New South Wales Court of Criminal Appeal CITATION: MARINELLIS v REGINA [2006] NSWCCA 307 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26 April 2006 JUDGMENT DATE: 22 September 2006 JUDGMENT OF: McColl JA at 1; Adams J at 14; Latham J at 69 DECISION: 1. Leave to appeal granted; 2. the appeals in respect of the sentences imposed in respect of counts 1 to 9 and 11 are dismissed; 3. the appeal in respect of count 10 is allowed to the extent that the non-parole period is quashed and substituted therefor is a non-parole period of two years, four months and one week commencing 31 May 2005 and ending on 6 October 2007. CATCHWORDS: Sentence - fraud - importance of objective circumstances - perverting course of justice Crimes Act 1900 ss178BB, 319 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss21A, 44 Criminal Appeal Act 1912 s6(3) Criminal Legislation Amendment Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard) 30 November 2001, vol 289 Georgiou [2005] NSWCCA 237 MM [2002] NSWCCA 431 McCabe [2006] NSWCCA 220 Nightingale [2005] NSWCCA 147 Pearce v The Queen (1998) CLR 610 CASES CITED: R v Itamua [2000] NSWCCA 502 R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 R v Pangallo (1991) 56 A Crim R 441 R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Wilson [2005] NSWCCA 219 Taouk v R (1992) 65 A Crim R 387 Nick MARINELLIS (Applicant) PARTIES: v REGINA (Respondent) FILE NUMBER(S): CCA 2005/1707 COUNSEL: E J Paneras (Applicant) D C Frearson SC (Respondent) SOLICITORS: Jordan Djujdjia Lawyers (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0586 LOWER COURT JUDICIAL OFFICER: Mahoney DCJ IN THE COURT OF CRIMINAL APPEAL CCA 2005/1707 DC 04/11/0586 McCOLL JA ADAMS J LATHAM J 22 SEPTEMBER 2006 NICK MARINELLIS v R Judgment 1 McCOLL JA: I have had the opportunity of reading Adams J's judgment in draft. I am grateful to his Honour for the detailed outline of the facts of the offences to which the applicant pleaded guilty. I agree with his Honour's conclusions as to the particular grounds of appeal and with the orders his Honour proposes. My reasons for reaching the latter conclusion differ from his Honour's. 2 The fraud charges to which the applicant pleaded guilty demonstrated a very high level of criminality, involving a sophisticated modus operandi. As the sentencing judge concluded: "In most instances [the applicant] was unsuccessful, but not through any want of desire or trying on his part. In those few in which he did enjoy any measure of success he was spectacularly successful. In all of them he was doggedly persistent in the pursuant of his quarry. Any failure to extract more from a victim than he actually did was due either to the victim coming to his senses about the deception, or to intervention by the police. Everything points to the conclusion that the accused would otherwise have continued to extract as much money from a victim as he possibly could." 3 Notwithstanding that conclusion and subjective considerations, most of which the sentencing judge concluded did not tell in the applicant's favour, his Honour determined that each of the ten fraud charges warranted a sentence of three years' imprisonment, to be served concurrently. He decided the fraud sentences should be served concurrently because "the great bulk of the activities carried out by the accused, resulting in the fraud charges, have themselves been concurrent." 4 The events which were the subject of the fraud charges took place over the period January to November 2003. Each involved a different victim. His Honour erred in failing to accumulate those sentences, even partially. Imposing concurrent sentences did not recognise the objective criminality of the separate offences and the harm done to each victim: R v Wilson [2005] NSWCCA 219 at [38]; R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 at [21]–[23]. 5 I agree, therefore, with Adams J that the sentencing judge extended to the applicant a significant and inappropriate degree of leniency in respect of the fraud charges. 6 I cannot agree, with respect, with his Honour's conclusion that the s 319 sentence was manifestly excessive. 7 The s 319 offence to which the applicant pleaded guilty was extremely serious. It is worth repeating the terms of s 319, which provides: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for fourteen years." (emphasis added) 8 The essence of the s 319 offence was doing an act intending to pervert the course of justice. In terms of the applicant's guilt, it was the tendency of the conduct which was decisive; it was irrelevant whether his conduct did or did not bring about a miscarriage of justice: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 298 per McHugh J. It is not to point that the applicant's endeavours failed because his letters were intercepted by correctional services officers and brought to the attention of police. In assessing the objective criminality of the offence, it was relevant for the sentencing judge to consider the harm caused by his conduct. There was no suggestion that the police officers named by the applicant in his correspondence, fortuitously intercepted by correctional service officers, were corruptible. But in the context of an act intended to pervert the course of justice, the fact that the act did not succeed or even was doomed to failure, is "of far less significance than in the case of sentencing for an attempt to commit a substantive crime… the nature and degree of the perversion of justice intended … is the major factor in evaluating [its] criminality: Taouk v R (1992) 65 A Crim R 387 at 392 per Badgery-Parker J (with whom Clarke JA and Abadee J agreed.) 9 Adams J has criticised the sentencing judge's characterisation of the objective criminality of the s 319 offence, in part, on the basis that he erred in referring to "the attempted bribing of a police officer". It seems to me, with respect, that in using that expression, his Honour was doing no more than referring to the fact that the applicant was unsuccessful in attaining his goal: cf R v Rogerson (at 298). 10 Offences such as perverting the course of justice require strong deterrent sentences. They "strike at the very heart of the justice system and … must be severely punished whenever … detected": R v Pangallo (1991) 56 A Crim R 441 at 443. The seriousness with which such an offence is regarded can be seen from the Second Reading Speech of the Attorney-General, the Hon John Dowd MLA in moving the Bill which inserted Pt 7 (in which s 319 is found) in the Crimes Act: see Richards v R [2006] NSWCCA 262 at [68]. 11 The sentencing judge characterised the objective criminality of the s 319 offence as follows: "Objectively, they are an attack on the fabric of the justice system by the attempted bribing of a police officer to neutralise a prosecution which he was sworn to support as a key witness. Conduct of this sort calls for a clear deterrence component, both particular and general, in any sentence. Subjectively, the letters having been written while he was on remand awaiting hearing of the other ten charges, it is abundantly clear that he lacked any scintilla of contrition or appropriate remorse for the ten fraud offences. It highlights just how contemptuous he was towards the legal system and how far distant he was from the starting point of the road to rehabilitation. The fact that he tried to entice two different persons to help him achieve the same end indicates just how determined he was to try and achieve the desired result: if one adversary would not cooperate, that he might be successful with the other." I disagree, with respect, with Adams J's conclusion that this was a significant over-statement of the objective seriousness of this offence. 