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Category: Principal judgment

Parties: Wenfeng Wei (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

Representation: Counsel:
K D Ginges (Applicant)
S J Buchen SC / S Palaniappan (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
The Office of the Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2022/167864

HEADNOTE

The applicant, Wenfeng Wei, was convicted of five Commonwealth offences contrary to the Commonwealth Criminal Code. The offending occurred when the applicant was a client engagement officer with the Australian Tax Office (ATO) between July 2010 and June 2022. In May 2016 he was assigned to an audit into the taxation affairs of Raymond Shlemon (Shlemon) and his company, Global World Group (GWG). In August 2016 the applicant received a $100,000 cash bribe from Shlemon. He proceeded to undertake the audit in a way that significantly favoured Shlemon and GWG by understating their tax liabilities and sparing them from penalties. The audit as completed by the applicant identified outstanding income tax liabilities for Shlemon and GWG of only $136,290.20. It ought to have identified income tax and GST shortfalls of Shlemon and GWG with a combined total of over $6.286m. Penalties should have been considered due to the tax shortfall, in the order of 25% to 75%.

Between April 2017 and February 2022, the applicant accessed ATO restricted data in an unauthorised way more than 500 times, concerning Shlemon and entities associated with him. He communicated with Shlemon before, during and after these episodes of unauthorised access.

The applicant also engaged in similar activities relating to another associate, Mr Chao Chang (Chang), who operated a brothel known as “The Ginza Club”. Between August 2017 and March 2020, more than 900 times the applicant accessed ATO restricted data, in an unauthorised way, relating to Chang and his business interests. The applicant communicated with Chang before, during and after these episodes of unauthorised access.

In October 2021, at the request of Chang, on 294 occasions the applicant accessed ATO restricted data about Ms Grace Cheong, who was a business competitor of Chang. This included personal details and information about her property transactions, shareholdings and taxation returns. At least some of the information was conveyed by the applicant to Chang*.*

The applicant also provided taxation advice to Chang using information he obtained in the course of his employment with the ATO. This included information about how to obtain COVID-19 payments by signing up relatives as employees and techniques to avoid tax and AUSTRAC reporting obligations. In return he received $56,697 in benefits from Chang.

The applicant pleaded guilty to one count of bribing a Commonwealth public official contrary to s 141.1(3) of the Criminal Code in relation to the $100,000 cash bribe, three counts of unauthorised access to, or modification of, restricted data contrary to s 478.1(1) of the Criminal Code and one count of abuse of public office contrary to s 142.2 of the Criminal Code in relation to the provision of advice to Chang.

The applicant was sentenced on 12 March 2024 to an aggregate sentence of imprisonment of five years, with a non-parole period of two years and six months. The sentence commenced on 12 March 2024 and will expire on 11 March 2029. The non-parole period will expire on 11 September 2026. The sentencing judge identified indicative sentences in respect of each of the offences, including an indicative sentence for the bribery offence of three years and three months.

The applicant sought leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him. His first ground of appeal was that the sentencing judge erred in incorporating a reduction for the applicant’s past assistance within the 25% discount which his Honour had already allowed for the utilitarian discount of an early plea of guilty. The second ground of appeal was that the sentence was manifestly excessive. A third ground identified in the notice of appeal was subsequently abandoned by a notice of abandonment filed in advance of the hearing.

At the hearing the applicant indicated that he wished to raise a new ground of appeal, namely that the sentencing judge had failed to consider the applicant’s contrition and remorse. Leave was granted for the applicant to file and serve an amended notice of appeal and submissions were received from the applicant and the Crown going to the new ground.

The Court held (Free JA, Leeming JA and N Adams J agreeing):

As to the first ground of appeal

1. On a fair reading of the sentencing remarks as a whole, the sentencing judge did accept that the applicant had provided a recognisable level of cooperation with law enforcement agencies, of the kind required to be considered pursuant to s 16A(2)(h) of the Crimes Act 1914 (Cth), warranting some reduction in the sentence that would otherwise be appropriate. The extent of the reduction, whatever it was considered to be, was “incorporated” within the 25% that had otherwise been described as being attributable to the early plea of guilty. Merging the considerations in this way had the practical effect that the favourable consideration linked to past assistance was not otherwise brought to bear in the instinctive synthesis. Ground 1 of the appeal should therefore be upheld: at [32]-[53].

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, R v Cartwright (1989) 17 NSWLR 243, R v Gallagher (1991) 23 NSWLR 220, Weber v R [2020] NSWCCA 103, R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531, Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, Winchester v R (1992) 58 A Crim R 345, R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, Singh v R [2018] NSWCCA 60, Bae v R [2020] NSWCCA 35, Patel v R [2022] NSWCCA 93, Kilby v R [2023] NSWCCA 247, Finnigan v R [2022] NSWCCA 181, applied.

As to the second ground of appeal

2. It is unnecessary to determine if the sentence imposed was manifestly excessive in circumstances where error in the sentencing process has been identified and the Court is required to undertake a re-sentencing exercise: at [64].

As to the additional ground of appeal raised in the amended notice of appeal:

3. The sentencing judge was required by s 16A(2)(f) of the Crimes Act 1914 (Cth) to take into account the degree to which the applicant had shown contrition for the offence. On a fair reading of the sentencing remarks, the sentencing judge failed to do so: at [54]-[63].

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14, Patel v R [2022] NSWCCA 93, Barbaro v The Queen [2012] VSCA 288; (2012) 225 A Crim R 354, applied.

As to the re-sentencing exercise:

4. In light of the errors identified in the approach of the sentencing judge, this Court is required to consider the appropriate sentence that ought to have been imposed on the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]. That involves placing reliance on the findings of the sentencing judge that have not been disturbed, the making of appropriate findings in respect of the matters found not to have been considered by the sentencing judge and consideration of the additional evidence filed by the applicant for the purpose of re-sentencing: at [65]-[72].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, DL v The Queen (2018) 265 CLR 215; [2018] HCA 32, DG v R [2025] NSWCCA 137, applied.

