State v Wai [2020] PGNC 240; N8452 (12 August 2020)

N8452

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 76 OF 2016

THE STATE

V

JOSEPH WAI

Waigani: Berrigan, J
2020: 7^th February & 10^th August

CRIMINAL LAW –SENTENCE –S. 407(1)(b) of the Criminal Code – Conspiracy to defraud - S. 383A(1)(a)(2)(d) of the Criminal Code - Misappropriation of gold to the value of K105,340.50 – Sentence following conviction on a re-trial – Adoption of the “ceiling principle” – As a general but not absolute rule, an offender convicted following a new trial (or “re-trial”) should not receive a longer sentence than that imposed after the first trial –Sentence imposed after first trial appropriate.

The matter was remitted to the National Court for a new trial following a successful appeal against conviction to the Supreme Court. The offender was subsequently convicted of one count of conspiracy to defraud and one count of misappropriation, contrary to ss. 407(1)(b) and 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code), respectively. The evidence established that the offender conspired with others to defraud the complainant of gold valued at K105,340.50 and then misappropriated the gold to his own use.

The charges were in the same terms as those on which the offender was initially convicted and sentenced to 2 and 4 years of imprisonment, respectively, to be served concurrently. The sentences were suspended on condition of restitution. The offender failed to make restitution by the due date. He was taken into custody, subsequently released on remission subject to parole, the term of which is shortly to expire.

Held:

1. As a general, but not absolute, rule, where an offender is convicted following a new trial, often referred to as a re-trial, following a successful appeal, he or she should not receive a longer sentence than that imposed after the first trial, unless there is some significant circumstance to be taken into account: R v Gilmore (1979) A 1 Crim R 416 and R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 adopted and applied.
   
2. This rule recognises that the right to appeal is guaranteed under the Constitution: s. 37(16). Not only is the right to appeal important for ensuring the rights of a particular individual to a fair trial but also for the purpose of avoiding similar errors occurring in future criminal trials. Potential appellants should not be discouraged from exercising their Constitutional right for fear of receiving an increased sentence if convicted on a re-trial. Nor should the criminal justice system be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so: R v Gilmore; R H McL v The Queen (supra).
   
3. The principle, which is sometimes referred to as “the ceiling principle”, is not intended to fetter the independent discretion of the sentencing judge: R v Bedford (1986) 5 NSLWR 711; R v Merritt [2002] NSWCCA 365 adopted and applied. It is open to the judge to impose a higher sentence if warranted in the circumstances: R v Merritt at [34]; R v Hannes [2002] NSWSC 1182 considered. However, the exercise of a discretion that increases the original sentence is “necessarily rare”: R H McL v The Queen at [72] considered.
   
4. If a longer sentence is called for then reasons should be provided: R v Bedford considered. These might include escaping from custody or the committing of other offences in the intervening period: R v Gilmore considered. A variance between the number or nature of counts resulting in conviction on a re-trial, and considerations of totality may also justify an increase: R v Bedford; H McL v The Queen considered. Similar considerations may apply where the findings at the re-trial lead to an assessment of greater culpability on the part of the offender than at the first trial: Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425 considered.
   
5. The head and effective sentences imposed by the initial trial judge in this case were appropriate.
   
6. The offender failed to make restitution by the due date and was taken into custody. He was subsequently released on remission on 13 April 2018, on conditions of parole, determined by the Parole Board on 8 April 2018, which parole is to expire on 17 October 2020.
   
7. Accordingly, the following orders are made:
   
   • (a) the offender is sentenced to 2 years of imprisonment on Count 1, conspiracy to defraud, to date from 23 December 2016, the date on which he was taken into custody for that offence;
   • (b) the offender is sentenced to 4 years of imprisonment on Count 2, misappropriation, to date from 23 December 2016, the date on which he was taken into custody for that offence;
   • (c) the sentences are to be served concurrently; and
   • (d) taking into account the time already served, together with his release on remission, the offender is free to go subject to the conditions of parole issued on 8 April 2018, which expire on 17 October 2020.
     
