Keane and Fraser JJA and Atkinson J, Judgment, of the Court
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the respondents pleaded guilty to an offence against s
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where the respondents pleaded guilty to an offence against s135.4(3) of the Criminal Code 1995 (Cth) and conspired to dishonestlycause a loss to a Commonwealth entity – where two respondents weresentenced to threeyears imprisonment to be released after 12 months uponentering into a recognizance – where the third respondent was sentencedto20 months imprisonment to be released after serving six months upon enteringinto a recognizance – where each of the respondentswere ordered to pay anamount to the Commissioner of Taxation and held joint and severally liable– where the Cth DPP appealedagainst the sentenced imposed – wherethe Cth DPP submitted that the period to be served before release was inadequate–whether the sentence is rendered inadequate by undue leniency in the
pre-sentence period – whether the sentencing judge failed
to have regard
to sentencing principles – whether the sentencing judge gave sufficient
weight to the circumstances of the case
– whether the sentencing judge
gave too much weight to the mitigating factors – whether the sentencing
judge erred in
imposing a manifestly inadequate sentence
Criminal Code 1995 (Cth), s 135.4(3)
Crimes Act
1914 (Cth), s 16A, s 17A(1), s 19AA, s 19AB, s 19AC, s 19AF(1), s 19AL, s
20(1)(a), s 20(1)(b), s 20A, s 21E
Criminal Code 1899
(Qld), s 669A
Assafiri v R [2007] NSWCCA 159, cited
Bernier v The
Queen (1998) 102 A Crim R 44, cited
Bertilone v The Queen
[2009] 231 FLR 383
[2009] WASCA 149, applied
Bick v The
Queen [2006] NSWCCA 408, cited
Bugmy v The Queen
(1990) 169 CLR 525
[1990] HCA 18, applied
Ly v The Queen
[2007] NSWCCA 28, considered
Murphy v R [2007] NSWCCA 18,
cited
Putland v The Queen (2004) 218 CLR 174
[2004] HCA 8,
cited
R v Baunach
ex parte DPP (Cth) [1999] QCA 207,
cited
R v CAK & CAL
ex parte Cth DPP [2009] QCA
23, not followed
R v Gambier [2009] QCA
138, cited
R v Gay [2002] NSWCCA 6, cited
R v
Harkness [2001] VSCA 87, cited
R v Hart
ex parte Cth DPP
(2006) 159 A Crim R 428
[2006] QCA
39, cited
R v Holzberger [2007] QCA
258, cited
R v Hyde-Harris
ex parte DPP (Cth) [2004] QCA
393, cited
R v Kazacos
ex parte DPP (Cth) (1999) 106 A
Crim R 252
[1999] QCA
218, cited
R v Lacey
ex parte Attorney-General (Qld)
(2009) 197 A Crim R 399
[2009] QCA
274, considered
R v Latimer, unreported, English
DCJ, District Court of NSW, 14 December 2007, cited
R v Mara
(2009) 196 A Crim R 506
[2009] QCA
208, cited
R v Mokoena [2009] 2 Qd R 351
[2009] QCA
36, cited
R v Nicholson
ex parte DPP (Cth) [2004]
QCA 393, considered
R v Robertson (2008) 185 A Crim R 441
[2008] QCA
164, considered
R v Thorne, unreported, Sives DCJ,
District Court of NSW, No 373 of 2009, 27 March 2009, cited
R v To
and Do
ex parte Director of Public Prosecutions (Cth) [1999] 2 Qd R 166
[1998]
QCA 106, considered
R v Tran (2007) 172 A Crim R 436
[2007]
QCA 221, followed
R v Viana [2001] NSWCCA 171, cited
R v Woods (2009) 24 NTLR 77
[2009] NTCCA 2,
cited
Studman v The Queen (2007) 175 A Crim R 143
[2007]
NSWCCA 263, cited
R v Wall
ex-parte Cth Director of Public
Prosecutions (2000) 113 A Crim R 445
[2000] QCA
297, cited
Wong v The Queen (2001) 207 CLR 584
[2001] HCA
64, followed
Judgment (191 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the respondents pleaded guilty to an offence against s 135.4(3) of the Criminal Code 1995 (Cth) and conspired to dishonestly cause a loss to a Commonwealth entity - where two respondents were sentenced to three years imprisonment to be released after 12 months upon entering into a recognizance - where the third respondent was sentenced to 20 months imprisonment to be released after serving six months upon entering into a recognizance - where each of the respondents were ordered to pay an amount to the Commissioner of Taxation and held joint and severally liable - where the Cth DPP appealed against the sentenced imposed - where the Cth DPP submitted that the period to be served before release was inadequate - whether the sentence is rendered inadequate by undue leniency in the pre-sentence period - whether the sentencing judge failed to have regard to sentencing principles - whether the sentencing judge gave sufficient weight to the circumstances of the case - whether the sentencing judge gave too much weight to the mitigating factors - whether the sentencing judge erred in imposing a manifestly inadequate sentence
Director of Public Prosecutions (Commonwealth) for the appellant
[35]
[1] THE COURT: On 25 August 2009 each of the respondents pleaded guilty to an offence against s 135.4(3) of the Criminal Code 1995 (Cth) that between 28 August 2003 and 4 July 2005 each conspired with the other with the intention of dishonestly causing a loss to a Commonwealth entity, namely the Commissioner of Taxation. On 31 August 2009 the respondents were convicted of that offence and convictions were recorded. Roland and Wikitoria Ruha were sentenced to a term of imprisonment of three years and it was ordered that they be released after serving 12 months of that term upon giving security by recognizance in the sum of $1,000, conditioned upon good behaviour for a period of three years. Harris was sentenced to a term of imprisonment of 20 months to be released after serving six months upon giving security by recognizance in the sum of $1,000 conditioned on good behaviour for a period of three years. Each of the respondents was also ordered to pay $138,551.37 to the Commissioner of Taxation, each respondent being jointly and severally liable for that payment.
[36]
[2] The Commonwealth Director of Public Prosecutions has appealed against each respondent's sentence on four grounds:
[37]
1. That the sentencing judge failed to have regard to the sentencing principles in R v CAK & CAL; ex parte Cth DPP [2009] QCA 23;
[38]
2. That the sentencing judge did not give sufficient weight to the circumstances of the case;
[39]
3. That the sentencing judge gave too much weight to mitigating factors; and
[40]
4. That the sentencing judge erred in imposing a sentence which was manifestly inadequate.
[41]
[3] The periods of imprisonment imposed by the sentencing judge in each case were as sought by the appellant and accepted as appropriate by each of the respondents. What was controversial was the time to be served in actual custody before release on recognizance (the "pre-release period"). At the sentence hearing the appellant contended that the pre-release period should be 18 months for Roland and Wikitoria Ruha and 12 months for Harris. The sentencing judge imposed the much shorter pre-release dates of 12 months and six months respectively.
[42]
[4] In each appeal the issue is whether the sentence is rendered inadequate by undue leniency in the pre-release period. The appellant's principal argument in that respect was that the sentencing judge erred by failing to apply what the appellant contended was the "normal or usual range or guide" applicable in all sentences for Commonwealth offences, that there should be a pre-release period or a non-parole period of 60 to 66 per cent of the head sentence, and that there were no "unusual factors" in this case to justify a period of release which was substantially shorter than the normal period for Commonwealth offences.
