R v Todd

CITATION: Andrew Joseph THORN V R [2009] NSWCCA 294 This decision has been amended. Please see the end of the judgment for a list of the amendments.

R v Todd [1982] 2 NSWLR 517 R v Gay [2006] NSWCCA 6 R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159 Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 R v Huang and Sui [2007] NSWCCA 259; 174 A Crim R 370 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 CASES CITED : R v Bibaoui [1997] 2 VR 600 Putland v R [2004] HCA 8; 218 CLR 174 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Bahsa [2003] NSWCCA 36 Ridley v R [2008] NSWCCA 324 Bick v R [2006] NSWCCA 408 Robertson v R [2007] NSWCCA 270 Ly v R [2007] NSWCCA 28

……….Having considered the issue of totality the Court came to the view that there should be some accumulation between the sentences for those offences [the fraud offences] and the one for money laundering. However, the sentence for the attempt is concurrent because, had it stood alone, the Court would not have imposed a full time sentence. 38 With respect this reasoning is fallacious. Even if it is accepted that had that offence "stood alone" it might not have warranted a custodial sentence, that fact did not justify the imposition of a fully concurrent sentence when it did not stand alone. It was a separate and discrete act of criminality in addition to the partnership offences. The question to be asked was whether the criminality for the fraud offences could encompass the criminality for the attempt offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. In my opinion it could not. It was a significant fraud. The amount of money claimed exceeded all but four of the fraud offences. It was an attempt only because the ATO determined that the claim was false. In any event it is curious that his Honour determined that, had the offence stood alone, it would not have warranted a custodial sentence and then imposed a sentence of 8 months imprisonment. 39 The sentencing of the applicant contained a fundamental error in the manner in which the Judge sentenced the applicant for the fraud offences. As has been indicated, he imposed a single sentence for all 11 offences. He purported to rely upon s 4K(4) of the Crimes Act (Cth) to permit that course. Section 4K is as follows:

A person who is convicted of more than one indictable offence, not tried summarily, is entitled to know, when sentenced, what penalty is imposed in respect of each individual offence. The matter is somewhat analogous, for practical purposes, to the position in the civil sphere where a single verdict is taken for a plaintiff who sues upon two or more separate causes of action. The verdict is applicable to all causes of action and, if one be later found to be unsustainable, the verdict cannot stand at all: Cutts v Buckley (1933) 49 C.L.R. 189 at 198-9. By parity of reasoning it is, generally speaking, or may be, material also to the Court of Appeal considering an appeal against conviction or sentence to know what penalty was imposed in respect of each offence if there was a conviction for more than one. If there were an appeal against conviction alone, and, for example, the conviction on one of several counts were set aside and a new trial ordered, the whole of a single undivided sentence would necessarily fall: cf. Bartlett v R. (1990) 100 A.L.R. 177 at 185. It would presumably be necessary for the Court of Appeal to impose sentence anew in respect of those of the convictions which were not set aside, the total sentence having fallen, yet such a task might very well be frustrated by the pendency of the new trial because the Court of Appeal could not know what kind of a sentence might be imposed for a conviction upon a new trial. For reasons such as that - and there are no doubt others - the practice in this State has long been not to impose an undivided sentence where there has been a conviction on two or more counts joined in the one presentment or indictment. The position was, if I may say so, succinctly summed up by Brennan J. in Ryan v R. (1982) 149 C.L.R. 1 at 22-3. Moreover, at 25, his Honour said: "A global sentence is not usually passed in Victoria; indeed, it may be illegal." His Honour was there referring to the passing of a single sentence in respect of two or more convictions upon the same indictment. 44 In Putland v R [2004] HCA 8; 218 CLR 174 Gleeson CJ at [9] referred to the decision in Bibaoui and stated that there was no reason to doubt its correctness. Gummow and Heydon JJ in a joint judgment noted that Bibaoui correctly held that s 4K(3) identified the procedures for the commencement of criminal proceedings in summary jurisdictions. They held that:

