[2000] HCA 54
Edwards v R [2020] NSWCCA 141
Frahm v R [2014] NSWCCA 10
Hartman v R (2011) 87 ACSR 52
[2011] NSWCCA 261
Hejazi v R (2009) 217 A Crim R 151
[2009] NSWCCA 282
Hili v The Queen (2010) 242 CLR 520
[2010] HCA 45
HJ v R [2014] NSWCCA 21
Ho v R [2013] NSWCCA 174
House v The King (1936) 55 CLR 499
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 54
Edwards v R [2020] NSWCCA 141
Frahm v R [2014] NSWCCA 10
Hartman v R (2011) 87 ACSR 52[2011] NSWCCA 261
Hejazi v R (2009) 217 A Crim R 151[2009] NSWCCA 282
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
HJ v R [2014] NSWCCA 21
Ho v R [2013] NSWCCA 174
House v The King (1936) 55 CLR 499[1936] HCA 40
Johnston v R [2017] NSWCCA 53
KT v The Queen (2008) 182 A Crim R 571[2008] NSWCCA 51
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
MD v R [2015] NSWCCA 37
MS2 v The Queen (2005) 158 A Crim R 93[2005] NSWCCA 397
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Pereira v R [2018] NSWCCA 171
R v Adamson (2002) 132 A Crim R 511[2002] NSWCCA 349
R v AEM [2002] NSWCCA 58
R v Cramp [2004] NSWCCA 264
R v Curtis (No 3) (2016) 114 ACSR 184[2016] NSWSC 866
R v Fidow [2004] NSWCCA 172
R v Hawkins (1989) 45 A Crim R 430
R v Hearne (2001) 124 A Crim R 451[2015] NSWCCA 107
Thompson-Davis v R [2013] NSWCCA 75
TL v R [2020] NSWCCA 265
Trad v The Queen (2009) 194 A Crim R 20[2009] NSWCCA 56
Whyte v R [2019] NSWCCA 218
Wong v The Queen (2001) 207 CLR 584
J Agius SC with J Park (Applicant)
G Newton (Respondent)
[2]
Remington & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2018/278431
Publication restriction: N/A
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 24 January 2020
Before: Conlon ADCJ SC
File Number(s): 2018/278431
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Tajinder Singh (the applicant) pleaded guilty to three offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The offences related to the applicant defrauding the Australian subsidiary of a worldwide advertising agency, TBWA Sydney Pty Ltd, of some $3,286,125 between January 2013 and December 2016, when he was employed by that agency as an assistant accountant. The applicant had turned 23 years of age a few weeks before committing the first offence, and was a month shy of his 27th birthday at the time of the last offence.
The applicant was sentenced to an aggregate sentence of 6 years imprisonment, with a non-parole period of 4 years, after receiving a discount of 25% for his pleas of guilty. The applicant sought leave to appeal against his sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
The principal issues on appeal were:
1. whether the sentencing judge erred in not taking into account the comparatively young age of the applicant when assessing moral culpability;
2. whether the non-parole period was manifestly excessive.
The Court held (Bell P, Johnson and R A Hulme JJ agreeing), dismissing the application for leave to appeal:
1. Although an assessment of youth and immaturity must occur on a case-by-case basis, the nature and circumstances of the applicant's offending was not such as to attract the kind of considerations in respect of sentencing that are applicable to young offenders. Not only was the applicant significantly older than the age of majority, but the nature of his conduct and offending (including that the offences involved premeditation, a degree of sophistication and a major breach of trust) did not manifest the immaturity associated with young offenders, which has been recognised as warranting some reduction in sentence in appropriate cases: [52]-[57] (Bell P); [72] (Johnson J); [73] (R A Hulme J).
Abdul v R [2019] NSWCCA 18; BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159; Hartman v R [2011] NSWCCA 261; HJ v R [2014] NSWCCA 21; Johnston v R [2017] NSWCCA 53; KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397; R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349; R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 86; R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37; R v Hoang [2003] NSWCCA 380; R v Pham & Ly (1991) 55 A Crim R 128; Thammavongsa v The Queen (2015) 251 A Crim R 342; [2015] NSWCCA 107; TL v R [2020] NSWCCA 265, considered.
1. In any event, contrary to the applicant's submission, the sentencing judge did take into account his age in exercising his sentencing discretion: [58]-[61] (Bell P); [72] (Johnson J); [73] (R A Hulme J).
2. The audacity of youth is not to be conflated with immaturity: [55] (Bell P); [72] (Johnson J); [73] (R A Hulme J).
3. The applicant failed to establish any misapplication of principle or any error in the sentencing judge's exercise of his discretion, in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. Both the sentence and the non-parole periods were well within the range of sentences imposed for similar acts of fraud, and the sentence and non-parole period imposed was not manifestly excessive: [70] (Bell P); [72] (Johnson J); [73] (R A Hulme J).
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Edwards v R [2020] NSWCCA 141; Frahm v R [2014] NSWCCA 10; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Ho v R [2013] NSWCCA 174; House v The King (1936) 55 CLR 499; [1936] HCA 40; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; MD v R [2015] NSWCCA 37; Pereira v R [2014] NSWCCA 181; R v Cramp [2004] NSWCCA 264; Trad v The Queen (2009) 194 A Crim R 20; [2009] NSWCCA 56; Whyte v R [2019] NSWCCA 218; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered.
1. Discussion by Bell P of the legal principles relating to the youth of an offender in respect of sentencing, including in relation to offences involving fraud and financial deception: [30]-[46].