[43]
[5] Before discussing the parties' arguments it is first necessary to refer to the circumstances of the offences and the respondents' personal circumstances, and the sentencing judge's remarks.
[44]
[6] The respondents conspired together to defraud the Commonwealth by lodging false refund claims for Goods and Services Tax ("GST") with the Australian Taxation Office ("ATO"). They incorporated or acquired proprietary limited companies and purported to establish partnerships in the names of unrelated third parties who had no knowledge of these activities. Roland and Wikitoria Ruha also changed their own names by deed poll for the purpose of using additional identities in the conspiracy. In all, the Ruhas used 23 entities to make false claims and Harris used five such entities.
[45]
[7] Each entity was registered with the ATO for the purpose of acquiring an Australian Business Number ("ABN") and was registered for GST purposes at the same time. Between 11 September 2003 and 4 July 2005 Roland and Wikitoria Ruha electronically lodged 50 false Business Activity Statements ("BAS"), and Harris participated in the lodgement of 13 of those 50 statements. Most were lodged using an internet connection in Wikitoria Ruha's name but on one occasion the respondents lodged a statement using an internet connection in their hotel room at a Melbourne casino.
[46]
[8] ATO officers occasionally sought proof of claims made in BAS from the persons who had been nominated as relevant business entities. In response Roland Ruha and Harris supplied the ATO with false documentation or statements to support the claims.
[47]
[9] Roland and Wikitoria Ruha claimed refunds totalling $180,142.37, of which the ATO paid $138,551.37 and withheld the balance. Harris participated in claims of refunds totalling $87,118.37 of which the ATO paid $62,872.37 and the balance was withheld. The refunds were paid into 10 different bank accounts. On some occasions a refund was divided amongst the respondents after the ATO had deposited it into one of the accounts and parts of the refund were then transferred into accounts held by the other respondents.
[48]
[10] Roland and Wikitoria Ruha were married; Harris was their cousin. Each of them arrived in Australia from New Zealand in August 2003. Roland Ruha had previously lived in Australia and been employed by the ATO between about 1988 and 1994. Shortly after the three of them arrived in Australia they moved to Western Australia. There they acquired some shelf companies for use in their dishonest scheme. Roland and Wikitoria Ruha moved to Queensland in October 2003. Harris followed not long afterwards. In the same month Roland and Wikitoria Ruha changed their names by deed poll to Cameron and Nicki Taylor and the respondents started to put their conspiracy into effect.
[49]
[11] Roland Ruha was between 39 and 41 years old when he committed the offence and 45 years old when sentenced. He had no previous criminal convictions. Until recent times Roland Ruha had been fully employed and had worked as a computer programmer. He started his own business in 1992 as a commodities trader but it was not a success. He subsequently worked on a dispute about the taking of family land from his grandfather in New Zealand. That took some two years to resolve in his grandfather's favour. He commenced a relationship with his cousin Wikitoria Ruha in 2000. Their daughter was born in February 2002, so that she was seven years old at the time of the sentence. When they moved back to Australia in 2003 Roland Ruha obtained a job distributing food products. He abandoned that job to go with Wikitoria Ruha to Western Australia, where they stayed for a short time before moving to Queensland. Roland Ruha had custody of their daughter, whom he looked after on a full time basis. He was charged in 2006 and given bail. He had made arrangements for the care of their daughter during the period he was imprisoned as a result of his offences. That would necessarily be a burden for his elderly parents. A letter from his mother which was tendered at the sentence hearing referred to her constant pain and described Roland Ruha as being her full-time carer who helped in her periods of depression and suicidal thoughts. A medical report indicated that Mrs Ruha's pain may have been the result of marked arthritic changes in her hips and knees.
[50]
[12] The indictment was presented on 10 October 2008 and Roland Ruha indicated an intention to plead guilty towards the end of January 2009, on the day the matter was listed for trial. The delay in sentencing him occurred because he was to be sentenced after the co-offenders' trial.
[51]
[13] Wikitoria Ruha was between 36 and 37 years old when she committed her offence and she was 42 years old when sentenced. During a period which overlapped with the period during which she committed the subject offence she committed an offence of knowingly making a statement which was misleading in a material particular, for which she was convicted and sentenced on 30 June 2006 to 12 months imprisonment, but released forthwith on entering self-recognizance of $2,000 to be of good behaviour for 12 months. She had presented false computer-generated copies of tax invoices which falsely indicated that a medical service had been provided by a doctor and paid for in full; she obtained payments under the Medicare Benefits Scheme of an amount totalling $15,094.75. Wikitoria Ruha had been educated to a Year 10 level and had a fairly consistent work history except for the periods many years before these offences when she was looking after her twin children and later when she was looking after the daughter of her relationship with Roland Ruha until that relationship broke down. She continued to have regular contact with her daughter. Her counsel told the sentencing judge that she used the proceeds of the offence in this matter for food and gambling. She pleaded guilty on the first day of the trial, having indicated her intention to do so for the first time in the week before the trial.
[52]
[14] Harris was between 40 and 42 years old when she committed the offences and she was 46 when sentenced. During a period which overlapped with the period during which she committed the subject offence she had committed an offence of the same nature as that committed by Wikitoria Ruha. She fraudulently obtained $6,577.80 from the Commonwealth by the presentation of false claims under the Medicare Benefits Scheme. She was convicted and sentenced on 30 June 2006, when she was released on recognizance of $1,000 to be of good behaviour for two years. She was the eldest of six children and left school at the age of 14 to help support the family. After becoming an Australian citizen in 1984 she returned to New Zealand to look after her fatally ill younger sister. She was in full time employment for a decade until 1999 but then seemingly out of employment until 2003, when she returned to Australia and committed the offence. Like Wikitoria Ruha, she pleaded guilty on the first day of the trial after having foreshadowed that plea for the first time in the week before the trial.
[53]
[15] The sentencing judge described the respondents' conspiracy as sophisticated, elaborate, cold-blooded, particularly deliberate, and sustained; it involved continuing deception, deliberate lies, and the unwitting involvement of innocent third parties. The sentencing judge referred to authoritative statements in this Court that such fraud was to be viewed seriously and should attract actual imprisonment.
[54]
[16] The sentencing judge noted that the prosecutor had contended that Roland and Wikitoria Ruha should be sentenced to terms of imprisonment of three years and that Harris should be sentenced to a term of imprisonment of 20 months. Each respondent's counsel had submitted that such head sentences were appropriate. The prosecutor submitted that R v CAK & CAL; ex parte Cth DPP [2009] QCA 23 established that the pre-release period should ordinarily constitute 60 to 66 per cent of the head sentence, but that having regard to a sentence indication given by the prosecutor to Roland Ruha's defence counsel the appropriate pre-release period for Roland Ruha was instead 18 months (50 per cent of a term of imprisonment of three years). For reasons of parity the prosecutor sought the same pre-release period in relation to Wikitoria Ruha. In relation to Georgina Harris the prosecutor submitted that the appropriate pre-release period was 12 months (60 per cent of the 20 month term of imprisonment).
