[2010] NSWCCA 159
Channon v R [2020] NSWCCA 112
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556
[2017] NSWCCA 301
Green v The Queen (2011) 244 CLR 462
[2011] HCA 49
Hili v The Queen (2010) 242 CLR 520
[2010] HCA 45
House v The King (1936) 55 CLR 499
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 159
Channon v R [2020] NSWCCA 112
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556[2017] NSWCCA 301
Green v The Queen (2011) 244 CLR 462[2011] HCA 49
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Johnson v The Queen (2004) 78 ALJR 616[2004] HCA 15
Kwok v R (2007) 175 A Crim R 278[2007] NSWCCA 281
Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46
MacLeod v The Queen (2003) 214 CLR 230[2003] HCA 24
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59[1988] HCA 70
MLP v R [2014] NSWCCA 183
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
Peters v The Queen (1998) 192 CLR 493[1998] HCA 7
Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26
R v Barakat [2004] NSWCCA 201
R v Condon (1995) 83 A Crim R 335[2007] NSWCCA 130
R v MMK (2006) 164 A Crim R 418
[2006] NSWCCA 272
R v Pan [2005] NSWCCA 114
R v Perrin [2018] 2 Qd R 174
[2017] QCA 194
R v Rossi (1988) 142 LSJS 451
R v Sigalla [2017] NSWSC 52
R v Simpson (2001) 53 NSWLR 704
[2001] NSWCCA 534
R v Tadrosse (2005) 65 NSWLR 740
[2005] NSWCA 145
Re Hiss 333 NE 2d 429 (1975)
Thorn v R (2009) 198 A Crim R 135
[2009] NSWCCA 294
Vaovasa v R (2007) 174 A Crim R 15
Judgment (13 paragraphs)
[1]
The applicant's entitlements and the Mandate Letter
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.
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.
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. [...]"
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.
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.
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.
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.
[2]
Grounds of appeal
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.
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.
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.
[3]
Ground 1 - misdirection as to elements of offence
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;
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."
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]
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.
[4]
Ground 1A - absence of direction as to claim of right
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.
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.
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'.
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."
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."
[5]
Ground 4 and conclusion
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.
[6]
The sentence
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.
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]
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]
[7]
Grounds of appeal
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.
[8]
Ground 1 - Totality
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]
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]
[9]
Ground 2 - Parity
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.
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.
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.
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.
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.
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]
[10]
Ground 3 - Rehabilitation
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.
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]
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]
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]
[11]
Conclusion
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.
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]
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.
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.
[12]
Disposition
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.
[13]
Endnotes
Criminal Appeal Rules 1952 (NSW) r 3B.
Criminal Appeal Rules 1952 (NSW) r 4.
R v Falconer [2018] NSWSC 1765.
All monetary sums are in AUD.
See (2007) 175 A Crim R 278; [2007] NSWCCA 281 at [72] (Santow JA, Hidden J and Howie J agreeing).
See T1184.23, T1315, and T1333.
ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ; James and Johnson JJ agreeing).
(2003) 214 CLR 230; [2003] HCA 24 at [46] (Gleeson CJ, Gummow and Hayne JJ).
Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 at [43]-[46] (Gleeson CJ, Gummow and Hayne JJ).
(1998) 192 CLR 493; [1998] HCA 7.
See R v Condon (1995) 83 A Crim R 335 at 346 (Allen J; Newman and Simpson JJ agreeing); [1995] NSWSC 119.
[2018] 2 Qd R 174; [2017] QCA 194 at [94] (Morrison JA; Atkinson J agreeing at [259]); see also [212], [240] (Philippides JA).
[2012] QCA 303 at [36]-[38] (Gotterson JA; McMurdo P and Mullins J agreeing).
R v Sigalla [2017] NSWSC 52 at [1] ('Primary judgment').
Primary judgment at [118].
Primary judgment at [118(25)-(26)].
Primary judgment at [78]-[79].
Primary judgment at [82].
Primary judgment at [84].
Primary judgment at [86].
Primary judgment at [91].
Primary judgment at [92].
Primary judgment at [93].
Primary judgment at [94].
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).
A 201
R v Condon (1995) 83 A Crim R 335; [1995] NSWSC 119
R v Dale [2012] QCA 303
R v Falconer [2018] NSWSC 1765
R v Gittani [2002] NSWCCA 139
R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130
R v MMK (2006) 164 A Crim R 418; [2006] NSWCCA 272
R v Pan [2005] NSWCCA 114
R v Perrin [2018] 2 Qd R 174; [2017] QCA 194
R v Rossi (1988) 142 LSJS 451
R v Sigalla [2017] NSWSC 52
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCA 145
Re Hiss 333 NE 2d 429 (1975)
Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294
Vaovasa v R (2007) 174 A Crim R 15; [2007] NSWCCA 253
WC v R [2016] NSWCCA 173
WLP v R [2014] NSWCCA 183
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82; [1998] NSWSC 335
Texts Cited: DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann)
Category: Principal judgment
Parties: Andrew John Sigalla (Applicant)
Crown (Respondent)
Representation: Counsel:
J Stratton SC, A Cook (Applicant)
P McDonald SC, T Epstein (Respondent)
Solicitors:
The Law Practice (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): CCA 2013/151155
2013/355116
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Criminal
Citation: [2017] NSWSC 52
Date of Decision: 10 February 2017
Before: Adamson J
File Number(s): 2013/151155
2013/355116
HEADNOTE
[This headnote is not to be read as part of the decision]
The applicant was convicted on 24 counts of dishonestly using his position as a director of TZ Limited with the intention of directly or indirectly gaining an advantage for himself or a third party, contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) and sentenced to imprisonment for terms which totalled 78 years but were partially accumulated to result in a total effective sentence of 10 years. He appealed from the convictions on grounds of misdirection of the jury as to the elements of an offence contrary to s 184(2)(a) of the Corporations Act; and failure to direct the jury that it could not convict unless 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. He sought leave to appeal from the sentences on grounds relating to the application of the totality principle; parity; and a holding that his failure to acknowledge wrongdoing or express remorse precluded a finding that he had any prospects of rehabilitation.