12 The maximum sentence for the s 319 offence was fourteen years. The sentencing judge also took into account another s 319 offence on a Form 1. I accept the Crown's submission that while the sentence was "on the high side", it did not attract appellate intervention. An act done with the intention of corrupting police officers called for a strong denunciatory sentence to "make clear to all that any attempt to pervert the course of justice … will be regarded as a very serious matter: Taouk v R (at 415). Despite the sentencing judge's error in assessing the utilitarian value of the plea of guilty (in which respect I agree with Adams J) no lesser sentence is warranted in law, save to the extent that the ratio between the effective non-parole period and the overall sentence should be adjusted to accord with the statutory figure. 13 There is, accordingly, no need to consider the application of s 6(3) of the Criminal Appeal Act 1912. I would merely observe having regard to Justice Adams' remarks on that issue that s 7(1A) was not inserted in the Criminal Appeal Act to deal with any perceived deficiency of s 6(3) in a case, such as the present, where the applicant appeals all sentences imposed upon him or her. It came about to address the issue which arose in R v Itamua [2000] NSWCCA 502 where, (at [54]–[55]) Smart AJ (with whom Sheller JA agreed, and Dowd J relevantly agreed) observed that s 6(3) did not empower this Court "to intervene in respect of sentences in respect of which no appeal is brought by either the appellant or the Crown", a situation his Honour described as anomalous and calling for remedial legislation. This cri de cœur was accommodated by the insertion of s 7(1A): see Criminal Legislation Amendment Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard) 30 November 2001, vol 289 at 19301. ADAMS J: Introduction 14 On 8 November 2004 the applicant was sentenced on 11 charges, to each of which he had previously pleaded guilty. Those charges were as follows: Counts 1–4: conspiracy to cheat and defraud, (substantive offence being contrary to s178BA for which the maximum penalty is five years imprisonment). Counts 5, 8 & 9: making a false statement with intending to obtain money, contrary to s178BB, the maximum penalty being five years imprisonment. Counts 6 and 11: obtaining money by deception under s178BA, the maximum penalty being five years imprisonment. Count 7: fraudulent personation with intent to fraudulently obtain property, contrary to s184, the maximum penalty being seven years imprisonment. Count 10: doing an act with intent to pervert the course of justice contrary to section s319, the maximum penalty being fourteen years imprisonment. 15 The applicant also sought to have two further offences taken into account on a Form One: making a false instrument, namely creating a false Internet website; and doing an act with the intent to pervert the course of justice. 16 The offences occurred, in respect of charge 1 on 9 September 2003, charge 2 between 12 and 24 September 2003, charge 3 between 18 and 19 September 2003, charge 4 between 17 and 25 September 2003, charge 5 on or about 16 September 2003, charge 6 between 1 January and 17 October 2003, charge 7 between 5 April and 3 October 2003, charge 8 between 15 and 29 September 2003, charge 9 between 21 July and 23 July 2003, charge 10 on 6 November 2003 and charge 11 between 10 October and 30 October 2003. The applicant was sentenced as follows: Charges 1-9 and 11 and the first matter on the Form 1: imprisonment for two years and six months commencing on 30 October 2003 and concluding on 29 April 2006 with a non-parole period of one year, ten months and fifteen days expiring on 13 September 2005; Charge 10 and the second matter on the Form 1: imprisonment for three years and eight months commencing 31 May 2005 and expiring 30 January 2009 with a non-parole period of two years and nine months expiring on 29 February 2008. 17 The applicant was first arrested and charged on 30 October 2003 with various offences which were eventually crystallised by the committal proceedings to the eleven charges listed above. The applicant pleaded guilty in the Local Court and was then committed to the District Court for sentence, where he adhered to his pleas and requested that the two additional charges be taken into account on a Form 1. The frauds 18 The facts were not in dispute and were the subject of an agreed statement that was tendered in the District Court. The following account is largely taken from the learned sentencing judge's reasons for sentence. 19 The fraudulent scheme comprised, in general terms, the following elements. The applicant, operating with a number of other members of a syndicate situated in various overseas countries, created various fraudulent transactions that culminated in the intended victim being manipulated into making contact with the applicant who was "the Australian clearing house" for the processing of funds. The applicant used the business identity NM Finance Network. By the time the victims were asked to contact the applicant they had usually been supplied with false Nigerian government documents, emails and faxes and other information from fictitious security companies, in effect undertaking to make substantial payments to the victims by secure means. Of course, the proposed payments were fictitious and simply provided the bait by which the victims were induced to pay moneys for fictitious services or certificates claimed by the fraudsters to be necessary before the very substantial promised funds could be forwarded. The victims were supplied with details of the moneys that they were to receive or which the company "identity" wished them to invest. Most of the victims were international business people for whom offshore business dealings would not be unusual. 20 Before being contacted by the victims, the applicant typically spoke by telephone with his African accomplices and discussed the amounts to be extracted from each victim and the false names the applicant would use to identify himself to each particular victim. The applicant then, in his own words, "sizzles the mugu's minds" (mugu being a term used by the syndicate to refer to victims), leading them to believe that NM Finance Network was a legitimate money handling company and that, in order to receive the substantial sum to be paid to them, the victims must pay fees into the applicant's personal or business accounts for various preliminary services or documents. When the funds were paid, the account would be cleared by the applicant and part of the proceeds of the fraud returned to the applicant's accomplice or accomplices. The victim would then be informed that the money he was expecting was no longer available. 