[55]
[17] Each of the respondents was represented by counsel. Each contended that the pre-release periods should be of the order of 25 per cent of the term of imprisonment. They argued that R v CAK & CAL; ex parte Cth DPP should not be regarded as establishing a binding rule that 60 to 66 per cent of the term was the proper range for pre-release periods for Commonwealth offences and that a contrary view was supported by R v Robertson [2008] QCA 164, R v Mokoena [2009] QCA 36; [2009] 2 Qd R 351 and R v Mara [2009] QCA 208; (2009) 196 A Crim R 506.
[56]
[18] The sentencing judge observed that whilst the comparable decisions provided some guidance, and though it was important that there be consistency in sentencing, the sentence must reflect the particular circumstances before the court. The sentencing judge adverted to the circumstances of the offences and each applicant's personal circumstances, and their pleas of guilty and the times at which those pleas were indicated and made. Her Honour observed that though there was a very strong Crown case the pleas of guilty should be given weight in this case: there was a large number of transactions and it was a complex case for the Crown to prosecute.
[57]
[19] The sentencing judge considered that Wikitoria Ruha, whose plea of guilty was later than that of Roland Ruha, had slightly less involvement in the offences than him. The judge also noted Wikitoria Ruha's and Harris's convictions for their Medicare frauds, but took into account that they committed those frauds at about the time each committed the subject offence. In the case of Georgina Harris the sentencing judge mentioned that the pre-release period of six months took into account her lesser involvement in the fraud but also her involvement in the Medicare fraud.
[58]
[20] Consistently with the submissions by the prosecutor and defence counsel at the sentence hearing, the appellant did not challenge the head sentences imposed by the sentencing judge. The appellant argued that the pre-release periods were too short in each case. First, the appellant argued that the sentencing judge erred by failing to have proper regard to the following passage in R v CAK & CAL; ex parte Cth DPP, which the appellant submitted established a sentencing "guide":[1]
[59]
"The norm for non-parole periods and periods required to be served before a recognizance release order for Commonwealth offences is generally considered to be after the offender has served 60 to 66 per cent of the head sentence. [R v Bernier(1998) 102 A Crim R 44 at 49; R v Stitt(1988) 102 A Crim R 428 at 432; R v Sweet[2001] NSWCCA 445; (2001) 125 A Crim R 341 at 346 - 347; R v Martinsen[2003] NSWCCA 144 at [14]; Bick v Regina (Cth) [2006] NSWCCA 408 at [13]; Ly v R[2007] NSWCCA 28 at [16]; Studman v R[2007] NSWCCA 263 at [9] - [11].] The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation, [R v Peterson[2008] QCA 70 at [18].] In this case taking into account the offenders' early pleas of guilty, by way of ex officio indictment, the past co-operation by the respondents, the payment of the loss sustained to the Commonwealth by the respondents and their apparent rehabilitation, the appropriate period before a recognizance release order was appropriate would have been towards the lower end of that range in the region of 60 per cent or after serving 21 and a half months imprisonment." [Emphasis added]
[60]
[21] The appellant submitted that this passage expressed the correct approach to fixing non-parole periods and pre-release periods under recognizance release orders for all Commonwealth offences and that it found support in other decisions discussed later in these reasons. The appellant submitted that a departure from the "usual percentage" of 60 to 66 per cent was justified for Roland and Wikitoria Ruha only to reflect the prosecutor's submission at sentence that the pre-release periods should be only 50 per cent of the head sentences of three years in light of the sentence indication given to Roland Ruha's defence counsel. There were otherwise no "most unusual factors" in any of the respondents' cases which were capable of justifying a substantially shorter pre-release period.
[61]
[22] Secondly, the appellant argued that in each case the pre-release period, when considered in light of the relevant facts and circumstances, was so lenient as to render the overall sentence manifestly inadequate. The appellant argued that the sentencing judge did not give sufficient weight to her Honour's findings about the respondents' criminality in the offending and gave too much weight to mitigating factors. The appellant contended that the appropriate sentence for each of Roland and Wikitoria Ruha was three years imprisonment with 18 months to be served before release on recognizance and that, in relation to Georgina Harris, the appropriate sentence was 20 months imprisonment with 12 months to be served before release on recognizance.
[62]
[23] Each respondent's counsel argued that the period of the pre-release period was within the sentencing judge's discretion. The respondents contended that the Court should reject the guide sanctioned in the passage in R v CAK & CAL; ex parte Cth DPP upon which the appellant relied. The respondents' counsel argued that R v CAK & CAL was inconsistent with other authorities discussed later in these reasons and the provisions about recognizance release orders in the Crimes Act 1914 (Cth) ("the Crimes Act"). They also contended that if there is any such guide it is limited to non-parole periods and does not extend to pre-release periods under recognizance release orders. Each respondent also contended that the plea of guilty and personal circumstances justified the pre-release period imposed by the sentencing judge and that, having regard to the breadth of the sentencing discretion, the appellant had failed to demonstrate any error or inadequacy justifying appellate correction in any of the sentences.
[63]
[24] There was no issue about this Court's role. Section 669A of the Criminal Code 1899 (Qld) applies when the Court is exercising federal jurisdiction in appeals such as these. It provides that the Court may in its unfettered discretion vary the sentence pronounced in the sentencing court and impose such sentence as to the Court seems proper. Under that provision, the Court must have regard to the sentence imposed below but must come to its own view as to the proper sentence.[2]
[64]
[25] Because the head sentence imposed by the sentencing judge in each case was that which was sought by the prosecutor, the appellant limited its challenges to the proposition that the pre-release periods were inadequate. Similarly, in the appeals against the sentences imposed on Wikitoria Ruha and Roland Ruha, the appellant sought the imposition of pre-release periods of no greater length than those which had been sought by the prosecutor. The prosecutor's approach reflected the principle that in an appeal against sentence by the Crown the Court will ordinarily not impose a more severe sentence than was imposed below if the increase is sought on the basis of a submission which was not made by the prosecutor at the sentence hearing.[3]
[65]
The sentencing guide contended for by the appellant
[66]
[26] R v CAK & CAL; ex parte Cth DPP is authority for the appellant's submission but in an earlier decision, R v Robertson[4] (a successful appeal by a person sentenced for welfare fraud), this Court rejected the Commonwealth Director's rather broader contention in that case that the appropriate sentence should be informed by a "norm" for non-parole periods "in the range of about 60 per cent to two thirds of the head sentence, although subject to the judicial discretion". The Court accepted that in striving to achieve consistency in sentencing, State courts exercising the judicial power of the Commonwealth should have regard to comparable, authoritative decisions of courts throughout Australia, but concluded that the decisions cited for the Commonwealth Director (which were mainly Queensland decisions, but also included a decision of the Western Australian Criminal Court of Appeal and a decision of the Victorian Court of Appeal) were not comparable decisions: the decisions which did concern broadly comparable cases of welfare fraud revealed a very wide range of pre-release periods and did not support the Director's proposition. The Court re-sentenced the applicant to concurrent terms of imprisonment of three years with release on recognizance after 12 months. The Court considered that those were the proper sentences in the particular circumstances of that case.