Held (per Brereton JA; Hoeben CJ at CL and Cavanagh J agreeing), dismissing the appeal against conviction and granting leave to appeal and allowing the appeal against sentence, quashing the sentences imposed by the trial judge and substituting new sentences for each count totalling total 69 years and nine months, partially accumulated to result in an overall effective sentence of nine years and six months, with a non-parole period of five years and nine months: [149]-[154] (Brereton JA).
As to the conviction appeal
Even if the directions were theoretically deficient, they were not practically so in the context of this trial, as it was conducted. It was not an issue at trial that the transactions did not involve a use by the applicant of his position as a director; the predominant issue was of whether the use was a dishonest one. The inference that the transactions were a manifestation of a use by the applicant of his position was inescapable, from the circumstance that his only role in and connection with the company was as a director, and from the flow of funds to the benefit of him or his companies. Furthermore, the applicant had ample opportunity to object to the directions at trial yet did not do so, and ought not be permitted to raise this issue on appeal: [70]-[78] (Brereton JA).
Criminal Appeal Rules 1952 (NSW) r 4; ARS v R [2011] NSWCCA 266, applied; Kwok v R (2007) 175 A Crim R 278; [2007] NSWCCA 281, considered.
There was no requirement for a direction that the applicant could be convicted only if the jury were satisfied that he did not have an honest belief that he was entitled to the funds paid to him or at his direction. A defence of this kind, which is in the nature of a 'claim of right', is logically incompatible with an offence containing a dishonesty element, and directions as to such an argument are unnecessary and inappropriate: [79]-[96] (Brereton JA).
MacLeod v The Queen (2003) 214 CLR 230; [2003] HCA 24, applied; R v Perrin [2018] 2 Qd R 174; [2017] QCA 194; R v Dale [2012] QCA 303, considered.
As to the sentence appeal
The essential complaint was that the directions given did not adequately identify and direct attention to the second of those elements. It was submitted that the Crown failed to specify the particular act or omission said to constitute a 'use' of the applicant's position as director of TZL, beyond the general proposition that he 'caused' the relevant transactions, and that no attention was paid to the nexus between his directorship and the alleged conduct. It was submitted that the possibility could not be excluded that the applicant might have been convicted on all counts, merely because the jury was satisfied that he was dishonest, notwithstanding that he denied anything to do with the transactions the subject of Counts 2 and 3, and even on the Crown case, had no involvement with the actual mechanism used to effect the transfers referred to in Counts 1 to 8 and 10 to 15.
It was not an issue at trial that the transactions did not involve a use by the applicant of his position as a director; as has been noted, the predominant issue was that of whether the use was a dishonest one. The applicant's status as a director was not contentious (except in respect of the first two counts, in respect of which it was resolved adversely to him and is not the subject of appeal). The Crown case on 'use of position' was a circumstantial one, based upon the applicant's role in TZL, his relationship with those who directly implemented relevant transactions where he did not do so himself (in particular, Falconer and Fagredin), and the accrual of benefits to him as a result. It was relevantly encapsulated in the following part of the Crown's address:
"You may recall some of the evidence of Mr Sigalla where he'd say well, I wasn't a signatory on the account; how could I have transferred the money across? That's not what the Crown is alleging. The Crown is alleging that he caused, for example, in count number 1, that amount of money to be transferred across. And the use of the word "cause", the Crown will say to you, means bring about/result in; that he used his position as a director to, as I said, bring about or make happen the transfer of those funds to ZMS."
The applicant had no relationship with TZL other than as a director. This was not a case in which he had multiple roles and relationships, such that it might be said that some of his conduct did, but other did not, involve a use of his position as director. Although he did not directly implement some of the transactions, there was evidence of his influence: for example, Falconer's diary note in relation to the transactions referred to in Counts 1, 2 and 3; the applicant's execution of the subscription agreement for the shares in Reader China and subsequent email of 7 September 2007 to Lau, "[d]on't tell John about reader he won't be happy", in respect of Count 5; and the applicant's involvement in procuring, and receipt of benefits from, the transactions in Counts 10, 11, 12, 13, 14 and 15. Even if the directions were theoretically deficient, they were not practically so in the context of this trial, as it was conducted. The inference that the transactions were a manifestation of a use by the applicant of his position was inescapable, from the circumstance that his only role in and connection with the company was as a director, and from the flow of funds to the benefit of him or his companies.
Moreover, no issue was taken with these directions at the trial, although there were several opportunities to do so. [6] Criminal Appeal Rules 1952 (NSW) r 4 is therefore engaged. Rule 4 is not a prophylactic where there has been a miscarriage of justice. However, its requirements are not mere technicalities: an accused who has been convicted on the basis of the issues agitated at trial is not entitled as of right to a new trial on issues which could and should have been, but were not, raised at that trial. As Bathurst CJ observed:
"Subsequent cases have established that the following matters are important in considering the operation of r 4:
• The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
• The applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].
• A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].