21 The scale of the applicant's involvement in the various frauds can be gauged by observing that, between early September 2003 and mid October 2003, about 4700 call activations were intercepted from the applicant's mobile, fax and landlines, most of which involved communications with unknown African males aspiring to defraud prospective victims. 22 A number of the offences did not go far because of the intervention of police and two of them were a result of altogether different dishonest acts. Thus, charge 9 arose from the provision by a financier of $720,000 to purchase a home for the applicant and his wife in Cecil Hills for $900,000. The loan application falsely asserted that the applicant was lawfully employed, the incomes stipulated in the attached tax returns considerably overstated his income and were in fact never submitted to the Australian Tax Office, the tax agent details on the returns were fictional and NM Finance Network, the assets and liabilities statement for which was relied on, had as its the business the undertaking of frauds. The property was sold some time after the applicant's arrest (although the date of sale was not disclosed) and realised only $610,000, resulting in a substantial loss for the financier. 23 Charge 8 concerned the provision of a telephone account and internet services at the Cecil Hills property using a false name. Considered as an offence under s178BB of the Crimes Act 1900, this was relatively trivial. 24 Although a number of the potential victims of the main fraudulent scheme conducted by the applicant were contacted by police and informed of the true nature of the proposed transaction before any monies were passed to the fraudsters, some of the victims lost substantial amounts of money. For example, the victim in one of the conspiracy to cheat and defraud offences (referred to as KJ by the learned sentencing judge) spent substantial funds travelling to South Africa to meet with one of the applicant's accomplices to discuss a proposed investment. That accomplice did not go to the meeting: it was of the essence of the scheme that none of the fraudsters actually met any of the victims. The victim in charge 7 was a Japanese resident, YS, who paid NM Finance Network a total of $3,375 for "clearance charges", and "anti terrorist certificate" and "a processing fee". All these requirements were of course entirely fictitious. 25 One of the most successful of the scams was that which comprised charge 6 under s178BA. The victim, L, was an owner and director of a trading company in the Middle East. In early January 2003 L received a fax from a Mr Tito Mboweni, purporting to be the Governor of the South African Reserve Bank, stating that he had been advised by the President of Nigeria to appoint payment contracts for the amount of $28 million for the maintenance and supply of equipment to oil refineries in Nigeria. The fax indicated that L was to be appointed one such contract and that he should contact Mboweni. When L did so, he was advised that he should open an account with the Reserve Bank of South Africa at a cost of $3,000. This was confirmed by a fax from a person purporting to be a Mr Jones from the National Australia Bank in Australia. Jones was in fact the applicant. Jones also instructed L that the funds would be cleared through his bank to L's bank account in Spain and told him to deposit the $3,000 into an account with the St George Bank under the applicant's real name, Nick Marinellis. L did so. Further conversations occurred in April and L was induced to pay "an account validation charge" of $1,000 to one Kingsly Ukasognya in South Africa. L was now on the hook. In a further conversation with Mboweni occurring shortly afterwards, L was induced to pay a further $13,550 in various fees and charges to Ukasognya. A few weeks later Mboweni told L that the contract payment was now transferred to "the South African Reserve Bank Clearing House in Australia", said to be the National Australia Bank. Of course all of this was a fiction. L then contacted Jones who, as I have mentioned, pretended to be an employee of the bank. Jones induced L to pay a transfer fee of $3,000, again to his real name account, telling L that Marinellis was the St George Bank's agent for Nigerian contracts. On 4, 6, 11 and 12 June the applicant, posing as Jones, sent L faxes requesting respectively $28,000, $56,000, $71,000 and $60,000 for various transfers, orders and processing requirements. L accordingly made these payments. On 17 June L received a further fax from "the Presidential Panel of the Federal Republic of Nigeria" requesting a further payment of $35,000. L contacted the applicant (Jones) about this payment and was told it was necessary and arranged to transfer the funds to the applicant's St George Bank account. On 19 June, L received a fax from NM Finance seeking the further payment of $120,000 and lastly applicable for the release of the contract payment. The fee was said to be for a "payment release pin code" to be used for accessing relevant bank accounts. L duly deposited the money into the bank account of NM Finance with the Wespac Bank. On 26 June 2003, pursuant to another fax (this time from the "Nigerian National Petroleum Corporation"), a further payment of $85,000 was sought for a fund transfer clearance to be made to a bank in Hong Kong. L contacted the applicant (Jones) about the payment and was told that the account belonged to Marinellis and L then arranged for the transfer of the money as requested. Eventually, on 4 September L contacted the applicant and asked about the $28 million. The applicant informed him that the money could not be received unless a further payment of $280,000 was made. L at last refused to pay any further money. He had been defrauded of over of $475,000. 26 Charge 11 under s178BA again had its inception in an approach to the victim purporting to be made on behalf of Nigerian National Petroleum Corporation. Again the applicant, using a false name (Smith), pretended to be an employee of the National Australia Bank in charge of overseas payments with particular reference to the Central Bank of Nigeria. The victim was called by one of the applicant's accomplices seeking $215,000 for transferring a promised $21.5 million into the victim's account. Various successive discussions occurred, plainly with the connivance of the applicant, which in the result caused the victim to provide documentation concerning a property owned by him. This documentation enabled the applicant to induce UK solicitors to arrange for the management of the property and provide the applicant with a rent of about 1,000 pounds a week. 27 Because of timely warnings by the police, none of the victims of the conspiracy charges paid over any money (with the exception of KJ who incurred travel costs). Nevertheless, the true criminality of these offences is shown by the frauds which the applicant successfully (to some extent or other) undertook. Perverting the course of justice 28 The offences under s319 of the Crimes Act 1900 were committed when the applicant sent the letter to his wife and to his girlfriend on 6 November 2003 whilst he was in prison on remand. The first of these contained in a postscript the following – "Just remembered what you once told me, that in your family there is a federal cop high up. Do you think your family via you get him to override these detectives… It will be of a great help to get us close together. Again babe use the family contact because I am sure your family knows that we love each other. Honey, most of the fifteen charges are simply allegations and mostly incorrect. I'm of the opinion that two officers mentioned above are corrupt and am willing to offer twenty percent to them or our family…we are a family you will bear my child honey the sooner we get out the better, pull the file federal and destroy it." 29 To his wife the applicant wrote – "I must reinforce that I truly love you and you have been there for me always. Be close to me as I need your moral support to pull through this set up. Once again set up. Lets see if we can reach a good result when the hearing starts. I need to see and discuss with a lawyer prior to the court hearing, because looking at the fifteen charges most of them are allegations except…[concerning L]. Please contact the two officers…tell them I have fresh information for them, the deal honey is try to cut a deal to offer them a percentage of the game, say twenty percent. Don't let me down." 30 These letters were intercepted by correctional service officers and brought to the attention of police. The letter sent to the applicant's wife was the subject of the indictment, whilst that sent to his girlfriend comprised one of the Form 1 offences. Whether or not the addressees would have been prepared to take any action along the lines proposed by the applicant is unknown. Obviously enough, the applicant hoped that they would do so. Although the applicant proposed to commit a very serious offence, if he could, it is of considerable significance in assessing the objective seriousness of these crimes that his actions had no effect even in the sense of actually inciting others to assist him. 31 It is relevant to note that on 12 February 1998 the applicant had pleaded guilty to two offences of doing an act with intent to pervert the course of justice and sentenced a term of 1 year and eight months imprisonment with a non-parole period of twelve months. His appeal to the Court of Criminal Appeal was dismissed: R v Marinellis [2001] NSWCCA 328. The offences occurred in mid-1997. The judgment shows that the applicant had made persistent attempts, offering substantial amounts of money, to persuade two witnesses to provide him with a false alibi in respect of a charge of sexual assault and to recruit others to give similar false evidence. These offences enhanced the importance of specific deterrence in sentencing the applicant for the present offences. Regrettably, the extraordinary way in which this matter was dealt with at first instance (which I outline below) means that these offences must be left out of account. Otherwise, the applicant's criminal record was inconsequential. The reasons for sentence – the frauds 32 In my view, so far as the dishonesty offences are concerned the applicant was extremely fortunate indeed to be sentenced to entirely concurrent sentences. In adopting this approach, his Honour extended to the applicant a very significant, indeed, inappropriate, degree of leniency. Moreover, a number of the offences warranted significantly heavier sentences than those which were imposed. 33 In giving reasons for sentence, the learned sentencing judge said – "I have already set out sufficient details here to reveal the nature and scale of his criminality. In short, even though his reward for each case differed, I see no reason to regard any one offence less blameworthy than another. A bank robber does not receive a lesser sentence for robbing a suburban bank branch than he would for robbing the city branch. In my view, the prisoner was driven by greed in the commission of each offence. He paid no regard to the personal situation of any victim, other than the victim's capacity to pay." 34 It seems to me, with respect, that this statement reveals a fundamental error. Mere subjective criminality is far from the only significant measure of culpability for the purposes of imposing punishment. The objective consequence of the criminal activity is a vital consideration. In theft or fraud cases, whether the victim has suffered a loss and, if so, the extent of that loss is an important measure of culpability. In this case, there were, as I have pointed out, a number of offences which did not, because of police intervention, cause the victim any loss. Others, such as those that related to the provision of phone lines, were relatively trivial. As a matter of general principle, this must reduce the objective seriousness of these offences, for all that the lack of success was not derived from the offender's moderation. To use the analogy adopted by the learned sentencing judge, shoplifting is not as serious as robbery and a conspiracy to rob which is frustrated and results in no loss is (unless the circumstances are exceptional) not so serious as the completed offence. For similar reasons, an attempt to commit a crime will usually (though not invariably) result in a lesser sentence than would have been the case had the attempts succeeded. However, this matter was not the subject of a ground of appeal and I mention it only because of the potential significance of s 6(3) of the Criminal Appeal Act 1912. Pearce v The Queen (1998) 194 CLR 610 mandates the separate consideration of the culpability involved in each offence. Moreover, because each offence was independent and involved different victims, some measure of accumulation (moderated by the principle of totality) was necessary to reflect the criminality involved. The reasons for sentence – perverting the course of justice 35 In dealing with these offences, the learned sentencing judge said – "The charge of intending to pervert the course of justice and the other Form One offence, both breaches of section 319 of the Crimes Act, involve a different kind of criminality from the fraud matters. The time and place at which the two intended perversions of justice occurred are very serious when viewed either subjectively or objectively. Objectively, they are an attack on the fabric of the justice system by the attempted bribing of a police officer to neutralise a prosecution which he was sworn to support as a key witness. Conduct of this sort calls for a clear deterrent component, both particular and general, in any sentence…The fact that he tried to entice two different persons to help him achieve the same end indicates just how determined he was to try and achieve the desired result. If one addressee would not cooperate, then he might be successful with the other. The appropriate penalty for writing the letter to his wife, taking into account the letter to MD as well, is a custodial sentence for four years. This reflects that the Parliament chose to set a maximum for this type of offence at nearly three times that for taking $476,000 of [L's] money and failing to pay $215,000 to AO for his commercial real estate in UK while renting it out for 1000 pounds per week." 36 With respect, it seems to me that this characterisation of the objective seriousness of these offences is significantly overstated. There was no attempt to bribe a police officer. There was an intention to do so, of course, but this is not the same by any means. Second, the process of reasoning which compared the maximum penalty for an offence under s319 of fourteen years with the maximum penalty for offences under s178BA of five years is wrong. It is obvious that an objectively serious offence under s319 has consequences for the administration of justice which might well justify a higher sentence than almost any fraud. However, the notion that, in general terms, an offence under s319 is three times more serious than an offence under s178BA only has to be stated to be refuted. 37 In my view the objective seriousness of the applicant's writing as he did, though not trivial, is not such as to justify a sentence of three years and eight months imprisonment. Again, this is not the subject of a specific ground of appeal although it is generally submitted that the applicant's sentences were too severe and he should have received a lesser minimum term of imprisonment. It was submitted by counsel on the applicant's behalf that the applicant appeared to have been sentenced for attempting to pervert the course of justice. The written submissions made by the Crown dealt briefly with the issue of objective seriousness and the specific matter to which I have referred was raised by the Court with the Crown prosecutor in the course of submissions. The prosecutor submitted that, when regard is had to the Form 1 offence, showing that the applicant had made two approaches to two individuals, the sentence was not manifestly excessive, though "certainly…on the high side". 38 Furthermore, having accumulated the sentence for the s319 offence on the sentences for the frauds, it was necessary to consider the effect of that accumulation on the statutory calculus. The overall sentence with the accumulation is five years and three months, commencing 30 October 2003. Applying the ratio yields a non-parole period of three years, eleven months and one week, which should have permitted the applicant to have been considered for parole on 6 October 2007. The non-parole period imposed on the s319 offence expired, however, on 29 February 2008. The learned sentencing judge's only reference to special circumstances concerned the applicant's subjective circumstances. It is inescapable that his Honour did not consider the question whether accumulating the s.319 sentence was a special circumstance permitting adjustment to the non-parole period in order to maintain the statutory ratio between the aggregate non-parole period and the overall sentence. It is most unfortunate that this was not brought to his Honour's attention. It was the duty both of the Crown prosecutor and counsel for the applicant to have done so. 39 In my respectful opinion the sentence for these offences – that is, the indicted offence and those on the Form 1 – was manifestly excessive. Grounds of Appeal 40 The fundamental ground of appeal is the sentence were too severe and that the applicant should have received a lesser minimum term of imprisonment. The following particular matters were said to be demonstrative of error – 1. His Honour failed to appreciate and give sufficient weight to the early plea shown by the applicant. 2. His Honour failed to give sufficient weight to the assistance given to Police and the applicant's offer to give evidence against his co-offenders. 3. His Honour failed to give sufficient weight to the applicant's offer of assistance and offer to give evidence in relation to another matter, not involving the applicant. 4. His Honour failed to appreciate and give sufficient weight to the fact that the applicant has spent and will spend the whole of his time in custody in protection. 5. His Honour failed to take into account the special circumstances regarding the applicant's mental disability and medication that the applicant has been on since 1999. His Honour erred in his judgment regarding the special circumstances when he stated at page 19 "there is nothing in any of the material tendered in evidence which would support a finding that special circumstances exist in this case, and no submission was made to that effect". 6. His Honour failed to appreciate and give sufficient weight to the applicant's contrition, via his early guilty plea and agreeing to have his assets forfeited to the NSW Crimes Commission. 7. His Honour failed to appreciate and give sufficient weight to the subjective features of the applicant. 8. His Honour failed to appreciate and give sufficient weight to the medical report of Dr John Albert Roberts and the fact that the applicant has been on medication for a mental condition since 1999. 9. His Honour failed to impose concurrent sentences as all matters occurred over the same period or thereabouts. Discussion 41 Particular 1: In my view this particular is made out. The learned sentencing judge said, in connection with the pleas – "First, having pleaded guilty to all charges at the first available opportunity, he is entitled to a discount on all sentences because of the utilitarian values of these pleas and also because of the way they have operated to facilitate the course of justice in this State (see R v Sutton [2004] NSWCCA 225 and R v Johnson [2004] NSWCCA 341). The extent of the discount in his case will be towards the bottom end of any perceived scale because of his conviction on all counts was, subject to the Crown being able to marshal its witnesses and evidence, as much as a foregone conclusion as could ever be expected. His pleas amounted to little more than his having bowed to the inevitable, especially as regards the eleventh count concerning the perversion of the course of justice. Nevertheless, the time and expense his pleas have saved the community are very significant as regards the other ten counts. Had he tried to brazen the case out, the prosecution would, in relation to the ten fraud counts, have had to overcome the difficulties of bringing witnesses from all over the world, some at least of whom may not have even been prepared to come here and face the embarrassment of having their gullibility exposed in the public forum. In addition there would have been the need to prove the details of the UK property transactions involving the victim AO and the tedious and time consuming task of proving the 4700 electronic intercepts. A fair discount for his having pleaded guilty will be to reduce each of the sentences on the ten fraud counts by six months, which is a little over sixteen percent and the intended perversion of the course of justice sentence by fours months, which is a little over eight percent." 