5. In circumstances where there is an unresolved question about the correctness of the prevailing view that aggregate sentences may be imposed for Commonwealth offences, it is prudent to consider the imposition of individual sentences: at [73]-[74].

McGregor v R [2024] NSWCCA 200, considered.

O’Hanlon v R (Cth) [2025] NSWCCA 118, followed.

6. In relation to the individual sentence that would be imposed in respect of the bribery offence, taking account of the relevant objective and subjective considerations in a process of instinctive synthesis would lead to a sentence that is materially higher than the indicative sentence identified by the sentencing judge. This Court would not, in relation to individual sentences for the other sequences, impose any lower sentences than those found, on an indicative basis, by the sentencing judge. Nor would this Court take any more favourable view than the sentencing judge on the question on accumulation and concurrency, or the fixing of a non-parole period: at [74]-[78].

Pearce v R (1998) 194 CLR 610; [1998] HCA 57, R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, applied.

7. In a situation of this kind, it is not the practice of the Court to impose more severe sentences. The appropriate order is instead to dismiss the appeal: at [79].

DG v R [2025] NSWCCA 137, Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; 65 A Crim R 209, applied.

Judgment

1. LEEMING JA: I agree with Free JA that although two of the grounds of this appeal against sentence are made out, the appeal should be dismissed. I agree with his Honour’s reasons for holding that those grounds are made out. However, were I to resentence, I too would impose a materially higher sentence for the bribery offence, even taking into account the evidence adduced on the usual basis against the possibility that this Court might resentence. That is because the offending was serious and sustained, and the errors identified by the applicant are relatively minor in terms of their impact on the process of formulating the appropriate sentence. Bearing in mind that the applicant already has the benefit of substantial notional concurrency in respect of the five offences to which he pleaded guilty, and an extremely favourable finding resulting in the non-parole period being 50% of the total sentence, the result of resentencing would not be a more favourable effective total sentence or a more favourable effective non-parole period, irrespective of whether or not an aggregate sentence was imposed. Accordingly, although there should be a grant of leave, the appeal should be dismissed.

2. FREE JA: The applicant, Wenfeng Wei, seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him by the District Court on 12 March 2024.

3. The applicant was a client engagement officer with the Australian Tax Office (ATO) between July 2010 and June 2022. In May 2016 he was assigned to an audit into the taxation affairs of Raymond Shlemon (Shlemon) and his company, Global World Group (GWG). The audit was prompted by the detection of unexplained wealth and associated issues with the taxation liabilities of Shlemon and GWG over a number of financial years. A long time business associate of Shlemon was John Zeitoune (Zeitoune).

4. Between June and August 2016 the applicant and Shlemon met and communicated about the audit. In an unauthorised private meeting on 9 August 2016 the applicant recommended that Shlemon use a particular tax agent with whom the applicant had a personal relationship. Shlemon followed that recommendation.

5. On 19 August 2016, the applicant received a $100,000 cash bribe from Shlemon. Shlemon handed over the cash at the walking bridge above the road at Granville Train Station and Zeitoune and others acted as lookouts. The proposal to bribe the applicant had come from Zeitoune. The applicant put most of the cash through two casinos so as to provide an ostensible source for the money. In return for the bribe, the applicant undertook the audit in a way that significantly favoured Shlemon and GWG by understating their tax liabilities and sparing them from penalties. The audit as completed by the applicant identified outstanding income tax liabilities for Shlemon and GWG of only $136,290.20. It ought to have identified income tax and GST shortfalls of Shlemon and GWG with a combined total of over $6.286m. Penalties should have been considered appropriate due to the tax shortfall. They would have ranged from 25% (in the case of a lack of reasonable care) to 75% (for intentional disregard or evasion of taxation obligations). The applicant’s acting team leader in the ATO had recommended that the matter be considered for the imposition of penalties but the applicant concluded in his audit that no penalty amount should be imposed.

6. Federal investigators carried out a controlled operation in respect of these events and in May 2022 the applicant became aware of what he thought was an internal review into the audit that he had performed. He called Shlemon to inform him, and to advise him to obtain legal advice before speaking to the ATO. He later commented to Shlemon that they would both go to prison if the ATO “prove the relationship, if they know everything I’ve done”. When interviewed by investigators on 9 June 2022 the applicant lied by asserting that he did not do anything in favour of Shlemon in the audit.

7. The bribe described above was the subject of sequence 6 on the indictment, being one count of bribing a Commonwealth public official contrary to s 141.1(3) of the Criminal Code which is a Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code).

8. Between April 2017 and February 2022, the applicant accessed ATO restricted data in an unauthorised way more than 500 times. The data which was accessed concerned Shlemon and entities associated with him, including his companies and those of his ex-wife. The applicant communicated with Shlemon before, during and after these episodes of unauthorised access. Such access was the subject of sequence 2 on the indictment, being one count of unauthorised access to, or modification of, restricted data contrary to s 478.1(1) of the Criminal Code*.*

9. The applicant had another associate, Mr Chao Chang (Chang), who operated a brothel known as “The Ginza Club”. Between August 2017 and March 2020, more than 900 times the applicant accessed ATO restricted data, in an unauthorised way, relating to Chang and his business interests. The applicant communicated with Chang before, during and after these episodes of unauthorised access. Such access was the subject of sequence 5 on the indictment, being one count of unauthorised access to, or modification of, restricted data contrary to s 478.1(1) of the Criminal Code*.*

10. The applicant also provided taxation advice to Chang using information he obtained in the course of his employment with the ATO. This included information about how to obtain COVID-19 payments by signing up relatives as employees and techniques to avoid tax and AUSTRAC reporting obligations. In return he received benefits in the amount of $56,697 from Chang. This arrangement was the subject of sequence 8 on the indictment, being one count of abuse of public office contrary to s 142.2 of the Criminal Code*.*

11. In October 2021 Chang asked the applicant to provide him with information in relation to Ms Grace Cheong, who was a business competitor of Chang. In response to that request the applicant accessed ATO restricted data relating to Ms Cheong in an unauthorised way 294 times. He obtained access to private information about Ms Cheong including her date of birth, property transactions, shareholdings, taxation returns, mobile phone number, address and bank account details. At least some of the information was conveyed by the applicant to Chang. These events were the subject of sequence 9 on the indictment, being one count of unauthorised access to, or modification of, restricted data contrary to s 478.1(1) of the Criminal Code*.*

12. The applicant pleaded guilty to five Commonwealth offences contrary to the Criminal Code:

13. Three counts of unauthorised access to, or modification of, restricted data contrary to s 478.1(1) of the Criminal Code in relation to:

(a) Shlemon and his associated Shlemon entities, between 21 February 2017 and 14 February 2022 (over 13 separate days) (Sequence 2); (b) Chang and his associated entities, between 21 September 2017 and 31 May 2020 (over 23 separate days) (Sequence 5); and (c) Ms Grace Cheong, between 12 October 2021 and 21 October 2021 (on two separate days) (Sequence 9).