[67]
[27] Unfortunately, R v Robertson was not brought to the Court's attention in R v CAK & CAL and the latter decision was itself not noticed in R v Mokoena,[5] in which judgment was handed down a week later. In R v Mokoena the Court decided that there was no rigid rule on the topic but that in sentences for Commonwealth drug offences the non-parole period was more often than not more than 50 per cent of the head sentence and it was ordinarily of the order of 60 per cent to 66 and two thirds per cent of it; the Court also observed that similar uniformity had not developed in respect of other Commonwealth offences.[6]
[68]
[28] In R v Gambier,[7] (an unsuccessful application for leave to appeal by a person convicted of using a carriage service to communicate a bomb threat) the Court referred to its earlier decisions and treated R v Mokoena as authority for the proposition that, except in drug cases, there was no rigid rule as to the proportion that a non-parole period should bear to the head sentence; there being no relevant comparable decisions which provided useful guidance, a pre-release period in the order of 66 per cent was not required.[8] The Court found that there was no error in the sentence of nine months imprisonment with release on recognizance after four months.
"Finally, in so far as there is a practice of setting the period of actual custody for Commonwealth offences at 60 - 66 per cent of the head sentence, it is not confined to particular classes of offences. In CAK the Court was concerned with two counts of dishonestly obtaining a financial advantage by deception, and several of the cases cited by Atkinson J were concerned with dishonesty offences. But it has been applied frequently to other offences, including drug offences. The careful attention paid to setting the non-parole periods in R v Mokoena, a drug importation case, and R v Gambier, a case of using a carriage service to induce a false belief that an explosive had been left at a place, was a reflection of the discretionary character of the exercise and of the importance of consistency in performing it, rather than a reflection of any principled restriction of the practice to certain classes of cases." (citations omitted)
[71]
[30] In R v Woods,[10] the Northern Territory Court of Criminal Appeal referred to, but did not follow, R v CAK & CAL; ex parte Cth DPP, holding that the suggested norm of 60 - 66 per cent for non-parole periods did not extend to recognizance release orders. In Bertilone v The Queen[11] the Western Australian Court of Appeal also referred to R v CAK & CAL; ex parte Cth DPP. After analysing the statutory scheme and discussing many other decisions Buss JA summarised the principles concerning non-parole periods in the following passage: [12]
[72]
"First, s 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non-parole period.
[73]
Secondly, neither s 19AB(1) nor any other statutory provision requires the non-parole period to bear any particular relationship to the head sentence.
[74]
Thirdly, my review of the case law reveals that, in general, the non-parole periods for Commonwealth drug importation and related drug offences have usually been about 60% to 66 2/3% of the head sentences.
[75]
Fourthly, the relationship between non-parole periods and head sentences which have customarily been imposed for Commonwealth drug importation and related drug offences is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge's discretion.
[76]
Fifthly, sentencing judges must determine the appropriate non-parole period in each case by applying the established legal principles set out at [31] - [33] above to the facts of the particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non-parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve.
[77]
Sixthly, sentencing judges must not determine the non-parole period in any case by applying automatically the general guide I have mentioned. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require."
[78]
[31] In light of this variation within the authorities it is appropriate to re-examine the statutory sentencing scheme in the Crimes Act and the relevant sentencing principles concerning recognizance release orders.
[79]
[32] In determining the proper sentence for a Commonwealth offence the sentencing court must apply the relevant provisions in Pt 1B of the Crimes Act. Sentences of imprisonment are dealt with in Div 3 of that part. Section 17A(1) relevantly provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Section 16A(1) provides that in determining the sentence to be passed, or the order to be made, the sentencing court "must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". Section 16A(2) sets out an inclusive list of matters which the sentencing court must take into account in determining the sentence to be passed or the order to be made. (That provision comprehended the circumstances of the offences and the respondents' personal circumstances described earlier.)
[80]
[33] Division 4 of Pt 1B deals with the fixing of non-parole periods and the making of recognizance release orders. In Putland v The Queen,[13] Gummow and Heydon JJ held that Pt 1B of the Crimes Act made exhaustive provision on some subjects, including the "separate regime for fixing federal non-parole periods". Recognizance release orders are in the same category. The directly relevant provisions in these appeals are ss 19AC and 20(1)(b).
[81]
[34] Section 19AC(1) relevantly provides that, subject to sub-sections (3) and (4), where a person is convicted of a Federal offence and the court imposes a Federal sentence that does not exceed three years, the court must make a recognizance release order in respect of that sentence and must not fix a non-parole period. Under sub-section (3), where the Federal sentence does not exceed six months the court is not required to make a recognizance release order; and under sub-section (4) the court may decline to make a recognizance release order if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that such an order is not appropriate. In the latter case, sub-section (5) requires the court to state its reasons for so deciding.
[82]
[35] The sentencing judge was empowered to make the orders for release on recognizance in these cases by s 20(1)(b) in Div 5 of Pt 1B of the Crimes Act. It provides that where a person is convicted of a Federal offence or Federal offences, the court before which he or she is convicted may, if it thinks fit:
[83]
"(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1)."
[84]
[36] In the present context the "specified period of imprisonment that is calculated in accordance with subsection 19AF(1)" comprehends any period up to and including the end of the sentence. Under s 19AF, the pre-release period under a recognizance release order (and a non-parole period) which the court is required to make must end not later than the end of the sentence, as reduced by any remissions or reductions under s 19AA.
[85]
[37] The security referred to in s 20(1)(a) is security, with or without sureties, by recognizance or otherwise to the satisfaction of the court, that the person will comply with conditions: in summary, to be of good behaviour for a specified period not exceeding five years; to make reparation or restitution, pay compensation, or pay costs in respect of the prosecution; to pay the Commonwealth a pecuniary penalty up to a specified maximum; and during a period not exceeding two years, that is specified in the order, to comply with such other conditions (if any) as the court thinks fit to specify in the order, which may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed. It should be noted that s 16A(3) provides that in determining whether a sentence or order under s 20(1) (amongst other provisions) is appropriate the court must have regard to the nature and severity of the conditions that may be imposed on or may apply to the offender.
[86]
[38] The effect of a failure to comply with a condition of a recognizance release order is regulated by s 20A. Such a person may be brought before the court by which the order was made. Section 20A(5)(c) empowers the court, if satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, to make one or more of a variety of orders: impose a monetary penalty of not more than $1,000; extend the period for which the person is required to give security to be of good behaviour (so that the extended period would not be more than four years); revoke the order and make orders provided for under the law of a participating State or Territory, such as a community service order; or revoke the order and deal with the person for the offence in respect of which the order was originally made, by ordering the person be imprisoned for that part of the sentence of imprisonment that the person had not served at the time of release on recognizance, or take no action. In addition, s 20A(7) empowers the court to order that any recognizance entered into by the convicted person, or by a surety for him or her, shall be estreated and any other security given by or in respect of him or her shall be enforced.