2. Discussion by R A Hulme J as to the discretionary nature of a finding of special circumstances, the rationale for such a finding, and that such a rationale does not apply where an aggregate sentence is imposed: [74]-[79].
[4]
Judgment
BELL P: Mr Tajinder Singh (the applicant) seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him by Acting Judge Conlon SC (the sentencing judge) on 24 January 2020 in the District Court of New South Wales.
The applicant was sentenced after pleading guilty in the Local Court of New South Wales to three offences of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 10 years. A further three offences of dishonestly obtaining a financial advantage by deception were taken into account on a Form 1 when sentencing the applicant for Sequence 4.
The offences related to the applicant defrauding the Australian subsidiary of a worldwide advertising agency, TBWA Sydney Pty Ltd (TBWA), of some $3,286,125 between 30 January 2013 and 2 December 2016, whilst he was employed by that agency as an assistant accountant. The applicant turned 23 years of age a few weeks before committing the first offence, and was a month shy of his 27th birthday at the time of the last offence.
The applicant was sentenced to an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years. The applicant received a discount of 25% for his pleas of guilty.
Before considering the applicant's grounds of appeal, a brief factual background to the proceedings is necessary.
[5]
Agreed facts
The facts on sentence were agreed between the parties, and a statement of agreed facts was tendered by the Crown, as part of Exhibit A. The agreed facts were as follows:
"1. TBWA Sydney Pty Ltd (TBWA Sydney) is the local arm of a world-wide advertising agency.
2. From 2010 until March 2016, Tajinder Singh (the offender) was employed by TBWA Sydney as an Assistant Accountant. The offender subsequently worked part-time for TBWA Sydney on freelancer terms, assisting with payroll matters until ultimately leaving in December 2016.
3. The offender's remuneration at the time of his resignation was $85,000 per annum.
4. The offender had access to TBWA Sydney's accounting system to facilitate the preparation of Business Activity Statements (BAS) and to reconciliate several balance sheet accounts amongst other duties. His work was reviewed by a Finance Director.
5. The offender had access to the banking platforms (Westpac and ANZ) utilised by TBWA Sydney. His access was limited to proposing, but not approving transactions. All transactions proposed by the offender required the approval of a more senior member of the finance team.
6. From 2011 until 2016, the offender was responsible for preparing the TBWA Sydney's BAS reports. These are reports submitted each month to the ATO along with payment for any self-reported liabilities due. Alongside details of other federal taxes due, the reports include records of all GST collected on billings and paid on purchases in the month, and show a calculation of a net figure that typically is a GST liability to be paid to the ATO.
7. In late 2017, an employee contacted TBWA Sydney management about discrepancies in contributions that should have been made by the TBWA Sydney to the employee's self-managed superannuation fund. The identification of some irregular transactions by management led to TBWA Sydney conducting a comprehensive audit of its accounts.
Seq 2, 4 & 6: Dishonestly obtain financial advantage by deception, s192E(1)(b) Crimes Act 1900 ($80,916.85, $3,122,114.21 & $13,707.82 worth of transactions)
Form 1 - Seq 1, 3 & 5: Dishonestly obtain financial advantage by deception, s192E(1)(b) Crimes Act 1900 ($30,359.27, $25,874.19 & $13,184.13 worth of transactions)
8. From 2013 onwards, the offender routinely manipulated the BAS reports he prepared such that the amount shown as payable to the ATO was lower than the true amount shown as payable in the TBWA Sydney's general ledger. The offender initiated a payment to the ATO for the smaller amount, set-up a manual electronic bank payment to himself for the difference, and posted journal entries against cash to clear the remaining payable in the TBWA Sydney's GST general ledger account.
9. TBWA Sydney is obliged to pay a withholding tax to the ATO of 10% of Management / Royalty Fees paid to TBWA\Worldwide. Between February 2013 and October 2016, instead of making these payments to the ATO, the offender set up electronic banking payments so that the funds were transferred to his nominated accounts. ATO statements show that these amounts were not declared and paid by the TBWA Sydney.
10. Between January 2013 and December 2016, electronic payments that should have been paid into the self-managed superannuation funds of three TBWA Sydney employees, were instead diverted by the offender into three of his bank accounts.
11. There are payments to the offender that were recorded against the TBWA Sydney's New South Wales State ('NSW') Payroll Tax liability, which were not part of the offender's payroll, freelancer invoices, superannuation contributions, or expense reimbursements.
12. Ninety-nine transactions were submitted by the offender where he has without authorisation replaced the destination banking details with his own details, that the Finance Directors accepted as genuine, causing their approval. The following amounts were transferred into the offender's accounts across the following time period:
• Form 1: Seq 1 - Westpac account 812048: $30,359.27 across 4 transfers from 30/01/13 - 28/03/13
• Seq 2 - Citibank acct 430770792: $80,916.85 across 10 transfers from 20/02/13-02/12/16
• Form 1: Seq 3 - Westpac acct 325814: $25,874.19 in 1 transfer on 14/03/13
• Seq 4 - Westpac acct 550790 and attached investment loan account 658148: $3,122,114.21 across 77 transfers from 30/01/13 - 02/12/16
• Form 1: Seq 5 - Westpac acct 630044: $13,184.13 across 3 transfers from 24/12/14 - 20/07/15
• Seq 6: CBA acct 15040378: $13,707.82 across 4 transfers from 08/04/16-02/12/16
13. The offender's fraudulent actions amounted to the total value of $3,286,120.47 and TBWA Sydney Pty Ltd seek this amount in compensation.
14. The offender was spoken to and cooperated with an Internal Audit team where he made full admissions to receiving a financial benefit from TBWA Sydney Pty Ltd. He apologised for his conduct and cooperated with the audit team's investigations into tracing the diverted funds.