The maximum penalty for this offence is two years imprisonment.

2. One count of bribing a Commonwealth public official contrary to s 141.1(3) of the Criminal Code in relation to the $100,000 cash bribe paid by Mr Shlemon (Sequence 6).

The maximum penalty for this offence is ten years imprisonment and/or a fine of 10,000 penalty units.

3. One count of abuse of public office contrary to s 142.2 of the Criminal Code in relation to the $56,697 payment by Mr Chang for taxation advice (Sequence 8).

The maximum penalty for this offence is five years imprisonment.

13. The sentencing judge noted that he was required to sentence the applicant in accordance with Part 1B of the Crimes Act 1914 (Cth), and s 16A(2) in particular. His Honour’s specific findings include the following:

14. the offences involved serious breaches of the obligations that the applicant owed to the ATO and the community. The offending occurred over a period of six years and only stopped when the applicant was arrested. It was “planned and pre-meditated and demonstrates an almost incomprehensible breach of his obligations and the scale of his offending”;

15. the offending conduct relating to the acceptance of a bribe and unauthorised access to data was grossly dishonest. The unauthorised access associated with Shlemon was clearly intentional and persistent, spanning multiple years. It involved a significant breach of trust in circumstances where the applicant had completed training on integrity awareness and was clearly on notice of his obligations, which he breached to a significant degree;

16. the applicant’s offending undermined the integrity of the ATO and the confidence the community must have in officers of the ATO. The applicant failed in his duty to the community, in circumstances where he was one of the guardians and gatekeepers relied on to ensure the integrity of the tax system. The breach of trust involved in the offending was substantial and significantly exacerbates the seriousness of the offending behaviour. That involved intangible losses to the ATO and its employees and a significant loss to the community in terms of lost potential tax revenue;

17. the applicant was aware of the illegality of his conduct and acted in blatant disregard of the law and his obligations as an ATO employee;

18. the offending involved the use of confidential information to facilitate criminality;

19. there was an overwhelming number of episodes of unauthorised access in relation to Chang. The applicant hid his offending which he knew was wrong, including by requiring Chang to pay money into his wife’s account and lying to the Commonwealth Bank of Australia about the source of his income;

20. the applicant had completed numerous training courses relating to security, fraud and integrity awareness. He was clearly on notice of his obligations and breached them to a significant degree; and

21. the abuse of office offence, sequence 8, was committed solely for financial gain by the applicant and involved attempts to hide his conduct.

22. The sentencing judge found that the applicant came from a good family and had a happy childhood. At the time of sentencing he was 41 years of age and married to Daimei Chen. They lived together in Epping and had daughters, then aged six and two. The applicant was the sole source of income for the family. He was also the primary carer and financial supporter for his mother, then 80 years old and in remission from breast cancer.

23. As to objective seriousness, the sentencing judge found that the overall objective seriousness was increased by the offending behaviour having spanned around six years. The offending stopped only when the applicant was arrested, notwithstanding that his behaviour had been queried at earlier times by his superiors. The bribery offence, sequence 6, was found to be well within the midrange of objective seriousness for offences of this kind. It was grossly dishonest, involved the deception of colleagues and superiors and struck at the heart of systems designed to protect the community and the revenue.

24. The unauthorised access offences, sequences 2, 5 and 9, were found to be just below the midrange of objective seriousness. However, his Honour did describe sequence 9, involving Ms Cheong, as particularly concerning because of the breach of confidence in circumstances where Ms Cheong was entitled to expect that a public organisation would protect her from competitors and the gross abuse of trust involved. The offending involved a gross violation of Ms Cheong’s privacy as well as of the ATO system.

25. His Honour did not make an explicit finding about the objective seriousness of the abuse of office offence, sequence 8. Neither party on appeal sought to attach any significance to this. The sentencing judge did make a number of findings about the characteristics of that offending, including that it involved abuse of the applicant’s public office to favour Chang and to derive a financial benefit for the applicant.

26. The sentencing judge found that there is a need for significant emphasis on general deterrence for offences of this kind involving gross breaches of trust by a public servant, to “ensure that others who may also be in similar positions and of prior good character, are not attracted to commit offences of this kind but discouraged”.

27. As to subjective factors, the applicant was found to be a person of good character up to the commission of the offences, but the sentencing judge considered this had “limited impact” on mitigation in light of the type of offending and the “egregious breach of trust”. His Honour did not accept that the behaviour was out of character. While it was appropriate to take prior good character into account (as the sentencing judge did when determining the prospects of rehabilitation) it was given less weight than it might otherwise have been given, in circumstances where there was a lengthy offending period in which the applicant was not of good character.

28. The sentencing judge did express some concern about observations in the Sentencing Assessment Report that the applicant had not fully accepted responsibility for his offending behaviour and had given explanations that tended to minimise his role. However, his Honour was satisfied that the applicant had reasonable prospects for rehabilitation in the future, as there were several identifiable protective factors present.

29. The applicant was found to have a gambling addiction. Although there was limited evidence on the topic, the sentencing judge took it into account in the “general mix of subjective factors”. His Honour referred with approval to R v Grossi (2008) 23 VR 500; [2008] VSCA 51 and concluded that in the circumstances of this case it did not impact in any significant way on the applicant’s culpability or reduce the need for general deterrence. There was otherwise no evidence of the applicant suffering significant mental health illnesses.

