New South Wales Court of Criminal Appeal CITATION: Joseph Paragalli v Regina [2006] NSWCCA 87 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 22 March 2006 JUDGMENT DATE: 29 March 2006 JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 38 DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed LEGISLATION CITED: Bankruptcy Act 1966 (C'th) Crimes Act 1914 (C'th) PARTIES: Joseph Paragalli Regina FILE NUMBER(S): CCA 2005/2486 COUNSEL: W. J. Abraham QC - Crown H. J. Dhanji - Applicant SOLICITORS: Comonwealth DPP - Crown Legal Aid Commission of NSW - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1127 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2486 McCLELLAN CJ at CL SULLY J HISLOP J 29 March 2006 Joseph PARAGALLI v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Sully J. 2 SULLY J: In February 2005 the applicant, Mr. Paragalli, was presented before his Honour the Chief Judge of the District Court, upon an indictment containing 4 counts. The first count charged that the applicant had carried on business without disclosing to every person with whom he dealt the fact that he was an undischarged bankrupt. The second, third and fourth charges each alleged that the applicant had obtained credit without informing the credit provider that he, the applicant, was an undischarged bankrupt. Any such offence contravenes section 269(1) of the Bankruptcy Act 1966 (C'th) and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 3 years. 3 On 22 April 2005 the applicant appeared before his Honour Judge Blackmore in the District Court at Sydney. He asked that two further matters be taken into account pursuant to the provisions in that behalf of section 16BA of the Crimes Act 1914 (C'th), and Judge Blackmore acceded to that request. Proceedings on sentence were completed and the applicant was remanded in custody until 2 May 2005. 4 On 2 May 2005 Judge Blackmore passed sentence upon the applicant. The details are: Count 1 Imprisonment for 15 months from 22 July 2006 to 21 October 2007. This sentence takes into account the two additional offences earlier mentioned. Count 2 Imprisonment for 12 months from 22 April 2005 to 21 April 2006. Count 3 Imprisonment for 12 months from 22 July 2005 to 21 July 2006. Count 4 Imprisonment for 12 months from 22 October 2005 to 21 October 2006. 5 His Honour made, pursuant to section 20(1)(b) of the Crimes Act 1914, an order that the applicant be released on 21 October 2006 after having served a period of imprisonment of 18 months and upon his giving security in the sum of $1,000 to be of good behaviour for 3 years. 6 His Honour made an order pursuant to section 21E of the Crimes Act 1914, but its details are of no present concern. 7 The sentence structure thus adopted entails an aggregate head sentence of 2 years 6 months and a non-parole period of 1 year 6 months. 8 The relevant facts were agreed. They are summarised conveniently and as follows in the remarks on sentence: "The facts of the case were presented in writing and were agreed. Summarising those facts, the offender became a bankrupt by a debtor's petition on 31 March 1998. On 13 March 2001 whilst still an undischarged bankrupt the offender again became bankrupt when his debtor's petition was accepted. The offender remains undischarged with respect to both bankruptcies. The offender whilst not a director was within that period the sole operator of a removalist business that traded under various names including Cousins Removals Pty Limited, JNP Furniture Removals Pty Limited and NJP Furniture Removals & Storage Pty Limited. During much of that time the offender's wife, Nancy Muscara, was the director and secretary of those companies. The offender, however, was the person who negotiated contracts on behalf of the companies, signed company documents and instructed staff. Count 1. In May 1999 the offender signed two contracts to purchase two trucks, one for $127,300 and one for $154,960 from a company, Gilbert & Roach. The offender made application for credit with respect to the purchases, the trucks were subsequently delivered and credit was applied relying on Ms Muscara's assets. Count 2 In June 1999 the offender negotiated the purchase of a truck engine from Bernie's Spares. The engine was delivered in July 1999. The offender negotiated seven days credit with respect to the purchase. The engine was not paid for. On separate occasions cheques which were forwarded to the company were subsequently dishonoured. Most of the contract price of $5150 remained outstanding at bankruptcy. Count 3 On 10 November 2000 the offender attended Aaron's Country & Town Furniture at Fairfield and purchased furniture to the value of $6550. The offender negotiated credit for two months with respect to that furniture. On 11 November 2000 the offender purchased $3200 of additional furniture. In respect of the furniture he paid a deposit of $1000. Subsequently, a cheque for $500 was received by Aaron's Country & Town Furniture but that cheque was dishonoured. Another cheque for $250 was received and was paid. That was the only payment received with respect to the furniture. Count 4 In late 2000 the offender approached Owen Insurance Brokers Pty Limited to organise a number of