Ground 1: The sentence was unduly harsh and severe.
Ground 2: The sentencing judge erred in respect to totality.
Ground 3: The sentence was vitiated by error.
Ground 4: The sentencing judge erred.
41 Before turning to grounds 1 and 2 it is convenient to consider grounds 3 and 4. Under those grounds the applicant raised discrete issues with respect to a number of the individual sentences.
42 As I have previously indicated when imposing sentences with respect to counts 1 to 3 on the second indictment his Honour purported to impose a period of recognisance commencing on 29 February 2009 and sentences in respect of counts 4 to 9 commencing on the same day. This was an obvious slip. The final day in February of 2009 was the 28th as it will be in the year 2011. The record indicates that the slip was identified and an amendment has been made to the record. The slip has no practical impact on the periods which the applicant must serve in custody or on parole and has no other relevant consequence. Because the slip was not carried forward to the sentence in relation to count 10 and no alteration has been made to that sentence the effect is that the last day of the sentence is 28 May 2015. It is likely that if the slip had not occurred this date would have been 31 May being the last day of May in that year. As a consequence if it has had any effect at all the mistake operates in the applicant's favour.
43 When sentencing in relation to the count on the first indictment his Honour said that he sentenced the applicant to "a sentence to imprisonment by way of a non-parole period for 9 months. A fixed term commencing on 29 November 2006 and expiring on 28 August 2007. A fixed term has been imposed having regard to the sentences to follow."
44 The applicant complained that his Honour has accordingly imposed a non-parole period without a head sentence. Although his Honour used the expression "non parole period" his Honour in fact imposed a fixed term. This is plain from the use of that expression when defining the dates for the commencement and the conclusion of the relevant sentence. The applicant's complaint is without merit.
45 In relation to counts 1 to 3 on the second indictment it was submitted that his Honour erred by imposing a non-parole period with no head sentence "but purporting to impose a recognisance at the conclusion of that period" for the three passport offences. The applicant also submitted that his Honour erred by commencing the period of recognisance at the expiration of the non-parole period, although that recognisance will be rendered nugatory by the further sentences which were imposed.
46 As the respondent pointed out in submission, s 19AC(1) of the Crimes Act 1914 (Cth) requires a judge to make a "recognisance release order" in respect of a sentence that does not exceed 3 years. By imposing the sentence which he did his Honour would have been aware that the period of recognisance would be subsumed in the subsequent sentences. Although his Honour referred to a "non-parole period" it is plain that he intended to refer to the term of imprisonment preceding his release to recognisance in accordance with s 20(1)(b) of the Act. Although his Honour has not used the language of the Act his intention is plain and the error complained of by the applicant is of no practical consequence.
47 It was submitted that the sentencing judge erred in failing to comply with the provisions of s 44 and s 45 of the Crimes (Sentencing Procedure) Act 1999 when sentencing the applicant on counts 4 to 6 and counts 7 to 9 on the second indictment. It was submitted that his Honour failed to sentence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610 and that his Honour failed to evaluate the criminality involved in each offence and drew no distinction between the sentences imposed. The applicant referred to the decision of this Court in Gaffney v R [2009] NSWCCA 160.
48 It is plain from his Honour's remarks that he considered each of these individual offences to have the same degree of criminality. His Honour was of the opinion that each individual offence warranted a sentence of 3 years with a non-parole period of 2 years but for reasons of totality he would make three of the sentences concurrent (counts 4 to 6) and accumulate the sentences for counts 7 to 10, which were themselves made concurrent, although the full term for count 10 extends beyond the term of the other sentences.
49 There is no requirement for a sentencing judge to determine or pass sentence in discrete stages and before a decision has been made as to the ultimate structure of the individual sentences: R v JRD [2007] NSWCCA 55 at [26]-[33]. The decision in Pearce does not require the sentencing judge to set differentiated sentences for each offence, the sentence for each offence being precisely proportionate to the criminality of that offence: R v Chan [2000] NSWCCA 345 at [28]. In Gaffney where a similar ground of appeal was upheld, the sentencing judge imposed fixed terms of imprisonment in respect of four counts, fixed terms of imprisonment (cumulative) on another two counts, and a term of imprisonment, with a non-parole period and balance of term, for two remaining counts (partly cumulative). The court concluded that the sentencing judge had allowed the totality principle to distort the sentencing exercise and concluded that the sentences imposed were a product, not of the individual offences, but, of an endeavour to impose an appropriate total sentence. I am satisfied that this has not occurred in the present case. Although some offences were grouped together, having regard to the number of offences this was inevitable. However, there is no indication that his Honour did other than identify the appropriate sentence for the individual offences and then used concurrency and accumulation to achieve an appropriate overall result.
50 In the present case each of the offences in counts 4 to 10 were similar although some involved withdrawing sums of money from ATMs and others involved transferring money over the internet. Counts 4, 5 and 6 involved amounts of $29,920, $16,480 and $36,650 whilst counts 8 and 9 involved amounts of $32,620 and $10,590. Each count, with the exception of count 6, was comprised of a number of individual offences. Count 7 involved a more significant sum, $220,000. There was otherwise little to differentiate the criminality. The fact that count 6 was a one-off offence is balanced by the fact that the total amount was more than the other counts comprising multiple offences. If anything the lack of differentiation in the sentence for count 7 operated in the applicant's favour.
