Regina v Christie

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60064/00 DC 97/11/0609 FITZGERALD JA NEWMAN J GREG JAMES J

1 FITZGERALD JA: The applicant for leave to appeal was convicted after a trial of five offences against s 29D of the Crimes Act 1914 Commonwealth and five offences against subsection 62(1)(f) of the National Health Act 1953. The maximum penalty for a breach of s 29D of the Crimes Act is a fine not exceeding $100,000 or imprisonment for ten years or both. The maximum penalty for a breach of subsection 62(10(f) of the National Health Act is imprisonment for five years. 2 The applicant was sentenced to imprisonment for one year commencing on 16 December 1999 in respect of each of the offences against subsection 62(1)(f) of the National Health Act and to consecutive periods of imprisonment for one years on each of the offences against s 29D of the Crimes Act, the first of such sentences to commence on 16 December 1999 and the last of the sentences to expire on 15 December 2004. A non-parole period of three years, commencing on 16 December 1999 and expiring on 15 December 2002, was fixed. 3 Subject to one matter, the sentences imposed on the applicant were not excessive, as he accepts. His application for leave to appeal is based on one ground only, namely the disparity between the sentences which he received and the sentences imposed by this Court on a co-offender, Barbara Giallussi. The respondent does not dispute that the "parity principle", as it is known, is applicable, or that the effect of that principle is to be seen in the judgments of the High Court in Lowe v The Queen (154 CLR 606.) and Postiglione v The Queen (189 CLR 295). In their joint judgment in Postiglione Dawson J and Gaudron J said at page 301: "… the parity principle as identified and expounded in Lowe recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." 4 As the prosecution correctly pointed out by reference to the judgment of Gibbs CJ in Lowe, a difference in the sentences imposed on co-offenders does not necessarily entitle the offender who received the heavier sentence to a reduction. It is necessary to compare the parts which each played in the commission of the offences and their respective ages, backgrounds, previous criminal histories and general characters to see whether the difference in the sentence gives rise to a sense of grievance which is justifiable. The need for an offender's sense of grievance to be justifiable introduces objective considerations. A sense of grievance is justifiable if the difference in the sentences would offend the sense of justice of a reasonable member of the community. 5 It is unnecessary to discuss the facts in detail. The applicant and Giallussi were shareholders and directors of a company which owned a nursing home. Between mid 1989 and January 1995 the applicant and Giallussi until she left the business in December 1993 (when she and her husband sold their interest to the applicant and his wife) made false claims for nursing and personal care staff costs for the nursing home which they supported by false certificates concerning the moneys expended by the nursing home for nursing and personal care staff. The offences were correctly described as involving "a complex and sophisticated system". False entries were made in rosters, timesheets, payroll records and group certificates. Cheques made payable to cash were drawn to what were described as "ghost" employees and cashed by either the applicant or by Giallussi. 6 The nursing home fraudulently obtained approximately $250,000 from the Commonwealth by means of the offences committed by the applicant and Giallussi. There was full restitution. In the applicant's case that involved some financial hardship in that he lost his home and business. 7 Like the applicant, Giallussi was convicted of five offences against s 29D of the Crimes Act. She was not convicted of any offences against subsection 62(10(f) of the National Health Act. It is of limited significance that some of the applicant's offences occurred after Giallussi had terminated her involvement in the nursing home, although it is relevant that he continued to defraud the Commonwealth after Giallussi had left the business and ceased offending. The amount involved in the offences committed by each was approximately the same. It is more important that, unlike the applicant, Giallussi pleaded guilty. The applicant's denial of his guilt necessitated a lengthy trial, which commenced on 22 November and continued to 16 December 1999. 8 The applicant was aged sixty five years when sentenced and of prior good character. In his sentencing remarks, the trial judge said: "I recognize in sentencing the prisoner that the prisoner, because of his age, will experience greater difficulty in the prison system than a person of lesser years. I further recognize that the prisoner, as a result of these convictions, will almost certainly lose his right to practice as an accountant and a tax agent. I further recognize that the prisoner has limited assets and that he has little chance of receiving any payment of goodwill for his accountancy practice. I further recognize that the prisoner, as a result of his convictions, will be unable for a period of five years to hold any directorships in private or public companies. I further recognize that the prisoner suffers from a medical condition known as G6DP deficiency which can impair brain and mental function on a temporary basis.

Insofar as s 16A(2)(p) is concerned, I note that the prisoner is married and that his wife Nellie Christie is of fragile health and depends on the support of the prisoner. I am aware that the sentences I impose today will impact adversely both physically and financially upon Mrs Christie." 9 By comparison, Giallussi was aged in the mid to late thirties when she committed her offences and in her early forties when she was sentenced. She was married with two teenage sons and well educated. She had taught at high schools before her marriage in 1980. She worked at the nursing home after it was acquired in 1989 until she and her husband sold their interest in the business in 1993. She spent no time in custody. The trial judge fined her $100,000, which was paid. 10 The prosecution appealed to this Court which delivered judgment on 12 March 1999, that is some months before the applicant's trial. All members of the Court were of opinion that the trial judge had erred and that the sentences imposed on Giallussi were manifestly inadequate. Further, it was held that the inadequacy was such that the Court should interfere notwithstanding its discretion not to do so on a prosecution appeal against sentence. Stein JA, who presided but ultimately was in the minority, described the circumstance of the offences and various personal features of Giallussi, including the absence of previous convictions which it was noted is not uncommon for this type of offence, that friends and relatives had given favourable character evidence concerning Giallussi and her family, her great shame, contrition and remorse and the health setback which she had suffered: in particular, she became depressed and lost considerable weight. Reference was also made to Giallussi's motivation, namely her greed. 11 It is convenient to quote an extract from Stein JA's judgment. At paragraphs 13 to 15, his Honour said: "It also seems that, as his Honour found, the commission of the offences meant that the elderly frail patients of the home, at least to some extent, did not receive the full benefits allocated for their welfare by the Government.