insurance policies with respect to the trucks that he used in the business, Cousins Furniture Removals, insurance to cover goods transported by that company and public liability insurance. The policies were organised and the offender sought credit to pay for the policies. The offender agreed to pay $17,400.60 by instalments of $1450.05 a month. The offender made some payments by cheque but they were subsequently dishonoured. The policies were ultimately cancelled and Owen Insurance Brokers were left with $1187.62 owing to them. In relation to the offences committed by the offender he obtained trucks to the value of $282,260 with respect to count 1. In respect of counts 2, 3 and 4, the offender obtained credit to the value of $31,300.60. With respect to the two offences dealt with on the schedule the offender obtained goods and services to a much smaller amount, something less than $3000." 9 Five Grounds of Appeal were notified. The first and fourth of them were not pressed at the hearing of the application. It is convenient to deal with the second, third and fourth grounds of appeal in the notified order. Ground 2 10 The ground is: "The three year recognizance release order is excessive". 11 For reasons which are explained more conveniently in the discussion of ground 5, I am of the opinion that the term of the order is not excessive. Ground 3 12 The ground is: "The non-parole period failed to reflect his Honour's intended variation to the customary ratio". 13 At the conclusion of the remarks on sentence Judge Blackmore explained to the applicant the effect of the sentences that his Honour had passed. His Honour said, relevantly: "I reduce the time that you will stay in custody to 60 percent of your total sentence to recognise the difficulties that are occasioned by being in protection and, in particular, your health problems." 14 His Honour set the non-parole period at 18 months which is exactly 60 percent of the overall head sentence of 30 months. 15 It is submitted for the applicant that what his Honour said should be understood as indicating an intention to set a non-parole period at a point lower than the range that is conventionally regarded as generally appropriate; that 60 percent of the head sentence is the low point of that range; and that his Honour therefore did not do what he said he intended. 16 I would not uphold this submission. 17 First, I would not so analyse and parse his Honour's words. They are consistent with his Honour's having intended to convey that he would take the lowest, rather than any higher, point in the conventional range, and would do so by way of recognition of the matters to which his Honour referred. 18 Secondly, his Honour was specifically enjoined by section 16A of the Crimes Act 1914 to impose a sentence "that is of a severity appropriate in all the circumstances of the case". That entailed that there had to come a point at which discounts and concessions, if not tempered sensibly, would simply swamp any real recognition of the objective gravity of the applicant's offences. Judge Blackmore took, for reasons stated clearly in the remarks on sentence, a severe view of that objective criminality. His Honour was, in my respectful opinion, correct to do so. Ground 5 19 The ground is: "The sentence is manifestly excessive". 20 Two related questions arise. 21 The first question is whether the overall head sentence set by his Honour, that is to say a sentence of imprisonment for 2 years 6 months, is manifestly excessive. 22 To speak in simple and practical terms, this question cannot be answered favourably to the applicant unless the applicant can persuade the Court that a starting point of 5 years was too high. That is so because his Honour stated clearly in the remarks on sentence that "……… had this matter gone to trial and absent the assistance to which I have already referred a total full-time custodial penalty of five years would have been warranted". 23 I have previously expressed my agreement with the severe view taken by Judge Blackmore of the objective criminality of the offences. There were six discrete offences, each involving a deliberate flouting of the bankruptcy law of this country. Deterrence, both general and personal, but especially general deterrence, was a significant factor in aid of maintaining the integrity of the law of bankruptcy without which there would be serious public disadvantage of various commercial, economic and social kinds. The offences were committed at times when the applicant was at liberty on a bond following his conviction for an offence of obtaining money by deception. The applicant's antecedent criminal history included offences, and a number of them, of dishonesty of various kinds. 24 The applicant was entitled to have taken properly into account various subjective matters. They are set out at pages 8 through 10 of the remarks on sentence. It is not suggested that there is any particular error in what is there stated. 