JUDGMENT
1 SPIGELMAN CJ: I agree with Simpson J.
2 SIMPSON J: I have read in draft the judgment of Einfeld AJ.
3 I regret that I am unable to agree that the Crown appeal should be dismissed. The respondent admitted no less than twenty-nine offences, involving more than five million dollars, systematically committed over a two year period. On the first count on the indictment, which, like all others, carried a maximum penalty of imprisonment for ten years, the sentencing judge took into account twenty-two offences listed pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. It was, accordingly, on this count that he imposed the lengthiest sentence of imprisonment for five years. Having found special circumstances under s 44 of the same Act, he specified a non parole period of two years. On counts 2,3,4 and 6 he imposed concurrent sentences of four years with a non parole period of eighteen months. On counts 9 and 12 he sentenced the respondent to imprisonment for three years with a non parole period of fifteen months, also to be served concurrently.
4 There were, it is true, subjective circumstances engendering sympathy, but, in my view, these should not be allowed to obscure the objective criminality involved. The respondent in fact received a significant benefit as the result of subjective circumstances; in my opinion, although they did not become irrelevant on the question of special circumstances, care had to be taken that they were not given undue significance, resulting in a disproportionately low non parole period. In fact, in my opinion, that is what happened. In my opinion, given a lenient head sentence as the starting point, the reduction of the non parole period by way of special circumstances to a mere two years is unsustainable.
5 What the sentencing judge did was to assess the appropriate head sentence, taking into account all subjective matters other than the plea of guilty, as seven years, and reduce this to five years by reason of the plea of guilty. This represents a discount at above the top of the range promulgated as appropriate recognition for the utilitarian value alone of a plea of guilty in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That was not inappropriate. The respondent admitted his guilt on the day he was interviewed by auditors, and instructed his solicitors to enter pleas of guilty on his behalf to the offences. A trial, while a verdict would have been a foregone conclusion, would nevertheless have been complex and would have involved proof of the financial trail of twenty-nine cheques, and the purchases of real estate and other property by the respondent. Further, although it is not relevant to the discount for the utilitarian value of a plea of guilty, the plea on this occasion, as well as other evidence, demonstrated genuine contrition.
6 It may thus be accepted, and particularly so in the absence of any challenge by the Crown, that the head sentence of five years was appropriate. The questions which remain are whether the evidence justified the finding of special circumstances pursuant to s 44 (2) of the Crimes (Sentencing Procedure) Act 1999; and, if so, whether the variation made was within justifiable limits.
7 The Crown contended that the finding of special circumstances was not open. I have given careful consideration to whether the evidence did warrant a finding of special circumstances. As Einfeld AJ has observed, the case for special circumstances was "borderline". In explaining the finding of special circumstances, the judge referred, globally, to all of the subjective matters that he had recounted. He appears to have considered all of them as relevant to the question of special circumstances. I am not persuaded that all - for example, the recovery of the bulk of the defalcations - can properly be taken into account on an assessment of special circumstances. It is not necessary, here, to dissect the conclusion that special circumstances exist and I have not been able to conclude that the finding was not one which was open to the sentencing judge. Accordingly, I would not disturb it.
8 However, I am quite satisfied that the allowance that was made was excessive to a point that is unsustainable.
9 Without a finding of special circumstances, the non-parole period would have been three years and nine months. I cannot see any sufficient basis in the evidence for reducing the non-parole period to a little more than half that. I accept, as the sentencing judge found, that the respondent will, on release, have difficulty in returning to employment, that he is young, that this is his first time in prison, and indeed, his first foray into criminality. I accept that he will have difficulty adjusting to the very different lifestyle he will lead after his release. What I am unable to accept is that a variation of the non-parole period of the magnitude in fact allowed does not represent discretionary error. I am satisfied that such discretionary error has been established. The non parole period imposed in relation to the first count was manifestly inadequate.
10 In my opinion the principles applying to the imposition of sentence following a successful Crown appeal - that is, that this court will impose a sentence at the lower end of the appropriate range - apply equally to variation of a non-parole period as in the present circumstances. In my opinion the lowest non-parole period that could reasonably have been imposed, bearing in mind the finding of special circumstances, is one of three years.
11 I have considered evidence tendered as relevant to the residual discretion this court retains even after such a conclusion. This relates principally to hardship that will be suffered by the respondent's wife and child and, indeed, the respondent, by reason of his incarceration. It is not in my opinion, sufficient to warrant the exercise of that discretion.
12 I propose the following orders: