New South Wales Court of Criminal Appeal CITATION: Camm v R [2009] NSWCCA 141 HEARING DATE(S): 7 May 2009 JUDGMENT DATE: 15 May 2009 JUDGMENT OF: Spigelman CJ at 1; James J at 2; Simpson J at 100 DECISION: Leave to appeal against sentence granted. Dismiss appeal against sentence. CATCHWORDS: CRIMINAL LAW — Sentencing — parity of sentence with sentences of co-offenders — sentencing judge's findings of fact — co-offenders charged with different offences — apparent disparity the result of prosecutorial decisions Commonwealth Crimes Act LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Code Act 1995 (Commonwealth) Lowe v The Queen (1984) 154 CLR 606 Pham v R [2009] NSWCCA 25 Postiglione v The Queen (1996) 189 CLR 295 R v Formosa [2005] NSWCCA 363 CASES CITED : R v Kerr [2003] NSWCCA 234 R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557 R v O'Donoghue (1988) 34 A Crim R 397 R v Todd (1982) 2 NSWLR 517 Yin v R [2007] NSWCCA 350 PARTIES: CAMM, Neil Gordon Regina FILE NUMBER(S): CCA 2007/15419 COUNSEL: P Hamill SC / C Miralis - Appellant P Roberts SC / CA Webster - Respondent SOLICITORS: Nyman Gibson Stewart - Appellant Commonwealth Director of Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0355 LOWER COURT JUDICIAL OFFICER: Goldring DCJ LOWER COURT DATE OF DECISION: 16 May 2008 IN THE COURT OF CRIMINAL APPEAL 2007/15419 SPIGELMAN CJ JAMES J SIMPSON J FRIDAY 15 MAY 2009 CAMM, Neil Gordon v R Judgment 1 SPIGELMAN CJ: I agree with James J. 2 JAMES J: Neil Gordon Camm applied for leave to appeal against a sentence imposed on him in the District Court on 16 May 2008 by his Honour Judge Goldring for one offence under s 135.4(1) of the Criminal Code Act 1995 (Commonwealth) of conspiring with other persons with the intent of dishonestly obtaining a gain from a third party being a Commonwealth entity namely the Aboriginal and Torres Strait Islander Commission ("ATSIC"). Judge Goldring imposed a sentence of imprisonment for four years with a non-parole period of two and a half years commencing on 16 May 2008, the applicant having been at liberty until the sentence was imposed. 3 The persons with whom the applicant was alleged to have conspired were Harold Charles Cary, Elizabeth May Quince, Lindsay Douglas Watson, Brendan Matthew Godfrey and Anthony Francis John Petch. 4 Petch agreed to provide assistance to the authorities, including giving evidence at a trial of the other alleged conspirators, and he was granted an indemnity against prosecution. 5 A joint trial of the remaining alleged conspirators was fixed to commence in February 2008. Shortly before the trial was due to commence, each of Watson and Godfrey pleaded guilty to an offence under s 135.1(1) of the Code of taking part in a scheme together with Cary, Quince and the applicant (and either Godfrey or Watson) with the intention of dishonestly obtaining a gain from a Commonwealth entity ATSIC and the Crown accepted these pleas of guilty in full discharge of the criminal proceedings against Watson and Godfrey. 6 A joint trial of the applicant, Cary and Quince on the charge under s 135.4(1) of the Code was held. Petch gave evidence in the Crown case. Each of the applicant and Cary gave evidence in his defence case. At the conclusion of the trial the jury returned verdicts of guilty against the applicant and Cary but acquitted Quince. 7 The applicant, Cary and Godfrey was sentenced by Judge Goldring on 16 May 2008. However, Judge Goldring acceded to an application made by counsel for Watson in the proceedings on sentence that it would be unfair for Watson to be sentenced by Judge Goldring and that Watson should be sentenced by another judge, because Judge Goldring had already indicated that in the sentencing of the offenders he would have regard to views he had formed about the facts of the offending which were based on evidence which had been given in the trial and which, accordingly, was evidence which Watson, not having been an accused at the trial, had not had the opportunity of challenging. Watson was subsequently sentenced by another District Court judge (his Honour Judge Marien) on 18 July 2008. The facts of the offending 8 Judge Goldring delivered one set of remarks on sentence for all of the applicant, Cary and Godfrey. In these remarks the facts of the offending were stated in very considerable detail. In the statement of the facts of the offending which I am about to give I will summarise, and occasionally quote, parts of his Honour's statement. I will also occasionally include some parts, which would not appear to me to be contentious, of the Crown's summary in its written submissions of the evidence at the trial. 9 ATSIC was a body established by the Commonwealth Parliament. It operated programs for Aborigines and Torres Strait Islanders, including a program to provide loans to eligible persons. 10 Quince was a person of aboriginal descent and eligible to apply for a loan from ATSIC and Cary, who was her de facto partner, was eligible to join in her application. In his remarks on sentence Judge Goldring often referred to Cary and Quince as "the Carys" and it will sometimes be convenient so to refer to them in this judgement. 