25 I am unpersuaded that an overall head sentence of imprisonment for 5 years would have been excessive had it been passed after trial and without any other particular discounting. In that connection the applicant would have had no just complaint if he had received a sentence in the order of 2 years on count 1 combined with the two additional matters that were taken into account in conjunction with that count; a sentence in the order of 18 months on each of the three remaining counts in the indictment; and a careful but real measure of accumulation. Such a sentencing outcome could easily and justifiably have yielded an overall head sentence in the order of 5 years. 26 In the result the sentencing Judge cut that starting point sentence in half. I see no error in that approach to the proper discounting to which the applicant was certainly entitled. 27 The second question is whether that component of the overall sentence which is represented by the recognizance release order of 3 years was excessive. 28 In that connection, it is necessary to notice some particular provisions of the Crimes Act 1914. 29 It is convenient to begin with certain of the provisions of section 19AB. It is sufficient for present purposes to cite sub-section (1) only. That sub-section provides: "(1) Subject to sub-section (3), where: (a) a person is convicted of a Federal offence, or of 2 or more Federal offences at the same sitting, and (b) a court imposes on the person a Federal life sentence, or a Federal sentence that exceeds, or Federal sentences that, in the aggregate, exceed 3 years; and (c) at the time the sentence or sentences are imposed, the person is not already serving or subject to a Federal sentence; the court must either: (d) fix a single non-parole period in respect of that sentence or those sentences; or (e) make a recognizance release order." 30 Section 16 of the Act contains the following definition: " Recognizance release order means an order made under paragraph 20(1)(e)." 31 It is then necessary to consider certain of the provisions of section 19AC of the Act. Once again, it will suffice to cite sub-section (1) only. That sub-section provides: "(1) Subject to sub-sections (3) and (4), where, (a) a person is convicted of a Federal offence, or of 2 or more Federal offences at the same sitting; and (b) the court imposes on the person a Federal sentence that does not exceed, or Federal sentences that, in the aggregate, do not exceed, three years; and (c) at the time the sentence or sentences are imposed the person is not already serving or subject to a Federal sentence; the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period." 32 It is necessary to consider, next, the provisions of section 20(1)(b) of the Crimes Act; and to do so in the context provided by the statutory provisions earlier summarised. Section 20(1)(b) provides: "(1) Where a person is convicted of a Federal offence or Federal offences, the court before which he is convicted may, if it thinks fit - (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with sub-section 19AF(1)." 33 The relevant provisions of paragraph (a) are: "(1) Where a person is convicted of a Federal offence or Federal offences, the court before which he is convicted may, if it thinks fit - (a) by order, release the person, without passing sentence on him, upon his giving security, with or without sureties by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions: (i) that he will be of good behaviour for such period, not exceeding 5 years, as the court specifies in that order; …………………. " . 34 Section 19AF(1), to which reference is made in section 20(1)(b) provides, relevantly: "(1) Where a court is required ……………… to make a recognizance release order in respect of a Federal sentence or sentences, the court must …………….. make a recognizance release order such that the pre-release period ends not later than the end of the sentence ………….." 35 Judge Blackmore, having set for the present appellant an effective head sentence of 2 years and 6 months, set both a pre-release period and a post-release recognizance period. The former seems to me to comply with what is required by section 19AF(1). The latter seems to me to comply with section 20(1)(b) incorporating the relevant provisions of section 20(1)(a). The contrary was not contended at the hearing of the present application. What was contended, rather, was that the recognizance release period of 3 years was itself excessive when coupled with the pre-release period of 1 year 6 months, and in the context of an overall head sentence of 2 years 6 months. 36 I am unpersuaded that the recognizance term of 3 years is excessive. The recognizance does no more than to bind the applicant to obey the law throughout the stated term; a not unreasonable precaution against future offending, or even the temptation to offend further. The order gives the applicant the assurance of release at the conclusion of the pre-release period of 18 months. The term of the order is, at least on the view that I take of the relevant statutory provisions, comfortably within the 5 year cap there provided. 37 For the whole of the foregoing reasons I am of the opinion that the Court should order: [1] that leave to appeal against sentence be granted; [2] that the appeal against sentence be dismissed. 38 HISLOP J: I agree with Sully J. ********** 10/04/2006 - Deletion of junior counsel for the Crown from coversheet. - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.