Sigalla v R

The applicant's entitlements and the Mandate Letter

1. As he claimed that the moneys transferred were, at least in substantial part, remuneration to which he was entitled, the applicant's remuneration arrangements were relevant. The applicant's remuneration arrangements with TZL may be summarised as follows: 1. the 2003 Consultancy Agreement: From 1 January 2003 to 25 January 2007, the applicant's remuneration was governed by a consultancy agreement with TZI, which provided that he, through ZMS, would provide services to TZI for three years, at a rate of $16,666 per month or as otherwise agreed; 2. the 2007 Consultancy Agreement: From 25 January 2007 to 31 July 2008 the applicant's remuneration was governed, in part, by this agreement, which provided for TZL to pay ZMS $25,000 per month (plus other benefits) for consultancy services; 3. the 2007 Executive Services Agreement: This agreement operated in tandem with the 2007 Consultancy Agreement from 25 January 2007 to 31 July 2008, and provided for TZL to pay the applicant $120,000 per annum for his services as an executive director; and 4. the 2008 Executive Services Agreement: This agreement provided for TZL to pay the applicant $120,000 per annum, plus US$400,000 per annum for services as executive chairman of TZL and president of TZL subsidiaries from 25 January 2007 onwards.
2. None of these agreements authorised any such "commissions" as the applicant claimed, although the executive services agreements made specific provision for a bonus payment if TZL was successfully listed on the NASDAQ. The 2007 Consultancy Agreement included a clause permitting additional "bonus plans" to be entered in to, but stated that any payment or other benefit paid to the applicant shall be governed entirely by the rules of such plans.
3. After he ceased to be a director of TZL in 2009, in the context of inquiries made by the new directors of the company, the applicant produced a document dated 22 July 2004 from ZMS to TZL which, on its face, might have justified at least some of the payments made to him ("the Mandate Letter"). The Mandate Letter was as follows: "Further to our successful $12m capital raising and back door listing of Telezygology Inc. into Ced Australia in April, 2004 and subsequent name change to TZ Limited (TZL), we hereby outline the manner in which ZMS Investments Pty Ltd (ZMS) is willing to continue to assist TZ Limited (TZL) in realising its financial and strategic development objectives into the future. This letter now serves to formally engage ZMS Investments Pty Ltd as corporate advisor to TZL on an exclusive basis in relation to future capital raisings and acquisitions and its proposed Nasdaq listing. I. Scope of Work In the context of this assignment our role may include: [...] • On-going assessment of the options available to TZL with respect to the raising of equity and/or debt capital as well as considerations of size, timing and the level of dilution; • [...] Negotiating the terms of any capital raising to ensure optimal pricing and efficient transaction execution; • Managing the process of any raising in conjunction with the stock brokers, legal and accounting advisers; • [...] Overall provide such other advice and assistance as TZL may reasonably request in relation to its capital structure and management of any capital raising process. II. Remuneration For the services provided under this letter of engagement (Engagement) TZL agrees to pay to ZMS the following fees, costs and expenses (plus all applicable GST). Success Fee ZMS will be paid a fixed fee of 8% by TZL for assisting in securing any required new capital via either debt or equity. This fee will become payable at the time that the capital is made available to the Company and ZMS has the right to request this fee is payable in cash or shares in TZL or a combination of both. [...]"
4. The letter was purportedly signed by Leibowitz and Falconer on 26 July 2004. However, Leibowitz gave evidence that he did not recall having signed the letter; he did not believe that he had attended any board meeting which approved the terms of the Mandate Letter; he did not believe he had discussed the Mandate Letter with anyone, including Kelliher, Falconer or the applicant; and he had not given any authorisation for his electronic signature to be affixed to the document.
5. The Crown case was that the existence of the Mandate Letter was inconsistent with the applicant's consultancy agreements with TZL, which included capital raising in the scope of work and purported to constitute the entirety of any arrangement between the applicant and TZL. Although the letter, if authentic, led to many millions of dollars being paid to the applicant, there was no evidence of any correspondence between the directors about it, and none of the directors - including Leibowitz, Kelliher and Wilson - nor Fagredin, nor the accountants for ZMS, had any knowledge of it.
6. Moreover, there was evidence of a forensic computer expert, Rodney McKemmish, who analysed the metadata on the hard drive of Falconer's computer on which the Mandate Letter was found, that the signatures on the document were embedded images, and the letter to which the signatures were attached was created in August 2009.
7. The applicant said that the Mandate Letter came about after he had resigned from the board, in the context of a TZL board meeting in July 2004, following a discussion about the applicant's ongoing role in relation to capital raising. At the time, Leibowitz, Falconer and Kelliher were on the board. He gave the Mandate Letter to Falconer following the July 2004 board meeting, and asked him to give it to the other directors. There were no further discussions about the letter. Throughout the period between 2004 and 2006, he submitted invoices to TZL for reimbursement in relation to his role raising capital for TZL. To the extent that it was suggested by the Crown that the Mandate Letter was a recent invention that post-dated the transactions, the applicant's response was that anything that occurred on Falconer's computer in 2009 had nothing to do with him.