15. It has cost TBWA a substantial amount of money to investigate the offender's offending, audit its accounts and reconcile its books. The audit team comprised 3-4 accountants relocating to Australia for approximately 4 weeks from the US & UK. At least $11,000 have been spent on obtaining banking records.
16. At no time did TBWA Sydney Pty Ltd or anybody else give the offender permission, consent or authorisation to create and process fraudulent transactions that caused funds belonging to TBWA Sydney Pty Ltd to be directed to him to gain a financial advantage.
17. On Thursday 11th September 2018, the offender attended Day Street Police Station accompanied by his legal representative. The offender was arrested and Cautioned. The offender was conveyed and entered in to custody. All safe guards adhered to as per Law Enforcement Powers & Responsibility Act 2002.
18. The Offender participated in an electronically recorded interview where he made full admissions to defrauding TBWA Sydney Pty Ltd by deceiving staff and changing bank account details to divert funds to accounts for his own personal use. He apologised for his conduct stating 'I am sorry to everyone involved' and 'I know I betrayed the trust [of the victim]'. A spreadsheet relating to these offences is attached to these facts."
[6]
a further summary document before the sentencing judge disclosed that the applicant had transferred about $900,000 to his parents during the period of offending.
[7]
Remarks on Sentence
In assessing objective seriousness, the sentencing judge made reference to the total amount defrauded, being in excess of $3 million and, quoting R v Hawkins (1989) 45 A Crim R 430 at 435, noted that the "amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality for they are [an] indication of the extent to which a prisoner is prepared to be dishonest and flout the law, and to advance whatever are his own purposes".
The sentencing judge noted that the offending in question spanned approximately 3 years and 10 months, and therefore that the offending was clearly not "impulsive", but was a "consistent and persistent demonstration of fraud over a significant period". The sentencing judge referred to the applicant's evidence that "[b]ecause I got away with it for so long I thought I could keep going", and that he had wanted to get rich quickly and assist his parents. His Honour found that the applicant's "motivation was purely greed and that the fraudulently gained proceeds were consumed in a lavish lifestyle".
The sentencing judge agreed with the Crown that the applicant's offending was "both audacious and brazen", in that the applicant had taken active steps to set up each of the fraudulent transactions that went into his account, and then placed them before a more senior employee for approval. Further, despite enlivening the risk of detection on each occasion, he nevertheless continued with his offending over the course of almost 4 years.
The sentencing judge rejected the submissions that the offending was "unsophisticated" and "opportunistic", noting that the applicant breached the trust of his employer, and that his offending involved systematic dishonesty, attended by planning and a level of sophistication. His Honour referred to the different methods that were used to commit the offences, and the fact that the misappropriated funds were directed into a multitude of accounts controlled by the applicant, which his Honour found was a device intended to reduce the likelihood of detection.
The applicant claimed that he had committed the offences because he became addicted to trading contracts for differences (CFD), and that he used the money obtained from his employer to trade on CFDs which had very high "investment [risk] levels", with the aim of making large sums of money in a short period of time.
[8]
Grounds of appeal
The applicant relies upon the following two grounds of appeal:
"1. The sentencing judge erred in not taking into account the comparatively young age of the applicant when he commenced trading in, and when he became addicted to trading in contracts for a difference when assessing the applicant's moral culpability for the offence.
2. The non-parole period was manifestly excessive".
[9]
Applicant's submissions
With respect to the first ground of appeal, the applicant submitted that the sentencing judge made no reference to his young age at the time of the offending, which was said to be a factor that was "particularly important in this case as it provides an explanation, not an excuse for his addiction to in effect gambling on contracts for a difference". It was submitted on behalf of the applicant that "[a]t the time when he commenced CFD trading and he became addicted to CFD trading his relatively young age is relevant when assessing the applicant's moral culpability for the offence".
The applicant submitted that s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows age to be taken into account as a mitigating factor where "the offender was not fully aware of the consequences of his or her actions" because of his or her age. The applicant submitted that "his behaviour is connected to his immaturity of his young age - addicted to CFD trading and spent a lot of money on binge spending". The applicant pointed to a number of cases before this Court where the relevant offenders who had defrauded their employers were between 40 and 63 years of age, as supposedly "comparative cases". The purpose of this submission was presumably to seek to contrast the applicant's age at the time of his offending with the greater ages of those offenders in the nominated cases, in an attempt to justify a lesser period of imprisonment for the applicant.
In the course of oral submissions, Mr Agius SC, who appeared for the applicant, relied on Johnston v R [2017] NSWCCA 53 (Johnston) in particular as a comparable case. In that case, the applicant was 40 years old, had completed a Bachelor of Business degree, was completing a Master of Business Administration degree, and was employed as a Senior Accountant at a mining company. Over a period of 3 years, the applicant defrauded the company out of over $1.257 million, which was dissipated in gambling expenses. Prior to sentencing, the applicant reached a settlement with his former employer which involved him paying the company $250,000 in consideration of a release from further liability. The sentencing judge imposed a sentence of 6 years and 6 months' imprisonment, with a non-parole period of 4 years. His appeal against that sentence was dismissed by this Court.
With respect to the second ground of appeal, the applicant again submitted that the sentencing judge "did not take the applicant's relatively young age at the time he commenced offending into account". The applicant alternatively submitted that his Honour "did not give sufficient weight to the applicant's powerful subjective case when fixing the non-parole period", and that he "did not make specific findings in relation to each subjective factor".