51 The sentencing judge identified that "each of the seven offences" is at the higher end of the range of criminality. His Honour expressly emphasised the number of individual offences making up each count and the amounts involved. The fact that he grouped some offences together before pronouncing the sentences for each group merely reflected the fact that for reasons of totality he made some sentences concurrent and accumulated others. This approach was open to his Honour.
52 The applicant submitted that his Honour erred by failing to comply with s 16F(2) of the Crimes Act 1914 (Cth). That section obliges a sentencing judge who makes a recognisance release order to explain its purpose and consequences.
53 After he had pronounced the sentences his Honour said:
"Mr Stevens, you have been sentenced to imprisonment and you are to be released upon the expiration of the non-parole period upon your entering into a recognisance to be of good behaviour. If during that recognisance period you are not of good behaviour you are liable to be further apprehended and to be sentenced or required to serve that term the subject of the recognisance. Similarly, if you are not of good behaviour during the parole period I have set you are again liable to be apprehended and required to serve the balance of the sentence comprising that parole period."
54 The effect of the sentences which his Honour imposed was that the period of recognisance for the Commonwealth offences was subsumed by the non-parole periods for the State offences. If his Honour's remarks were less than s 16F(2) required, and no particular deficiency was identified, it was of no practical consequence.
55 The applicant submitted that his Honour erred by confining his finding of special circumstances to only part of the total sentence. His Honour found special circumstances in relation to counts 4 to 10 on the second indictment but made no finding in relation to the count on the first indictment.
56 The submission is without merit. The sentence on the first count was a fixed term and questions of parole did not arise. His Honour's finding of special circumstances in relation to counts 4 to 10 was made after his Honour had indicated that he was mindful of the principles of totality. His Honour varied the ratio for counts 4 to 9 to approximately 66% and in relation to count 10 it was varied to 30%, an indication of the sentencing judge's concern that the overall sentence would provide an appropriate balance between the period in custody and the period on parole. There is nothing to suggest that his Honour did not intend the outcome which was achieved. His Honour reserved consideration of his sentencing decision and gave detailed reasons for the sentences he was imposing.
57 A number of discrete submissions were made in relation to ground 4. The applicant submitted that his Honour erred in his findings with respect to the criminality involved in the passport offences. The Crown submitted at the sentencing hearing that there was no evidence that the passports had in fact been used for fraudulent purposes. However, the applicant's counsel conceded that his Honour could assume that their possession was for fraudulent purposes. They would obviously be useful in an offence where a false identity would be of assistance. His Honour excluded the possibility that the passports had been used for travel but said that they "could readily have been utilised to create a false identity and to facilitate some fraudulent endeavour." His Honour said further: "I hold no doubt that they were intended to be utilised for multiple frauds." This finding was open to his Honour who proceeded to sentence the applicant for possession of the passports but made plain that he was not sentencing for any offence involving their use.
58 The applicant complained about his Honour's finding that the offences in counts 4 to 10 were "at the higher if not the highest end of the scale of criminality". Although a submission to this effect was not made by the Crown at the sentencing hearing his Honour indicated that his conclusion was based on the fact that the offences themselves represented "multiple fraudulent acts." Some counts encompassed a large number of individual transactions over several months, some involved large sums of money in one transaction. The offences were part of an elaborate scheme by which bogus bank accounts were created and other person's internet banking facilities were fraudulently accessed to transfer funds into the bogus account. For the scheme to operate the personal records of a number of people were stolen.
59 His Honour accepted that the applicant may not have been a principal in the thefts of the necessary identities and made plain that he was not sentencing the applicant for them, but identified, as he was entitled to do, that the applicant must have acted in concert with whoever had stolen the records. By reason of the personal records found in the applicant's house and other documents there was significant evidence that he had been personally involved in setting up the bogus accounts. It is plain, as his Honour found that the applicant had on many occasions dishonestly taken substantial amounts of money with full knowledge that he was defying the law. His Honour was entitled to find as he did that this was not a "one off fall from grace" and that it was "difficult to conceive of a more deliberate and planned course of systematic dishonesty".
60 The sentencing judge found that some of the victims were vulnerable and that in one case a pensioner was targeted. The applicant submitted that there was no evidence that he was aware of this or that any person had been targeted due to their vulnerability or because they were a pensioner.
61 The remark about which complaint is made came at the conclusion of his Honour's remarks with respect to the serious nature of the offences and the expectation of the community that meaningful penalties will be imposed. There can be no doubt that the applicant knew that he was dishonestly taking the money of many persons with the likelihood of seriously compromising their confidence in the banking system. In the sense that each of the victims had placed their faith in that system they were obviously vulnerable, although it would seem that a finding that a pensioner was targeted was not supported by any evidence. I do not believe that finding has affected his Honour's decision as to the appropriate sentences in any material fashion.