11 At the beginning of the year 2001 the Carys were in poor financial circumstances. In 1998 Cary, whose name was then Tatt, has been made bankrupt and he remained bankrupt until the statutory period expired in September 2000. In 1999 Cary purchased a property at Coleambally, borrowing most of the purchase price from the Commonwealth Bank on the security of a mortgage over the property. Cary defaulted under the mortgage and by mid-2001 the amount owing under the mortgage exceeded the price Cary had paid for the property. 12 Watson was involved in various businesses in the Hay area. Since 1996 or 1997 he had provided financial advice to Cary. Watson had no professional qualifications. 13 In February 2001 the Carys submitted to ATSIC a written application for a loan of $4,423,450 to purchase a property known as Jellalabad and some machinery. The details in the application were in the handwriting of Watson and the application was signed by the Carys. 14 It was not disclosed in the application that Cary had previously been known as Tatt or that Cary had borrowed money from the Commonwealth Bank or that he was in default under the loan. It was asserted in the application that the Carys were able to contribute more than a million dollars towards the proposed purchase, whereas in fact they had no means to contribute anything. 15 The loan application was assessed by an ATSIC officer Mr Neville Jackson, with the assistance of an external business facilitator Mr Neil Irlam. By letter dated 28 May 2001 ATSIC informed the Carys that ATSIC had approved a loan to the Carys of $2.8M to purchase Jellalabad. The conspiracy alleged in the indictment was alleged to have commenced on about this date. 16 The proposed purchase of Jellalabad did not proceed because the amount of the loan approved by ATSIC was not sufficient to fund the purchase and the Carys themselves had no funds. 17 It occurred at least to Watson that by providing false information about the purchase price of a property in a loan application to ATSIC Cary and Quince could not only obtain funds to purchase the property but also money over and above the purchase price. Cary and Watson began searching for another property at a lower purchase price than that for Jellalabad. They became aware of a property known as Norwood, which was on the market at a price of $2.2M, and they entered into negotiations for the purchase of Norwood. 18 A document was drawn up by an agent of the proposed vendor stating the intentions of the parties, that the sale price would be $2.8M and that this would be the price shown in the contract for sale but that there would be a "rebate" on the price of $600,000, if the sale took place before a specified date. Judge Goldring noted in his remarks that "the real purchase price for (Norwood) was $2.2M, so that, if the plan was to succeed, it was necessary to provide an inflated valuation". 19 Judge Goldring continued:- "At this time Mr Camm was drawn into the conspiracy. He was a real estate agent and a broker for water rights working in Leeton. Mr Camm said he had known Mr Watson all his life and their families were friends. Camm in turn contacted Petch, after Watson had contacted him. Petch was a friend of Camm and a licensed valuer from South Australia who had worked with Mr Camm in relation to the sale and purchase of irrigation rights. Mr Petch agreed to provide a valuation for the property which was described as "suitable"." 20 Petch inspected Norwood and prepared a valuation, which was in fact never used. 21 Watson approached ATSIC on behalf of the Carys and ATSIC agreed to substitute Norwood for Jellalabad as a security for the loan of $2.8M which had been approved. 22 However, the proposed purchase of Norwood did not proceed, at least partly because the solicitor acting for the proposed vendor was suspicious of the arrangement for a rebate and said that, if the transaction was to proceed, the arrangement for a rebate would have to be disclosed to ATSIC. 23 In August 2001 Cary became aware of a third property, "the Ville", which was on the market at a price of $750,000. The Ville had a frontage to the Lachlan River. However, the owner, a Mr Headon, had sold the irrigation rights which had been attached to the property, so that the only right still held was to pump water from the River for domestic and stock purposes. 24 The Ville was submitted to ATSIC as a security in substitution for Jellalabad and Norwood, with a claimed purchase price of $2.8M. ATSIC agreed in principle to the substitution but advised that the maximum amount of any loan would be $2.1M and that the balance of the purchase price would have to be provided by the Carys and that ATSIC's offer was subject to a satisfactory valuation report being provided. 25 The applicant contacted Petch and asked him to provide a valuation report for the Ville. The applicant nominated to Petch the figure of $2.6M as being the figure which should be put in the report as being the value of the property. Petch provided a report in which the "current market value" of the Ville was stated to be $2.6M. 26 Mr Petch's report stated that the Ville had been valued "on an irrigated basis with adequate water entitlement that would enable productive large scale flood irrigation practices". There was included in the body of the report a statement that water entitlements of the property had been sold but this statement in the body of the report was not given any prominence and was not cross-referenced to the parts of the report in which the "current market value" was stated or the basis on which the valuation had been made was stated. 27 Judge Goldring said in his remarks:- "The Crown case was that at this stage Watson at least, with the advice of others, decided to interpose an intermediate purchaser between the vendor Mr Headon and the ultimate purchasers Mr Cary and Ms Quince. This would mean that Mr Headon would sell to the intermediate purchaser for $750,000 and the intermediate purchaser would sell to Cary and Quince for $2.8M. A contract with a price of $2.8M could be shown to ATSIC. This procedure ensured that ATSIC would still lend Cary and Quince $2.1M, even though the price that Headon was asking for (the Ville) was only $750,000." It is apparent that Judge Goldring considered that the jury had accepted this part of the Crown case and that his Honour accepted this part of the Crown case for the purpose of sentencing. 28 The entity chosen as the intermediate purchaser was Riverina Excavations Pty Limited ("Riverina"), a company controlled and beneficially owned by the applicant. 29 Mr Irlam inspected the Ville on behalf of ATSIC. He formed impressions, although the evidence at the trial left it unclear how he had come to form them, that the Ville still had irrigation rights and that the Carys were able to pay $700,000 towards the purchase price from their own resources. On Mr Irlam's recommendation a loan of $2.1M was approved in December 2001. 30 At this point Godfrey, a retired Commonwealth public servant, gave some advice to Watson about ATSIC and its legal requirements and took part in making arrangement for a managing clerk in a firm of solicitors in Canberra (Mr Duff) to act for the Carys on the purchase of the Ville. The clerk was informed about the two sales, that is the sale from Mr Headon to Riverina and the sale from Riverina to the Carys and of the different prices on the two sales. The clerk was told that the large difference in the sale prices was explained by the Carys having unlimited access to water by reason of Quince's aboriginality and by the ability of the Carys to utilise certain improvements on the property. In fact much of the conveyancing work on behalf of the Carys was done by the applicant and not by the managing clerk. 31 A contract for the sale from Riverina to the Carys was prepared by the applicant. The agent shown on the contract for sale was a firm of which the applicant was the principal. The contract provided for a deposit of $700,000 and, in Judge Goldring's words, "might create the impression that a deposit of the sum shown had been paid". 32 ATSIC was never told about the intermediate purchaser Riverina or that the price payable to Mr Headon was not $2.8M but only $750,000. 33 The two sales were settled simultaneously on 3 May 2002. ATSIC provided $2.1m and, at the direction of Riverina, the balance of the sale price of $750,000 was paid to Mr Headon, $60,000 was paid to Petch, $150,000 was paid to a company controlled by Godfrey and $510,977.63 was paid to Riverina and another company controlled by the applicant and $454,694.68 was paid into the trust account of the solicitors acting for the Carys. These amounts, which are the amounts stated in Judge Goldring's remarks on sentence, total somewhat less than $2.1M. In his remarks Judge Goldring recorded that the applicant had given evidence at the trial, which his Honour would appear to have accepted, that he had paid half of what he received to Watson. The money paid into the solicitor's trust account was disbursed, partly to Watson, partly to Cary and partly for other purposes. 34 Judge Goldring summarised the result of the transactions as follows:- "As a result of these transactions Mr Cary and Ms Quince obtained the title to (the Ville), subject to an obligation to repay the loan of $2.1M by instalments and Mr Cary received a considerable amount of cash. None of the instalments due to ATSIC was ever paid. Mr Camm, or companies controlled by him, received $511,000, give or take a few dollars, and his evidence was that he paid half that to Watson. Petch received $60,000, Skybase (Vic) Pty Limited, on behalf of Mr Godfrey, received $150,000 and thus each of the offenders received a benefit directly or indirectly from ATSIC." Judge Goldring's findings about the level of criminality of each of the offenders 35 In his remarks on sentence Judge Goldring made findings about the level of criminality of the offenders he was sentencing and of Watson. Watson 36 His Honour found Watson to have been the principal in the criminal enterprise. His Honour variously described Watson as "the architect", "the prime mover", "the directing force" and "the guiding force". 