30. In light of the grounds of appeal, it is convenient to set out in full the sections of the sentencing remarks dealing with the plea of guilty and the assistance provided by the applicant to authorities:

Guilty Plea

The offender pleaded guilty at the Local Court. The Commonwealth legislation does not require any specific percentage reduction in sentence to indicate the benefit to the community by way of utilitarian benefit. In New South Wales there is a legislated percentage reduction of sentences for pleas of guilty entered at identifiable stages of the progress through the criminal justice system. State offences where there is a plea at this early stage, results in a reduction from an otherwise appropriate sentence of 25 per cent. I propose to grant him that reduction to recognise the utilitarian benefit to the community.

I accept in offences of this kind involving details of accountancy procedures and the number of experts that would have been required to be called at a trial, is significant and the utilitarian benefit is substantial irrespective of the existence of a strong Crown case.

The defence, in their submissions, have suggested [that] I would also look for confirmation that his plea also contains a degree of remorse by its timing. The assistance generated because of his corroboration with the law enforcement agencies, to some extent is reduced, in my assessment by the fact that he told lies to the police when interviewed.

He participated in an interview with investigators on 19 September, with the purpose of offering assistance. He focused upon his involvement with Shlemon and Zeitoune. Zeitoune is due to be tried in August 2024. The letter of assistance provided by Senior Investigator Tanner, states that the offender did not provide any new information to investigators. Nonetheless the Court would have proper regard, the defence say, to his assistance.

At the time of the sentencing proceedings, I was advised that the interview had not presently been served on either the co-accused but it will be served on the accused Zeitoune after the completion of these proceedings. It is unclear why this interview has not been served to date. There is no material before me that indicates the offender will be called to give evidence against the co-offender Zeitoune. Based on the facts in this matter it would be somewhat limited. I note the offender Shlemon is pleading guilty and to be sentenced.

Assistance

The defence ask that the offender receive a further reduction in view of the assistance he has provided to the police. In my assessment of the material provided by the prosecution in relation to this limited assistance the fact that in effect it did not provide them with any further information that they were not already aware of and that there is no indication he will be called at any prospective trial of Zeitoune. In my assessment the reduction of 25% for an otherwise appropriate sentence properly incorporates any assistance that he has provided to the police, and I do not propose to increase it.

23. His Honour returned to the topic of assistance to the authorities later in his remarks on sentence:

I have indicated the way I propose to take into account his assistance to the police as referred to by his counsel in their written submissions at paragraphs [120] and thereafter. That assistance is recognised in the 25% reduction for an otherwise appropriate sentence.

24. In the relevant section of the applicant’s written submissions which is referred to in this passage, the applicant had described the assistance he had given in an interview with investigators on 19 September 2023, focusing on his involvement with Shlemon and Zeitoune. It was submitted that even if the applicant had failed to provide investigators with information that was new to them (as indicated in a letter to the Court from the senior investigator), the fact that the applicant had provided assistance was a matter to which the sentencing court should have regard.

25. The sentencing judge took into account that the applicant had been on bail since 9 June 2022 and this had at times been onerous on him. The sentencing judge took into account that incarceration of the applicant would cause some hardship to his family. This included the loss of financial and emotional support to young children.

26. His Honour identified the following indicative sentences which informed the aggregate sentence, in each case apparently incorporating a notional discount of 25% to recognise the utilitarian benefit to the community of the applicant’s guilty plea:

27. as to unauthorised access to restricted data (s 478.1(1) of the Criminal Code):

(a) for Sequence 2, nine months of imprisonment (notionally twelve months pre-discount); (b) for Sequence 5, nine months of imprisonment (notionally twelve months pre-discount); and (c) for Sequence 9, six months of imprisonment (notionally eight months pre-discount).

2. as to bribery of a Commonwealth public official (s 141.1(3) of the Criminal Code), for Sequence 6, three years and three months of imprisonment (notionally four years and four months pre-discount); and

3. as to abuse of public office (s 142.2 of the Criminal Code), for Sequence 8, 15 months of imprisonment (notionally 20 months pre-discount).

4. On the question of concurrency the sentencing judge found the offences to be interrelated in terms of the common element of breach of trust owed to the ATO and the community. His Honour noted there were different victims at different times and found there should be some distinction between the criminality involved in sequences 2 and 5. However, he accepted the applicant’s submission that the criminality involved the same manner of accessing restricted data over the same period, justifying considerable concurrency. There was also found to be significant overlap in the criminality involved in sequences 2 and 6 (each involving Shlemon) and sequences 5, 8 and 9 (each involving Chang). While accepting there should be some concurrency the sentencing judge found there should be gradual accumulation to reflect the criminality of each and the overall criminality of the applicant in the commission of all of the offences. The applicant’s lack of insight into his offending and minimisation of his general behaviour were also found to be factors “underlying the need for some accumulation in relation to each of the penalties to be imposed”.

5. The applicant was sentenced to an aggregate sentence of imprisonment of five years, with a non-parole period of two years and six months. The sentence commenced on 12 March 2024 and will expire on 11 March 2029. The non-parole period will expire on 11 September 2026. In fixing the non-parole period at 50% of the overall term of imprisonment the sentencing judge noted the substantial nature of the parole period, which would allow sufficient time for supervision within the community during parole.

Grounds of appeal

29. In his notice of appeal filed 9 April 2025, the applicant raised the following grounds of appeal:

30. Ground 1: The sentencing judge erred in incorporating a reduction for the applicant’s past assistance within the 25% discount which his Honour had already allowed for the utilitarian discount of an early plea.

31. Ground 2: The sentence is manifestly excessive, in that it is unjust or unreasonable by reference to:

(i) the sentencing judge’s failure to apply totality in accordance with his factual findings and stated intention; and (ii) the indicative sentences imposed for Sequences 2, 5 and 6.

30. A third ground identified in the notice of appeal was subsequently abandoned by a notice of abandonment filed in advance of the hearing.

31. At the commencement of the hearing counsel for the applicant indicated that he had very recently identified a further ground of appeal, being the lack of consideration by the sentencing judge of the applicant’s contrition and remorse, in circumstances where there was an obligation to consider such matters. Counsel candidly and properly acknowledged that the point had simply been overlooked. The applicant sought leave to file and serve a draft amended notice of appeal extending to the consideration of contrition and remorse, along with supplementary submissions in support of that ground. The Crown did not oppose that application and leave was granted accordingly. Following the hearing, the applicant submitted an amended notice of appeal seeking leave to rely on this further ground, articulated in the following terms: “His Honour erred in that he failed to take into account the degree to which the applicant has shown contrition for his offending”. Both parties filed submissions addressing this ground.

Alleged error in incorporating a reduction for the applicant’s past assistance within the 25% discount already allowed in respect of the early plea

32. It was common ground between the applicant and the Crown at the hearing of the appeal that as a matter of law an early plea of guilty attracts considerations in terms of reduction in sentence which are distinct from the considerations attracted by recognition of assistance that has been provided by an offender to law enforcement.

33. The distinct nature of the considerations finds reflection in s 16A(2) of the Crimes Act. Pursuant to s 16A(2)(g), in circumstances where the offender has pleaded guilty to the charge, the sentencing court is required to take into account that plea of guilty, the timing of the plea, and the degree to which the plea of guilty and the timing of the plea “resulted in any benefit to the community, or any victim of, or witness to, the offence”. Pursuant to s 16A(2)(h), there is an obligation to take into account “the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences”. As the Crown correctly submitted, s 16A(2)(h) is expressed in the past tense and is concerned with past cooperation with authorities. Section 16AC of the Crimes Act deals separately with undertakings by an offender to provide future cooperation.

34. The favourable considerations arising from a plea of guilty, in the context of sentencing for a Commonwealth offence, were considered in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. The Court there held that in applying s 16A(2)(g) of the Crimes Act a sentencing court is entitled to take into account the objective utilitarian value of a guilty plea, as well as the extent to which it may demonstrate contrition or remorse, and a subjective willingness on the part of the offender to facilitate the course of justice: [270]-[278]. The utilitarian value in this sense means “the extent to which the plea saved time and cost to the community, and spared the victim the ordeal, and the community the expense, of a contested trial”: [228]. In taking into account a plea of guilty it is desirable in the interests of transparency, but not essential, for the court to specify the quantum of the discount: [279]-[280].

35. The rationale for allowing some reduction in sentence when assistance has been provided to the authorities is explained in R v Cartwright (1989) 17 NSWLR 243 at 252E-253A by Hunt and Badgery-Parker JJ:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's cooperation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

36. Recognition of the assistance to authorities as a means of “encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders” was described by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227 as a “utilitarian consideration”.

37. In Weber v R [2020] NSWCCA 103 Bellew J (with whom Simpson AJA and Rothman J agreed) said the following about the consideration described in s 16A(2)(h) of the Crimes Act (references omitted):

[66] The Crown pointed out that there was no evidence before the Court as to whether the information provided by the applicant to police was of any use. Whilst that is clearly true, it must be emphasised that s 16A(2)(h) of the Act simply mandates that the Court take into account “the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences". In that respect, s 16A(2)(h) may be contrasted with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which mandates that when exercising the power to reduce penalties on account of assistance rendered by a State offender, the Court must have regard to the significance and usefulness of the assistance provided.

[67] If a federal offender has co-operated with authorities, he or she is entitled, by virtue of s 16A(2)(h) of the Act, to have that factor taken into account on sentence. There is no fixed tariff to be applied. The usefulness of the co-operation provided will obviously be relevant in considering the nature and extent of the co-operation, and in assessing the quantum of any discount which is to be applied. The absence of evidence establishing the usefulness of the co-operation does not lead to a conclusion that there should be no discount at all, although in such circumstances the discount may be less than would otherwise be the case.

[68] Further, as conceded by the Crown before this Court, the scheme of s 16A(2) is such that the plea of guilty, and an offender’s co-operation with authorities, are separate and distinct considerations on sentence. The correctness of that approach was recognised by this Court in Valsamakis v R [[2016] NSWCCA 156 at [53]] where the application of a separate discount of 5% to reflect the offender’s past assistance was regarded as appropriate.

38. The benefits to the administration of justice of offenders being willing to inform are such that some allowance should be given where there is frank disclosure of information which, so far as the informer is concerned, is unknown to authorities, even if as a matter of objective assessment the information supplied turns out to be ineffective: R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at [52], citing R v Cartwright at 253.

39. As with a plea of guilty, a sentencing judge is not bound to provide a discrete and quantified discount referable to past assistance that had been provided to authorities: R v Gallagher at 226-230.

40. None of this is to say that there cannot be a degree of overlap between the considerations that arise from a plea of guilty and the considerations arising from past assistance to authorities. For example, both a plea of guilty and the provision of past assistance can be relevant indicators of contrition and remorse on the part of the offender: as to the former, see Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]; Xiao v R at [277] and Winchester v R (1992) 58 A Crim R 345 at 350, as to the latter see R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [53], [55]. The overlap between the objective and subjective considerations arising from a plea of guilty was considered in Singh v R [2018] NSWCCA 60 at [28] and in Bae v R [2020] NSWCCA 35 at [55]-[57].

41. In the present matter, both the applicant and the Crown submitted to the sentencing judge that the applicant should receive a discount for the benefit of his plea of guilty. The applicant’s submissions sought a discount of 25%. The Crown submitted that a discount was appropriate, without specifying the extent of the discount that ought be applied.

42. In relation to assistance provided to the authorities by the applicant, in his written submissions to the sentencing judge the applicant argued that there should be a reduction in his sentence arising from such assistance. The point was not taken up further in oral submissions for the applicant.

43. The Crown argued that there should not be a benefit on sentence in this regard pursuant to s 16A(2)(h), given the timing and quality of the purported assistance provided. In circumstances where the applicant had not given an undertaking about future assistance, s 16AC was not engaged.

