Second and third particulars
The second particular contends that the learned judge failed to adequately take into account the extent of the corporate victim's loss. It is said that her Honour failed to appreciate that the loss would be temporary rather than irreparable. The arguments in this regard were bound up with the third particular, the contention that the learned judge gave undue weight to De Angelis. It is convenient to deal with both of these arguments together. It is worth setting out in full here what her Honour said about De Angelis (ROS28):
On behalf of the Crown, the Court's attention was drawn to the recent decisions of De Angelis v R [2015] NSWCCA 197, Chen v R [2015] NSWCCA 122 and Lu v R [2014] NSWCCA 307. I have had regard to these cases as I have been asked to do. Ultimately, the appropriate sentence for a particular offence will depend on all the relevant circumstances of the offence and the offender.
- I have referred (at [48] above when summarising counsel's arguments) to the guidance provided by the High Court in R v Kilic about the use of comparable cases in sentencing proceedings. A number of points may be made. First, sentencing proceedings, like criminal proceedings generally, are both accusatory and adversarial. To the extent to which they are adversarial, it is for the parties to provide the Court with cases which are said to provide comparable sentences. Secondly, whether a case is appropriately comparable requires "consideration to be given to the circumstances of the offending" in the proffered comparator. Thirdly, it is only when the circumstances of the offending are found to be appropriately comparable that a proposed comparator may provide a yardstick. Fourthly, a single prior instance even of appropriately comparable offending is unlikely to provide much by way of useful guidance. This is because no single prior case is likely to be sufficiently comparable as to the nature and circumstances of the offending at hand and the subjective circumstances of the particular offender. Normally, it takes a number of appropriately comparable cases to provide a useful yardstick. Fifthly, as is clearly established, a yardstick is no more than that. It does not constitute a range within which the sentence under consideration must fall. A sentence markedly out of kilter with a useful yardstick may provide reason for pause before imposing the proposed sentence to consider whether there is good reason in the circumstances of the offending or the offender for a marked difference in outcome. Sixthly, it is well recognised in fraud offences that the usual limited utility of comparable sentences is further attenuated because of "the enormous variation in objective and subjective circumstances" in such offending coming before the courts: R v Hawker [2001] NSWCCA 148; R v Martin [2005] NSWCCA 190 at [56]: "far greater assistance is derived from reference to general sentencing principles". Finally, it is an inevitable part of this process that previous decisions proffered as comparable frequently will be considered only to be discarded for failing to provide an appropriate comparator.
- From her Honour's reasons, it is apparent that although taken to the three cases by the Crown, her Honour derived no specific benefit from them. I infer her Honour found that they did not individually or together constitute an appropriate yardstick. Rather, entirely consistent with previous authority, her Honour directed herself, very appositely in a fraud case, that "the appropriate sentence for particular will depend on all the relevant circumstances of the offence and the offender".
- As set out at [48]-[49] above, the applicant's primary submission was that the learned sentencing judge gave "undue weight … to …. De Angelis". It was put by the applicant that the difference in circumstances between the cases "made it an imperfect comparative case to be used as a guidepost as to the upper marker of the appropriate range of sentences".
- There are two principal reasons why this submission must be rejected out of hand. The first is that faith and credit must be given to her Honour's reasons. Her Honour made it clear from the language she used that she derived, at best, limited assistance from the cases proffered as comparators. In these circumstances it ill-behoves counsel, and it would ill-behove this Court in other than an exceptional and clear case, to go behind the reasons actually expressed by a sentencing judge for the sentence imposed. In Waterways Authority v Fitzgibbons [2005] HCA 57; 79 ALJR 1816, Hayne J remarked at 1835 [130]:
[B]ecause the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. [My emphasis].
It is trite to say that the provision of reasons is an ordinary incident of the exercise of judicial power: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, at 213-215 [54]-[58]. In sentencing proceedings the provision of reasons for sentence explains for the parties, in particular the offender, the Court of Criminal Appeal, and the public, why a particular sentencing decision was made: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [30]. Her Honour explained her approach carefully. This Court should accept that was the approach that in fact was taken. It is not open to counsel in this case to argue that her Honour gave undue weight to De Angelis; in effect that her Honour said one thing but did another.
- The second reason why the argument should be rejected out of hand is that sentencing outcomes in previous like cases have no precedential value: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 536 [53] - 537 [54] citing Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 at [303]- [305]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at 74 [40].
- The only "range" is the range provided for by Parliament. Accordingly no previous decision serves as an "upper marker" of "an appropriate range". There is nothing in her Honour's reasons that suggests she fell into the elementary error attributed to her by the applicant; quite the contrary. And I would not draw that inference merely from the similarity of the sentence imposed. For what it is worth, I repeat that the sentence in De Angelis was an aggregate sentence of 12 years' imprisonment with a non-parole period of 7 years and 6 months; in Chen the aggregate sentence was 10 years with a non-parole period of 6 years; and in Lu it was an aggregate sentence of 9 years with a non-parole period of 6 years.
- It may be acknowledged that the circumstances of the offending and the offender in De Angelis were quite unlike all of the circumstances of the present case. But, as I have attempted to point out, her Honour recognised that and moved on to consider the appropriate sentence for this offending and this offender quite separately from the circumstances of De Angelis and the other cases.
- Concerning the extent of the financial injury suffered by the corporate victim, it was conceded on behalf of the applicant in the proceedings on sentence that because of the amount involved, the fraud is likely to have a "significant impact" on the corporate victim's "operations" (ROS17). Having reviewed the arguments, if I may say so, carefully, her Honour arrived at the following conclusions (ROS18):
… there was a significant impact on [the corporate victim's] operations by reason of the commission of the offences. Having said that, and without minimising the loss actually suffered and the impact actually arising from that, it may be accepted as Mr Pesman SC [who appeared at the trial but not on appeal] submitted, that this case is to be distinguished from those cases where a victim's - or indeed a number of victims' - life savings are stolen causing financial and emotional devastation.
This finding was favourable to the offender. Her Honour did not fail to appreciate, or wrongly assess, the extent of the financial injury suffered by the corporate victim. Bearing that in mind, her Honour went on to evaluate the objective circumstances of the offending, which she recognised do not of themselves determine penalty, in the following way (ROS18):
The features of the offending I have identified warrant the conclusion, which was not put in issue that the offender engaged in various serious criminal conducts exhibiting a high level of criminality. Such a conclusion is required when regard is had, as it must be, to the time over which the offences were committed, the premeditation, the considerable dishonesty exhibited, the gross abuse of trust and the size of the financial advantage involved in the loss incurred.
Her Honour placed emphasis on the size of the advantage obtained by the applicant rather than on the extent of the loss suffered by the corporate victim. For my part I can see no error in this approach or in her Honour's conclusion.
- I am not satisfied that the applicant has demonstrated that the sentence passed was unreasonable or plainly unjust.
- I propose the following orders:
1. Refuse leave to amend to add particular (d) of the existing proposed ground of appeal as an additional ground;
2. Otherwise grant leave to appeal;
3. Appeal dismissed.