[87]
[39] Because many of the cited cases concern non-parole periods it is necessary also to consider the statutory provisions about that topic. In Div 4, s 19AB(1) provides that, subject to sub-section (3) where (so far as presently relevant) a person is convicted of a Federal offence and a court imposes a federal sentence that exceeds three years and at that time the person is not already serving or subject to a federal sentence, the court must either fix a single non-parole period in respect of that sentence or make a recognizance release order. Section 19AB(3) provides that the court may decline to fix a non-parole period or make a recognizance release order if, having regard to the nature and circumstances of the offence and the antecedents of the person the court is satisfied that neither is appropriate. In that event, s 19AB(4) provides that the court must state its reasons for so deciding and cause those reasons to be entered in the records of the court.
[88]
[40] The only provision which fixes the length of any period of incarceration under a sentence of imprisonment is s 19AG. It concerns only non-parole periods for certain serious offences (against s 24AA of the Crimes Act, terrorism offences, and against Div 80 or 91 of the Criminal Code 1995 (Cth)): in those cases the court must fix a single non-parole period of at least three quarters of the sentence.
[89]
[41] Div 5 of Pt 1B is headed "Conditional release on parole or licence". The effect of s 19AL, subject to an exception relating to imprisonment for State or Territory offences in s 19AM, is that:
[90]
(a) Under s 19AL(1), for Federal sentences of more than three years but less than 10 years the Attorney-General must direct the person sentenced to be released from prison on parole either at the end of a non-parole period which has been fixed or on a specified day not being earlier than 30 days before the end of the non-parole period;
[91]
(b) Under s 19AL(2)(a), for a Federal sentence of 10 years or more, the Attorney-General must direct that the person either be released at the end of the non-parole period or on a specified day not earlier than 30 days before the end of the non-parole period; or
[92]
(c) Under s 19AL(2)(b), direct that the person is not to be released on parole at or at any time before the end of the non-parole period.
[93]
[42] Section 19AL(4) contemplates that parole orders in relation to a Federal sentence may require the person released under a parole order to be subject to supervision for the "supervision period" described in s 16(1). Section 19AN renders a parole order under s 19AL subject to conditions including that the offender must, during the parole period be of good behaviour and not violate any law and any other conditions as the Attorney-General specifies in the order.
[94]
[43] A parole order is automatically revoked upon imposition of a sentence of more than three months in respect of a Federal, State or Territory offence committed during the parole period: s 19AQ(1). In that event the person subject to the parole order becomes liable to serve that part of the sentence that the person had not served at the time of release under the order (subject to some presently irrelevant qualifications): s 19AQ(5). The Attorney-General may also revoke a parole order where the offender has failed to comply with a condition of it: s 19AU(1). Subsequent provisions establish a procedure under which an offender who has failed to comply with a condition of the parole order will be required to undergo imprisonment for the unserved part of the sentence that the person was serving or had yet to serve at the time of his or her release. A further non-parole period may be fixed unless it is thought inappropriate to do so because of the nature of the breach of the conditions of the order that led to its revocation or if the unserved part of the outstanding sentence or sentences is three months or less: s 19AW(3).
[95]
Summary of the relevant provisions in the Crimes Act
[96]
[44] That review indicates that, broadly speaking:
[97]
1. For sentences that do not exceed three years: unless the sentence does not exceed six months or there is good reason not to do so, the court must order that the person sentenced be released on recognizance either forthwith or at any time between the beginning and the end of the term of imprisonment; if the person fails to comply with a condition of the recognizance release order the court has a discretionary power to impose one or more of a diverse range of orders, including imprisonment for the balance of the term and forfeiture of the recognizance.
[98]
2. For sentences that exceed three years: unless there is good reason not to do so, the court must either order release upon recognizance (in which case the regime is as summarised in (1)) or fix a non-parole period under which:
[99]
(a) For a sentence exceeding three years but less than 10 years: the Attorney-General must direct that the person be released from prison on parole by no later than the end of the non-parole period;
[100]
(b) For a sentence of or exceeding 10 years: the Attorney-General must either make such a direction or direct that the person is not to be released on parole;
[101]
(c) In either case, the parole order will be revoked automatically if the person to whom it relates is sentenced to more than three months in respect of any offence committed during the parole period (when the person will become liable to serve the outstanding sentence) and the same result may follow in respect of any breach of the conditions of parole.
[102]
3. Thus, for a sentence of between three and 10 years:
[103]
(a) The effects of a non-parole period and a recognizance release order are very similar in that in each case the prisoner is entitled to be released in accordance with the court's order and there is provision for supervision of the prisoner after release.
[104]
(b) The most significant differences between a recognizance release order and a non-parole period are that:
[105]
(i) The Crimes Act specifically contemplates that the appropriate recognizance release order might provide for release forthwith, whereas non-parole periods must provide for some period of actual incarceration, however short;
[106]
(ii) the consequence of breach of a condition of parole, particularly a breach constituted by a subsequent conviction of a serious offence, is inflexibly severe in comparison with the possible range of judicial responses provided for breach of that or any other condition of a recognizance release order.
[107]
Fixing the length of a pre-release period under a recognizance release order
[108]
[45] Sections 16A(1) and (2) make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment. In particular, it is relevant to note in these appeals that the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody.[14]
[109]
[46] But it does not follow that the same weight should be afforded to each matter in imposing the sentence of imprisonment and in making a recognizance release order. The differences between the function of the sentence of imprisonment and that of a recognizance release order must be taken into account in assigning weight to the relevant factors.[15] Making due allowances for the relatively slight differences identified above between non-parole periods for sentences longer than three years but less than 10 years on the one hand, and release on recognizance for such sentences or for sentences of three years or less on the other hand, the principles applicable in the former case are also generally applicable to recognizance release orders. Those principles were summarised by Buss JA, with extensive reference to authority, in Bertilone v The Queen:[16] provisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; the non-parole period is the minimum period of imprisonment that justice requires the offender to serve; it mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period; and relevant factors to be taken into account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence.
[110]
[47] Accordingly, and because the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects of the overall sentencing process may differ according to infinitely variable circumstances, there can be no "mechanistic or formulaic"[17] approach which requires sentencing judges to ensure that the proportion which the pre-release period bears to the sentence of imprisonment must or must usually fall within a range which is substantially narrower than the whole period of the imprisonment, which is the range the statute expressly contemplates for recognizance release orders. The proportions commonly encountered in the decided cases should themselves be the results of application of conventional sentencing principles to the particular circumstances of each case: the appellant's argument inverts that proper approach by requiring that the sentence in a particular case be substantially dictated by a pre-determined range unless there are unusual factors.
[111]
[48] The appellant's proposition that the guide is appropriate largely depended upon reference to numerous decisions, mostly but not exclusively New South Wales decisions, which demonstrated that sentencing judges regularly impose sentences in which the non-parole periods and (in a much smaller sample of decisions, pre-release periods) are fixed within the range of 60 - 66 per cent of the sentence of imprisonment.
[112]
[49] R v Tran[18] confirmed that in fixing upon an appropriate sentence, including the terms of any recognizance release order, it is desirable to aim for reasonable consistency in sentences which, in the case of sentencing for Commonwealth offences, will usually require recognition of the decisions both of this State and of other States where those decisions concern similar circumstances. That principle is not confined to sentences for drug importation. Keane JA referred to the statement by Gleeson CJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 591, that the administration of criminal justice, "should be systematically fair, and that involves, amongst other things, reasonable consistency". It follows that if there are authoritative sentencing decisions of the courts of this State or the other States and the Territories which concern comparable circumstances the sentencing court should take those decisions into account in affording weight to the generally desirable aim of imposing like orders in like cases. That serves the underlying value of equality under the law.