37 In par 9 of his remarks his Honour found that:- "The idea of using the finances provided by ATSIC to purchase other properties and to derive a significant cash benefit for Mr Watson and his co-offenders was, I am satisfied beyond reasonable doubt, his idea. He designed both the scheme and the means of carrying it into fruition…" 38 In par 10 of his remarks his Honour further found:- "Watson was responsible for enlisting both Mr Camm and Mr Godfrey into the scheme." 39 It should be noted that his Honour made these findings about Watson on the basis of evidence given at the trial, which Watson, not being an accused at the trial, had had no opportunity of challenging and much of which had been given by the applicant or Cary in whose interests it would have been to minimise their roles and to magnify Watson's role. The applicant 40 The applicant had entered the conspiracy at a later stage than Watson or Cary. 41 In par 69 of his remarks his Honour said:- "Petch and Camm were willing participants and, if the fraud had not been discovered, they were well rewarded for their contributions. The scheme required a licensed valuer who was prepared to give a false or misleading valuation. Petch played that role. Once Camm was aware that he, too, could make money from the scheme, he became a willing participant, not only in arranging the services of Petch, but also in suggesting the use of his own company as the intermediary and in using the knowledge of conveyancing practice which he had gathered as a real estate agent in order to avoid the need for using a solicitor, who might ask embarrassing questions. Once he became involved in the transaction, even though he was misled and manipulated by Watson, the jury found on perfectly adequate evidence, that he knew that what he was doing was wrong, by the standards of ordinary people. His evidence was, as I have said, that he was in financial difficulties at the time, and the prospect of making a quarter of a million dollars must have been very attractive to him." 42 In par 50 of his remarks his Honour said:- "Mr Camm admitted that he had generated the front page of the contract sent to Mr Duff. He knew that no cash deposit had actually been paid and the only rational inference is that, in providing the contract and other documents to Mr Duff, he was acting in a way calculated to lead ATSIC and its representatives into the belief the cash deposit had been paid." 43 In par 90 of his remarks his Honour, having described Watson as "the architect" of the offence found that the applicant and to some extent Godfrey were "essential tradesmen". Cary 44 Judge Goldring made a number of findings about the level of Cary's criminality, some of which had the effect of reducing the level of that criminality. 45 In pars 72, 73 and 74 of his remarks his Honour said:- "72 Harold Cary was a participant in the fraud and the jury found, again on adequate evidence, that he knew that what he was doing was dishonest by the standards of ordinary people. I have indicated that there are some aspects of the Crown case upon which I could not be satisfied beyond reasonable doubt and which I therefore dismiss in assessing the degree to which Mr Cary was involved in the transaction. His evidence, that he was guided in all financial matters by Mr Watson, is consistent with all the other evidence. However, this guidance did not amount to duress, and does not absolve him completely from responsibility for his actions. 73 The jury's verdict leaves me with no alternative but to accept that Mr Cary did not act with reasonable prudence and that he participated in the scheme from which he gained a significant benefit, not only in the purchase and development of the farming property, but also in discharging his debt to the Commonwealth Bank, and he must be therefore regarded as significantly culpable. 74 His evidence that he was not good at reading was not challenged, and I accept that he had problems with reading complex documents, if in fact he read them at all. Much of this case involved documents, and this leads me to the conclusion that Mr Cary may well have had a very limited understanding of many of the fraudulent matters in which Mr Watson involved him. He is relatively unsophisticated and poorly educated. His life before these events had been spent driving trucks and earthmoving equipment, after growing up on a farm and working on farms. He was not financially sophisticated. Clearly he dreamed of running his own farm and being able to use his skill and experience to grow irrigated corps. This was his fantasy and his ambition and he was easily seduced by a plausible and trusted adviser. Nevertheless, I do not regard his criminality as being as significant as either that of Watson or Camm, because his dishonesty was a product of his gullibility and misplaced trust in the advice of Watson." 