Also important is the dependency by the Commonwealth on a system of honesty by the receivers of the funds. This involves a breach of trust where, as in this case, the frauds were committed over a lengthy period of time and only discovered by an audit by the Commonwealth Department.

Aggravating the serious nature of the offence is the fact that the offender and her business partner (that is to say the present applicant) caused employees in the business to assist in the commission of the offences. As his Honour found, the motivation for the offences was one of greed." 12 Later Stein JA said that it was difficult to see that great weight should have been given to Giallussi's previous good character since her criminal endeavours continued over a period of five years but that restitution might be a mitigating factor "especially when it involves a degree of sacrifice". 13 When his Honour came to the sentence which it was appropriate to impose on Giallussi, he acknowledged that a Court re-sentencing after a successful Crown appeal ordinarily gives recognition to the element of double jeopardy by imposing a sentence which is somewhat less than the sentence it considers should have been given in the first instance. Nonetheless his Honour considered that "the inescapable conclusion is that a custodial sentence is called for". His Honour proposed that, in addition to the fine of $100,000, which she had already paid, Giallussi should be imprisoned for two years for each offence, to be served concurrently and to commence immediately. His Honour would have added a recognisance release order directing that Giallussi be released upon giving security after she had served twelve months imprisonment. 14 Justices Abadee and Adams agreed that the sentence which should be imposed on Giallussi, in addition to the fine which she had paid, was imprisonment for three years, to be served by way of periodic detention, to commence on 26 March 1999. Abadee J expressed the opinion that giving effect to the principles of double jeopardy and discretion that was "the least possible sentence" should be imposed. Although Adams J did not expressly say so, clearly enough that was also the basis upon which his Honour proceeded. 15 It is immaterial for present purposes that because of the error made by the judge who initially sentenced Giallussi the sentence which this Court imposed upon her was inordinately low. Since the sentence which Giallussi received was imposed by this Court, it cannot be rejected as unsuitable as a basis for comparison with the applicant's sentence. The judge who sentenced the applicant was aware of Giallussi's sentence and made reference to the parity principle. His Honour said: "It is necessary for me to consider the question of parity in sentencing the applicant (described in his Honour's remarks as `the prisoner'). On considering the evidence I am satisfied that the prisoner, who maintained his accountancy practice premises adjacent to the nursing home, was the principal offender and the author of the fraudulent systems which were utilized in these offences. In this regard, I note that the "ghost" employees included three clients and one employee of the prisoner's accountancy practice. I further have regard to the evidence that the prisoner had been a senior taxation investigator with the Australian Taxation Office for many years and that he had the knowledge to enable him to produce the false records which were necessary to attempt to conceal the offences. I further have regard to the evidence that after Mrs Giallussi sold her interest in the nursing home to the prisoner and his family on 17 December 1993 that the prisoner continued the fraudulent activities. I further have regard to the fact that Mrs Giallussi at the time of her sentence expressed considerable contrition in relation to her actions whereas the applicant, the prisoner, has not expressed any contrition and maintains that he committed the offences due to the inadequacy of Commonwealth funding for the nursing home." 16 In this Court the respondent also relied upon evidence in the applicant's trial that Giallussi did not attend the nursing home every day, unlike the applicant, and that when she did, she only attended for a few hours. Those do not seem to me to be matters of much significance. 17 Equally it does not seem to be of much significance that, as the applicant submitted, his knowledge from his earlier position of a "senior taxation investigator" was described by the sentencing judge as useful in attempting to "conceal" not "commit" his offences. I do not think that his Honour had any such semantic distinction in view. Further, I do not accept that, as the applicant submitted, the differences between his and Giallussi's backgrounds were "not of great moment in a context where each person was a director, equal shareholder and substantially co-venturer in the same enterprise". The difference in their backgrounds was of considerable significance in the planning, execution and concealment of the offences. 18 Although the applicant submitted that there was no evidence that he "held a dominant or superior role in the commission of the crimes themselves or in the division, if any, of the fruits of the crimes" the trial judge was entitled to find as he did that the applicant was the author of the fraudulent systems which were utilised in the offences and, correctly in those circumstances, described as the principal offender. 19 In this difficult area, the law yields logic to justice. An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended, unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error. When comparison is legitimate, it is necessary for the Court to decide whether, after due allowance has been made for all material differences, the sentence of the offender seeking a reduction is so much more severe than the sentence imposed on the co-offender that the resulting disparity gives rise to a justifiable sense of grievance. 20 In my opinion there are significant distinguishing characteristics between the applicant's position and the position of Giallussi, including their respective roles, the additional offences of which the applicant was convicted, Giallussi's guilty plea, the continuation of the fraudulent offences by the applicant after Giallussi had terminated her association with the business and his lack of contrition. Many if not all of those matters were taken into account by the sentencing judge, correctly in my opinion. 21 Having regard to those matters, I am not persuaded that there is a disparity in the sentences such as to give rise to a justifiable sense of legitimate grievance. Accordingly, I would refuse the application. 22 NEWMAN J: I agree. 23 GREG JAMES J: I do also. 24 FITZGERALD JA: The application is dismissed.

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