• An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]." [7]
These considerations have even more force where, as here, the directions in question were reduced to writing and there was ample opportunity to dispute their sufficiency at the trial. In circumstances where the inference that the transactions involved a use of the applicant's position as a director was practically inescapable, and the focus of the defence was a denial of dishonesty (the force of which might be prejudiced by pursuit of a 'false issue' about 'use of position'), it is little surprise that no such objection was taken at the trial: no-one considered that there was an issue about 'use of position'. Leave under r 4 should be refused in respect of this ground, which would in any event fail.
Numerous other passages, in the Crown opening, the Crown closing, and the summing-up, emphasised that the dishonesty relied on by the Crown was that the applicant knew that he was not entitled to the funds or shares.
However, the trial judge did not give a specific direction that the applicant could only be convicted if the jury were satisfied beyond reasonable doubt that the applicant did not genuinely believe he had a claim of right. This was the gravamen of Ground 1A.
The course adopted by the judge was consistent with the position stated by the High Court in MacLeod v The Queen ("MacLeod"), [8] that in the context of an offence of which dishonesty is an element, a direction about the 'claim of right' defence is unnecessary and inappropriate. In question in that case was s 173 of the Crimes Act 1900 (NSW), which provided:
Whosoever, being a director, officer, or member, of any body corporate, or public company,
fraudulently takes, or applies, for his own use or benefit, or any use or purpose other than the use or purpose of such body corporate, or company, or
fraudulently destroys any of the property of such body corporate, or company,
shall be liable to penal servitude for 10 years.
The offence was thus one of which, by reason of the word 'fraudulently', dishonesty was a specific component. Of the relevance of a defence of 'claim of right' in that context, it was said:
"[43] Thirdly, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.
[44] Section 173 of the Crimes Act is such a provision. Hence the observation by Simpson J to the effect that a finding that the applicant acted dishonestly and thus had the necessary mens rea foreclosed a finding that the applicant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did. Her Honour referred to the evidence of the applicant:
… that he regarded the funds as being funds belonging to Trainex, and himself as being the owner of Trainex, and therefore the owner of the money. He said that he had not, in the early years, drawn a salary but, that, when the company's financial position was more secure, he was entitled to do so. He said that he believed that the company owed him more than the amount that he borrowed from it.
The function of the claim of right put forward by the applicant was to seek to engender a reasonable doubt with respect to the overall persuasive burden on the prosecution of proving that there had been the fraudulent taking or application alleged.
[45] The trial judge reminded the jury of his directions with respect to the meaning of "fraudulently" in s 173 and continued:
[I]n assessing the accused['s] case that he was entitled to use the company money as he did you should apply the same principles, that is whether by ordinary notions the accused was acting honestly by the standards of ordinary decent people. Finally I remind you that again the onus remains on the Crown to establish the elements of the charges beyond reasonable doubt.
The applicant complains that there was no specific reference to the "subjective" criterion attending a claim of right. But the directions to be given about a claim of right must reflect the elements of the offence charged and the nature of the mens rea required.
[46] Adopting the reasoning in Peters, as we do, and applying it to the offences now under consideration, there is no requirement that the applicant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To require reference to a "subjective" criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the "subjective" element of a claim of right was neither necessary nor appropriate in this case." [9]
The applicant submitted that this position no longer obtained, by reason of the amendment of the Criminal Code (Cth) ("the Code") in 2001 by the insertion of s 2.2, with the consequence that, with effect from 15 December 2001, Chapter 2 of the Code, including s 9.1 (defence of mistake of fact) and s 9.5 (defence of claim of right), applies to all offences, including those under the Corporations Act, thus rendering the defences of 'claim of right' and 'mistake of fact' now applicable to an offence under Corporations Act s 184(2)(a).
Mr Stratton SC, for the applicant, submitted that the Crown case was founded on various deceptions by the applicant - including in particular the retrospective mandate letter - as being the dishonesty charged; and that if the applicant had a bona fide claim of right in respect of the money (and shares) in question, the fact that he may have acted deceptively in obtaining them did not render him guilty. It was submitted that even if MacLeod and Peters v The Queen [10] were authority for the proposition that once the appropriate direction for the test of honesty was given, there was no room for directions as to a 'claim of right', that could not survive the extension of Chapter 2 of the Code to all Commonwealth offences.
I accept that there may be in some cases a distinction between deception and dishonesty, and that in theory it may be possible to obtain, by deception, something to which one has a bona fide claim of right. [11] In such a case, the bona fide claim of right negates dishonesty. However, it is not correct that the dishonesty relied on by the Crown was "various deceptions by [the applicant]"; the dishonestly alleged was that the applicant knew that he was not entitled to the relevant shares and moneys. The charge and the case, so articulated, if accepted, was incompatible with a defence of 'claim of right'. The jury were in effect directed that the Crown had to establish that the applicant knew that he was not entitled to cause the transfer of funds (or issue of shares). The jury's verdict implicitly rejected the applicants' justification for the funds transfers and share issue. If the jury were satisfied that he knew that he was not entitled to the relevant shares and moneys, as they must have been, there could be no bona fide claim of right. In the way in which the case was left to the jury, it was not necessary to superadd a direction about 'claim of right'. In the way in which the case was conducted, there was no scope for the jury to be satisfied that the applicant, while in fact having no entitlement to cause the transfers of funds, nonetheless honestly believed that he had. A direction that even if satisfied that he knew he was not entitled to the money or the shares, the jury must still consider that he might have had an honest belief that he was, would have been illogical, nonsensical, and confusing.
