The offender was sentenced after pleading guilty to 24 counts of dishonestly using position as director of TZ Limited with intention of directly or indirectly gaining an advantage for himself or a third party contrary to s 184(2) of the Corporations Act 2001 (Cth). Original sentence imposed 10 years imprisonment with a 6 year non-parole period. Offender appealed on grounds that sentencing judge erred in applying totality principle, that the sentence imposed on co-offender gave rise to justifiable sense of grievance, and that the sentencing judge erred in finding that failure to acknowledge wrongdoing prevented finding that offender had any prospects of rehabilitation.
Totality: Sentencing judge’s remarks on sentence do not explain the impact of totality when determining sentence for each offence, and in particular whether it operated to aggravate or mitigate the sentence which would otherwise have been imposed. The reference to s 16A(2)(b) and (c) suggests the impact would be aggravating yet the principle of totality is a mitigating principle. Sentencing judge treated totality as aggravating principle. Error is established as sentencing judge took into account totality of offending in fixing sentences for each individual offence.
Cumulative and Concurrent Sentences: While it is a highly relevant consideration whether the conduct involved two separate incursions into criminal activity, or one multi-faceted course of criminal conduct, the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed. Sentencing judge gave careful consideration to period of each sentence that should be exclusively referable to the offence for which it was imposed. There was a very substantial degree of concurrency.
Parity: Co-offender was sentenced by the same judge and considerable obstacles confront an applicant contending for error based on parity where sentencing judge is fully aware of sentences imposed upon co-offenders and provides reasons for the disparity. Co-offender had expressed contrition and been in custody in Thailand in onerous conditions for three months. Co-offender had lifelong history of depressive symptoms, was 70 years of age and suffered from physical ailments which would make custody more onerous. Disparity in sentences received is amply explicable by those differences and does not give rise to justifiable sense of grievance.
Rehabilitation: Sentencing judge observed that for there to be prospects of rehabilitation it is necessary for there to be some acknowledgement of wrongdoing, which was absent in this case, was incorrect in principle. There were contrary indicators to the findings about lack of remorse, hubris, sense of entitlement, and that the ends justified the means. Offender was of prior good character, had no criminal record, was well-educated, connected and intelligent, married with three daughters who continued to visit and support them. Offender was unlikely to require assistance to reintegrate into community. Factors point to some prospect offender will be able to resume worthwhile role as honourable citizen. Error is established.
Leave to appeal granted. Appeal allowed and sentences quashed. Offender sentenced to 9 years and 6 months imprisonment with a 5 year and 9 month non-parole period.
Totality: Sentencing judge’s remarks on sentence do not explain the impact of totality when determining sentence for each offence, and in particular whether it operated to aggravate or mitigate the sentence which would otherwise have been imposed. The reference to s 16A(2)(b) and (c) suggests the impact would be aggravating yet the principle of totality is a mitigating principle. Sentencing judge treated totality as aggravating principle. Error is established as sentencing judge took into account totality of offending in fixing sentences for each individual offence.
Cumulative and Concurrent Sentences: While it is a highly relevant consideration whether the conduct involved two separate incursions into criminal activity, or one multi-faceted course of criminal conduct, the circumstance that a number of offences arise out of the same course of criminal conduct does not dictate that concurrent sentences must be imposed. Sentencing judge gave careful consideration to period of each sentence that should be exclusively referable to the offence for which it was imposed. There was a very substantial degree of concurrency.
Parity: Co-offender was sentenced by the same judge and considerable obstacles confront an applicant contending for error based on parity where sentencing judge is fully aware of sentences imposed upon co-offenders and provides reasons for the disparity. Co-offender had expressed contrition and been in custody in Thailand in onerous conditions for three months. Co-offender had lifelong history of depressive symptoms, was 70 years of age and suffered from physical ailments which would make custody more onerous. Disparity in sentences received is amply explicable by those differences and does not give rise to justifiable sense of grievance.
Rehabilitation: Sentencing judge observed that for there to be prospects of rehabilitation it is necessary for there to be some acknowledgement of wrongdoing, which was absent in this case, was incorrect in principle. There were contrary indicators to the findings about lack of remorse, hubris, sense of entitlement, and that the ends justified the means. Offender was of prior good character, had no criminal record, was well-educated, connected and intelligent, married with three daughters who continued to visit and support them. Offender was unlikely to require assistance to reintegrate into community. Factors point to some prospect offender will be able to resume worthwhile role as honourable citizen. Error is established.
Leave to appeal granted. Appeal allowed and sentences quashed. Offender sentenced to 9 years and 6 months imprisonment with a 5 year and 9 month non-parole period.