46 In par 90 of his remarks, his Honour having found that Watson was "the architect" of the offence and that the applicant and to some extent Godfrey were "essential tradesmen", found that Cary was "the labourer" and said that this finding would be reflected in the sentences he would impose. Judge Goldring sentenced Cary to imprisonment for three years with a recognizance release order to take effect after one year six months. Godfrey 47 In par 70 of his remarks his Honour said that there was much less evidence about the role played by Godfrey in the criminal enterprise and that most of what evidence there was had been given by a witness who was unreliable. His Honour added:- "Mr Godfrey certainly received a significant benefit. Nevertheless, his role was significantly less than either that of Watson or Camm." 48 His Honour found that Godfrey had been drawn into the scheme at a late stage by Watson. 49 In par 43 of his remarks his Honour said:- "The Crown case is that Mr Godfrey was involved in devising the structure of the transaction using the intermediary as a means to deceive ATSIC. Mr Glissan, who has appeared for him, has pointed out that the evidence does not inevitably lead to that conclusion, without the admission made by Mr Godfrey in his plea of guilty." 50 In par 75 of his remarks his Honour said:- "Mr Godfrey pleaded guilty after the matter had been listed for trial. Certainly, by his plea, he reduced the length of the trial quite significantly, and as Mr Glissan, who appears for him today, has pointed out, his admission by his plea puts some matters beyond doubt that the Crown may well have had difficulty in proving." 51 As I have already indicated, his Honour found that Godfrey was, to some extent, an "essential tradesman" in the carrying out of the scheme. 52 In other parts of his remarks on sentence his Honour referred to Godfrey's outstanding subjective circumstances, including that he had been the Deputy Secretary of a Commonwealth government department, his plea of guilty and his contrition. His Honour said that, but for the plea of guilty, he would have sentenced Godfrey to a term of two years six months imprisonment but, because of the plea, would reduce the sentence to a term of one year and ten months, which his Honour suspended pursuant to s 20(1)(b) of the Commonwealth Crimes Act. The sentencing of Watson by Judge Marien 53 As already indicated, Watson was not sentenced by Judge Goldring on 16 May 2008 but by Judge Marien on 18 July 2008. 54 As Watson had pleaded guilty and had not stood trial, a statement of the facts of his offending was prepared, which was agreed to by the Crown and the defence and which was admitted into evidence in the proceedings on sentence before Judge Marien. 55 This agreed statement of facts, which was lengthy, was incorporated by Judge Marien into his remarks on sentence at pp 1-7 of the remarks. I do not propose to set out in this judgment this agreed statement of facts, on the basis of which Watson was sentenced. It is sufficient to say that the statement differed in important respects from the facts which had been found by Judge Goldring in sentencing the applicant, Cary and Godfrey and particularly with respect to the comparative roles of the various offenders. 56 At pp 14-15 of his remarks on sentence Judge Marien said:- "Although I have read the remarks on sentence of Judge Goldring delivered on 16 May 2008, I make it absolutely clear that the factual basis upon which the offender is to be sentenced today by me is only upon the facts as set out in the agreed statement of facts tendered in these proceedings. In assessing the offender's culpability, which I must do, I have had no regard to, and give no weight to, the views expressed by Judge Goldring in his remarks on sentence as to the role played by the offender in this illegal scheme. That is the approach that both the Crown and Mr Wallach have sought that I take with respect to the proceedings before me. Godfrey was sentenced by Judge Goldring on the basis that whilst he received a significant benefit from the illegal scheme, his role was significantly less than either of Watson or Camm. Upon the basis of the agreed facts before me, I am unable to make the same finding as Judge Goldring as to the respective culpability of Godfrey, Watson and Camm. I agree with submissions of Mr Wallach and the Crown that the facts before me do not allow any particular offender in this illegal scheme to be characterised as a principal offender. Each of the offenders had particular expertise to contribute to the scheme and thus each of them, particularly the offender, Cary, Godfrey and Camm, played a significant role in the scheme." 57 Judge Marien said in his remarks on sentence that Watson's plea of guilty had not been made at the first reasonable opportunity but that he would allow a discount of 15 per cent for Watson's willingness to facilitate the course of justice. His Honour made similar findings about the subjective circumstances of Watson as Judge Goldring had made about the subjective circumstances of Godfrey and determined that a similar discount of 27 per cent as had been allowed by Judge Goldring in the sentencing of Godfrey should be allowed for all aspects of Watson's plea of guilty, including its demonstration of contrition. 