Moreover, dishonesty was a specific element of the offence. I do not accept that the position stated in MacLeod is altered by the extension of Chapter 2 of the Code to all Commonwealth offences. In the context of an offence of which dishonesty is a specific element, proof of dishonesty negates a bona fide claim of right. The relevance of a 'claim of right' is, as explained in MacLeod, potentially to raise a reasonable doubt with respect to the overall persuasive burden on the prosecution of proving that there had been dishonesty as alleged. An adequate direction as to dishonesty will suffice.
This view is supported by authorities on the Criminal Code 1899 (Qld) s 22(2), which is similar in effect to s 9.5 of the Commonwealth Code, and provides:
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The Queensland Court of Appeal has held that there is no need to direct the jury as to s 22(2) in cases of offences of which dishonesty is a specific element. In R v Perrin, Morrison JA said:
"[94] In my view, applying Macleod to the present case of forgery under s 488 Criminal Code 1899, where the act itself is admitted, a finding that it was done fraudulently, and thus dishonestly, foreclosed a finding that the applicant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did. The same is the case under s 408C(1)(d). There was, therefore, no need to direct the jury as to s 22(2) Criminal Code 1899." [12]
In R v Dale, it was said (citations omitted):
"[36] Be that as it may, the offences of which the applicant was convicted are all fraud based. Central to each of these offences is the element that the person acted dishonestly. At the trial, the defence was conducted on the basis that there was no dishonesty or intention to defraud. The learned judge directed the jury thoroughly as to the element of dishonesty in respect of all counts. No complaint is made about that.
[37] The applicant's submission that a direction reflecting s 22(2) ought to have been given faces a substantial logical hurdle. The Crown case required it to prove beyond reasonable doubt that the applicant was dishonest. If that was proved, then there was no scope for the operation of s 22(2). The jury could not have found that the applicant acted dishonestly yet exercised an honest claim of right in respect of any of the counts. On the other hand, if dishonesty was not proved, the jury would have no need to consider whether an honest claim of right was exercised. Given those circumstances, a direction concerning honest claim of right was unnecessary.
[38] In R v Sitek, the Full Court was pressed with an argument that the trial judge had erred in not leaving to the jury the defence of honest and reasonable mistake of fact under s 24 of the Code in a s 408C prosecution. As to that, de Jersey J, as his Honour then was, (with whom Connolly and Carter JJ agreed) said:
If the jury took the view that the applicant was dishonest in the manner alleged by the Crown, they could hardly in the circumstances of this case consider that he was nevertheless acting under an honest mistake. The two positions would be contradictory. It was on this basis that the learned trial judge did not allow s 24 to go to the jury, and he was clearly correct in taking that course.
The argument pressed here is analogous to that pressed in Sitek. That decision provides confirmation that it was correct for the learned judge here not to have directed the jury in terms of an honest claim of right under s 22(2)." [13]
These cases, in the context of statutory provisions closely analogous to those under consideration here, do not deny that the defence of 'claim of right' is technically available in a case in which dishonesty is a specific element. However, they illustrate that in such a case, logic will, at least ordinarily, dictate that there is no need to superimpose a "claim of right" direction on an adequate "dishonesty" direction, because a finding of dishonesty typically negates a bona fide claim of right. That was clearly so in this case, where the Crown case was put on the basis that the dishonesty alleged was that the applicant knew that he was not entitled to the money or shares that he caused to be transferred to him or third parties. There is a logical incompatibility between on the one hand accepting that he knew that he was not entitled to transfer the money or issue the shares, and on the other accepting that he had a bona fide claim of right to do so. The jury could not logically accept the Crown case as it was put and left to them, yet leave open the possibility of a genuine claim of right.
Moreover, again, in circumstances where the directions in question were reduced to writing and there was ample opportunity to dispute their sufficiency at the trial, and where a 'claim of right' direction was effectively encapsulated in the directions as to dishonesty that were given, and where such a direction would have been illogical, nonsensical, and confusing, it is unsurprising that none was sought: the jury could not have failed to understand that they could convict only if satisfied beyond reasonable doubt that the applicant knew he was not entitled to the money and shares transferred, which was incompatible with a genuine claim of right. Leave under r 4 should be refused in respect of this ground, which would in any event fail.
Her Honour observed that the 24 counts differed in the timing of their commission (the conduct in Count 24 occurring about two years and four months after the conduct in Count 1), and that the quantum of the amounts taken was a further distinction between them (the amount or value being a relevant factor in assessing gravity of the offence). The underlying conduct nonetheless comprised criminal acts of the same or a similar character, in that each offence took place when he occupied a position of trust which gave him access to monies that had been raised from the public, when he owed TZL a duty to act in the interests of the company. "Like the gamekeeper who poaches, he helped himself to over $8.6 million of the company's funds and shares [around $7.5 million for his own benefit and the balance of $1.1 million apparently for Falconer's benefit], as and when it suited him, in gross dereliction of his duties to the company and its shareholders. His offending conduct is objectively very serious". [18] It harmed not only TZL and its shareholders, but also the investing public, by undermining investor confidence in the ASX. [19]
As to contrition and reparation, her Honour observed that the applicant had given a series of explanations to justify the payments, each of which was false and reflected his "wholly unjustified sense of entitlement. Throughout his evidence at the trial the offender displayed significant hubris which was entirely at odds with any remorse". [20] His lack of remorse was repeated in the pre-sentence report, which stated:
"He [the offender] did not countenance any feelings of remorse, believing he has nothing to be remorseful about."