Grounds of appeal

1. Originally, the notice of appeal raised the following grounds: 1. the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act; 2. the trial judge erred in admitting evidence of the Perpetual Loan and the applicant's gambling-related activities because that evidence was not relevant or was otherwise inadmissible; 3. the trial judge erred in refusing to admit evidence that supported the applicant's case at trial; and 4. the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment, as a result of the conduct of the trial as a whole.
2. However, the grounds of appeal were amended, at a late stage, with one new ground (1A) being added, and grounds (2) and (3) being abandoned. The Crown did not oppose leave being granted to amend to add the new ground. The surviving grounds of appeal are that: (1) the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act; (1A) the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction; and (4) the applicant was denied a chance of acquittal that was fairly open to him on one or more of the 24 counts on the indictment as a result of the conduct of the trial as a whole.
3. Moreover, ground (4) was relied on only insofar as it is related to new ground (1A). Thus the conviction appeal now involves only the adequacy of the directions given by the primary judge, as identified in amended grounds (1) and (1A) above.

Ground 1 - misdirection as to elements of offence

1. As has been noted, Ground 1 contends that the trial judge misdirected the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act. That section relevantly provides: (2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation;
2. At the conclusion of the summing up, the trial judge, without objection, provided to the jury a document entitled "Direction as to the elements of the offence", which relevantly stated: "1 In order to prove the commission of an offence against s 184(2)(a) of the Corporations Act 2001 (Cth), the Crown must establish beyond reasonable doubt all of the following elements: (1) that at the relevant time of each count the accused was a director of TZ Limited (as defined in s 9 of the Corporations Act) and (2) that the accused used his position as a director dishonestly and (3) that the accused had the intention of directly gaining a benefit for himself or for a third party."
3. In Kwok v R, the following directions which had been given by the trial judge were seemingly accepted as appropriate by this Court: "1. The Accused was a director of a corporation - Envirostar Energy Ltd. 2. The accused used his position of director of Envirostar Energy Ltd with the intention of directly or indirectly gaining an advantage for Donaldson Industries Pty Ltd/MacArthur Transport Pty Ltd. 2.1 He did the alleged act (facilitated the lease) 2.2 He intended thereby to gain an advantage (rent) for Donaldson/MacArthur 3. The accused used his position of director dishonestly 3.1 He had the alleged intent (he believed that there was a conflict of interest which should be disclosed, he decided that he not disclose it, and he deliberately concealed it). 3.2 Ordinary, decent people consider that, if a person has that state of mind, it is dishonest for that person to facilitate such a lease". [5]
4. The applicant submitted that the directions given in the instant case were inadequate, in distinction to those given in Kwok, "because they erroneously conflated the physical element (use of position as a director) with the mental element of dishonesty, and that the failure to indicate to the jury that these were independent elements which required separate consideration was exacerbated by the absence of any reference at all in the summing up to the "use of position" element." It was submitted that the appropriate direction was one to the effect that, for each of the 24 counts, the jury could convict only if satisfied beyond reasonable doubt: 1. that the applicant actually did the acts alleged by the Crown to have 'caused' the relevant transfer of funds or issue of shares; 2. that doing those acts constituted a use of his position as a director of TZ; and 3. that such use of position was dishonest and with the relevant intent.