[10]
Crown submissions
With respect to the first ground of appeal, the Crown pointed to the fact that the applicant was 23 years old at the time the offending commenced, and almost 27 years old at its conclusion. The Crown submitted that there was no evidence before the sentencing judge that any immaturity on the applicant's part was a factor in the commission of the offences, or that any immaturity on the applicant's part contributed to him becoming involved in CFD trading.
With respect to the applicant's submission that the sentencing judge erred by not taking into account the applicant's addiction to trading in CFDs when assessing his moral culpability, the Crown pointed in turn to the decision in Johnston, where Bathurst CJ (with whom Johnson and Fagan JJ agreed) said that where offences are committed to feed a gambling addiction, that will not generally be a mitigating factor on sentence, even where the addiction is pathological. This is particularly so where the offending involves planning or is committed over an extended period, as the offender had a degree of choice as to how they would finance their addiction.
Further, the Crown submitted that ground one as framed assumed that the applicant was "addicted" to trading in CFDs, where no such factual finding was made by the sentencing judge and, indeed, as pointed out orally, the sentencing judge held that the applicant's evidence in relation to CFD trading generally lacked credibility. The sentencing judge accepted the Crown's submission that:
"… to the extent that any money was spent [on] CFD trades that does not mitigate the offending or reduce the offender's culpability in any way. The trades were engaged in an attempt to 'get rich quick' … if anything, the CFD trades provided a smokescreen by which the offender could explain his newfound wealth to his family and associates".
The Crown therefore submitted that it was entirely appropriate for the sentencing judge to find that nothing presented in the applicant's subjective material mitigated his moral culpability, and that it was appropriate for his Honour to disregard the applicant's age as being irrelevant to mitigate his offending. As will be explained later in these reasons, I do not in fact consider that the applicant's age was disregarded by the sentencing judge; rather, it was a matter the sentencing judge was conscious of, but did not regard as relevant, in the circumstances of the case.
[11]
Youth and its impact on sentencing
The rationale for taking into account an offender's youth in sentencing was summarised by McClellan CJ at CL at [22]-[23] of his Honour's dissenting judgment in KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 (KT), as follows:
"22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].
23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61])."
In KT, the offender was almost 17 years old at the time of the offending, and was found guilty of manslaughter following an obviously immature incident involving the "egging" of the deceased victim and other pedestrians from a motor vehicle in the company of other adolescents. Similarly, in MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397, which was cited by McClellan CJ at CL in the passage extracted at [30] above, the three offenders were aged 15 years and 7 months, 15 years and 10 months, and 14 years and 5 months respectively at the time of the offences.
It should also be observed that in KT, Hall J who, with Price J, constituted the majority, said at [103]-[104] that:
"103 Plainly, there is no hard and fast general rule that applies uniformly in the sentencing of young offenders. One well-known principle, of course, is that when a court is required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation: see Tran (supra) at [9]. However, the phrase 'in general' is not to be overlooked. In Tran at [9], Wood CJ at CL observed:
'That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence.' (emphasis added)
104 Again, the phrase 'in appropriate cases' is not to be overlooked. His Honour went on in Tran to state (at [10]):
'What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case, it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: Pham (1991) 55 A Crim R 128; Allam (Court of Criminal Appeal, New South Wales, 13 April 1993, unreported); DRL (Court of Criminal Appeal, New South Wales, 16 May 1997, unreported); Townsend & Cooper (Court of Criminal Appeal, New South Wales, 14 February 1995, unreported) and SDM (Court of Criminal Appeal, New South Wales, 4 August 1997) …'" (emphasis in original)
[12]
Manifestly excessive sentence
The principles concerning whether a sentence is manifestly excessive are well established: see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (Obeid). For present purposes, the most relevant are that:
1. in order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was "unreasonable" or "plainly unjust": see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Obeid at [443];
2. intervention is warranted only when the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons, or where the sentence imposed is so far outside the range of sentences available that there must have been error: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58];
3. an appellate court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: see Obeid at [443];
4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: see Obeid at [443];
5. it is only if an appellate court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one: see Edwards v R [2020] NSWCCA 141 at [23];
6. the extent of the reduction of the non-parole period because of special circumstances is a matter within the discretion of the sentencing judge: see MD v R [2015] NSWCCA 37 at [40] (MD); R v Cramp [2004] NSWCCA 264 at [31]; Trad v The Queen (2009) 194 A Crim R 20; [2009] NSWCCA 56 at [33] (Trad).
For a further useful summary of principles relating to manifest excess, see Thompson-Davis v R [2013] NSWCCA 75 at [53].
Further, manifest excess is not made out by reference to a small selection of cases. In Frahm v R [2014] NSWCCA 10, the applicant pleaded guilty to an offence of larceny and an offence of knowingly dealing with the proceeds of crime. He appealed his sentence on the basis of manifest excess and, in doing so, he referred to six cases which he claimed involved more serious offences but for which lesser sentences were imposed. In dismissing the appeal, Hoeben CJ at CL indicated that a small selection of cases "does not and cannot demonstrate that a particular sentence was manifestly excessive" (at [19]). Sentencing is a discretionary exercise, and no sentencing trend could be discerned from the six cases presented.
[13]
Consideration
The applicant's case is substantially founded upon two premises:
(i) that he was a "youth" or "young offender" within the meaning of the authorities referred to at [30]-[46] above; and
(ii) that the sentencing judge did not have regard to his youth in the exercise of his sentencing discretion.
In my opinion, neither of these premises is established.