As to co-operation with the authorities, her Honour remarked that the applicant did not co-operate with ASIC during the investigation of the offences, but thwarted its endeavours to ascertain what had occurred, and his "indignant and intransigent attitude at least partly contributed to the length and cost of the investigation". [21] Nonetheless his counsel conducted the trial in an efficient and co-operative manner, which substantially shortened the time and cost of the trial to the public, and this was taken into account in the applicant's favour. [22]
As to specific deterrence, her Honour note that a custodial sentence would prevent re-offending during the period of any incarceration, and that upon release the applicant would automatically be prohibited from acting as a director for a period of five years: s 206B of the Corporations Act, which may be extended by a court on ASIC's application to a maximum period of 15 years: s 206BA of the Corporations Act, which may curtail his opportunity to re-offend in the future. [23]
Her Honour gave considerable weight to general deterrence, observing that such offences are notoriously difficult to detect and prosecute. [24] Her Honour considered that a substantial sentence, including a significant period in custody, was necessary to ensure that the applicant was adequately punished for the offences. Her Honour rightly observed that the maximum penalty of five years was a relevant matter and indicates the term which would be appropriate for the most serious category of case. [25]
In respect of subjective considerations, her Honour remarked that the applicant was born in 1965 and aged 51, enjoyed a privileged upbringing at least in material respects, and was well-educated (to a tertiary level), and well-connected. There was no evidence of any mental illness or disorder. He distinguished himself from uncontrolled punters in the thrall of gambling addictions, describing his own gambling as a professional activity which was a "churning business where a lot of bets covering a lot of outcomes allowing you to win a percentage on turnover over the years". The pre-sentence report recorded his statement that his "involvement in bookmaking and horseracing was a mixture of business and recreation". His diabetes is managed with insulin injections. Despite significant weight loss since going into custody on 22 November 2016, he remained overweight. [26]
With a minor exception, he had no criminal record, and was entitled to be treated as of prior good character, but this matter was of limited weight in the circumstances for the reasons that first, had he not been of good character he would not have been placed in a position of substantial trust with access to such significant funds, and secondly, the offending conduct took place over a period of more than two years in circumstances which demonstrated considerable deception, ingenuity, opportunism and greed. [27]
As to prospects of rehabilitation, her Honour said:
"[103] The Crown did not make any submissions on the offender's prospects of rehabilitation. Mr Spencer, who appeared for the offender at the sentencing hearing, accepted that the offender did not consider that he had done anything wrong. In order for there to be prospects of rehabilitation, it is necessary for there to be some acknowledgement of wrongdoing, which is entirely absent in the present case." [28]
Her Honour noted that the applicant is married and has three daughters, aged 18 to 26, and that though he had for some time lived separately from his wife, she and their daughters support him and continue to visit him regularly in custody. While accepting and taking into account that his custody has a significant, but not exceptional, effect on his family, and that his family would suffer from his being in gaol, this did not materially affect the sentence. [29]
Her Honour rejected the applicant's contention that delay was a mitigating factor, pointing out that the applicant had contributed to it, and that there was no evidence that he suffered any significant detriment as a consequence. [30]
Her Honour accepted, and took into account, that by way of extra-curial punishment, the applicant had lost whatever good reputation he previously enjoyed, and would on his release, be disqualified from managing corporations for a period of five years, unless leave is granted by a court. [31]
In Pearce v The Queen ("Pearce"), McHugh, Hayne and Callinan JJ said (citing Mill):
"To an offender, the only relevant question may be 'how long', and that may suggest that the sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." [34]
In Thorn v R, Howie J, with whom Campbell JA and Rothman J agreed, said:
"[47] The proper manner to approach sentencing for the fraud offences was to apply Pearce v R [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." [35]
The rationale for this approach was illuminated in R v Tadrosse, in the context of Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(m), as to whether it was open to a sentencing judge to take account of multiple offences, each of which was separately charged, in assessing the objective seriousness of each. Holding that it was not, Howie J (with whom Grove and Hall JJ agreed) said:
"[28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court." [36]
In the passage in the remarks on sentence the subject of this complaint, her Honour referred to s 16A(2) of the Crimes Act 1914 (Cth) ("the 1914 Act"), [37] which relevantly requires the Court to take into account (a) the nature and circumstances of the offence, (b) any other offences that are required or permitted to be taken into account, and (c) if the offence forms part of a course of conduct of a series of criminal acts of the same or similar character, that course of conduct. While those provisions may, in an appropriate case, permit account to be taken of offences other than those charged, they do not displace the common law principle of 'totality' discussed in Mill. [38] In particular, sub-s (b) contemplates provisions that correspond with those which, in the State context, permit offences to be taken into account on a Form 1, as distinct from other offences which have been separately charged and for which the offender is to be separately sentenced.
Section 16B, also referred to by her Honour, [39] was irrelevant: it requires a sentencing court to take into account any sentence already imposed on the person for any other offence which the person has not served, or is liable to serve because of the revocation of parole; at the time of sentencing, the applicant was not subject to any other sentence for the purposes of s 16B. Johnson v The Queen ("Johnson"), also referred to by her Honour, does not stand for the proposition that the multiplicity of offences is to be taken into account in determining the individual sentences for each as well as the total sentence; rather, it affirms the principle in Mill and Pearce that the question of totality arises only after the individual sentences are determined. Gummow, Callinan and Heydon JJ, with whom Gleeson CJ agreed, said (citations omitted):
"[26] The first matter to be noticed in this regard is that the joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act." [40]
There is nothing in Johnson which suggests that the conventional approach authorised by Mill and Pearce does not to continue to apply to sentencing for a Commonwealth offence.