58 Judge Marien said that he had taken into account in Watson's favour a delay of about two years four months from the time Watson first become aware that there was a real possibility of a charge being brought to the time when he was actually charged. 59 As regards parity with the co-offenders, Judge Marien considered that the sentences imposed by Judge Goldring on the applicant and Cary were "not…of great relevance as they were sentenced after trial for…the far more serious offence of conspiracy to defraud". The grounds of appeal against sentence 60 The applicant relied on the following grounds of appeal:- 1. The appellant has a justifiable sense of grievance as a result of the marked and manifest disparity between the sentence imposed on him and the sentence imposed on the co-offender Harold Charles Cary. 2. The appellant has a justifiable sense of grievance as a result of the lack of proper proportion between the sentence imposed on him and the sentences imposed on the co-offenders Brendan Matthew Godfrey and Lindsay Douglas Watson. 3. The sentencing judge mistook the facts by finding that "it is clear that the applicant told lies to ATSIC". 4. The sentencing judge erred in failing to take into account the impact of the delay in bringing the prosecution as a mitigating feature of the case. 5. A different, less severe, sentence is warranted and ought to have been imposed. 61 I will consider each of the grounds of appeal in turn. Ground 1 — The appellant has a justifiable sense of grievance as a result of the marked and manifest disparity between the sentence imposed on him and the sentence imposed on the co-offender Harold Charles Cary. 62 It was submitted by counsel for the applicant that the applicant had a justifiable sense of grievance because of the disparity or lack of proper proportionality between the sentence imposed on the applicant and the sentence imposed on the co-offender Cary. Each of the applicant and Cary had been sentenced for the same offence and neither had pleaded guilty. 63 It was submitted that the objective criminality of Cary was greater than the objective criminality of the applicant. Cary had been a party to the conspiracy from the outset, whereas the applicant had joined the conspiracy at a later stage. Cary as the de facto spouse of the Aboriginal woman Quince was an essential party to the conspiracy. Cary, together with Quince, had made the loan application to ATSIC with its false statements and its non-disclosure of material facts. Cary had inspected each of the properties and had shown a representative of ATSIC over the Ville. Cary had communicated with Mr Irlam with respect to the loan application. Cary was a major beneficiary under the scheme, becoming entitled to the Ville and receiving a large amount of cash. 64 It was submitted that, so far as subjective circumstances were concerned, Cary had a criminal history, including a number of minor offences of dishonesty, whereas the applicant had no previous criminal convictions. 65 Reference was made by counsel for the applicant to the leading decisions of Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1996) 189 CLR 295. 66 Earlier in this judgment I set out pars 72-74 of Judge Goldring's remarks on sentence in which his Honour made findings about the objective criminality of Cary, including that he had been guided in all financial matters by Watson, that he might have had a very limited understanding of many of the fraudulent matters in which Watson had involved him, that he had been easily seduced by a plausible and trusted adviser and that his criminality was not as significant as that of the applicant because his dishonesty was a product of his gullibility and misplaced trust in Watson. 67 It may be that these findings were unduly generous to Cary and that he was not as gullible or as manipulated by Watson as he had claimed. 68 However, the power of this Court to interfere with findings of fact by a primary judge is very limited. In R v O'Donoghue (1988) 34 A Crim R 397 Hunt J, as he then was, with the concurrence of the other members of the Court of Criminal Appeal, said at 401, omitting citation of authority:- "It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below … Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the Court cannot for that reason interfere with those findings..." 69 This passage in Hunt J's judgment in O'Donoghue has been referred to with approval in many subsequent authorities. See, for example, R v Khouzame [2000] NSWCCA 505 at (39) per Greg James J, the other members of the Court agreeing. 70 In R v Merritt (2004) 59 NSWLR 557 Wood CJ at CL said at 573 (61), with the concurrence of the other members of the Court:- "In its review, the Court (of Criminal Appeal) is also bound by findings of fact by the sentencing judge unless they were not open on the evidence or unless error is shown in a sense referred in House v The Queen (1936) 55 CLR 499 at 504-505, R v Kelly (1993) 30 NSWLR 64 and R v Khouzame [2000] NSWCCA 505." 