8. Any bail monies are to be immediately refunded.
   

Cases Cited:
Papua New Guinea Cases

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
The State v ImoiMaino(2004) N2773
State v Etami (2012) N4769
The State v Niso (No 2) (2005) N2930
The State v IoriVeraga(2005) N2849
The State v LudwinaTokiapron(2005)
The State v Emba (2011) N5012
The State v Mathew Kana,CR No 843 of 2012, 11 June 2014
The State v Isaiah Guda(2015) N5955
The State v Tanner & Anor (2014) N5808
The State v Guda (2015) N5955
The State v David Poholi(2016) N6214
The State v Pohien (2016) N6564
The State v Paul Guli&Ors(2017) N6866
The State v Hevelawa&Ors (No.2) (2017) N6875
The State v SarryMoere, CR (FC) 153 of 2017, 6 November 2017
The State v Tracy Tiran (2018) N7375
The State v Solomon JuntWarur (2018) N7545
The State v Ruth Tomande (2019) N8153
Lawrence Simbe v The State [1994] PNGLR 38.
Goli Golu v The State [1979] PNGLR 653

Overseas Cases

R v Gilmore (1979) A 1 Crim R 416
R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
R v Bedford (1986) 5 NSLWR 711
R v Merritt [2002] NSWCCA 365
R v Hannes [2002] NSWSC 1182
Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425

References Cited

Section 37(16) the Constitution
Sections 19, 383A, 407(1)(b)of the Criminal Code

Counsel

Ms T. Aihi for the State
Mr R. Yanson, for the Accused

DECISION ON SENTENCE

12^th August 2020

1. BERRIGAN J: The matter was remitted to the National Court for a new trial, often referred to as a “re-trial”, following a successful appeal against conviction to the Supreme Court.
   
2. The offender was subsequently convicted following that new trial on one count of conspiracy to defraud and one count of misappropriation, contrary to ss. 407(1)(b) and 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code), respectively. The charges were in the same terms as those on which the offender was initially convicted: see The State v Joseph Wai (2019) N7897 (decision on application to amend the indictment) and The State v Joseph Wai (2019) N8182 (decision on verdict).
   

Facts

3. In late October 2015 the complainant, Ana Sani, came to Port Moresby from Wewak, looking to sell a bar of gold. The evidence at trial established that over the next few days the offender conspired with two of his co-conspirators, Henry Mathias and Ernie Choi, to defraud the complainant of the gold, weighing 781.2 gms, on the basis that they would purchase the gold for K105,340.50 when they had no intention of doing so. The accused and his co-conspirators told the complainant that they were experienced commodity traders when they were not, and that they would sell the gold in Australia. The offender told the complainant that he was the Chief Executive Officer (CEO) of ANZ, when he was in fact the CEO’s driver. On the basis of these and related representations the complainant entered into an agreement with the offender, Ernie Choi, Henry Mathias, and the offender’s wife (who joined the conspiracy) to sell the gold to the Veropo Commodity Agency, of which the offender’s wife was the Managing Director. On 2 November 2015, the complainant gave the gold to the offender who dishonestly applied it to his own use by giving it to Henry Mathias for the purpose of putting into effect the conspiracy to deprive the complainant of the gold without paying the agreed price. On 8 November 2015 Henry Mathias told the complainant that something had gone wrong with the sale in Australia. He showed the complainant an email, the authenticity of which was unclear, but which in any event referred to an advance of AUD28,000 (or PGK58,8000 on the applicable exchange rate). A few days later the offender met with the complainant himself. He told her that they had received only PGK28,000 and asked the complainant to accept PGK20,000 in settlement of the agreement, which she refused. The offender told her they would pay her when they sold more gold but thereafter refused to take her calls. Other than K5000 the offender gave her after she reported the matter to police, the complainant never received any money for her gold.
   
4. It now remains to sentence the offender.
   

Sentencing Principles and Comparative Cases

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
6. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. Given the amount involved, the misappropriation falls within the fourth category contained in Wellington Belawa. It is generally accepted, however, that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563. Nevertheless, the principles to be applied when determining sentenceremain relevant and applicable.
   