Her Honour's remarks on sentence do not explain the impact of 'totality' when determining the sentence for each individual offence, and in particular whether it operated to aggravate or mitigate the sentence which would otherwise be imposed for each offence; however, the reference to s 16A(2)(b) and (c) of the 1914 Act suggests that the impact would be aggravating. Yet the principle of totality is a mitigating principle, as described by King CJ in R v Rossi, [41] in a statement which was cited by McHugh J in Postiglione v The Queen:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect." [42]
The view that her Honour treated 'totality' as aggravating the individual sentences is also supported by the following passage in the remarks:
"[81] Notwithstanding these differences, the conduct underlying the 24 offences comprised criminal acts of the same or a similar character. Each of the offences committed by the offender took place when he occupied a position of trust which gave him access to monies that, by and large, had been raised from the public.
[82] As a de facto director (from 15 July 2004 to 29 January 2007) and a legal director of TZ Ltd (after 29 January 2007), the offender owed TZ Ltd a duty to act in the interests of the company. Like the gamekeeper who poaches, he helped himself to over $8.6 million of the company's funds and shares, as and when it suited him, in gross dereliction of his duties to the company and its shareholders. His offending conduct is objectively very serious." [43]
As to the second limb of this ground, it has already been noted that her Honour regarded the subject matter of Counts 1, 2 and 3 as a single course of conduct, and likewise the conduct the subject of Counts 4, 6 and 7, whereas each other offence was "a discrete act with its own separate criminality". The sentence imposed for each of Counts 1, 2 and 3 was three years. That for Count 2 was accumulated, to the extent of two months, on that for Count 1; and that for Count 3 was accumulated by a further two months. The sentence imposed for each of Counts 4 and 6 was three years, and for Count 7 three years and six months. That for Count 6 was accumulated by two months on the sentence imposed for Count 5, and that for Count 7 by two months on that for Count 6.
For the other 18 counts, the extent of accumulation was typically four, though in some cases three, months.
The extent of concurrency or accumulation was a matter for the sentencing judge's discretionary judgment, informed by the principle of totality, [44] and is reviewable only in accordance with the principle in House v The King. [45] While it is a highly relevant consideration whether the conduct involved two separate incursions into criminal activity, or one multi-faceted course of criminal conduct, [46] the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed. [47]
The applicant acknowledged that a finding that offending conduct constitutes a single course of conduct does not mandate an outcome of wholly concurrent sentences, but submitted that the limited remarks without further explanation were suggestive that this consideration was overlooked by her Honour, thus amounting to error. However, the circumstance that, for those offences which were found to constitute a single course of conduct, there has been a significantly lesser degree of accumulation than for the other offences, tells against the submission that this was overlooked. Indeed, it indicates that her Honour has given careful consideration to the period of each sentence that should be exclusively referable to the offence for which it was imposed. Moreover, overall, there was a very substantial degree of concurrency: the total of the individual sentences was 78 years, but the effective sentence only 10 years. While there might have been no error in not accumulating those sentences at all, it was within her Honour's discretion to partially accumulate them.
Error is established in respect of this ground only insofar as her Honour took into account the 'totality' of the offending in fixing sentences for each individual offence.
It may be accepted that the application of the principle is not relevantly affected by reason that the applicant was charged with seven counts while Falconer was charged with only three, encapsulating the same conduct: formal identity of charges is not a necessary condition of its application. [51]
Although it is preferable for co-offenders to be sentenced by the same judge at the same time, that is by no means an absolute requirement. In this case, they were sentenced by the same judge, albeit at different times. "Considerable obstacles" confront an applicant contending for error based on parity where the sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for them, and provides reasons for the disparity. [52] This is such a case.
In sentencing Falconer, her Honour made these observations concerning parity:
"Parity
[159] It was common ground that the principles of parity apply between the offender and Sigalla. Equal justice requires that, as between co-offenders, there should not be any marked disparity of sentence that gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26.
[160] There are significant differences between the offender's involvement and that of Sigalla. Further, as referred to above, the manner of charging them has been different.
[161] The offender's involvement in the Sigalla transfers (count 4) was that he was reckless as to the beneficiary of the transaction (s 184(2)(b) of the Corporations Act); whereas Sigalla himself was sentenced on the basis that the jury was satisfied that he had intended to benefit himself (s 184(2)(a) of the Corporations Act). Sigalla and his companies derived a substantially greater financial benefit from his criminality (in excess of $7.5 million) than did the offender ($1.416 million). Sigalla was not involved in the conduct the subject of counts 5 and 6 against the offender. Sigalla committed 11 further offences in respect of further transactions which were not the subject of charges against the offender. The offender played a direct role in causing the subject transactions to be falsely described in the accounts of TZ.
[162] I accept that Sigalla was the principal architect of most of the offending conduct and that he was, as the offender and other witnesses called by the offender have deposed, a threatening and intimidating character who was bullying and abusive to those around him, including the offender. While the offender gained considerably from the offending conduct, I accept that he was not its progenitor. He appears to have been, in the context of his relationship with Sigalla, a weak man, who collaborated in Sigalla's dishonesty. Nonetheless the offender extracted considerable sums from his offending, although his share was much smaller than Sigalla's. TZ was a public company and needed more than one director. Had the offender not been willing to apply his signature, and that of other directors who had electronic signatures, Sigalla would not have been able to effect the transactions that were to his benefit.
[162] There are also differences in the subjective circumstances of the offenders and in particular their ages, their attitude to their offending and the conviction of Sigalla following a trial as compared with the plea of guilty by the offender." [53]
At first, the applicant submitted that these findings were made in circumstances where the applicant was not present and not given the opportunity to call evidence, cross-examine Falconer's witnesses or make submissions on the issue. This curious submission was abandoned during oral argument: the applicant had no standing to be heard in respect of Falconer's sentencing proceedings.