71 In the present case it is apparent from Judge Goldring's remarks on sentence that there was evidence which would support his Honour's findings about Cary. Apart from the evidence referred to in pars 72-74, his Honour referred in other parts of his remarks to evidence given by Cary at the trial, for example in par 58 to evidence given by Cary that "he was gullible and was manipulated by Mr Watson, whom he trusted". 72 As there was at least some evidence which would support the sentencing judge's findings in pars 72-74 of his remarks about the objective criminality of Cary, those findings cannot be successfully challenged in this Court and this Court should not undertake an examination of the evidence to determine what findings it itself would have made. Even if it had been appropriate for this Court to endeavour to make its own findings, the Court was not provided with the means to do so, that is with a full transcript of the evidence at the trial, and, in any event, this Court would have lacked the advantage, which the trial judge had, of having seen and heard the witnesses give their evidence. 73 If, as I consider is the position, the findings of the sentencing judge about Cary cannot successfully be challenged in this Court, then, given those findings and the findings made by the sentencing judge about the applicant, it was within his Honour's sentencing discretion to distinguish between the applicant and Cary in the ways in which he did and to impose the different sentences which he did. 74 I would reject the first ground of appeal. Ground 2 — The appellant has a justified sense of grievance as a result of the lack of proper proportion between the sentence imposed on him and the sentences imposed on the co-offenders Brendan Matthew Godfrey and Lindsay Douglas Watson. 75 This ground of appeal was not strongly pressed at the hearing of the application. It was recognised by counsel for the applicant that Godfrey and Watson had been sentenced for a different offence from that for which the applicant was sentenced, namely an offence under s 135.1 of the Code, for which the maximum penalty is imprisonment for five years, whereas the applicant had been sentenced for an offence under s 135.4 of the Code, for which the maximum penalty is imprisonment for 10 years. 76 This Court has been reluctant to apply principles of parity and proportionality in sentencing, where the offender and the comparative co-offender have been charged with different offences, particularly where, as here, the co-offender has been charged with a less serious offence carrying a lower maximum penalty. 77 In R v Formosa [2005] NSWCCA 363 Simpson J, with the concurrence of the other members of the Court, after referring to the earlier decision of the Court in R v Kerr [2003] NSWCCA 234, in which Miles AJ had given the leading judgment and in which it was suggested that the doctrine of parity could be applied notwithstanding that the two offenders were charged with different offences, said at (44):- "I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle." 78 In Yin v R [2007] NSWCCA 350 at (24) Barr J said:- "Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty." 79 In Pham v R [2009] NSWCCA 25 Latham J, who gave the leading judgment, after a discussion of cases in which the offender and an alleged comparative co-offender had been charged with different offences or a different number of offences said:- " [36] In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified? [37] If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court." 80 A further matter to be taken into account in the present case is that both Watson and Godfrey pleaded guilty and each received a discount of approximately 27 per cent for all aspects of the plea of guilty, whereas the applicant did not plead guilty and stood trial, so that he was not entitled to any discount for a plea of guilty. 81 It was not disputed by counsel for the applicant that Judge Goldring had found that Godfrey had joined the conspiracy at a later stage than the applicant and had played a lesser role in the conspiracy than the applicant and that, consequently, his objective criminality was less than that of the applicant. 82 So far as Watson is concerned, it might be the case that the applicant has a sense of grievance, because Watson, after having been found by Judge Goldring to have been the architect and guiding force of the conspiracy, was then sentenced by Judge Marien on the basis of a set of agreed facts according to which there was no principal offender and each of the applicant, Cary and Watson contributed to the scheme, without any distinction being made about the extent of their respective contributions, and Watson received a lesser sentence from Judge Marien than Judge Goldring had imposed on the applicant. 