44. On the topic of assistance to authorities, the sentencing judge received into evidence a letter of assistance from a senior investigator with the National Anti-Corruption Commission. It described the assistance provided by the applicant as “minimal”. The applicant had proffered assistance to federal authorities in June 2023 and had been interviewed by investigators in September 2023. The letter explained that the applicant had provided little information that was not already known to investigators and investigators were not able to identify any new lines of inquiry from the information provided. The applicant was considered by investigators to be “not full and frank with the information he provided”. The information provided by the applicant did not contribute to the disruption of crime or result in the arrest or conviction of another person. It did not generate new avenues of inquiry.

45. The decisive question is whether the sentencing judge dealt with these issues in a way that revealed an inappropriate merging of the considerations arising from a plea of guilty and the considerations arising from the provision of past assistance to the authorities, with the result that there was a failure to give the applicant the benefit of a discount in respect of the past assistance that he had provided (or at least a failure to consider whether there ought be such a discount).

46. The resolution of this ground of appeal turns on the proper interpretation of his Honour’s reasons. There are two components to the reasoning requiring investigation. One is the factual element – what did the sentencing judge find as a matter of fact about the assistance that the applicant had given to the authorities? The second element is the significance, if any, in terms of reduction in sentence or otherwise, attached to that matter by the sentencing judge.

47. The applicant contends that the sentencing judge implicitly recognised that the applicant had in fact provided assistance to authorities and implicitly found that this warranted a reduction in sentence. The applicant’s complaint is that in purporting to bring that factor to bear his Honour erroneously merged it with the concept of utilitarian benefit that was otherwise linked to the plea of guilty.

48. The Crown submits that this is a misreading of the sentencing remarks. On the Crown’s reading, the discount of 25% should be understood as being wholly referrable to the utilitarian value of the early guilty pleas by the applicant, as the sentencing judge should be understood as having not allowed any further reduction as a response to the assistance provided to authorities by the applicant. In other words, the sentencing judge should be taken to have accepted the submissions of the Crown that the quality and timing of the purported assistance were such that there was no warrant for any reduction in the sentence.

49. In this Court the Crown went as far as to submit that there was in substance no assistance provided by the applicant “in the investigation of the offence or of other offences”, so that s 16A(2)(h) of the Crimes Act was not engaged. The correctness of that submission is doubtful, for the reason given by Bellew J in Weber in the passage quoted above. Section 16A(2)(h) is concerned with the degree to which the offender has “co-operated with law enforcement agencies in the investigation of the offence or other offences”. An offender may co-operative with law enforcement agencies, even if the information provided by that offender proves to be of little or no significance to investigators.

50. It is a question of substance whether or not a sentencing judge took into account a mandatory consideration. It is not essential to refer in terms to the relevant subsection of the statute. Nor is it determinative that the sentencing remarks lack specific reference to the matter in question: see Patel v R [2022] NSWCCA 93 at [52]. Each case must turn on a fair reading of the sentencing remarks as a whole, with an appreciation of the context, including the submissions advanced by the parties: see Kilby v R [2023] NSWCCA 247. As Wilson J (with whom Leeming JA agreed), observed in Kilby at [53], “[i]t is not helpful to isolate a word, phrase, or part of a judgment and seize upon it as indicative of error”. In Finnigan v R [2022] NSWCCA 181 Cavanagh J (with whom Brereton JA and Wilson J agreed) said at [73] that remarks on sentence should not be viewed too critically and it must be appreciated that, particularly in the District Court, such remarks are often given immediately following a sentencing hearing, in a busy list and without the benefit of a transcript.

51. Adopting this approach to the sentencing remarks, on the question of past assistance the applicant’s interpretation of those remarks is to be preferred. It may be accepted that the Crown had made cogent submissions, rationally supported by the evidence, that the applicant had not as a matter of fact provided assistance to the authorities that was useful to them, which in turn might imply that there was no warrant for any reduction in sentence referable to this factor. However, the sentencing remarks do not indicate that his Honour wholly agreed with those submissions.

52. There can be seen to have been at least some acceptance of the Crown’s criticisms of the quality of the assistance provided, given his Honour assessed the material provided to the Court as showing that the limited assistance given by the applicant “did not provide them with any further information that they were not already aware of”. But the sentencing judge did not then proceed to say, as the Crown had urged, that no reduction in sentence at all was warranted by reference to past assistance to the authorities. And in the passage immediately preceding this one his Honour said that the assistance generated by the applicant’s cooperation with law enforcement agencies was “to some extent … reduced” because his Honour considered that the applicant told lies when interviewed by police. The implication is that there was still a recognisable level of assistance warranting consideration. In the critical finding the sentencing judge said that in his assessment “the reduction of 25% for an otherwise appropriate sentence properly incorporates any assistance that he has provided to the police”. The clear implication of that language is that, notwithstanding its limitations, the assistance that the applicant had provided to the authorities did warrant at least some degree of reduction in sentence. The extent of the reduction, whatever it was considered to be, was “incorporated” within the 25% that had otherwise been described as being attributable to the early plea of guilty.

53. This reasoning involves the vice identified by the applicant in this Court. Having already indicated that a discount of 25% was appropriate by reason of the early plea of guilty and specifically in recognition of the utilitarian benefit to the community of that plea, to then treat the favourable considerations attributable to past assistance to the authorities as being a component of the same discount is to ignore the distinct nature of those considerations. Merging the considerations in the way that the sentencing judge did had the practical effect that the favourable consideration linked to past assistance was not otherwise brought to bear in the instinctive synthesis. Ground 1 of the appeal should therefore be upheld.

Alleged failure to take into account the applicant’s contrition

54. The new ground raised by the applicant following the hearing was that the sentencing judge erroneously failed to take into account the degree to which the applicant has shown contrition for his offending.

55. The obligation to have regard to an offender’s contrition stems from s 16A(2)(f) of the Crimes Act which provides:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner.

56. As the Crown submitted, it is important not to overlook the anterior question posed by the words in the chapeau of s 16A(2). The considerations set out in subpars (a)-(p) are not mandatory considerations in all cases. They are engaged as mandatory considerations only where the matters in question are “relevant and known to the court”. In Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19] Gleeson CJ, McHugh, Gummow and Hayne JJ noted that “some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way”.