Ground 1A - absence of direction as to claim of right

1. Two days prior to the hearing of this appeal, the applicant sought leave to add an additional ground (1A), as follows: (1A) the trial miscarried because the jury was not directed that in order to be satisfied that the applicant was guilty of the charges, the jury would have to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him or at his direction.
2. The Crown did not oppose the applicant being permitted to amend to raise that ground, but submitted that it should fail, on the merits and also because it too would require leave under r 4, not having been raised at the trial.
3. At trial, the applicant's defence was in the nature of a 'claim of right', in that he maintained that he was entitled to the money and shares in question, as remuneration for his fund-raising endeavours for the company. At times he even invoked the formula 'claim of right'.
4. The judge gave the following written directions relevant to the element of 'dishonesty' (emphasis added): "Direction for (2) - "dishonestly" 7 The Crown case is that the accused used his position as a director dishonestly by causing the transfer of funds from accounts held by TZ Limited that he was not entitled to , for his benefit or the benefit of a third party; or in the case of count 3 that he caused to be issued by TZ Limited to Joyeagle 847,458 fully pa id ordinary shares in TZ Limited without the payment of any subscription for the shares . 8 The Crown case is that at the time of each transaction the subject of the charges, the accused knew that he was not entitled to cause the transfer of the funds (or the issuing of shares) and this knowledge rendered his conduct dishonest. 9 Whether the accused "dishonestly" used his position is to be assessed according to the standards of ordinary, decent, people - meaning the ordinary notions of what the community would regard as dishonest. 10 This means that you must be satisfied that the evidence adduced by the Crown establishes beyond reasonable doubt that the conduct of the accused in his position as a director (at the time of the acts constituting the counts on the indictment) was dishonest according to the standards of ordinary, decent, people."
5. In the course of summing-up, her Honour said: "The direction for 2, "dishonestly". The way the Crown puts the case is set out in paragraph 7, and in paragraph 8 the Crown case is that at the time of each transaction the subject of the charges the accused knew that he was not entitled to cause the transfer of funds or the issuing of shares, and you will remember count 3 is the odd one out, because it relates to issue of shares, and this knowledge rendered his conduct dishonest. Now, paragraph 9 is important. Sorry. It's all important. Each paragraph is important. Whether the accused dishonestly used his position is to be assessed according to the standards of ordinary, decent people, meaning the ordinary notions of what the community would regard as dishonest. This means that you must be satisfied that the evidence adduced by the Crown establishes beyond reasonable doubt that the conduct of the accused in his position as a director at the time of the acts constituting the counts on the indictment was dishonest according to the standards of ordinary, decent people."

Ground 4 and conclusion

1. Ultimately, the applicant pressed ground (4) (applicant denied a chance of acquittal that was fairly open) only insofar as ground 1A was sustained. As no appellable error has been established, this ground requires no further consideration. The appeal against the conviction therefore fails.

The sentence

1. As her Honour observed, the maximum penalty for each offence was five years' imprisonment. [14] The sentence was constructed as follows: [15] 1. for Count 1, imprisonment of three years commencing on 22 November 2016; 2. for Count 2, imprisonment of three years commencing on 22 January 2017; 3. for Count 3, imprisonment of three years commencing on 22 March 2017; 4. for Count 4, imprisonment of three years commencing on 22 July 2017; 5. for Count 5, imprisonment of three years and six months commencing on 22 October 2017; 6. for Count 6, imprisonment of three years commencing on 22 December 2017; 7. for Count 7, imprisonment of three years and six months commencing on 22 February 2018; 8. for Count 8, imprisonment of one year commencing on 22 May 2018; 9. for Count 9, imprisonment of three years and six months commencing on 22 September 2018; 10. for Count 10, imprisonment of three years and six months commencing on 22 January 2019; 11. for Count 11, imprisonment of four years commencing on 22 May 2019; 12. for Count 12, imprisonment of two years commencing on 22 September 2019; 13. for Count 13, imprisonment of four years commencing on 22 January 2020; 14. for Count 14, imprisonment of four years commencing on 22 May 2020; 15. for Count 15, imprisonment of four years commencing on 22 September 2020; 16. for Count 16, imprisonment of three years and six months commencing on 22 January 2021; 17. for Count 17, imprisonment of three years and six months commencing on 22 May 2021; 18. for Count 18, imprisonment of three years and six months commencing on 22 September 2021; 19. for Count 19, imprisonment of three years and six months commencing on 22 January 2022; 20. for Count 20, imprisonment of four years commencing on 22 May 2022; 21. for Count 21, imprisonment of four years commencing on 22 September 2022; 22. for Count 22, imprisonment of three years and six months commencing on 22 January 2023; 23. for Count 23, imprisonment of three years and six months commencing on 22 May 2023; and 24. for Count 24, imprisonment of one year commencing on 22 September 2023.
2. The overall effective sentence imposed amounted to a total term of 10 years commencing on 22 November 2016 and expiring on 21 November 2026, with a non-parole period of six years, expiring on 21 November 2022. [16]
3. Addressing the factors relevant to sentencing, her Honour regarded the conduct constituting Counts 1, 2 and 3 as a single course of conduct, as was that which constituted Counts 4, 6 and 7. Her Honour found that save for these counts, each offence was "a discrete act with its own separate criminality": "[78] The nature and circumstances of the offences have largely been addressed above. I regard the conduct underlying counts 1-3 as a single course of conduct which came about as a result of the offender procuring a commission for himself and Mr Falconer for the Oasis capital raising, to which they were not entitled. I also consider it appropriate to regard the conduct underlying counts 4, 6 and 7 as a single course of conduct as each count comprised an advance to Mr O'Donnell for the same purpose. [79] I am not persuaded that it is appropriate to characterise the conduct underlying the remaining counts as a course of conduct, since, in my view, each offence was a discrete act with its own separate criminality." [17]