42 It seems to me, with respect, that this passage reveals manifest error. As was made clear in R v Thomson and Houlton (2000) 49 NSWLR 383, the purely utilitarian discount for an early plea excludes consideration of the strength of the Crown case. Furthermore, it is also clear from that decision that, "the greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of the plea": ibid at [154]. I note that this error reflects the written submission of the Crown prosecutor and was not the subject of any contrary submission by counsel for the applicant. This is not the appropriate level of assistance to which the Court was entitled. 43 In my respectful view, the learned sentencing judge wrongly took into account the strength of the Crown case and also gave inadequate allowance for the very substantial utility of the plea as demonstrated by the matters which his Honour mentioned. A discount of at least twenty-five percent was appropriate in the circumstances of this case. This was especially so in respect of the fraud offences, where witnesses would have needed to come from abroad and may well have been reluctant to do so. 44 Particulars 2, 3 and 4: It is convenient to deal with these particulars together. The prosecution produced evidence from the officer in charge of the investigation, in connection with the issue of assistance. The officer said that, although the applicant had requested an affidavit of assistance from police in the usual way, the request had been refused. It was the officer's view that the information that the applicant wished to give to the police was already in their possession and, indeed, had been contained in the brief of evidence that had been given to the applicant and also in a document that the officer had prepared for proceedings in the New South Wales Crime Commission which had also been provided to the applicant. Having regard to the extremely doubtful creditworthiness of the applicant, a conclusion in his favour that he had useful information to impart was scarcely available. Certainly the applicant had offered to give evidence against his co-offenders and in relation to another matter under investigation. It also appeared that the applicant was on protective custody and it may well be because of his offer of assistance. The learned sentencing judge commented – "The combined effect of the documentation revealing the personal makeup of the prisoner paints a picture of a scheming, cunning person who is extremely free with the truth and is no stranger to the techniques in painting a picture of himself as being less than fully responsible for his actions, thereby hoping to attract the sympathy of some unworldly sentencing judge." 45 In my view, though forthright, his comment of the learned sentencing judge was entirely correct. The applicant would have been a worthless witness. There was no evidence that he supplied any worthwhile information or intelligence to the authorities. The conclusion that the assistance proffered by the applicant "can only attract very limited consideration" was both just and inevitable. The learned sentencing judge, however, accepted the submission that the offer to give evidence for the Crown had resulted in the applicant's being kept in protective custody and would remain so for the term of his sentence. His Honour was not obliged to specify any specific discount in this regard but it was neither necessary nor desirable that he should do so. 46 It follows that particulars 2, 3 and 4 should be rejected. 47 Particular 5: So far as this particular is concerned, relating to special circumstances, his Honour said – "There is nothing in any of the material tendered in evidence which would support a finding that special circumstances exist in this case, and no submission was made to that effect." 48 The matter to which the applicant points concerns his mental condition. The evidence in this regard came from a report of Dr Roberts. That report comprises a one page document to the following effect – "The above has been under my care for treatment of a presumed psychosis – he initially attended my surgery in 1999. At the time of his initial presentation Mr Marinellis gave an account of anxiety and depression. He described symptoms consistent with auditory and visual hallucinations. Mr Marinellis alleged that he had sustained an injury which he called "a glass injury" as a result of a figure behind some glass calling him, that he went through the glass, that he was seeing things and had visions, that they were evil things, black objects, that they were coming to him at his home and that he had visions of saints and ghosts. I note that he has been assessed by both psychologists and other psychiatrists, I formed the view based on history and presentation that Mr Marinellis on grounds of probability suffers from a significant psychiatric condition and my management of him has been based on that presumption." 49 This report was put forward as a mental disability that, it was submitted, should be taken into account under s21A of the Crimes (Sentencing Procedure) Act 1999, perhaps under paragraph 21A(3)(j) – "the offender was not fully aware of the consequences of his or her actions because of …any disability". 50 Generally speaking, of course, a significant psychiatric illness will be relevant in assessing an offender's culpability and, as well, any undue harshness that might result by his being kept in prison whilst suffering from such an illness. Inn my view however, there was no proper basis upon which the learned sentencing judge could give any real significance to Dr Roberts' report. It was dated November 2003 and said nothing about the relationship, if any, between the identified mental condition and the offences committed by the applicant. On the face of it, there seems to be no connection at all. There was certainly nothing in any of the evidence about the way in which the applicant undertook the offences that suggested that he was suffering under any mental disability, nor was such a submission put either to the learned sentencing judge or in this Court. Nor did the report suggest any possible connection between the postulated psychiatric condition and potential problems that the applicant might have in serving his sentence. In my view, the report of Dr Roberts did not provide a basis for mitigating the applicant's sentence, nor was it of such a character as to justify a finding of special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999. The learned sentencing judge rightly regarded it as useless. 51 The pre-sentence report tendered on the hearing contains the following, which was extracted from a previous pre-sentence report dated 5 February 1999 and was based on enquiries made at that time – "On 1 February 1999, Mr Marinellis was seen by a psychiatrist at the Liverpool Mental Health Service. He was prescribed a mild anti-psychotic drug which contained a sedative component to assist him with sleeping difficulties and anxiety. The psychiatrist described Mr Marinellis as "demonstrating narcissistic traits where he is convinced of the rightness of his own opinion and has a tendency to become depressed if things do not result as planned." This is in marked contrast to the history in Dr Roberts' report. The learned sentencing judge noted that it appeared that the offender had been on a disability pension for the previous three years and that, whilst in custody, he had been medicated with 20 mg of Zyprexa daily. There was no suggestion in the report that the applicant had any current difficulties with his mental condition or that the medication was not adequate to maintain his mental health. The contention that the applicant suffered from a relevant psychiatric condition was rightly rejected. 52 Whether counsel for the applicant submitted that the applicant's apparent mental condition justified a finding of special circumstances under s44 of the Crimes (Sentencing Procedure) Act 1999 or simply relied on the matter in connection with the matters falling for consideration under s21A, is uncertain. His Honour expressed the view that no special circumstances were present and none had been suggested. Whether or not the alleged psychiatric condition was put forward as a special circumstance within the meaning of s44 does not matter. It did not demonstrate any special circumstance. This particular fails. 53 Particular 6: This is related to particular 1. However, it refers to the contention that mitigation should have been afforded to the applicant arising out of his contrition as distinct from the purely utilitarian discount that should have followed his early plea. The learned sentencing judge concluded that the applicant was not remorseful, quoting the following passage from the pre-sentence report – "The offender appeared to show no remorse in relation to his behaviour, minimised his involvement, took little or no responsibility, putting all matters down to his mental health problems. Nevertheless, he did ask that his cooperation with the police be noted in this report." 54 The Probation and Parole officer who prepared the report seems to have made a number of enquiries and interviewed the applicant extensively. The report notes a number of significant inconsistencies in the applicant's accounts of his activities and illness. The following summary appears – "Mr Marinellis presents as an evasive and untruthful man who claims mental health issues as being the root cause of his behaviour…much of the information provided by the offender could not be verified but most of that which could proved to be in contradiction to that which he had stated. He appears to show no remorse for his behaviour." 55 The only two bases upon which a case for remorse could be mounted comprised the applicant's early plea of guilty, his offer to assist authorities and his compliance with the sale of his assets pursuant to the relevant proceeds of crime legislation. In light of the overwhelming Crown case, the learned sentencing judge's conclusion that the plea of guilty did not demonstrate remorse was available to his Honour. This conclusion was reinforced by the report of the Probation and Parole officer. So far as the applicant's property is concerned, the learned sentencing judge said that none of the evidence suggested that any of the assets had been acquired independently of the activities giving rise to the offences for which he was sentenced and his Honour noted that the applicant had been receiving social services for some years, a circumstance markedly at odds with the amount of property that it appears he was able to accumulate. The learned judge's conclusion that "at most, the best that could be said is that he does not appear to have profited, in the final wash-up, from his criminal activities" was entirely justified. In my view, no error has been demonstrated in relation to this complaint. 56 So far as the applicant's subjective features were concerned, the learned sentencing judge summarised in his Honour's reasons for sentence, the applicant's family situation which, his Honour stated, were to his credit. For the reasons I have already given, the conclusion of the learned sentencing judge that the applicant "has been pulling the wool over the eyes of the psychiatrist" was justified, as was his Honour's view that the report was not appropriate to act on. 57 As I have mentioned, the applicant had been convicted earlier of two offences of doing an act with intent to pervert the course of justice. Although the learned sentencing judge referred to the decision of the Court of Criminal Appeal decision dismissing the applicant's appeal against his sentence, his Honour disregarded the convictions because counsel for the applicant advanced from the bar table (without objection from the Crown as to form or reliability) the explanation that the applicant had approached his alleged victim and her mother and offered them money if they told the truth that he had not touched the victim. The appeal to this Court was referred to in the offender's criminal record. The facts of the matter as stated in that judgment (which I have summarised above) and which were not disputed are completely different to those asserted by counsel for the applicant and very much more adverse to him. Having regard to the direct and obvious significance of the facts of the prior offences it is extraordinary that not only did the Crown prosecutor fail to assist his Honour with the facts but permitted this explanation to be given without objection. I became aware of the facts of the prior offences by reading the judgment. This matter was not raised by the Crown in this Court and the applicant has not has an opportunity to respond. Procedural fairness precludes this Court from proceeding on a basis different from that upon which the appeal was argued and the applicant's sentence must be considered on the factual material as it appeared at first instance. I have, therefore, also disregarded the prior offences. 58 The applicant was forty years of age, a family man with several children, whose wife still supported him and was not regarded as an associate of the criminal element. It is not submitted that any further subjective feature was relevant. I can discern no error in the treatment of this aspect of the case in his Honour's reasons for judgment. If the sense of the complaint is that the sentences themselves show that insufficient weight was given to the applicant's subjective features, it seems to me that such a contention is without merit. 59 So far as the concurrency of the sentences is concerned, I have already mentioned that, in my view, the complete concurrency of the fraud offences was inappropriately lenient. The charges under s319 were, as has been indicated, partly accumulated on the fraud charges. This course was entirely proper. They involved criminality of a very different kind from that which was involved in the frauds, were committed after a significant period of time had elapsed, in no sense could be seen as part of the series of offences giving rise to the fraud charges and occurred when he was imprisoned. In my view, the learned sentencing judge was right to accumulate as he did. The outcome of the appeal 60 The only ground that applies to both sets of charges upon which the applicant has succeeded relates to the failure of the learned sentencing judge to accord to him an appropriate utilitarian discount. Having regard to the way in which the applicant was sentenced, namely the complete concurrency of the fraud offences with the partial accumulation of the offence of perverting the course of justice, it seems to me that these sentences should be separately considered. 