The applicant was 23 years of age when the offending commenced. It continued for almost 4 years until the applicant was on the cusp of 27 years of age. The offences involved planning, premeditation and a degree of sophistication. They occurred on 99 separate occasions and were far from uniform in nature, although all were fraudulent and involved a major breach of trust. The fact that the applicant had been able to secure a position of trust within TBWA was inconsistent with any lack of maturity on his part. As the sentencing judge observed, in order to undertake the fraud on his employers, the applicant "utilised multiple methods including superannuation, royalty withholding tax, GST, payroll withholding tax". Furthermore, his Honour held that the applicant's methods involved "manipulation of BAS reports" and falsification of entries in TBWA's general ledger and tax accounts.
Although there is not necessarily a bright line demarking the boundary between youth and immaturity on the one hand, and adult responsibility on the other, and assessment must occur on a case-by-case basis, the nature and circumstances of the applicant's offending in the present case was not such as to attract the kind of considerations in respect of sentencing that were referred to in cases such as KT. The "audacity of youth" - the sentencing judge held that the offending was "both audacious and brazen" - is not to be conflated with immaturity.
The applicant was plainly not unintelligent. One of his character references referred to him having vied for the top position in each of his classes at school. He secured admission to the University of New South Wales albeit that he did not take up the opportunity that his enrolment permitted. Notwithstanding that, he had received 4 years of training as a cadet accountant within an accounting firm before being taken on by TBWA, the Australian subsidiary of a multi-national advertising agency. This engagement was consistent with his presentation as being both technically capable to perform the role of an assistant accountant and sufficiently responsible to be entrusted with aspects of the agency's financial affairs. The fact that he continued in TBWA's employ for 6 years also supports these observations. The applicant's intelligence and financial acumen extended to allowing him to manipulate a range of his employer's accounts and returns without his fraud being detected for almost 5 years (it first being discovered in 2017).
[14]
Amendments
21 December 2020 - Change made to headnote at (3) - "The availability of youth ..." has been changed to the "The audacity of youth ...".
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: 21 December 2020
In addition to these matters, the following facts emerged in the course of the applicant's oral evidence and cross-examination at the sentencing hearing or from documents and reports tendered on the sentencing hearing:
1. after completing school (year 12), the applicant enrolled in a Bachelor of Commerce degree at the University of New South Wales, but apparently never commenced his studies there;
2. between 2007 and 2010, the applicant was employed in an accounting firm as a cadet;
3. the applicant started his own business, "First Home Buyer's Australia", in 2015 (presumably whilst still employed by TBWA) and obtained a mortgage broking qualification in 2017;
4. a summary of his significant expenditure during the period of offending disclosed the following expenses:
Alcohol $ 7,373.27
Cash $118,431.95
Clothing $ 10,337.44
Cosmetics $ 7,734.00
Dining $ 23,560.00
Entertainment $ 8,981.94
Hotels $ 9,084.00
Luxury goods $ 41,874.77
Shopping $ 21,148.62
Strip clubs $134,073.14
Telecommunications $ 26,038.00
Travel $ 65,944.22
With respect to the applicant's claim that he committed the offences because he became addicted to trading CFDs, the sentencing judge held that the applicant's evidence concerning CFD trading lacked credibility, and that, to the extent that any money was spent on CFD trades, this did not mitigate the offending or reduce the offender's culpability in any way. Additionally, Dr Richard Furst (Dr Furst), a forensic psychiatrist who examined the applicant and whose report was in evidence on the sentencing hearing, indicated that the applicant did not meet criteria for the diagnosis of a specific mental disorder according to the DSM-5.
The sentencing judge assessed the objective seriousness of Sequences 2 and 6 as being in "about the mid-range for offences of its type" and Sequence 4 as being "above mid-range".
With respect to the applicant's subjective circumstances, the sentencing judge made reference to the applicant's age (being 30 years at the date of sentencing), that he had no prior criminal history, that he had reasonable prospects of rehabilitation, and that the applicant was remorseful, although there was no evidence that he made any meaningful attempts at reparation to his employer. The applicant was given a 25% discount on his sentence, due to his entering a plea of guilty at the earliest opportunity.
The sentencing judge provided the following indicative sentences:
1. Sequence 2 - an indicative sentence of 2 years;
2. Sequence 4 - an indicative sentence of 4 years and 6 months;
3. Sequence 6 - an indicative sentence of 18 months.
The sentencing judge made a finding of special circumstances, as "this is [the applicant's] first time serving a custodial sentence in combination with the fact that the sentence necessarily will involve, if you like, a partial accumulation".
The sentencing judge imposed an aggregate sentence of 6 years imprisonment, to date from 17 December 2019 and expiring on 16 December 2025, with a non-parole period of 4 years dating from 17 December 2019 and expiring on 16 December 2023.
With respect to the second ground of appeal, namely that the non-parole period was manifestly excessive, the Crown submitted that, contrary to the applicant's submissions, the sentencing judge appropriately took into account the relevant aspects of the applicant's subjective case, both when making the finding of special circumstances and when fixing the length of the non-parole period. The Crown submitted that the Remarks on Sentence demonstrated that his Honour took into account the objective factors, the relevant purposes of sentencing (not limited to the rehabilitation of the applicant) and the applicant's subjective case, in arriving at the final sentence.
The Crown pointed to certain significant features of the offending, including that the total sum of money stolen was over $3 million across a period of four years; that the offending was aggravated as it involved a breach of trust; that the offending was motivated by greed; and that regard must be given to the maximum penalty of 10 years' imprisonment for each of the three offences. The Crown therefore submitted that:
"In all the circumstances, the imposition of a non-parole period of 4 years [was] well within the bounds of the proper exercise of his Honour's sentencing discretion. Arguably, the finding of special circumstances was somewhat generous to the applicant. In any event, the applicant has not established that there was a need for a more lengthy period on parole, such that the non-parole period of 4 years was manifestly excessive".