Grounds of appeal

1. The grounds of appeal were that: 1. the sentencing judge erred in applying the totality principle in two ways: 1. her Honour took into account the totality of the applicant's criminal behaviour for the 24 offences to determine the appropriate sentences for all offences as well as the effective total term; and 2. after finding that Counts 1 to 3 and Counts 4, 6 and 7 each amounted to a single course of conduct, her Honour did not impose wholly concurrent sentences; 1. the sentence imposed on the applicant's co-offender Falconer for the conduct giving rise to Counts 1-7 (Falconer Counts 1-3) gives rise to a justifiable sense of grievance; and 2. her Honour erred in finding that the applicant's failure to acknowledge wrongdoing prevented a finding that he had any prospects of rehabilitation.

Ground 1 - Totality

1. When turning to the "Factors relevant to sentencing", and in particular "The nature and circumstances of the offences and whether they constitute a course of conduct adopted by the offender", her Honour said (emphasis added): "[77] I must have regard to the totality of the offender's criminal behaviour for the 24 offences to determine the appropriate sentences for all offences as well as the effective total term: s 16A(2)(a), (b) and (c); s 16B of the Crimes Act 1914 (Cth) and Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15." [32]
2. The applicant submitted that this passage reveals error, in that her Honour should not have had regard to the totality of the conduct in determining appropriate sentences for each offence, but rather should first have determined the appropriate sentence for each offence, and only then had regard to the totality of the applicant's criminal behaviour to determine the total term. Such an approach is the conventional application of the 'totality' principle, as explained by the High Court in Mill v The Queen ("Mill"): "The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-7 as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. The totality principle has been recognised in Australia. In R v Knight (1981) 26 SASR 573 the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment, at 576: "it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in R v Faulkner (1972) 56 Cr App R 594 at 596, 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'. See also R v Smith (1983) 32 SASR 219; Ryan v R (1982) 149 CLR 1 at 21, 22-3; 40 ALR 651." [33]

Ground 2 - Parity

1. Falconer was arrested in Thailand and extradited, after the applicant had been sentenced on 10 February 2017. He pleaded guilty to a number of charges, including charges which corresponded with the same conduct of which the applicant had been convicted.
2. The first count to which Falconer pleaded guilty encapsulated the same conduct which was the subject of Counts 1, 2 and 3 against the applicant. The applicant had been sentenced to three years imprisonment on each of those counts, largely concurrent, to provide a total effective sentence of three years and four months. Falconer received a sentence of two years and three months, implying a starting point of three years before a 25% discount for his plea of guilty.
3. The second count to which Falconer pleaded guilty encapsulated the same conduct which was the subject of Counts 4, 6 and 7 against the applicant. The applicant had been sentenced to three years imprisonment on each of Counts 4 and 6, and three years and six months on Count 7, partially accumulated to produce a total effective sentence of three years and 10 months. Falconer received a sentence of two years, implying a starting point of two years and eight months before a 25% discount for his plea of guilty.
4. The third count to which Falconer pleaded guilty encapsulated the same conduct which was the subject of Count 5 against the applicant. The applicant had been sentenced to three years and six months imprisonment. Falconer received a sentence of one year and 10 months, implying a starting point of two years and three months before a 25% discount for his plea of guilty.
5. The total effective sentence received by the applicant for Counts 1 to 7 was four years and nine months; while the total effective sentence received by Falconer was two years and six months - implying a starting point of three years and four months.
6. The parity principle requires that any difference between sentences imposed on co-offenders for the same offence not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence, or to give an appearance that justice has not been done. [48] Equal justice requires that there should not be any marked disparity of sentence as between co-offenders such as to give rise to a justifiable sense of grievance. [49] As explained by Johnson J in R v Pan: "The Parity Principle [34] The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6. [35] Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at paragraph 16." [50]