   8. On the charge of misappropriation, I have had regard to the following cases:
      
      1. The State v Imoi Maino (2004) N2773, David AJ (as he then was), in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of others, one in favour of himself, whilst a payroll clerk with the Department of Education. He was sentenced to 4 years imprisonment, of which 2 years was suspended on conditions;
         
      2. State v Etami (2012) N4769, David J in which the prisoner pleaded guilty to one count of misappropriation of K165,086.18, the property of his employer, Oilmin Field Services. Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies. He was sentenced to four years, wholly suspended on conditions, including restitution;
         
      100. The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of four counts relating to conspiracy, fraudulently uttering a false document and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time he was the Senior Clerk and Supervisor in the General Ledgers Section. The following sentences of imprisonment were imposed: 3 years, 6 months for conspiracy; 1 year, 3 months for forgery; 1 year, 3 months for uttering; 7 years, 6 months for misappropriation. Sentences for the first, second and third counts were to be served concurrently with the sentence for the fourth. The effective term of imprisonment was 7 years, 6 months, less 8 months spent in custody (with the balance of 6 years, 10 months to be served);
           
      4. The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations. He was sentenced to 7 years on the (4) conspiracy charges and 2 years on the corresponding misappropriation charges, to be served cumulatively, with an effective sentence of 6 years imprisonment;
         
      5. The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was), unreported, in which the prisoner was sentenced to 6 years imprisonment after pleading guilty to the misappropriation of K200,000.00. The monies were obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead. He was sentenced to 6 years imprisonment;
         
      6. The State v Emba (2011) N5012, Kawi J, in which the prisoner pleaded guilty mid-trial to one count of misappropriating K286,491.71. She was employed as a cashier with Air Niugini, based in Kimbe, and was responsible for collecting cash monies from the sale of airline tickets. The monies were received from ticket sales. To avoid detection the prisoner got the ticket coupons and destroyed them, and then applied the monies to her own use. She was sentenced to 6 years to be spent in light labour at the Lakiemata Prison. The sentence was wholly suspended on conditions including restitution;
         
      7. The State v Mathew Kana,CR No 843 of 2012, 11 June 2014, unreported, Sakora J, in which the prisoner pleaded guilty to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30. He was sentenced to 5 years of imprisonment;
         
      8. The State v Isaiah Guda (2015) N5955, Salika DCJ (as he then was), in which the prisoner pleaded guilty to misappropriating K436,000 the property of the Moga Incorporated Land Group over a period of about two months. The prisoner was assisted by his lawyers and produced false certificates authorising his access to the monies, which he presented to the bank. He was sentenced to 6 years imprisonment with hard labour;
         
      9. The State v Tanner & Anor (2014) N5808, Salika DCJ (as he then was). The prisoners were convicted following trial of one count of misappropriation of K292, 663.50, the property of Post PNG Limited. Between the 1^st of January 2012 and the 31^st August 2012 the prisoners conspired with each other and fraudulently obtained from Post PNG an amount of K292, 663.50. They obtained using the mobile SMK (Salim Moni Kwik) system. Clayton Tanner manipulated the system by entering false cash entries on Telepin (the mobile money system) purporting to be monies sent from another province, which were then cashed out in Port Moresby by Alex Solon. Tanner was sentenced to 4 years imprisonment, 2 years of which was suspended upon payment of his share of restitution. Solon was sentenced to 3 years imprisonment, 2 years of the sentence suspended upon payment of his share of restitution;
         
      10. The State v David Poholi (2016) N6214, Salika DCJ (as he then was), in which the prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688,000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period of 18 months and involving 134 transactions. He was sentenced to 3 and 5 years respectively on each count, to be served concurrently;
          
      11. The State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his employer, Sika Limited. The prisoner whilst employed in the company’s hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00, over a period of 6 months. He was sentenced to 5 years imprisonment;
      50. The State v Paul Guli &Ors (2017) N6866, Salika DCJ (as he then was), in which three prisoners were each found guilty of one count of misappropriating K473,575.00, the property of the State following a trial. Two prisoners, the District Accountant and District Administrator of what was then Western Highlands Province (now Jiwaka), made fraudulent payments into the account of the third prisoner, a local businessman. They were sentenced to 5 years, 5 years and 2 years of imprisonment, respectively;
          
      13. The State v Hevelawa & Ors (No.2) (2017) N6875, Salika DCJ (as he then was). The offenders Jacob Hevelawa and Timothy Numara were found guilty of two counts of abuse of office, one count of conspiracy to defraud and three counts of misappropriation. Mirriam Hevelawa was found guilty of one count of conspiracy to defraud and three counts of misappropriation. Jacob Hevelawa was the Director General of the Office of the Library and Archives from March 2011 to March 2014 and Timothy Numara was the Manager, Corporate Services of the Office for the Library and Archives. Mirriam Hewelava was the wife of Jacob Hevelawa and Sole Director of PAJA Sisters Trading. She was awarded a contract for grass cutting, landscaping and removal of rubbish. The costs were inflated and they misappropriated a total of K118,846.30. All three offenders were sentenced to five years imprisonment for the charge of misappropriation. Jacob Hevelawa and Timothy Numara were sentenced to two years imprisonment for the charge of abuse of office. The sentences were to be served concurrently. Three years of the sentences were suspended on the condition on restitution.
          