[86] I agree with the other reasons that the interpretation adopted by the Victorian Court of Appeal in R v Bibaoui is correct. By the reference in s 4K(3) of the Crimes Act to "the same information, complaint or summons" it must be accepted that the provision for the imposition of aggregate sentences on convicted federal offenders was confined to those convicted of summary offences. It did not extend to indictable offences such as those brought against the appellant. 46 I am unaware of any decision of this Court upon the meaning of s 4K(4) but it is clear, at least since the decision in Putland, that the provision does not authorise a single global sentence to be imposed for multiple indictable offences against the laws of the Commonwealth. His Honour, therefore, failed lawfully to sentence the applicant for the 11 fraud offences. Although this point did not arise at the hearing of the application, the Court sought written submissions on the issue from the parties after it had reserved its decision. Both parties agreed that s 4K had no application and accepted that this Court must resentence the applicant. 47 The proper manner to approach sentencing for the fraud offences was to apply Pearce v The Queen [1998] HCA 57; 194 CLR 610 as it has been consistently interpreted in this State: to sentence for each offence individually and then determine whether those sentences should be concurrent or cumulative in order to address the principle of totality. This does not mean that there cannot be a grouping of some of the offences as, for example, was done by this Court in R v Bahsa [2003] NSWCCA 36. 48 The first of the fraud offences occurred on 23 April 2002 and was for $3,847.81. The next four offences were committed on 19 July 2002 for sums totalling $5,883. The next offence was on 14 October 2002 for $4,852, then 8 January 2003 for $11,742.11, then 10 July 2003 for $19,755. The next three offences were committed on 9 October 2003 for sums totalling $68,507. 49 In effect the applicant was being sentenced for fraudulent activity involving about $312,524, including the attempt offence, from which activity he personally obtained about $103,512 according to what he said in his interview. In effect the conduct involved 27 acts of fraud against the ATO over a period from April 2002 to October 2003. The offences were planned and a breach of trust. For that criminal activity the applicant received an overall sentence of 5 years and 4 months with a non-parole period of 3 years. Of course this sentence was passed after a discount of 30 per cent and, as I have noted, a discount of that degree was unjustified. 50 On the subjective side the applicant started committing the offences when he was aged 19. He was not entitled to any significant consideration as a first offender having regard to the extent of the frauds and the later offences committed by him. At the time of sentencing he was completely rehabilitated. There was a considerable delay in the prosecution of the offences from their being discovered. The non-parole period is 56 per cent of the total sentence notwithstanding that the usual range is between 60 and 66 per cent and yet there was no purpose to be served by the applicant having a lengthy period of parole as supervision was not required. 51 The Court was taken to a number of decisions by way of a schedule that had been placed before the sentencing judge. In particular the applicant relied upon the decision in Ridley v R [2008] NSWCCA 324 where after trial a sentence of 8 years with a non-parole period of 5 years was imposed for GST frauds amounting to about $1.6m. This Court dismissed the appeal against sentence with Allsop P stating at [94]:

In my view, the overall sentence was well within the permissible range for a serious fraud on the revenue of this kind. 52 There is nothing in that decision that indicates that the sentence imposed upon the applicant was too harsh. It simply indicates that the sentence imposed upon that applicant in that case was not too harsh. There is no inconsistency with the sentence imposed upon the applicant being within a permissible range and that imposed in Ridley also being within the permissible range. Another decision to which the Court was taken was Bick v R [2006] NSWCCA 408, but that was a decision concerned with different criminality and where a maximum penalty of 5 years was taken to apply. 53 In Robertson v R [2007] NSWCCA 270 GST frauds resulted in the applicant receiving $322,934 and attempting to obtain just over $319,000. The applicant had pleaded guilty on the day of trial. The sentence imposed of 5 years 6 months with a non-parole period of 3 years 6 months was in effect upheld on appeal although the Court had to make a technical correction. 54 In Ly v R [2007] NSWCCA 28 the applicant was sentenced for 55 counts of taxation fraud. The applicant received $328,692.27 and, but for the intervention of the ATO, would have received a further $66,426.99. He pleaded guilty in the Local Court and had no prior or later criminal history. He was aged 33. The Court intervened to reduce the non-parole period so that the applicant was sentenced to 6 years with a non-parole period of 4 years. 55 In the present case this Court is resentencing the applicant in light of the failure of the Judge to sentence the fraud offences in accordance with the law. His discretion also miscarried in my view in relation to his determination of the sentence for the money laundering offence by giving too much regard, in the unusual circumstances of this case, to the maximum penalty and decisions of this Court that were, on the peculiar facts of this case, misleading. Had there been no such errors the appeal might have been refused on the basis that the sentence imposed was at the very top of the range, but within the Judge's discretion. 56 But the Court is exercising its own discretion. I have given the matter anxious consideration. This was prolonged and planned criminality and, as has been noted, in breach of the trust that arises from self-reporting in taxation matters. It is an offence against the community at large because it deprives the government of revenue that it needs to act in the general interest of the community. It was committed for the purposes of gambling. 57 General deterrence is usually a highly significant matter in such cases. But here there has been unacceptable and unexplained delay that was in no way the fault of the applicant. During that period of delay the applicant has not only completely reformed but he has also matured from a misguided youth with a compulsion to gamble into a well-respected citizen with honest and steady employment on the threshold of marriage. In those unusual circumstances and especially having regard to the age of the applicant at the time of the offending, it seems to me that he is a less suitable candidate to be used as an example to deter others from engaging in such conduct. 58 I believe a lesser sentence is warranted than that imposed by the Judge. It should be a sentence at the lower end of the range. Both Robertson and Ly seem to be more serious cases than the present and did not have the unusual subjective circumstances of the applicant. I think that the overall head sentence should be 5 years 6 months less a discount of 25 per cent. This gives a sentence of about 4 years 2 months. There should be a non-parole period of 56 per cent of that term, being the percentage chosen by his Honour, and resulting in a period of 2 years 4 months that the applicant must serve before being released to parole. 59 I propose the following orders:

[2007] NSWCCA 204

[2005] HCA 25

(1982) 149 CLR 1

[2006] NSWCCA 381

[2007] NSWCCA 259

[2008] NSWCCA 324

[2007] NSWCCA 270

[2003] NSWCCA 36

[2007] NSWCCA 28