57. As a sentencing consideration, an offender’s contrition is distinct from the offender’s prospects of rehabilitation. While the two may be related, they must be considered as distinct considerations: Patel at [40]. In Patel at [41] Brereton JA proceeded to explain that “[c]ontrition – or remorse – is concerned with the attitude of an offender after the event to his or her offending. It involves genuine regret”. His Honour referred with approval to the statements of the Victorian Court of Appeal in Barbaro v The Queen [2012] VSCA 288; (2012) 225 A Crim R 354; at [36] that remorse involves a “determination to change one’s behaviour and, to the extent possible, make amends”.

58. In support of this ground of appeal the applicant draws attention to his written submissions to the sentencing judge, which invited a finding that the applicant was remorseful for his offending. The applicant relied in this regard on his letter to the sentencing court, in which he accepted full responsibility for his actions and the harm he had caused to the ATO and the community, and said that he was “deeply … regretful and ashamed for all offences” and acknowledged the impact of his conduct. The applicant had indicated a willingness to repay the bribe by payment instalments. The applicant had also tendered a letter from his wife which recorded that the applicant had expressed his remorse to her when she had collected him from the police station. The applicant’s mother had provided a letter with a similar account of statements of regret the applicant had made to her. The report of Dr Yee described the applicant as having acknowledged and taken full responsibility for the bribery offence, which he said was the biggest mistake of his life.

59. The Crown submitted to the sentencing judge that the applicant had not been shown to be genuinely contrite, and the course of his offending over a number of years would bear adversely upon an assessment of his contrition. The Crown further submitted that given the strength of the Crown case against the applicant his plea of guilty should not automatically be taken as evidence of remorse and contrition. A similar submission was made to the effect that the limited assistance provided by the applicant to the authorities did not support a finding of remorse or contrition. The Crown submitted that there were indications in both the report of Dr Yee and the sentence administration report that the applicant minimised his actions and failed to accept responsibility for them.

60. As with the first ground of appeal, the resolution of this ground ultimately turns on a fair reading of the sentencing remarks. The applicant submits that there is no indication that the sentencing judge engaged with, or resolved, the competing submissions about contrition. The applicant says that in the circumstances the proper conclusion to be drawn is that the mandatory consideration was overlooked. That was the conclusion reached in Patel. The applicant notes that in Patel, as in the present matter, the sentencing judge had made reference to the prospects of rehabilitation, but that did not demonstrate that consideration had been given to remorse. Brereton JA at [40] observed that “though there is a relationship, remorse and rehabilitation are distinct concepts and considerations”.

61. The difficulty in the present case is that the sentencing judge does not appear to have made any explicit finding on the topic of contrition. There are some indirect references. His Honour expressly rejected the explanation for the applicant’s conduct which he had given to the author of the Sentencing Assessment Report, as recorded under the headings “Attitudes” and “Insight”. In those sections of the report, the applicant is recorded as having offered some explanation of his offending. In some cases, but not all, the applicant’s account can be seen as inconsistent with unqualified remorse. In relation to the sequence 2 offending the applicant had reported that he was acting under duress from Mr Shlemon and in relation to Mr Chang the applicant claimed that he did not know it was illegal to access data to provide accountancy and taxation advice to Mr Chang. The applicant claimed to the author of the Sentencing Assessment Report that his acceptance of the bribe “had no bearing on the outcome of Mr Shlemon’s audit and that his actions did not influence the audit process”.

62. The sentencing judge rejected the explanations recorded in this part of the Sentencing Assessment Report as an attempt by the applicant to minimise his criminality. His Honour dealt with this in the context of addressing the prospects of rehabilitation. While the indications that the offender did not fully accept responsibility for his offending were a matter of concern, his Honour was satisfied that the offender had reasonable prospects for rehabilitation in the future. There is no finding, express or implied, about what the findings regarding the Sentencing Assessment Report signified more broadly in terms of remorse.

63. The absence of any findings beyond these assumes significance in circumstances where there was plainly a factual contest between the offender and the Crown about whether the offender was contrite, and if so, what significance should be attached to that factor. This is not a situation where, reading the sentencing remarks as a whole, this Court can be satisfied that no question of contrition arose or the sentencing judge concluded that it was not possible to reach any view on the available evidence so that the mandatory consideration in s 16A(2)(f) was not engaged. His Honour was presented with evidence and submissions from the offender which asserted that he was contrite and that this should count in his favour. Of course, the sentencing judge was not obliged to accept that evidence at face value, to make findings in the terms sought by the offender or to accept his submissions. There was material before the Court which tended to suggest that any findings about contrition on the part of the offender would likely be qualified, at best. The difficulty is that the sentencing remarks do not reveal the necessary engagement with these matters. His Honour appears to have overlooked the discrete question of contrition which required resolution and consideration in light of the competing positions of the offender and the Crown. This ground of appeal is therefore also established.

Ground 2 alleging that the sentence imposed is manifestly excessive

64. In circumstances where the applicant has succeeded in demonstrating that the sentencing judge fell into error in the approach to sentence, necessitating a re-sentence by this Court, it is unnecessary to consider ground 2 of the appeal.

Re-sentencing of the applicant

65. In light of the errors identified above, it falls to this Court to consider the appropriate sentence that ought to have been imposed on the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]. In doing so, this Court is entitled to place reliance on the findings of the sentencing judge that have not been disturbed, and to re-visit findings made by the sentencing judge, but only if procedural fairness has been afforded in respect of any such departure: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. In practical terms, the submissions of the parties serve to provide the requisite notice of any matters in respect of which this Court is invited to depart from the findings of the sentencing judge that would otherwise inform the re-sentencing: see DG v R [2025] NSWCCA 137 at [135].

66. In anticipation of that exercise being performed, the applicant relied on an affidavit that he affirmed on 13 June 2025, an affidavit of his wife Daimei Chen affirmed 13 June 2025 (supported by the affidavit of an interpreter who prepared the English interpretation of Ms Chen’s affidavit) and an affidavit of Stephen Eccleshall, the applicant’s solicitor, affirmed 16 June 2025.