[113]
[50] But that general approach does not support the appellant's contention that for all sentences for all Commonwealth offences (or even for particular offences such as that in issue in these appeals) there must be a most unusual factor to justify a pre-release period or a non-parole period which falls well outside a fixed range of 60 - 66 per cent of the head sentence. Part 1B of the Crimes Act, under which sentencing judges are given a discretion to direct release on recognizance at any time from the commencement to the end of the term, is consistent with the application of the general principle that material differences between particular cases might justify materially different sentences, including in the specification of the pre-release period; yet the very limited range proposed by the appellant as a sentencing "norm"[19] (only about six percentage points as a proportion of the head sentence) and of the circumstances which might justify substantial departure from it (only "most unusual factors"[20]) would confine the sentencing discretion within such narrow limits as to suggest that cases which are substantially different one from the other might attract materially indistinguishable recognizance release orders. Thus, for example, for a head sentence of three years the length of the pre-release period ordinarily could be influenced only to the extent of about two months by the presence or absence of usual factors which a sentencing judge in the particular case otherwise might think justified greater relative weight in setting the pre-release period.
[114]
[51] Nor is the approach advocated for the appellant necessary to meet its intended aim of achieving reasonable consistency in sentencing for Commonwealth offences: appropriate recognition of decisions throughout the Commonwealth which are sufficiently like the instant case to afford guidance in sentencing will itself promote the aim of consistency in Commonwealth sentences. Furthermore, the approach advocated by the appellant would tend to distract attention from the determination of the proper sentence in all the circumstances by requiring that attention be directed to the different question whether particular circumstances are so "unusual" as to justify substantial departure from the suggested norm.
[115]
[52] Nor is the appellant's argument supported by the decisions of the New South Wales Court of Criminal Appeal relied upon for it. These decisions were cited in R v CAK & CAL, not for the proposition that sentences outside the suggested range must have most unusual factors to justify them, but for the proposition that there was a "norm" for non-parole periods. In Bick v The Queen,[21] Price J (with whose reasons Hodgson JA and Howie J agreed) quoted with approval an observation by Meagher JA (Wood CJ at CL and Studdert J agreeing) in R v Viana:[22]
[116]
"The principles of law applicable in this area have been laid down by this court in Bernier v R(1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 percent. That is not to say that higher percentages cannot stand."
[117]
[53] That passage makes it clear that the suggested range is a description of the usual result of decisions in that court, rather than a sentencing guide which should not be departed from save in most unusual circumstances. The oft-cited passage in Bernier v The Queen (quoted, for example, by Adams J in Ly v The Queen)[23] contained no suggestion that unusual or most unusual circumstances must exist before departure from the range is permissible:
[118]
"One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with ... caution and flexibility ...". [24]
[119]
[54] Studman v The Queen[25] was another decision of the New South Wales Court of Criminal Appeal which involved a challenge to a non-parole period which constituted a higher percentage of the total sentence than suggested by the 60 - 66 per cent range. The case was complicated by the necessity to impose sentences both for Commonwealth offences and for State offences, in respect of which the Crimes Act 1900 (NSW) apparently specified a ratio for non-parole periods of 75 per cent of the head sentence. The court found[26] that both the overall sentence and the effect of non-parole period imposed by the sentencing judge were lenient. The case did not provide the occasion to re-examine authority concerning the approach to setting non-parole periods for Commonwealth offences.
[120]
[55] R v To and Do; ex parte Director of Public Prosecutions (Cth)[27] established for this State that in sentences for Federal offences the non-parole period should be arrived at without reference to the specific statutory predisposition in Queensland favouring a point which is not later than the mid-point of the head sentence.[28] But whilst caution should be exercised in relying upon decisions that might have been influenced in that way, sentencing judges should not ignore sentences in like cases which might have been influenced by that statutory predisposition. Similarly, decisions in like cases of the courts of other States and the Territories should also be taken into account, even if (as Holmes JA suggested in R v Mokoena,[29] might be the case in the cited New South Wales decisions) the practice of setting relatively longer non-parole periods in sentences for Commonwealth offences in those places might also have been influenced by sentencing practices which developed under local legislation.
[121]
[56] The appellant's first argument should be rejected. The principles which are generally applicable in the exercise of determining an appropriate recognizance release order are summarised in paragraphs 45 and 46 of these reasons. Sentencing judges should take into account decisions which are sufficiently like the subject case to shed light on the proper sentence. That includes comparable decisions both in Queensland and in the other States and the Territories which shed light upon the proper orders, although sentencing judges should also take into account that both the head sentence and order for early release in such cases might have been influenced by inconsistent local sentencing practices which must be put to one side in sentencing for Commonwealth offences.[30]
[122]
[57] In the end, the proportion which the period to be served in prison bears to the whole term is not itself a separate and distinct object of any part of the sentencing exercise. Rather, it is the result of the sentencing judge's discretionary determination of both the appropriate sentence of imprisonment and the appropriate terms of the recognizance release order after taking into account all of the circumstances of the offence, rather than by applying or making adjustments to any rule of thumb.
[123]
[58] Though there were differences in each respondent's criminality, in each case it was of a high order. Their offences are worse than many other serious tax frauds in which offenders understate taxable income or otherwise dishonestly contrive to evade payment of what is due: the respondents went a step further and conspired to cause the Commonwealth to divest itself of wealth ultimately derived from taxpayers. There was no challenge to the accuracy of the sentencing judge's characterisations of each respondent's conduct as "a sophisticated fraud which involved an elaborate scheme of creating entities", a "continuing deception", a "significant fraud", and a "cold-blooded fraud on taxpayers". The respondents' conspiracy to defraud the Commonwealth was no spur of the moment or impulsive act. It was pre-meditated and it persisted for nearly two years. It was also not an isolated or simple transgression: it involved the lodgement of 50 false GST refund claims using 23 different sham business entities for the false claims and the establishment of various different bank accounts. The conspiracy also involved Roland Ruha, and on one occasion Harris, fobbing off enquiries by ATO officers with dishonest answers.
[124]
[59] The hardship which would necessarily be suffered by members of Roland Ruha's family upon his imprisonment must be taken into account under s 16A(2)(p) of the Crimes Act, but in the context of the seriousness of his offence it was not of such a degree as to justify substantial mitigation. His early plea of guilty was more significant and it must be taken into account under s 16A(2)(g), although it is relevant that there was a strong Crown case. But a sentence of imprisonment of three years with release after serving only 12 months is plainly insufficiently severe to constitute a proper sentence for his participation over a lengthy period of time in this elaborate and pre-meditated scheme to defraud the Commonwealth of some $180,000, of which some $140,000 was paid.