Price J observed in KT at [132] that:
"As is stated by Hall J at [98] there were matters which well-supported the sentencing judge's finding that the offence was not to be marked out simply as 'juvenile behaviour' or as 'adolescent bravado'."
In HJ v R [2014] NSWCCA 21 (HJ), where the applicant was aged 17 years and 8 months at the time of the offences, Garling J (with whom Hoeben CJ at CL and RS Hulme AJ agreed), observed (at [56]) that:
"It is undoubted that the youth of an offender is a relevant factor to be considered in assessing what sentence ought be imposed. The Court makes an allowance for the youth of the offender because immaturity is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37 at [25]."
In R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37, the decision referred to in the above passage, the applicant was aged 18 years and 9 months.
Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution are not to be ignored when sentencing young offenders, as there remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 at 135, a case involving two offenders who were found guilty of robbery-related offences and were aged 19 years and 17 years at the relevant point in time, Lee CJ at CL outlined that:
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie, coercive action is fundamental to correctional treatment in our society." (emphasis added).
In KT at [25], McClellan CJ at CL explained that the emphasis given to rehabilitation when sentencing young offenders (rather than general deterrence and retribution) may be moderated when the young person "has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity", there citing R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [31] (Adamson); and R v Voss [2003] NSWCCA 182 at [16].
In determining whether a young offender has engaged in "adult behaviour", the Court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence: KT at [25]; Adamson at [31]-[32]. Where some or all of these factors are present, the need for rehabilitation of the offender may be diminished by the need to protect society: KT at [25]. Another relevant consideration includes whether the offending was the culmination of a series of considered and deliberate decisions: see Thammavongsa v The Queen (2015) 251 A Crim R 342; [2015] NSWCCA 107 at [95].
As outlined in R v Hoang [2003] NSWCCA 380 at [45], the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. In KT at [26], it was observed that:
"A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27])."
In BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5], in a case involving a 16-year-old applicant, Hodgson JA said that:
"… the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987. In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime."
His Honour continued at [6]:
"…I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
In TL v R [2020] NSWCCA 265, the applicant was 23 years old at the date of the offending, and 27 years old at the date of sentencing. After summarising the relevant principles relating to the sentencing of young offenders, Bellew J (with whom Hoeben CJ at CL and Adamson J agreed) outlined that those principles were not applicable to the offender as:
1. there was no evidence before the sentencing judge that immaturity on the part of the 23 year old applicant played any role in the commission of the offence;
2. the principles which govern the sentencing of youthful offenders may be moderated when the offender has conducted himself or herself in the way that an adult might, and has committed a crime of violence or a crime of considerable gravity. (At [360], Bellew J referred to this principle and said "that is precisely what occurred in the present case"); and
3. the weight to be given to youth diminishes the closer the offender approaches the age of maturity, and that the 23 year old applicant was substantially older than 18 years of age.
These principles are not confined to offences involving physical violence but also extend to a "white collar" context and offences involving fraud and financial deception. Indeed in such cases, the very nature of the offences will often require a level of sophistication and intelligence, albeit wholly misguided, especially where numerous acts of defalcation are involved.
In Hartman v R (2011) 87 ACSR 52; [2011] NSWCCA 261, the applicant had pleaded guilty to 19 charges of insider trading, contrary to ss 1043A(1) and 1311(1) of the Corporations Act 2001 (Cth), and 6 charges of communicating inside information contrary to ss 1043A(2) and 1311(1). Each offence carried a maximum penalty of imprisonment for 5 years and/or a maximum fine of $220,000. The sentencing judge noted that the evidence indicated that the insider trading charges alone made the applicant a total profit in excess of $1.9 million. The applicant, who was approximately 21 years old when the offending began, was sentenced to an aggregate term of imprisonment of 4.5 years, with a non-parole period of 3 years.
The Court of Criminal Appeal allowed the applicant's appeal with respect to sentence, quashed the sentences imposed and, in lieu thereof, imposed a total effective sentence of 3 years with a recognizance release order after 15 months. The Court took into account the applicant's mental condition in that he suffered from "a genuine and long term depression spectrum", "major depressive symptoms" and a "psychiatric condition" which reduced his moral culpability, as well as his "high degree" of co-operation and assistance.
With respect to his youth, however, the Court (Whealy JA, Adams and Latham JJ) said at [93] that:
"We do not agree, however, that, in the circumstances of this matter, the applicant's youth and relative immaturity have any role to play in downgrading or lessening the importance of general deterrence. We recognise that in some cases these factors may be both relevant and important on the issue (MS2 and Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93 per Simpson J at [9]; Adams J at [15]-[16]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 per Hodgson JA at [3]-[6], but see, Johnson J at [74]-[75]; R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at 458; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at 577-578). We do not consider in the present matter that they are relevant and important in that way. The applicant was operating in the adult sphere of business and commerce in every respect, and of course he was himself an educated and worldly young adult in every sense of the word. The Court cannot lose sight of the need to deter young adults from taking the significant financial advantages offered by the contemporary business world in circumstances where, at the same time, they reject the legal and moral constraints properly imposed upon their commercial behaviour." (emphasis added).