61 As I have already said, the effective sentence on the fraud counts was two years and six months with a non-parole period of one year ten months and two weeks. The other error to which I have referred, namely, the failure to consider the culpability involved in each individual offence did not produce manifestly excessive sentences, with the exception of the Telstra offence. In this Court, the Crown did not submit that any of the fraud sentences were lenient, let alone inadequate. The prosecutor submitted, however, "that the Applicant was dealt with favourably" in respect of the concurrency of the sentences since "his Honour would have been justified in partly accumulating at least charge 9 as that involved a different modus operandi, being $720,000 home mortgage finance obtained on the basis of totally false and misleading loan application documentation." The sentences on charges 6, 9 and 11 appear, to my mind to be extremely lenient and, in respect of charge 6, appealably so. Moreover, subject to totality, they should have been substantially accumulated to reflect their individual gravity. 62 The overall sentence for the frauds failed by a substantial margin to reflect the total criminality involved, in which substantial sums had been dishonestly procured in at least three of the cases. To reduce these sentences in such a way as to give effect to the appropriate utilitarian discount would be, in my view, to produce a result so lenient as to bring the administration of justice into disrepute. Even though, therefore, one of the particular sentences could be reduced without such a reproach, the overall effect of a reduction in the sentences for the more serious conduct would result in completely inappropriate leniency. Although, as appears above, these sentences are affected by serious errors of law, for the same reason, lesser sentences would be inappropriately lenient. Accordingly, in relation to the fraud offences, the application of s6(3) of the Criminal Appeal Act 1912 requires that, despite the identification of error, the sentences should not be reduced. 63 As I have already mentioned, the sentence for the s319 offence is excessive. The ground of appeal complaining of manifest excess was in general terms, though the applicant's submissions were confined to the arguments that the applicant was wrongly sentenced for attempting to pervert the course of justice, that his subjective circumstances were such as to require a lower sentence and that the sentence should not have been accumulated on the sentences imposed for the fraud offences. The Crown prosecutor was given an opportunity to deal with the question whether the sentence was manifestly excessive having regard to the objective seriousness of the criminal conduct and made submissions on the matter. 64 The applicant has succeeded in showing that an inadequate discount was allowed for the utilitarian value of his early plea with the consequent saving of considerable expense and inconvenience of a lengthy trial requiring the calling of witnesses from overseas. The sentence imposed was reduced by the learned sentencing judge by four months, said by his Honour to be a little over eight per cent. As I have already said, this discount was calculated by reference to an irrelevant consideration. The sentence should have been reduced by a discount in the order of twenty-five per cent that is generally available to offenders who plead at the first opportunity. 65 The position may be summarised as follows. The Crown did not submit that any of the fraud sentences were inappropriately lenient but contended that the sentence for charge 9 should have been partially accumulated on the others. It does not appear to me to be appropriate to consider the inadequacy of the fraud sentences on a basis differing from that advanced by the Crown. Nevertheless, a significant partial accumulation of the sentence for charge 9 was necessary to reflect the seriousness of that offence: it was a distinct fraud of a different character to the others and involved another victim. The application of the appropriate discount to any of these offences would have resulted in grossly inadequate punishment. On the other hand, the sentence for the offence under s 319, taking into account the offence on the Form 1, was excessive both because it overestimated the objective seriousness of the offences and gave a utilitarian discount markedly less than was appropriate. Furthermore, the non-parole period resulted in a proportion of the total sentence that was significantly higher (at just under 86%) than the statutory calculus in s44 of the Crimes (Criminal Procedure) Act 1999 would have produced. Nevertheless, the overall sentence of five years and three months imprisonment with a non-parole period (calculated in accordance with that ratio) of three years, eleven months and one week is the very minimum that could be regarded as reflecting the criminality of all the offences, taken together. 66 It has been the frequent practice of this Court to regard s6(3) of the Criminal Appeal Act 1912 as requiring dismissal of an appeal where the overall sentence of a group of sentences is such that no less severe aggregate sentence is warranted in law, even though one or more of the individual sentences included in the group are manifestly excessive: see, for example, McCabe [2006] NSWCCA 220; Georgiou [2005] NSWCCA 237 (per Hidden J); Nightingale [2005] NSWCCA 147 and MM [2002] NSWCCA 431. The notion of an overall or aggregate sentence is useful for discussion, but it to my mind it has no warrant as a legally entity and I respectfully doubt that the word "sentence" in s6(3) can be interpreted to encompass such a meaning. The insertion of the ameliorating provisions of s7(1A) and the principles authoritatively enunciated in Pearce v The Queen (1998) CLR 610 reinforce that doubt. However, this matter was not the subject of argument before us and, in the circumstances, I propose to follow the practice to which I have referred. 67 Accordingly, s6(3) precludes allowing the appeal in respect of the s319 offence beyond making an adjustment to bring the ratio between the effective non-parole period and the overall sentence to the statutory figure, since to do so would result in an overall sentence that would be so inadequate as not to be warranted in law. 68 I propose the following orders – (i) leave to appeal is granted; (ii) the appeals in respect of the sentences imposed in respect of counts 1 to 9 and 11 are dismissed; and (iii) the appeal in respect of count 10 is allowed to the extent that the non-parole period is quashed and substituted therefor is a non-parole period of two years, four months and one week commencing 31 May 2005 and ending on 6 October 2007. 69 LATHAM J: I agree with McColl JA. ********** 25/09/2006 - The words "save to the extent that the ratio between the effective non-palrole period and the overall sentence should be adjusted to accord with the statutory figure." added to the end of paragraph 12. - Paragraph(s) 12 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.