Ground 3 - Rehabilitation

1. Her Honour's observations about the applicant's prospects of rehabilitation, and in particular that for there to be prospects of rehabilitation, it is necessary for there to be some acknowledgement of wrongdoing, which was entirely absent in the present case, have been set out above.
2. The prospects of rehabilitation are a mandatory consideration. [54] No doubt an acknowledgement of wrongdoing may be a significant element in rehabilitation. However, while the absence of true remorse may reduce the weight that can be given to prospects of rehabilitation, it does not necessarily nullify them. [55] Remorse is not a prerequisite to an assessment that an offender has some prospect of rehabilitation, and a plea of not guilty does not disentitle an offender from a finding that he or she has prospects of rehabilitation: "[84] This Court has observed that there can be rehabilitation without confession, and that offenders found guilty after trial are not to be automatically deprived of a finding of good prospects of rehabilitation unless they acknowledge their guilt: Alseedi v R [2009] NSWCCA 185 at [65]; Ali v R [2010] NSWCCA 35 at [48]. Nevertheless, it has been said that remorse will be a major factor in determining whether an offender is unlikely to reoffend and has good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]; Ali v R at [47]." [56]
3. In MLP v R, Bellew J (with whom Macfarlan JA and Adamson J agreed), said: "[34] Counsel for the applicant properly pointed out that a failure to express remorse does not disentitle an offender to a finding that his prospects of rehabilitation are good: BP v R [2010] NSWCCA 159 at [84] per Johnson J (Hodgson JA and Rothman J agreeing), citing Alseedi v R [2009] NSWCCA 185 at [65] and Ali v R [2010] NSWCCA 35 at [48]. However, remorse remains a major factor in determining whether an offender is likely to re-offend. Its absence renders it difficult to reach such a determination: R v MAK; R v MSK [2006] NSWCCA 381 at [41]." [57]
4. The same view has been eloquently expressed, in the somewhat different context of professional regulation, by Tauro CJ of the Supreme Judicial Court of Massachusetts, in Re Hiss: "Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard maintained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practise law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: 'Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt … may be rejected, - preferring to be the victim of the law rather than its acknowledged transgressor - preferring death even to such certain infamy.' Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to believe to commit perjury by admitting to a non-existent offence (or to an offence they believe to be non-existent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the Bar, would encourage corruption in these latter petitioners for reinstatement and, again paradoxically, might permit reinstatement of those least fit to serve." [58]

Conclusion

1. I have concluded that the sentence was infected by two errors of principle, namely: 1. insofar as her Honour considered the 'totality' of the offending in fixing sentences for each individual offence; and 2. in failing to have regard to the applicant's prospects of rehabilitation on the basis that there could be none without there being some acknowledgement of wrongdoing.
2. It does not follow, however, that the appeal must succeed: the Court must consider that some other sentence is warranted in law. As Sully J said in R v Simpson: "Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and re-sentence. Before that can happen properly in law, the condition specified in s.6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is 'warranted in law'. I agree with the observations made in this connection by Lee AJ in Astill (No. 2) [1992] 64 A Crim R 289 at 303, 304." [60]
3. I have referred, above, to the obviously great weight which her Honour gave to considerations of totality, in imposing a total effective sentence of only 10 years in the context where, if accumulated, the sentences would have totalled 78 years. That has given considerable cause to pause before deciding to proceed to resentence the applicant. Nonetheless, it seems to me inescapable in logic that the two errors identified have resulted in the applicant receiving sentences which, albeit only to a slight extent, exceeded those which would otherwise have been imposed. In other words, had the totality of his conduct not been used to aggravate the offending for individual offences, and had he been regarded as having some if modest prospects of rehabilitation, a slightly lesser sentence would, and ought to have been, imposed in each case.
4. But for those matters, her Honour's statement of the relevant considerations, which has been summarised above, was not impugned, and I would adopt it. I would reduce, by between three and six months, each of the sentences imposed by her Honour which exceeded two years. However, I see no reason to depart from the approach to concurrency adopted by her Honour, and in particular the periods attributable exclusively by reference to each offence, which is reflected in the accumulation.