In R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866, the offender was found guilty of conspiracy to commit an offence of insider procuring contrary to ss 1311(1)(a) and 1043A(1)(d) of the Corporations Act. The offender's co-offender was Mr Hartman: see [42]-[44] above. The offender was 21 years old at the commencement of the offending, and the amount of the financial benefit received was in excess of $1.43 million. At [31], McCallum J (as her Honour then was) outlined that:
"Mr Curtis's youth at the time of the offence is a relevant consideration but not one of primary significance. When Mr Hartman was sentenced, the Court of Criminal Appeal did not accept that his youth and relative immaturity lessened the importance of general deterrence. The Court considered that Mr Hartman had been operating in the adult sphere of business and commerce and was himself educated and worldly. The Court emphasised the need to deter young adults from taking the significant financial advantages offered by the contemporary business world in circumstances where, at the same time, they reject the legal and moral constraints properly imposed upon their commercial behaviour. Those remarks are of equal application here." (footnote omitted).
The offender was sentenced to a term of imprisonment for 2 years, with a recognisance release order directing his release after serving 1 year of imprisonment. The appeal against this decision (see Curtis v R [2016] NSWCCA 299) only sought to challenge the offender's conviction and not his sentence, and in any event was dismissed.
In Abdul v R [2019] NSWCCA 18, it was contended that the sentencing judge erred in not taking the applicant's youth into account when determining the sentence. The applicant was aged 20-21 years at the time of the offences, and 22 years when he was sentenced. Bathurst CJ observed (at [45]) that it was well-established that youth and comparative immaturity were less relevant in a case where immaturity and impulsive behaviour were not contributing factors to the offending. In this case, it was held that the sentencing judge was correct to assess the applicant as the "entrepreneurial force" and as playing a "senior controlling role" in the organisation of distributing commercial quantities of a number of prohibited drugs. The Court held that there was no error in the discretionary assessment of non-parole/parole period proportions.
In respect of a finding of special circumstances and the extent of any adjustment to the statutory ratio, in Ho v R [2013] NSWCCA 174 at [33], this Court outlined that:
"[A finding of special circumstances] is a discretionary finding on the facts found (see R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25 at [103]; Caristo v R [2011] NSWCCA 7 at [28]). It is a finding with which this Court will be slow to intervene and then usually only if the non-parole period imposed is manifestly inadequate or excessive (see R v Cramp [2004] NSWCCA 264 at [36]; R v Fidow [2004] NSWCCA 172 at [19]; Jiang v R [2010] NSWCCA 277 at [83]). In setting a balance of term when such a finding is made, disproportionate weight must not be given to the subjective circumstances of the offender (see R v Ceissman [2004] NSWCCA 466 at [25]; R v Thomas [2007] NSWCCA 269) and care must be taken to ensure against double counting (see Langbein v R [2013] NSWCCA 88 at [54])."
It follows that, on an appeal from such a decision, intervention by this Court will only be warranted where the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation (see MD at [42]), or where the non-parole period "is found to be manifestly inadequate or manifestly excessive" (see Trad at [33]).
Discretionary decisions of this nature require the applicant to establish error in accordance with the principles enunciated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King), namely that there has been an error of principle or as to the facts, a failure to take into account a relevant consideration, or that the decision is "unreasonable or plainly unjust".
To the extent, therefore, that the applicant complains that the sentencing judge did not have regard to his youth as a relevant factor in sentencing, that complaint is not, in my opinion, justified. Not only was the applicant significantly older than the age of majority and than most of the offenders in the cases earlier referred to, but the nature of his conduct and offending did not manifest the immaturity associated with young offenders which has been recognised as warranting some reduction in sentence in appropriate cases.
As for the second premise of the applicant's complaint, namely that the sentencing judge did not take his relative youth into account in exercising the sentencing discretion, I also do not regard this aspect of the applicant's case as having been established.
As part of his Remarks on Sentence, the sentencing judge had set out in chronological fashion the applicant's progression through high school to qualification for tertiary study (albeit not taken up by the applicant), to his work as a cadet accountant leading to his employment with TBWA from 2010. The sentencing judge referred to the fact that the applicant was 30 years of age at the time of his sentencing and plainly was aware of his age at the time of the offending. The primary judge's observation that the applicant "also managed to start his own business … in 2015" was relevant to the level of the applicant's financial sophistication and business maturity at a time coinciding with the offending. Further, his Honour explicitly referred to having taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act and in this context made reference to the observations of Wood J in R v Pantano (1990) 49 A Crim R 328 at 330:
"... those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences." (emphasis added)
The sentencing judge was also conscious of the applicant's attempt to invoke his relative youth as a relevant factor to be taken into account on sentencing. So much emerges from the following passage taken from the transcript of the sentencing hearing:
"Q. You knew what you were doing was wrong?
A. Yeah.
HIS HONOUR: I don't think there's any suggestion to the contrary, Ms Chan.
CHAN: Well, there was that line in the written submission that because of his age, he somehow didn't appreciate the gravity.
HIS HONOUR: That was the submission but there's been no evidence of that.
CHAN: Sure."
There was no re-examination of the applicant in relation to this aspect of the cross-examination, nor was any evidence led in chief from the applicant that supported the case of relevant immaturity advanced on his behalf. Indeed, to the contrary, in a number of the testimonials advanced on his behalf on sentencing, acquaintances referred to him having been a "responsible and well-educated person", "intelligent and motivated" with a "noticeable work ethic".
Once the two premises of the applicant's argument are exposed as being without foundation, little remains of the attack on the sentencing judge's exercise of discretion.
At one point in the oral argument, senior counsel for the applicant sought to suggest that the applicant continued to trade in CFDs because he was motivated by a desire to pay back those he had defrauded. This submission was not sustained by the evidence. The applicant's motivation was ever-growing greed, and his expenditure on a lavish lifestyle (see [7] above) and his conceded desire to "get rich quick" is inconsistent with this submission.