[125]
[60] R v CAK & CAL is a comparable decision to the extent that it involved similar frauds upon the revenue and in broadly similar amounts. There were, however, substantial mitigating factors which are not available to Roland Ruha. There was an early plea of guilty by way of ex-officio indictment, past co-operation with the authorities, repayment of the loss and apparent rehabilitation in the many years that intervened between the offending and sentence; those offenders were also entitled to the benefit of a significant discount for their promised future co-operation under s 21E of the Crimes Act. The sentences initially imposed upon those offenders were three years imprisonment to be released after serving four months upon entering into a recognizance in the sum of $1,000, conditioned that they be of good behaviour for the remainder of the sentence. This Court varied those sentences by replacing the provision for release after four months with release after nine months. It was also declared that the sentences were reduced for the reason that the offenders had undertaken to co-operate with law enforcement agencies in the proceedings and that the sentence that would have been imposed but for that reduction would have been three years with release on recognizance after 18 months. The sentence imposed upon Roland Ruha must be regarded as manifestly inadequate when it is compared with the sentences imposed by this Court in R v CAK & CAL. Although R v CAK & CAL approved the application of a normal or usual range or guide in a way which we have concluded would not allow for sufficient flexibility in sentencing individual offenders, the sentence imposed on Roland Ruha nevertheless remains out of step with what this Court found to be the proper sentence in the circumstances of that case.
[126]
[61] The sentence imposed on Roland Ruha is also not reconcilable with the sentence imposed in Ly v The Queen.[31] That offender, a tax agent, produced and submitted to the Australian Tax Office a series of misleading forms (tax returns). The amount defrauded (some $328,000) was significantly greater than here. That offender was 33 years old at the time of his first offence and 40 years of age when sentenced, with no criminal record. But unlike Roland Ruha that offender had the benefit of findings of demonstrated contrition and remorse and the sentencing judge accepted the genuineness of the applicant's attempts to repay part of the money defrauded. The New South Wales Court of Criminal Appeal found that the effective head sentence of six years imprisonment (constituted by different sentences for 55 charges, mainly under s 134.2 of the Criminal Code Act 1995 (Cth) but including charges under s 7 and s 29D of the Crimes Act 1914) was not manifestly excessive. The court interfered only to the extent of adjusting the non-parole period to conform to the sentencing judge's expressed intention to impose a non-parole period of two thirds of the overall sentence. A non-parole period of four years was imposed. In R v Robertson[32] the Court concluded that the appropriateness of two-thirds' proportion was not in issue in Ly v The Queen, but it remains a relevant decision here. The sentence imposed upon Roland Ruha for his offending, by which less money was obtained but the degree of criminality was at least as serious, seems manifestly inadequate when compared with Ly v The Queen.
[127]
[62] The appellant also referred to Bick v The Queen,[33] where the Court of Criminal Appeal in New South Wales dismissed an appeal against the sentence imposed of four years and six months with a non-parole period of three years and six months. The sentence was imposed for 14 counts of offending against the criminal law of the Commonwealth. The offender had fraudulently obtained financial benefits from the Commonwealth in the sum of $309,351 over a period of almost 12 years. He had used five false names and operated false bank accounts in those names. He pleaded guilty but his prospects for rehabilitation were not said to be good. The Court said that "The non-parole period of 3 years and 6 months appropriately reflects the seriousness of the applicant's criminality and meets the need for general deterrence."[34] Although the offending took place over a longer period and involved a greater amount of money, which suggests the need for a longer sentence than in the present case, Bick v The Queen also suggests that the sentences imposed in the present case were manifestly inadequate.
[128]
[63] The appellant also referred to Murphy v The Queen[35] in which a sentence of three years and three months with a non-parole period of two years was imposed (where a much larger amount of money, almost $376,000, was defrauded) and Assafiri v The Queen.[36] (The former was cited for its reference to the "normal range" referred to in Bernier v The Queen. The latter decision was cited for the finding that in a serious money laundering case the fact that the applicant had no prior convictions and was generally of good character with good prospects of rehabilitation indicated that the appropriate ratio between the minimum period of custody and the overall term should be 60 per cent.) Neither decision concerned circumstances sufficiently like the respondents' to provide much assistance in these appeals.
[129]
[64] Counsel for Roland Ruha argued that decisions cited for Wikitoria Ruha supported the appropriateness of the sentence. In R v Nicholson; ex parte DPP (Cth); R v Hyde-Harris; ex parte DPP (Cth)[37] the Commonwealth Director of Public Prosecutions appealed against sentences for an attempted fraud in a single transaction. The sentence imposed upon Hyde-Harris of three years imprisonment to be released upon recognizance after serving nine months was varied only to provide for release after serving 15 months imprisonment. Nicholson's sentence of two and a half years imprisonment to be released after six months on a bond in similar terms was varied only to provide for release after serving 12 months imprisonment. Hyde-Harris was given a more severe sentence because it was he who conceived the idea of the fraud and it was he who in the main was responsible for implementing it. He involved Nicholson when Nicholson was personally and financially vulnerable, was suffering from health problems which affected his capacity to earn an income, and was suffering depression at the time he was sentenced. The charge brought his business career to an end. Such personal circumstances might be treated as more significantly favouring mitigation in the date of release on recognizance where the offence was attempted fraud in one transaction rather than, as here, a conspiracy extending over a lengthy period and involving numerous fabrications and evasions. It must also be recalled that the Court's usual approach in Crown appeals at that time, but since rejected,[38] was to sentence at the lower end of the range. Having regard to those factors, and allowing for the fact that Nicholson was convicted after a trial, the sentence imposed on him does not support the submission for Roland Ruha. The sentence imposed upon Hyde-Harris is consistent with the sentence contended for by the appellant.
[130]
[65] In R v Wall,[39] a 49 year old businessman without prior convictions was sentenced to three years imprisonment to be released on recognizance after six months for an offence of defrauding the Commonwealth by understating the value of stock at the close of a tax year. The amount defrauded was difficult to quantify but was in the tens if not hundreds of thousands of dollars. This Court varied the sentence by substituting for release after six months on recognizance, release after 12 months. The decision does not support the sentence imposed in this case: the Chief Justice (with whom McPherson JA and Mullins J agreed) found that the authorities supported a range for the head sentence of between three to five years imprisonment for what was one offence, not a series of offences, and that in that context a requirement to serve one third of a three year term was the maximum allowance for the mitigating circumstances when the offender had not pleaded guilty.
[131]
[66] In R v Gay[40] the New South Wales Court of Criminal Appeal varied a sentence of three years with release on recognizance after 12 months by substituting a recognizance release date on the date upon which the appeal was heard, which was less than eight months after the date of sentence. That offender was convicted of charges relating to his failure to declare part of his income in his own income tax returns, and to his being knowingly concerned in a company's failure to declare part of its income in its income tax returns, for five years. Gay is of no real value as a comparable decision because of some exceptional circumstances. That offender had not only subsequently met all the tax imposed in respect of his income and a substantial portion of that imposed in respect of the company's income, but he had paid very substantial amounts, far exceeding commercial rates of interest, by way of tax penalties; and in consequence of the offending and the administrative penalties imposed upon the offender, and a possible contribution by a lengthy delay in bringing proceedings, the offender had also lost his home and his health.