Disposition

1. I propose the following orders: 1. extend time for instituting the appeal to the date upon which it was filed; 2. dismiss the appeal against the convictions on all counts; 3. grant leave to appeal against the sentences, and allow the appeal; 4. quash the sentences imposed by Adamson J and in lieu thereof the applicant is sentenced as follows: 1. for Count 1, imprisonment of two years and nine months commencing on 22 November 2016; 2. for Count 2, imprisonment of two years and nine months commencing on 22 January 2017; 3. for Count 3, imprisonment of two years and nine months commencing on 22 March 2017; 4. for Count 4, imprisonment of two years and nine months commencing on 22 July 2017; 5. for Count 5, imprisonment of three years commencing on 22 October 2017; 6. for Count 6, imprisonment of two years and nine months commencing on 22 December 2017; 7. for Count 7, imprisonment of three years commencing on 22 February 2018; 8. for Count 8, imprisonment of one year commencing on 22 May 2018; 9. for Count 9, imprisonment of three years commencing on 22 September 2018; 10. for Count 10, imprisonment of three years commencing on 22 January 2019; 11. for Count 11, imprisonment of three years and six months commencing on 22 May 2019; 12. for Count 12, imprisonment of two years commencing on 22 September 2019; 13. for Count 13, imprisonment of three years and six months commencing on 22 January 2020; 14. for Count 14, imprisonment of three years and six months commencing on 22 May 2020; 15. for Count 15, imprisonment of three years and six months commencing on 22 September 2020; 16. for Count 16, imprisonment of three years commencing on 22 January 2021; 17. for Count 17, imprisonment of three years commencing on 22 May 2021; 18. for Count 18, imprisonment of three years commencing on 22 September 2021; 19. for Count 19, imprisonment of three years commencing on 22 January 2022; 20. for Count 20, imprisonment of three years and six months commencing on 22 May 2022; 21. for Count 21, imprisonment of three years and six months commencing on 22 September 2022; 22. for Count 22, imprisonment of three years commencing on 22 January 2023; 23. for Count 23, imprisonment of three years commencing on 22 May 2023; 24. for Count 24, imprisonment of one year commencing on 22 September 2023; and 25. the overall effective sentence is a total term of nine years and six months, commencing on 22 November 2016 and expiring on 21 May 2026, with a non-parole period of five years and nine months, expiring on 21 August 2022.

Endnotes

1. Criminal Appeal Rules 1952 (NSW) r 3B.
2. Criminal Appeal Rules 1952 (NSW) r 4.
3. R v Falconer [2018] NSWSC 1765.
4. All monetary sums are in AUD.
5. See (2007) 175 A Crim R 278; [2007] NSWCCA 281 at [72] (Santow JA, Hidden J and Howie J agreeing).
6. See T1184.23, T1315, and T1333.
7. ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ; James and Johnson JJ agreeing).
8. (2003) 214 CLR 230; [2003] HCA 24 at [46] (Gleeson CJ, Gummow and Hayne JJ).
9. Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 at [43]-[46] (Gleeson CJ, Gummow and Hayne JJ).
10. (1998) 192 CLR 493; [1998] HCA 7.
11. See R v Condon (1995) 83 A Crim R 335 at 346 (Allen J; Newman and Simpson JJ agreeing); [1995] NSWSC 119.
12. [2018] 2 Qd R 174; [2017] QCA 194 at [94] (Morrison JA; Atkinson J agreeing at [259]); see also [212], [240] (Philippides JA).
13. [2012] QCA 303 at [36]-[38] (Gotterson JA; McMurdo P and Mullins J agreeing).
14. R v Sigalla [2017] NSWSC 52 at [1] ('Primary judgment').
15. Primary judgment at [118].
16. Primary judgment at [118(25)-(26)].
17. Primary judgment at [78]-[79].
18. Primary judgment at [82].
19. Primary judgment at [84].
20. Primary judgment at [86].
21. Primary judgment at [91].
22. Primary judgment at [92].
23. Primary judgment at [93].
24. Primary judgment at [94].
25. Primary judgment at [111], citing Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
26. Primary judgment at [96]-[101].
27. Primary judgment at [102].
28. Primary judgment at [103].
29. Primary judgment at [104].
30. Primary judgment at [105]-[108].
31. Primary judgment at [109]-[110].
32. Primary judgment at [77].
33. (1988) 166 CLR 59, 62-63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.
34. (1998) 194 CLR 610 at 623-624 (McHugh, Hayne and Callinan JJ); [1998] HCA 57.