      14. The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported, Salika DCJ (as he then was). The offender pleaded guilty to one count of misappropriating K295, 099.35 whilst employed by the Ombudsman Commission as its payroll officer by manipulating the payroll system and transferring the money to his own account. The offender was sentenced to 6 years’ imprisonment;
          
      15. The State v Tracy Tiran (2018) N7375, Miviri AJ (as he then was), in which the prisoner was convicted and sentenced to 6 years IHL following trial on one count of misappropriating K500,000.00, the property of the State. The prisoner dishonestly obtained monies for the purpose of establishing a coconut project through the office of the Minister for National Planning and Monitoring, which project was never established;
      16. The State v Solomon Junt Warur (2018) N7545, Berrigan J, in which the prisoner pleaded guilty to one count of misappropriating K811,969.53 belonging to the State. Over a period of more than 3 ½ years the prisoner, a Communications Officer in the Information and Communication Technology (ICT) Section of Correctional Services (CS), issued 66 false orders and invoices on behalf of CS, payable to his own company, Merc-Tech, for which no goods or services were ever supplied. He was sentenced to 7 years imprisonment; and
          
      17. The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank. At the relevant time the accused was employed as a Home Loan Officer with BSP. Between 30 April 2017 and 1 January 2018, the accused falsified 14 loan applications which had previously been declined by the bank and altered them to manipulate the system into approving the loans. The monies were then transferred by the offender to other accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid detection. She was sentenced to 5 ½ years of imprisonment.
          
9. On the charge of conspiracy, it is to be noted that the maximum for conspiracy to defraud is 7 years of imprisonment.
   
10. I also note the sentences imposed in Poholi, Veraga, Kana, Hevelawa (supra) for conspiracy to defraud.
    
11. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Considerations on Sentence

12. Having regard to Wellington Belawa, the following matters have been taken into account.
    
13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. This case concerns property of substantial value.
    
14. Whilst the accused abused the naivety of the complainant, there was no special relationship between him and the complainant to constitute a breach of trust. Nevertheless, the offence demonstrated significant planning and repeated instances of dishonesty at meetings, in the use of documentation, and false representations all conducted over a period of several days to deprive the complainant of her gold.
    
15. There is no evidence as to how the gold or its proceeds were ultimately applied but the offence was clearly conducted for the financial benefit of the offender and his co-conspirators.
    
16. The impact on the victim, Anna Sani, has been very significant in terms of immediate financial loss. She also states that she has lost both her business and her marriage as a result of the offence and that she continues to suffer psychologically. She seeks repayment of the monies.
    
17. The offender is 47 years old. He resides at Tokarara in the National Capital District with his first wife and three children, aged 10 years, 18 years, and older.
    
18. The offender was employed as ANZ CEO’s driver at the relevant time but was terminated as a result of the offence and is currently unemployed.
    
19. In mitigation the offender has no prior convictions. He is previously of good character. He held a secure position with ANZ. The Chairman for the Tokarara & June Valley Village Court further reports that the offender is highly regarded with in his community.
    
20. The offender declined to address the Court on allocutus, which he is entitled to do.
    
21. I accept that his conviction has had and will continue to have a very serious impact on the offender. I have no doubt it has caused shame and a loss of standing to him and his family. As might be expected, it has proven difficult for him to obtain employment since the offending.
    
22. There are no matters of mitigation special to the offender.
    

Sentence

23. The offender has been convicted of one count of conspiracy to defraud, and one count of misappropriation, contrary to ss. 407(1)(b) and 383A (1) (a) (2) (d) of the Criminal Code, for which the maximum penalty is 7 years and 10 years of imprisonment, respectively.
    
24. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although neither count falls within that category, the offences are both serious ones.
    
25. Section 19 of the Criminal Code provides the Court with broad discretion on sentence.
    

The Ceiling Principle

26. It is significant to take into account that following his conviction on the first trial, the offender was sentenced to 2 years of imprisonment on the charge of conspiracy and 4 years of imprisonment on the charge of misappropriation, to be served concurrently. The sentences were suspended on condition that K105,340.50 was restituted to the complainant within 6 months.
    