To the extent that a positive "spin" was sought to be put on the fact that the applicant provided his parents with some $900,000, coupled with the submission that there was an Indian cultural tradition of such support for one's parents, that in no way mitigates the applicant's criminal conduct and is a cynical abuse and perversion of an otherwise admirable tradition. An adult child's support for his or her parents, whether within or outside the Indian cultural tradition, is not admirable or worthy of sympathy when it is funded by stolen money.
In relation to the non-parole period imposed by the sentencing judge, little beyond the fact of the applicant's age at the time of offending was advanced, whether in writing or in oral address, to expose any error in the exercise of the sentencing judge's undoubted discretion. For the reasons already given, reliance upon that factor does not avail the applicant.
The sentencing judge held that:
"The fact that this is his first time serving a custodial sentence in combination with the fact that the sentences necessarily will involve, if you like, a partial accumulation is in my view sufficient reason to make a finding of special circumstances and to vary the statutory ratio."
The applicant's written submissions suggested (at para 54) that the sentencing judge "should have taken into account that this was the applicant's first sentence of imprisonment". His Honour plainly did so as the passage extracted above illustrates and it is unhelpful, to say the least, when counsel, including senior counsel, make formal submissions which are simply contrary to the clear and conscientious reasons of the sentencing judge.
Reliance on Johnston (see [22] above) does not assist the applicant. True it is that Mr Johnston received a similar sentence and he was older and better qualified than the applicant. On the other hand, however, the applicant's financial defalcations were almost triple the amount of those of Mr Johnston, who had repaid a fifth of the amount of the money he stole. The applicant, by way of contrast, has repaid none of the moneys stolen.
In any event, as outlined at [48] above, manifest excess is not made out by reference to a small selection of cases.
The applicant, in his written submissions, drew attention to 5 other cases involving financial defalcations: see at [21] above. Whilst it is correct that the offenders in each of those cases were between the ages of 40 and 63 years, for the reasons already given, I do not consider that the applicant's age in the current case warranted any special consideration on sentencing. Of the 5 cases relied upon by the applicant, the applicant's sentence and non-parole periods were similar to those imposed in Pereira v R [2018] NSWCCA 171 in respect of the defrauding of an almost identical amount of money and more lenient than the sentence imposed in Whyte v R [2019] NSWCCA 218 where the offender was sentenced to a term of 10 years with a non-parole period of 6 years and 6 months in respect of defalcations of some $2.9 million over a period of seven years.
Both the sentence and the non-parole periods were well within the range of sentences imposed for similar acts of fraud. The applicant has failed to establish any misapplication of principle or any error in the sentencing judge's exercise of his discretion, in accordance with the principles in House v The King.
I would dismiss the application for leave to appeal.
JOHNSON J: I agree with the reasons of Bell P and the order proposed by his Honour. I agree as well with the additional observations of R A Hulme J.
R A HULME J: I agree with the reasons of Bell P. I only wish to add the following about the bases upon which the sentencing judge found "special circumstances".
A finding of special circumstances is a discretionary finding of fact: Ho v R [2013] NSWCCA 174 at [33] (Schmidt J). It is a prerequisite to enabling a judge to impose a non-parole period which is less than three quarters of the overall term: s 44(2) and (2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In this case, it allowed the judge to impose a non-parole period of 4 years instead of 4 years, 6 months.
Ground 2 of the applicant's proposed appeal involves a complaint that there should have been a greater reduction of the non-parole period. It is important to recognise that the extent of adjustment to the statutory requirement is a matter for the discretion of the sentencing judge: Clarke v R [2009] NSWCCA 49 at [13] (McClellan CJ at CL). In the present case, it is arguable that the applicant was fortunate that there was any reduction at all.
The primary judge referred to two matters that are commonly seen used to justify finding that there are special circumstances: "this is his first time serving a custodial sentence" and "the sentences necessarily will involve, if you like, a partial accumulation". Nothing was said as to why those two matters warranted a reduction of the non-parole period.
It has been described as "conventional sentencing practice" to find special circumstances and reduce the non-parole period of a sentence that is partially or wholly accumulated upon an earlier sentence: Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151 at [36] (Howie J). The purpose of this was explained by Hunt CJ at CL in R v Simpson (1992) 61 A Crim R 58 at 61, using the parlance of the Sentencing Act 1989 (NSW) which referred to a non-parole period as the "minimum term" and the balance of the term of the sentence as the "additional term". His Honour said it was:
"to ensure a proper proportion between the total minimum term and the effective additional term - even if it is only to produce an effective additional term equal to, or roughly equivalent to, one-third of the total minimum term which the prisoner is to serve".
That rationale for finding special circumstances clearly does not apply when an aggregate sentence is imposed. There is only one sentence with one non-parole period. Nothing is accumulated. There is what is referred to as "notional accumulation" of the indicative sentences, but they are not actually imposed. The justification for finding special circumstances in a multi-offence sentencing exercise described by Hunt CJ at CL is completely inapt.
Finding special circumstances upon the basis that the sentence will represent an offender's first time in custody is a dubious proposition: Collier v R [2012] NSWCCA 213 at [35]-[36] (McClellan CJ at CL). If a person has no prior convictions and has therefore not been imprisoned before, that is relevant to the setting of the overall sentence. If there is some additional reason why that fact bears upon the non-parole period such that it warrants some further amelioration it should be stated. Otherwise, what might be involved is mere double counting which should be eschewed: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ).
I agree with Bell P that the application for leave to appeal should be dismissed.