67. The applicant urges that on any resentencing this Court should have regard to the applicant’s current state of mind when assessing remorse. The evidence in this regard is said by the applicant to show an evolution. Whatever qualifications or limitations there may have been in the applicant’s initial dealings with police and ATO investigators, the applicant says that his affidavit of 13 June 2025 demonstrates that he now feels continuing regret for causing the loss of tax revenue, for the way he illegally received money, for the way he accessed and misused ATO information and for harming the reputation of the ATO. The applicant says that he is reminded every day of the great shame and hardship he has caused his wife, daughters and mother. This is said by the applicant to demonstrate genuine remorse, which in turn shows good prospects of rehabilitation.

68. The evidence available to this Court does paint a more favourable picture for the applicant on the topic of remorse. For the purposes of re-sentencing, I would accept that the applicant has come, albeit belatedly, to a position of genuine remorse, driven in particular by an appreciation that he has caused great harm to his family by his offending. That does not mean that the earlier evidence showing a lack of insight and a tendency to minimise his own culpability loses all significance. Nevertheless, I would place weight on the more positive recent indications of remorse.

69. The additional evidence also serves to reinforce the hardship that has been imposed, and will continue to be imposed, on the applicant’s family. There is no doubt that the applicant’s family continue to suffer great financial and personal stress. The applicant and his family also face the prospect of the applicant being subject to disciplinary action by Certified Practising Accountants Australia that would preclude him from working in the future as an accountant. These are matters that I also take into account, by way of reinforcement of the findings made below concerning hardship.

70. The more favourable evidence of remorse favours the applicant on the question of his prospects of rehabilitation. The sentencing judge made favourable, though somewhat qualified, findings in this regard. There is less reason for qualification in light of the further evidence. In addition to addressing his remorse in more detail, the applicant gives evidence of his positive actions while in custody, including working in various positions and assisting other inmates. The applicant’s family also continues to support him, consistent with the position that pertained when the sentencing judge found that there were positive conditions for rehabilitation. I proceed on the same basis as the sentencing judge, namely that the applicant has reasonable prospects of rehabilitation.

71. As for the error exposed by the first ground of appeal, it is appropriate in the re-sentencing exercise that I take into account that the applicant did cooperate with law enforcement agencies in the investigation of the offences that he committed and other offences. In assessing the quality and degree of that cooperation, I accept the Crown’s submission that the assistance was of little ultimate significance for the law enforcement agencies. The fact of cooperation is a consideration that counts in the applicant’s favour, but I do not consider it to be a weighty factor.

72. I otherwise rely on and adopt the findings made by the sentencing judge, which inform the consideration of objective factors and the applicant’s subjective factors. I have brought those findings to bear on the process of instinctive synthesis that is required in the re-sentencing exercise.

73. The sentence imposed below was an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). There is presently some uncertainty about the appropriateness of imposing an aggregate sentence for Commonwealth offences. The prevailing view is that this is an available course: McGregor v R [2024] NSWCCA 200 at [90]-[92]. However, the High Court has granted special leave to appeal from this Court’s decision in McGregor and will be hearing argument on the question of whether s 53A is applicable to sentencing for Commonwealth offences. Depending on the outcome of the appeal in McGregor, there may prove to be a problem with imposing an aggregate sentence on the offender. In the circumstances, it is prudent not to do so. This was the approach adopted in O’Hanlon v R (Cth) [2025] NSWCCA 118 at [92]-[93].

74. For the purposes of re-sentencing it would therefore be appropriate to impose individual sentences. In doing so, the task of the Court is to impose a sentence or make an order that is in each case of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act. That requires the Court to fix an appropriate sentence for each offence, and then consider questions of accumulation or concurrency, as well as totality considerations: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [45]. Resolving the correct approach to accumulation or concurrency in each case is a discretionary exercise, informed by the considerations summarised in R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52].

75. The instinctive synthesis that I have undertaken, informed by the sentencing purposes in, would lead me to conclude that in relation to the bribery offence, if an individual sentence were to be imposed, it would be materially higher than the indicative offence arrived at by the sentencing judge. In terms of individual sentences for the other sequences, I would not arrive at a lower sentence than any of those found, on an indicative basis, by the sentencing judge.

76. The sentencing judge, in explaining how he arrived at the aggregate sentence in light of the indicative sentences for the individual offences, adopted an approach to notional accumulation and concurrency that I consider to be quite favourable to the applicant. On a re-sentence I would not adopt any more favourable approach to accumulation and concurrency to the individual sentences that I would impose.

77. In considering whether the overall outcome of the re-sentencing exercise might still be more favourable than the sentence to which the applicant is currently subject, it is also relevant to have regard to the non-parole period. In this regard the sentencing judge adopted an approach that was highly favourable to the applicant, ordering that 50% of the overall sentence would be served as a non-parole period. If this Court were to proceed to a re-sentencing of the applicant, it would not be appropriate to adopt a more lenient non-parole period as a proportion of the overall sentence.

78. It follows that the individual sentences that I would impose, taking into account accumulation and concurrency and the fixing of a non-parole period, would result in an outcome that is ultimately more severe than that imposed by the sentencing judge.

79. As N Adams J recently observed in DG v R [2025] NSWCCA 137, although s 6 of the Criminal Appeal Act authorises this Court, where an appeal from sentence is allowed, to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of the Court to impose more severe sentences. Adopting the same approach as underpins the giving of Parker warnings (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282), if the Court is inclined to conclude that a more severe sentence would be warranted the usual practice is to dismiss the appeal. That is the approach that I would take in this matter.

80. The orders I would propose are:

81. Leave be granted under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

82. Appeal dismissed.

83. N ADAMS J: I agree with the orders proposed by Free JA for the reasons provided by his Honour. Although the applicant has established error under both ground 1 and his additional ground, I too would dismiss the appeal on the basis that, having exercised the sentencing discretion afresh, I did not conclude that a lesser sentence is warranted in law. As French CJ, Hayne, Bell and Keane JJ observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]:

“The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal.”

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