for many members of the community, their gross earnings - I use that term advisedly - for 10 to 12 years. I do not suggest that such a period should therefore be any measure of the imprisonment imposed on the Appellant but considerations of retribution and the community's entitlement to feel that justice has been done demands punishment which bears some reasonable relationship to the magnitude of the offending. Thus I regard retribution as requiring a substantial increase in the sentence compared with that which would be appropriate had there been no Form 1 offences taken into account in connection with the third offence charged. 46 However that increase must logically be less than if general deterrence - sometimes referred to as the main purpose of punishment - see R v Paull (1990) 20 NSWLR 427; see also R v Rushby (1977) 1 NSWLR 594 at 597-8; R v El-Rashid (unreported, CCA, 7 April 1995) - incidental to the offences the subject of the Form 1 and involving a further $599,000 were taken into account. Having regard to at least some of the earlier decisions, this does raise the question whether the sentence imposed by Judge Christie in relation to the third offence is too high, or more precisely, manifestly excessive. In the event it becomes necessary to determine a proper sentence in respect of the offence the subject of the second count, a similar issue will arise. Indeed it will do so even more starkly because the primary offence involved but $4,390. 47 The cases primarily relied on on behalf of the Appellant were the 3 earlier mentioned. The first was Giam (No 2). It is unnecessary to set out the somewhat complicated history of that case. For present purposes it is sufficient to record that at first instance sentence was deferred upon the offender entering into a recognisance after he was convicted of "being a director did cheat and defraud". What he had done was, as a director, to affix a company's seal to a bank's "Security Over Deposit Agreement" whereby he and his family could obtain credit against the company's account. He had no authority from the company to enter into such an arrangement. When the consequent problems emerged the initial shortfall seems to have been something of the order of $7m. The offender apparently arranged the sale of a number of family assets and the ultimate loss was reduced to $1.7M. 48 The "need" for the funds the subject of the offence was a gambling addiction which had preceded the offence. Otherwise the offender, aged 43 at the time of sentence was of good character. He had served some 10 months in custody in respect of other offences on which his conviction had been quashed but which the Court thought should be taken into account. Then he was at liberty for 8 months. The sentence imposed on a Crown appeal, including the 10 months referred to was, in effect, imprisonment for 4 years including a minimum term of 2 years. 49 In R v Jackson [2001] NSWCCA 355 the respondent to a Crown appeal admitted to 29 offences of dishonesty involving more than $5M systematically carried out over a 2 year period. In respect of the first count, which carried a maximum penalty of 10 years imprisonment 22 of these offences were taken into account and a sentence of 5 years imprisonment with a non-parole period of 2 years was imposed. Although the report is not comprehensive, it seems that the penalty imposed for all other offences was less and all were directed to be served concurrently. It is not clear how much of the $5M was involved in the offence the subject of the first count or the offences taken into account in connection therewith. The period of 5 years was determined after an allowance of 2 years for a plea of guilty. The head sentence was described by Einfield AJ as "lenient". Simpson J with the concurrence of the Chief Justice, after saying that the discount for the plea was not inappropriate, said: "It may thus be accepted, and particularly so in the absence of any challenge by the Crown, that the head sentence of five years was appropriate." 50 There were apparently subjective circumstances "engendering sympathy" and sufficient to justify a finding of "special circumstances" but Simpson J with the Chief Justice's concurrence concluded that the non-parole period was manifestly inadequate and increased it to 3 years, saying that this was the lowest that could reasonably be imposed. 51 However these are not the only decisions in the area. I do not propose a comprehensive review but to illustrate that the three decisions relied on by the Appellant by no means represent a bench mark setting any standard in this area, I propose to refer to another three. 52 In Pantano (1990) 49 A Crim R 328 the offender pleaded guilty to 9 counts of larceny as a servant, offences against s156 of the Crimes Act and each carrying a maximum penalty of 10 years imprisonment. The penalty imposed in respect of each offence was of 6 years imprisonment. Taking into account accumulation of sentences, the effective total sentence was of 10 years with a non-parole period of 4½ years. Over a period of 9 months the offender had managed to secure the drawing of cheques on his employer's bank account which he then banked into an account he had opened in a fictitious name. The amount misappropriated was some $417,000. Some of this was recovered and it seemed likely that the ultimate loss would be of the order of $270,000. Albeit with some ambivalence the offender apparently aided the discovery of his own defaults. The offender had a strong subjective case in other respects also. 53 Wood and Carruthers JJ took the view that the sentences and non-parole period were well within a proper exercise of the sentencing judge's discretion. 54 In Mato and Rusu (1999) 109 A Crim R 121, this Court upheld a sentence of 6 years including a non-parole period of 4½ years imposed on an offender who stole $476,500 from a bank safe to which she, in her capacity as a servant of the bank had access. A deal of the money was spent but at the time of sentence $350,000 remained unaccounted for and it was noted that Rusu displayed no sign of contrition. It seems to have been accepted that, partly in consequence of a difficult upbringing she was submissive and manipulated by a male friend. 55 In R v Carr [2002] NSWCCA 434, the offender had been sentenced to imprisonment for 4 years with a non-parole period of 2 years for an offence under s176A of the Crimes Act. The offence was constituted by him, over a period of 3 years, drawing cheques on a company of which he was a director in excess of his entitlements for services rendered. The amount misappropriated was $321,666 of which some $85,600 was later refunded. The matter came before this Court by way of a Crown appeal centred on the contention that the sentencing judge should not have made a sentence on a further and different charge, and involving a different victim and occurring at a different time, concurrent. In the course of his reasons Howie J, with whom Hidden J agreed, and Levine J generally agreed, at [31] said that the sentence imposed for the offence under s176A was appropriate for that offence. 56 While it may be that, had they stood on their own, the offences the subject of the first count and the corresponding Form 1 might have been dealt with other than by a full time custodial sentence, they did not. Committed in July and August 2002 they were the culmination of extensive criminality and could not have attracted the leniency commonly extended to first offenders. Considered in that light, they merited a substantial penalty and one substantially greater than a fixed term of 3 months. 57 However, it must be recognised that in number - 5, and in amount - about $30,000, the offences the subject of the first count and its associated Form 1 pale greatly when compared with the second and third offences and the Form 1 offences taken into account with them. The principle of totality would mean that relatively little could be added to the effective sentence on the third count in consequence of the first count. His Honour imposed a cumulative fixed term of 3 months custody and, although it would have been preferable for his Honour to have imposed a sentence of proper length, backdating it to deal with the issue of totality, given that the Crown seeks no increase in the overall sentence, I am not persuaded that the length of the sentence imposed in respect of count 1 is something with which this Court should interfere. 58 The amount involved in the Form 1 offences taken into account in relation to the second count brings that count much closer to the situation of the third count. The sentence imposed in respect to the second count is also manifestly inadequate but again the attitude of the Crown leads me to the view that in the exercise of the Court's discretion the Court should follow the same course as that just expressed. 59 The orders I propose are: (i) Grant leave to appeal to Stephen Arthur Mungomery (ii) Dismiss his appeal. (iii) Dismiss the Crown appeal. 60 ADAMS J: I agree with the orders proposed by Hulme J and generally with his Honour's reasons. I agree also with the judgment of the Chief Justice.
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R
MUNGOMERY
(2002) 56 NSWLR 146
(1990) 20 NSWLR 427
(1977) 1 NSWLR 594
Leave to appeal was granted to Stephen Arthur Mungomery; his appeal was dismissed, and the Crown appeal was dismissed.