27. In some common law jurisdictions there is a general, but not inflexible, rule, that where an offender is convicted following a re-trial, he or she should not ordinarily receive a longer sentence than that imposed after the first trial, unless there is some significant circumstance to be taken into account: R v Gilmore (1979) A 1 Crim R 416 at 419; R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 at [72].
    
28. The policy underlying the principle is twofold. Firstly, there is “public interest in ensuring orderly and proper administration of the criminal law” by exposing defects in trials on appeal. A person should not “suffer ill-founded criminal judgement ... and feel constrained to avoid exposing that defect” at the risk of a higher sentence. Secondly, the criminal justice system should not be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so: R v Gilmore (supra) at 420.
    
29. The principle, which is sometimes referred to as “the ceiling principle”, is not intended to fetter the independent discretion of the sentencing judge: R v Bedford (1986) 5 NSLWR 711 at 714; R v Merritt [2002] NSWCCA 365 at [29]. Whilst it is open to the judge to impose a higher sentence in certain circumstances, the exercise of a discretion that increases the original sentence is “necessarily rare”: R H McL v The Queen at [72]. If a longer sentence is called for then reasons should be provided: R v Bedford at 714. This might include, where the original sentence was manifestly inadequate: R v Merritt at [34]; R v Hannes [2002] NSWSC 1182. Or where other offences have been committed in the intervening period: R v Gilmore at 419. A variance between the number or nature of counts resulting in conviction on a re-trial, and considerations of totality may also justify an increase: R v Bedford at 714; H McL v The Queen at [34], [74]. Similar considerations may apply where the findings at the retrial lead to an assessment of greater culpability on the part of the offender than at the first trial: Tarrant v R (2007) 171A Crim R 425 at [39]. See also the discussion at [10-700] of the Sentencing Benchbook – Judicial Commission of New South Wales[1].
    
30. I have been unable to find any authorities on the issue in this jurisdiction. Whilst the authorities discussed above are not binding on this Court, I am of the view that the “ceiling principle” should also apply here. The right to appeal is guaranteed under s. 37(16) the Constitution which provides that:
    

“No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.”

31. Not only is the right to appeal important for ensuring the rights of a particular individual to a fair trial but also for the purpose of avoiding similar errors occurring in future criminal trials. For the reasons outlined above, potential appellants should not be discouraged from exercising their Constitutional right for fear of receiving an increased sentence on conviction on a re-trial. That is not to say that the principle is an absolute one but where a judge decides to impose a greater penalty than that imposed on the first trial, reasons should be provided for doing so.
    
32. I have had regard to the offender’s personal circumstances, his lack of previous conviction and prior good character. These are significant factors in his favour but they are far outweighed by the aggravating factors in this case, namely the nature and quantum of the offence, the degree of planning and dishonesty involved and the significant impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
33. Having regard to these matters, and the comparative cases discussed above, it is my view that sentences imposed by the learned sentencing judge in the first instance were within the appropriate range in each case. In the circumstances I intend to impose the same head and effective sentences as that imposed following the first trial.
    
34. I also note that the sentence was suspended at the request of the offender on the last occasion on condition of restitution within 6 months. It is not in dispute that the offender was unable to make restitution by the due date and was taken into custody. On 8 April 2018 the Parole Board determined that he should be released on remission on 13 April 2018, subject to conditions of parole, the terms of which expire on 17 October 2020.
    
35. Both the State and defence counsel submit that the head and effective sentences imposed by the original trial judge were appropriate and that no further term of imprisonment should be imposed.
    
36. I agree and accordingly make the following orders:
    
    1. The offender is sentenced to 2 years of imprisonment on Count 1, conspiracy to defraud, to date from 23 December 2016, the date on which he was taken into custody for that offence;
    2. The offender is sentenced to 4 years of imprisonment on Count 2, misappropriation, to date from 23 December 2016, the date on which he was taken into custody for that offence;
    3. The sentences are to be served concurrently; and
    4. Taking into account the time already served, together with his release on remission, the offender is free to go subject to the conditions of parole issued on 8 April 2018, which expire on 17 October 2020.
       
37. Any bail monies are to be immediately refunded.
    

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Yanson Lawyers: Lawyers for the Accused

---

[1]https://www.judcom.nsw.gov.au/