62 The psychological report in relation to the applicant indicated as part of his recorded background that he had met his partner when he was 18. The relationship apparently broke down and he then met a Scottish backpacker. The report records that he travelled with her to Scotland in 1991. This was not correct. In fact he left in 1992. After a time the couple moved to London and married. However in 1997 the applicant returned to Australia where he recommenced the earlier relationship.
63 The applicant sought to tender evidence to this Court which indicates that he and his former wife left Australia in 1992 and not 1991. This was to answer any suggestion that he may have used a false passport to leave the country. The sentencing judge was sceptical about the usefulness of the psychological report during the proceedings on sentence and remarked that there was no reference to the fact that the applicant had apparently left Australia on 14 June 1992, successfully avoiding his trial. His Honour made this remark during the proceedings on sentence when he indicated that there was a lack of information about the applicant's subjective case. However, his Honour did not make a finding that the applicant had used a false travel document to leave Australia in 1991 and accordingly the remark is of no consequence.
64 In any event the evidence which has been filed and which the applicant seeks to tender in these proceedings is not fresh evidence. Although the applicant complained that his former solicitor did not place appropriate evidence before the court the applicant was present in court when the date of his departure was referred to as being in 1991. The opportunity would have been available for him to inform his counsel that the date which was being discussed was not correct and he had every opportunity to inform the court of the correct position.
65 The relevant fact to which his Honour had regard was that whenever it was that the applicant left Australia he was on bail and did not appear for his trial.
66 The applicant submitted that his Honour erred in finding that all of the offences on the second indictment were committed whilst the applicant was on bail. It was submitted that rather than being on bail the applicant was at large following the issue of a bench warrant for his arrest. This was strictly correct, although the applicant's bail was not formally revoked until he appeared in the District Court on 1 December 2006. Although his Honour indicated that the applicant was on bail rather than at large this has no significance. His Honour was well aware of the fact that the applicant had failed to appear at his trial and that a bench warrant had been issued for his arrest.
67 The applicant submitted that it had been alleged by the respondent that he was the principal only in relation to counts 6 and 7 and that his Honour failed to take this into account. However, when the applicant pleaded guilty he accepted that he was guilty of offences by which he deceptively caused the electronic transfers and obtained a financial benefit for himself. The applicant was a central player in all of the offences. The applicant's counsel accepted, during the sentence hearing, that the applicant "has to have been involved with those who organised the scheme." His Honour found that the applicant acted in concert with accomplices. Whatever was the applicant's actual degree of involvement in setting up the bogus accounts and theft of the personal records it was he who made the relevant withdrawals and otherwise completed the offences. The findings which his Honour made as to his involvement were clearly open.
68 The applicant draws attention to the fact that his Honour identified a total sum involved in the offences of $402,935 but only $193,753 was actually lost. The balance was recovered. The actual loss was identified in the "Crown sentence summary" placed before his Honour.
69 The applicant's criminality was not dependent upon whether the banks had been successful in retrieving any part of the money. The amount fraudulently obtained was correctly identified and it was that amount which was to be reflected in the seriousness of the offences.
70 The applicant submitted that the reduction which his Honour allowed in the sentence for the offence on the first indictment for his guilty plea was inadequate. His Honour allowed 10%. This submission is without substance. After he had been committed for trial, and his trial date fixed, the applicant fled the jurisdiction. He remained at large for many years. His counsel conceded during the proceedings on sentence that his plea to the first indictment was not entered at the earliest opportunity. It could hardly have been otherwise. A discount of 10% was within his Honour's discretion.
71 The sentencing exercise for the offences was by reason of the number of counts complex. However, analysis of each of the sentences suggests that his Honour achieved his stated objectives. In relation to counts 4, 5 and 6 his Honour imposed sentences of 3 years. A 25% discount suggested a starting point of 4 years and, absent the finding of special circumstances, a non-parole period of 3 years would follow. The ultimate sentence of 2 years without parole with a balance of term of 1 year suggests that his Honour achieved the discount which he intended.
72 Complaint is also made about the sentence for the passport offences. In relation to these matters his Honour noted that there was little authority to guide him as to the appropriate sentence. This was due in part to the fact that the penalty was increased from 2 to 10 years, and all but one of the previous matters had been dealt with in the Local Court. His Honour imposed a penalty of 2 years and 4 months as against the maximum penalty of 10 years. To my mind this was appropriate.
73 The applicant submitted that the fixed term imposed for the offence on the first indictment effectively nullifies most of the benefit which his Honour gave for the plea for the passport offences. The term of imprisonment which the applicant must serve for these three offences is 1 year and 6 months. However, there is nothing to indicate that the individual sentences were not ameliorated as his Honour intended. The real question is whether the overall sentence was appropriate in all of the circumstances.
74 Finally, the applicant complained that his solicitor at the sentence hearing was negligent by telling him that any character references would be of little utility and there was no real purpose in obtaining them. The applicant's former solicitor has deposed in an affidavit that he did not believe that any testimonial would be of assistance having regard to the applicant's record, his failure to appear, and the long period over which he had committed the offences. This approach was plainly open and I am not persuaded that the applicant was adversely affected by it.