Otherwise, the applicant invoked the following matters:
1. that it was not clear that the applicant could properly be described as the 'principal architect' of the conduct the subject of Counts 1 to 7;
2. that Falconer's share of the benefits was not "much smaller than [the applicant's]", at least in respect of Counts 1, 2 and 3;
3. that at the time of Counts 1 and 2, the applicant was not formally a director (his liability depending on the extended definition), whereas Falconer was;
4. that while the applicant transferred the funds the subject of Counts 6 and 7 to O'Donnell, Falconer directed the implementation of the transactions the subject of Counts 1, 2, 3, 4 and 5; and
5. that the applicant derived a benefit of $300,000 from Count 1; Falconer derived benefits of $1.2 million from Counts 2, 3 and 5; and the benefit to the applicant from Counts 4, 6 and 7 was nominal in the sense that it merely placated a third party by making the applicant his creditor.
However, although Falconer may have benefitted more than the applicant from the transactions involved in Counts 1, 2 and 3, that is far from the exclusive comparator. The detriment to the company - preventing which is after all the chief object of the provision - is at least equally significant. There is a strong inference, from Falconer's diary note, that (as her Honour found) the applicant was the principal architect of the transaction. As to Counts 4, 6 and 7, the effect of the payments was to discharge an obligation of the applicant to advance the loan to O'Donnell; there was no benefit to Falconer. The circumstance that Falconer may have performed the ministerial acts that implemented the transactions the subject of Counts 1, 2, 3, 4 and 5 does not elevate his responsibility above that of the applicant, who instigated and asked Falconer to implement them. That he was a director only by reason of the extended definition does not significantly affect his criminality. From the seven counts in question, the applicant received benefits amounting to approximately $1.7 million, while Falconer received some $800,000.
There were also the subjective considerations noted by her Honour: Falconer had expressed contrition; he had been in custody in Thailand in onerous conditions for three months pending his extradition; he had a lifelong history of depressive symptoms meeting the diagnostic criteria for Persistent Depressive Disorder, which, combined with his personality traits, provided some explanation for his engaging in irresponsible behaviours; and he was 70 years of age and suffered from physical ailments which would make custody more onerous for him.
Her Honour was entitled to conclude that there were differences between the applicant and Falconer, both as to their respective criminality, and in their subjective circumstances. The disparity in the sentences they received is amply explicable by those differences, and does not give rise to a justifiable sense of grievance on the part of the applicant. This ground fails.
With reference to that passage, Mason P said in Zaidi v Health Care Complaints Commission: [59]
"I would not disagree with the principle stated in the passage from Hiss that has been quoted. But the proposition which it states is a narrow one: confession is not a necessary pre-condition to reinstatement. ("Accordingly, we refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted": Hiss (at 437).) I do not understand this Court ever to have asserted such a categorical proposition: see Dawson v Law Society of New South Wales (Court of Appeal, 21 December 1989, unreported), per Kirby P (at 17) and Mahoney JA (at 6-7). This said, there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined."
Her Honour's statement, that "[i]n order for there to be prospects of rehabilitation, it is necessary for there to be some acknowledgement of wrongdoing, which is entirely absent in the present case", was incorrect in principle. Although the respondent submitted that the conclusion that there could be no finding that there were prospects of rehabilitation was not in error in the circumstances of the case, given the findings about lack of remorse, hubris, sense of entitlement, and that he believed that the ends justified the means, there were contrary indicators: the applicant was of prior good character, having no relevant criminal record; he was well-educated, connected and intelligent; he is married with three daughters, and his wife and daughters continue to visit and support him in custody; and as her Honour accepted, he is unlikely to require assistance to reintegrate into the community notwithstanding a lengthy non-parole period. Those factors point to some prospect that he will one day be able to resume a worthwhile role as an honourable citizen.
Error in this respect is established.
On that basis, I would resentence the applicant, 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; and
24. for Count 24, imprisonment of one year commencing on 22 September 2023.
This results in sentences which, if accumulated, total 69 years and nine months, as distinct from the 78 years imposed by her Honour. The overall effective sentence amounts to a total term of nine years and six months, commencing on 22 November 2016 and expiring on 21 May 2026, as distinct from the 10 years imposed by her Honour. Maintaining approximately the 60% proportionate non-parole period fixed by her Honour, the non-parole period would be five years and nine months, expiring on 21 August 2022.
CAVANAGH J: I agree with the orders proposed by Brereton JA in respect of both the conviction and sentence appeals. I make the following further comments in respect of the sentence appeal.
Whilst I generally agree with the reasons of Brereton JA, I interpret the sentencing judge's remarks (in relation to the totality principle) at [77] of her Honour's judgment somewhat differently.
As Brereton JA identifies, Johnson v The Queen [61] does not support an approach that involves determining the total effective sentence prior to determining the individual sentence for each offence.
Further, whilst s 16B of the Crimes Act 1914 (Cth) would seem to be irrelevant, there is nothing in ss 16A(2)(a), (b) or (c) which would tend to suggest that the proper approach is to have regard to the totality of the criminal conduct in fixing the appropriate sentence for each of the offences.
Indeed, [77] of her Honour's judgment is in similar terms to the final sentence of the description of the totality principle in DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56-57, cited in Mill v The Queen, [62] which is as follows: "[The Court] must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." This description of the principle and its approval in Mill v The Queen were specifically noted by Gummow, Callinan and Heydon JJ in Johnson v The Queen at [18]. As Brereton JA has discussed, their Honours then went on to affirm the approach taken in Mill v The Queen.