83 However, the statement of the facts of Watson's offence which was tendered by the Crown and admitted in the proceedings for the sentencing of Watson was a statement which the prosecuting authorities had decided should be put before Judge Marien and any sense of grievance the applicant might feel is a result of a prosecutorial decision about the facts to be put before the sentencing judge rather than the result of any decision made by the sentencing judge. In these circumstances I consider that the present case should be regarded as falling within the principle stated by Latham J in Pham that the courts do not, at least in general, supervise the exercise of prosecutorial discretions or seek to redress different sentencing outcomes flowing from the exercise of prosecutorial discretions. 84 I would reject the second ground of appeal. Ground 3 — The sentencing judge mistook the facts by finding that "it is clear that the applicant told lies to ATSIC". 85 This ground of appeal was based on part of Judge Goldring's remarks on sentence in which his Honour said:- "It is quite clear that Mr Camm told lies to ATSIC in relation to the properties that the Carys proposed to purchase using ATSIC funds…" 86 It was submitted that there was no evidence of any direct communication between the applicant and ATSIC and hence no evidence that the applicant had told lies to ATSIC. 87 I would accept that what his Honour said in par 19 was not as well expressed as it might have been but I would also accept, as submitted by the Crown, that in par 19 his Honour was referring to the same matter as he described in par 50 of his remarks, where his Honour said:- "Mr Camm admitted that he had generated the front page of the contract sent to Mr Duff. He knew that no cash deposit had actually been paid and the only rational inference is that, in providing the contract and other documents to Mr Duff, he was acting in a way calculated to lead ATSIC and its representatives into the belief the cash deposit had been paid." 88 There was clear evidence to support what his Honour said in par 50 of his remarks. 89 I would reject this ground of appeal. Ground 4 — The sentencing judge erred in failing to take into account the impact of the delay in bringing the prosecution as a mitigating feature of the case. 90 It was submitted that there had been delay in prosecuting the applicant for the offence and in particular there had been a delay of more than two years between the applicant first being made aware that he might be prosecuted and the actual bringing of the charge. Reference was made to R v Todd (1982) 2 NSWLR 517 at 519. 91 A submission that there had been a delay in prosecuting the applicant had been made in written submissions on behalf of the applicant in the proceedings on sentence. 92 A different but related submission had been made in oral submissions on behalf of Godfrey. Godfrey's counsel described the alleged mitigating factor as being the "staleness" of the offence rather than any "delay" on the part of the authorities. It was not suggested that there had been any delay, in the sense of culpable inactivity, on the part of the prosecuting authorities. 93 In the proceedings on sentence the applicant's counsel made no oral submission to the sentencing judge that there had been any delay or that the offence for which the applicant was being sentenced was a stale offence. 94 In sentencing the applicant the sentencing judge did not take into account as a mitigating factor any delay or any staleness of the offence. 95 In the sentencing of Watson Judge Marien did take into account as a mitigating factor the state of suspense in which Watson had been kept between the time when he was first made aware that he might be charged and the time when he was actually charged. His Honour made it clear that he made no criticism of the authorities for the delay in Watson being charged. His Honour said "this was an elaborate and sophisticated scheme involving a number of offenders which undoubtedly required extensive and prolonged investigation by the Commonwealth authorities". 96 I would accept that, even where there has been no culpable inactivity on the part of the authorities, the staleness of an offence for which an offender is being sentenced can be a relevant factor in sentencing. Todd itself was such a case. However, previous cases where this principle has been applied have involved a much greater lapse of time than occurred in the present case. I would not regard Judge Goldring as having erred in not finding that any such delay was a mitigating factor in the present case. 97 I would reject this ground of appeal. Ground 5 — A different, less severe, sentence is warranted and ought to have been imposed . 98 The terminology of this ground reflects s 6(3) of the Criminal Appeal Act 1912 and is in the nature of a submission. This is not, in itself, a valid ground of appeal and as a ground of appeal should be rejected. Conclusion 99 Having rejected all the grounds of appeal against sentence I would, although giving leave to appeal against sentence, dismiss the appeal against sentence. 100 SIMPSON J: I agree with James J. ********** 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.