[132]
[67] Reference was also made to R v Baunach; ex parte DPP (Cth)[41] in which the Court varied a sentence of six years with a non-parole period fixed at 12 months by increasing the non-parole period to two years. The decision provides no support for the sentences imposed here. Whilst the amount misappropriated was over $800,000 and the offender's frauds caused significant losses both to the Commonwealth and to that tax agent's various clients, the Court regarded the term of six years as being at the low end of any appropriate range and made it clear that the varied non-parole period was conservative because it was imposed on an appeal by the Commonwealth Director of Public Prosecutions.
[133]
[68] Similarly, R v Hart; ex parte Cth DPP[42] provides no support for the sentences in this case. In R v Hart the Court refused an application for leave to appeal against a sentence of seven years with a non-parole period of two years and nine months imposed upon an offender who was convicted on nine charges of defrauding the Commonwealth contrary to s 29D of the Crimes Act. The offender was also given a concurrent term of seven years imprisonment, with eligibility for parole after two years and nine months, for his conviction on a tenth charge, of dishonest application of money, or fraud, contrary to s 408C(1)(b) of the Criminal Code 1899 (Qld). The facts of the case are so different as to render it of no real assistance as a comparable decision. Roland Ruha's counsel relied upon a passage in the reasons of Jerrard JA (with whom McMurdo P and Atkinson J agreed) in which his Honour said that there was no reason in principle for not applying to sentences for Commonwealth offences the "standard legislative assumption" (flowing from s 135(2)(d) of the Corrective Services Act 2000 (Qld)) that there should be parole eligibility at the mid-point of a sentence. Jerrard JA qualified that proposition by reference to the absence of any evidence or argument that the assumption led to any difficulties in that sentencing regime:[43] but this Court had held in terms[44] that the sentencing regime in the Crimes Act is inconsistent with the application of any such assumption derived from Queensland legislation.
[134]
[69] In R v Holzberger,[45] the Court refused an application for leave to appeal from concurrent sentences for obtaining financial advantage by deception, attempting to obtain financial advantage by deception, and using a forged document of three years with release on recognizance after 15 months and two years with release on recognizance after 15 months. That offender received some $34,000 to which he was not entitled. That decision therefore provides some support for the appellant's contention about the proper sentence for Harris, who derived a larger sum than that from her part in the conspiracy. It provides no support for the sentence imposed upon Roland Ruha.
[135]
[70] R v Thorne[46] and R v Latimer,[47] which involved broadly similar offending, provide some support for the sentence proposed by the appellant for Roland Ruha. Thorne who had no previous convictions but some subsequent convictions was given an effective sentence of five years and four months with a non-parole period of three years. Latimer, who obtained an amount of money which was similar to that obtained by Roland Ruha, was given an effective sentence of three years and three months with a non-parole period of one year and nine months.
[136]
[71] In R v Kazacos; ex parte DPP (Cth)[48] the Court varied an effective sentence of four years imprisonment with a non-parole period of four months imposed for offences including defrauding the Commonwealth by substituting for that non-parole period an order for release upon recognizance after 15 months. The offender had defrauded the Commonwealth of a little over $600,000 by transferring funds overseas through nearly 70 separate transactions and by using false bank accounts and passports to open the bank accounts. Although the larger amount of money defrauded in that case is a very material consideration, Roland Ruha's offending was even more serious than the offender's understatement of income in taxation returns in that case; that offender also had the benefit of unchallenged findings by the sentencing judge that he had become involved in the taxation fraud at the instigation of his son, had unsuccessfully remonstrated with his son, and had continued to be involved in the tax fraud to assist his son. Thomas JA pointed out that although the offender's heavy personal involvement demanded a substantial sentence, he was entitled to some reduction in comparison with the sentence that might be imposed upon an enthusiastic instigator; and that offender had also been penalised by the extraction of various substantial administrative penalties. When it is also borne in mind that Kazacos was decided at a time when the Court generally adopted a moderate approach to sentences imposed in Crown appeals, the sentence sought by the appellant in this case is consistent with that imposed upon Kazacos.
[137]
[72] It can be seen from the decisions which we have reviewed that there was considerable variety in the proportion which the pre-release period bore to the head sentence. Counsel for the respondents referred to some of those decisions to make just that point. But what relevantly emerges from the decisions is that proper punishment in all the circumstances of Roland Ruha's offending required that he serve a substantially longer minimum term of imprisonment than 12 months. In the context of the head sentence of three years, which seems distinctly moderate for this degree of criminality, Roland Ruha should be required to serve a minimum period of 18 months in prison before release upon recognizance.
[138]
[73] Wikitoria Ruha's plea of guilty was a late plea, she had been convicted of another nearly contemporaneous fraud, and her personal circumstances were otherwise no more favourable than those of Roland Ruha. One might therefore expect that she would be given a more severe sentence but the sentencing judge accepted the prosecutor's submission that Wikitoria Ruha's culpability for the offending was slightly less than that of Roland Ruha such that they should be given the same sentence. The appellant adhered to that approach, which was not challenged by counsel for Wikitoria Ruha. Accordingly, for the reasons already given concerning the proper sentence for Roland Ruha, the sentence imposed upon Wikitoria Ruha should also be varied by increasing the pre-release period from 12 months to 18 months.
[139]
[74] Harris' plea of guilty was a late one, there was little put forward on her behalf by way of mitigating circumstances and she, like Wikitoria Ruha, had the disadvantage of having been convicted of another nearly contemporaneous fraud against the Commonwealth. The less severe sentence imposed upon Harris of 20 months imprisonment reflected her less substantial role in the conspiracy and the smaller amounts claimed by and paid to her. Counsel for Harris submitted that to require her to serve two thirds of the time required to be served by Roland and Wikitoria Ruha before release upon recognizance would not adequately reflect those differences. But one should not expect a mathematical progression in accordance with the amount defrauded where co-offenders are otherwise similarly culpable for a sophisticated fraud of this seriousness persisting for the same lengthy period. Proper punishment requires that Harris serve the minimum period of twelve months in custody before release upon recognizance as was contended by the appellant. That sentence also finds support in the comparable decisions discussed earlier.
[140]
[75] We consider that the following orders are necessary for the imposition of a proper sentence:
[141]
1. In CA 246/09, allow the appeal against the sentence imposed upon Roland Ruha to the extent only of varying the order for release on recognizance by substituting the period of 18 months for the period of 12 months, and otherwise confirm the sentence and orders.
[142]
2. In CA 249/09, allow the appeal against the sentence imposed upon Wikitoria Hakete Ruha to the extent only of varying the order for release on recognizance by substituting the period of 18 months for the period of 12 months, and otherwise confirm the sentence and orders.
[143]
3. In CA 248/09, allow the appeal against the sentence imposed upon Georgina May Harris to the extent of varying the order for release on recognizance by substituting the period of 12 months for the period of 6 months, and otherwise confirm the sentence and orders.
[19] The term used by the New South Wales Court of Criminal Appeal in Bernier v The Queen at 49, followed by this Court in R v CAK & CAL at [18].
[163]
[20] In R v CAK & CAL the Court did not regard the combination of an early plea of guilty, repayment of the loss sustained by the Commonwealth, and rehabilitation of the offender as justifying a shorter pre-release period than 60 per cent of the head sentence.
[30] It is not necessary in these appeals to consider the considerable complexities which may be thrown up in cases where it is necessary to impose sentences both for State and Commonwealth offences.