STUDMAN v REGINA

The application 29 The submissions of Mr Odgers SC, for the applicant, were directed primarily to the effective non-parole period and its proportionate relationship to the overall sentence. However, argument was directed specifically to the sentences for counts twelve and thirteen, in which an accomplice was involved. That person created the letterheads and supporting documentation to enable the relevant claims to be made, having the technical expertise to do so. 30 As to those counts, his Honour said in his remarks: The law also regards the commission of offences "in company" as aggravating the criminality. The commission of an offence with an accomplice is for the purposes of the law committing the offence in company. It is not difficult to understand why working with an accomplice should be regarded as an aggravating feature. It supplies the offender with greater resources and options to commit the offences he would commit. 31 Mr Odgers argued that his Honour had misconceived the notion of the commission of crime in company as an aggravating factor. It is such a factor, he said, only in cases where it has an adverse effect upon the victim of a crime. By way of example, he referred to the offence of sexual intercourse without consent in circumstances of aggravation, that is, being in company, under s61J(2)(c) of the Crimes Act (NSW). The rationale of that aggravating factor is that the presence of more than one offender is more coercive and intimidating of the victim: R v Button & Anor (2002) 129 A Crim R 242. He argued that this is the sense in which the expression "in company" is enacted as an aggravating factor for State offences in s21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999. 32 He accepted that an aggravating factor of that kind would be recognised in sentencing for Commonwealth offences, even though it is not one of the matters enumerated in s16A(2) of the Crimes Act (C'th). He noted, however, that the present case is not of that kind. Indeed, he argued that the applicant's criminality would have been greater if he had committed those two offences on his own and kept all the money obtained from them. 33 The Crown prosecutor submitted that his Honour's approach was sound, and that the notion of the commission of an offence in company as an aggravating factor is not confined in the manner for which Mr Odgers contended. He referred to R v Harmouche (2005) 158 A Crim R 357. That was a Crown appeal against a sentence for supplying cocaine, in which Hulme J, delivering the leading judgment, held that the fact that the respondent was a participant in a network of drug supply meant that his offence was committed in company for the purpose of s21A(2)(e) of the Crimes (Sentencing Procedure) Act: see the judgment at [28] and [69]. 34 Mr Odgers made it clear that he pursued this ground of the application only for the purpose of achieving an adjustment of the sentences on those two counts which would leave the overall head sentence intact but lead to a reduction of the effective non-parole period. Certainly, viewed in isolation, the concurrent sentences of imprisonment for twenty-seven months for those two counts are moderate and, even if his Honour were found to be in error, they would not warrant this Court's intervention. The competing arguments are worth recording and are not without interest. However, as will be seen, I find it unnecessary to decide them because of the view I take of the application as a whole. 35 Mr Odgers' challenge to the effective non-parole period of three-and-a-half years was on two bases. That non-parole period is just under 78 per cent of the overall head sentence of four-and-a-half years. He noted that the ratio of non-parole period to sentence for Commonwealth offences is usually in the range of 60 to 66 per cent, and he argued that the proportion in the present case should have been within that range. 36 For this he relied upon Cahyadi v The Queen (2007) 168 A Crim R 41. That was a case involving related Commonwealth and State offences, in which this Court held that the practice relating to Commonwealth offences should have been applied to the determination of the effective non-parole period: see the leading judgment of Howie J at [37]-[39]. Howie J observed that that applicant's criminality had been primarily in contravention of Commonwealth law, and concluded: It seems to me in such a situation to be unfair to sentence by complying with the more severe State regime under s44, where the statutory ratio is 75 per cent, rather than by adopting the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent. 37 Mr Odgers also noted that in the present case his Honour departed from the statutory ratio between sentence and non-parole period in relation to the State offences, the ratio of the effective non-parole period for those offences of twelve months to the overall sentence of seventeen months being 71 per cent. Yet that proportion was not maintained in the overall sentence for all offences, and Mr Odgers argued that this was a case in which there was clearly a basis for a finding of special circumstances under the State sentencing regime warranting a significant reduction from the usual proportion of 75 per cent. He relied on the applicant's subjective case generally but, particularly, upon his gambling addiction, which had provoked his criminal activity and for which he needed prolonged treatment. 38 The Crown prosecutor sought to distinguish Cahyadi on the basis that in that case the State offence was seen as no more than incidental to the Commonwealth offences, whereas in the present case the State offences stood alone and represented a separate phase of serious criminal activity. I can see the force of that argument, just as I can see the force of Mr Odgers' submission that it might have been beneficial for the applicant to have an extended period of parole eligibility to adjust to life in the community and, particularly, to address his long standing gambling addiction. Again, however, I find it unnecessary to decide either of those matters. 39 The difficulty the applicant faces is that both the overall sentence and the effective non-parole period are lenient. His Honour rightly stressed the seriousness of these offences. This was major and systematic fraud, perpetrated over two lengthy periods by a man occupying important positions of trust. It is settled law that, while an important function of a non-parole period is the rehabilitation of an offender by affording the opportunity of release under supervision and sanction, it must also mark the offender's criminality by reflecting considerations of punishment and deterrence: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at [63]-[64]. In my view, no lesser non-parole period would serve that function in the present case: s6(3) of the Criminal Appeal Act. 40 Since preparing these reasons I have had the benefit of reading in draft the reasons of Basten JA. I remain of the view that it is unnecessary to decide Mr Odgers' argument based upon Cahyadi. This is not the occasion to re-examine the line of authority concerning the approach to setting non-parole periods for Commonwealth offences. 41 I would grant leave to appeal but dismiss the appeal. **********