Rather than interpreting her Honour's reference to s 16A of the Crimes Act and Johnson v The Queen as supporting the incorrect approach, I consider that her Honour's reference to Johnson v The Queen demonstrates an intention to state and apply the principle correctly. Indeed, if not for the use of the plural ("sentences" rather than "sentence") as highlighted in Brereton JA's judgment, there could be no complaint. The use of the plural may be misplaced but it must be considered in the context of the paragraph as a whole.
I would thus interpret her Honour's reference to Johnson v The Queen as an acknowledgment of the correct approach rather than an indication that her Honour was adopting a contrary approach.
Having said that, I agree with Brereton JA's observations in respect of the prospects of rehabilitation and there must be resentencing. I thus agree with the orders proposed by Brereton JA.
(2009) 198 A Crim R 135; [2009] NSWCCA 294 at [47] (Howie J; Campbell JA and Rothman J agreeing).
(2005) 65 NSWLR 740; [2005] NSWCA 145 at [28] (Howie J; Grove J and Hall J agreeing).
Primary judgment at [77].
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [15] (Gummow, Callinan and Heydon JJ; Gleeson CJ agreeing); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Primary judgment at [77].
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [26] (Gummow, Callinan and Heydon JJ; Gleeson CJ agreeing).
(1988) 142 LSJS 451 at 453 (King CJ).
(1997) 189 CLR 295 at 308 (McHugh J); [1997] HCA 26; although, as the High Court observed in Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [22] (Gummow, Callinan and Heydon JJ; Gleeson CJ agreeing), it is doubtful that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality principle may be applied.
Primary judgment at [81]-[82]
R v MMK (2006) 164 A Crim R 418; [2006] NSWCCA 272 at [13] (Spigelman CJ, Whealy and Howie JJ).
(1936) 55 CLR 499; [1936] HCA 40.
Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Wells J); see also Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [5] (Gleeson CJ).
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [35] (Gummow, Callinan and Heydon JJ, Gleeson CJ agreeing); Vaovasa v R (2007) 174 A Crim R 15; [2007] NSWCCA 253 at [15] (Howie J; McClellan CJ at CL and Harrison J agreeing); R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 at [44] (McClellan CJ at CL, Hulme and Hislop JJ); Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [154] (Price J, Walton J agreeing).
Lowe v The Queen (1984) 154 CLR 606 at 623 (Dawson J; Wilson J agreeing); [1984] HCA 46.
Postiglione v The Queen (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ); [1997] HCA 26.
[2005] NSWCCA 114 at [34]-[35] (Johnson J; Giles JA and Hoeben J agreeing).
Green v The Queen (2011) 244 CLR 462 at 474 [30] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
Channon v R [2020] NSWCCA 112 at [35] (RA Hulme J, Wilson J agreeing).
Primary judgment at [159]-[162].
Crimes Act 1914 (Cth) s 16A(2)(n) requires that the Court consider "the prospect of rehabilitation of the person".
WC v R [2016] NSWCCA 173 at [57]-[61] (Campbell J; Hoeben CJ at CL and N Adams J agreeing).
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [84] (Johnson J; Hodgson JA and Rothman J agreeing).
[2014] NSWCCA 183 at [34] (Bellew J; Macfarlan JA and Adamson J agreeing).
333 NE 2d 429 (1975) at 437 (Tauro CJ), cited by Mason P in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 98 (Priestley JA and Powell JA agreeing); [1998] NSWSC 335.
(1998) 44 NSWLR 82 at 100 (Mason P, Priestley JA and Powell JA agreeing); [1998] NSWSC 335.
(2001) 53 NSWLR 704; [2001] NSWCCA 534 at [100] (Sully J); see also R v Gittani [2002] NSWCCA 139 at [6] (Sully J; Ipp AJA and Bell J agreeing); R v Barakat [2004] NSWCCA 201 at [41] (Greg James J; Beazley JA and Dowd J agreeing).
(2004) 78 ALJR 616; [2004] HCA 15.
(1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 March 2021
(Per Brereton JA; Hoeben CJ at CL agreeing) The trial judge erred in considering totality as an aggravating factor when assessing individual sentences. The principle of totality is a mitigating factor to be considered when assessing the overall effective sentence: [113]-[122] (Brereton JA).
Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294; Tadrosse v R (2005) 65 NSWLR 740; [2005] NSWCA 145; Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied.
(Per Cavanagh J, contra) The trial judge's remarks should be read as demonstrating an acknowledgement and adoption of the correct approach to the totality principle: [157]-[162] (Cavanagh J).
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; DA Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann), considered.
The trial judge was not required to impose wholly concurrent sentences in respect of offending found to form part of a single course of conduct: [123]-[126] (Brereton JA).
R v MMK (2006) 164 A Crim R 418; [2006] NSWCCA 272, applied; House v The King (1936) 55 CLR 499; [1936] HCA 40, considered.
Although the applicant's co-offender received a significantly lesser sentence, this was justifiable on the basis of both respective criminality and subjective factors, and did not give rise to a justifiable sense of grievance on the part of the applicant: [128]-[141] (Brereton JA).
Channon v R [2020] NSWCCA 112, applied; R v Pan [2005] NSWCCA 114, considered.
The trial judge erred in holding that the applicant's lack of remorse and failure to acknowledge his wrongdoing precluded a finding that he had any prospects of rehabilitation. Remorse is not a prerequisite to prospects of rehabilitation, although it may inform the extent of such prospects. The applicant did have some prospects of rehabilitation, indicated by his prior good character, education, and the support of his family: [142]-[148] (Brereton JA).
WC v R [2016] NSWCCA 173; MLP v R [2014] NSWCCA 183; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159; Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82; [1998] NSWSC 335, applied.