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.