Background to the offending

6 The Nooda Ngulegoo Aboriginal Corporation (the Corporation) operated in the Goldfields region of Western Australia and was a service provider for the Community Development Employment Project (CDEP) Programme. The CDEP Programme was funded through a Programme Funding Agreement (PFA) with the (then) Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (the Department).

7 The object of the CDEP Programme was to enable indigenous people to do paid work, develop skills and increase their chances of getting subsequent employment outside the CDEP scheme.

8 At all material times the first respondent was the CEO of the Corporation. The second respondent was a director of a number of companies, one of which was Safenet Services Pty Ltd (Safenet).

9 In February 2009 the Department wrote to the first respondent advising of an intention from 30 June 2009 to cease funding for the delivery of CDEP Programmes in certain locations serviced by the Corporation. The letter reminded the first respondent of the Corporation's obligations under the PFA that any unused CDEP funding was to be returned to the Department, unless approval was given to roll over the funds into the next financial year CDEP budget.

10 In February 2009, the respondents reached an agreement whereby the second respondent would submit false invoices to the Corporation which the first respondent, as CEO, would endorse for payment from the CDEP funding.

11 On 16 February 2009 the second respondent, through Safenet, submitted two invoices to the first respondent seeking payment of a total of $231,000 purporting to relate to the provision of training to Corporation CDEP participants. The respondents knew Safenet was not entitled to be paid from CDEP funding for the services described in the invoices.

12 The first respondent endorsed the invoices and directed Corporation staff as to the manner the invoices should be coded and paid. The Corporation paid $111,000 to the second respondent. The second respondent caused the transfer of a total of $59,500 to the first respondent's bank account.

13 In June 2009 the second respondent, through Safenet, submitted an invoice to the first respondent seeking payment of $110,000 for the provision of training to Corporation CDEP participants. The first respondent endorsed the invoices and directed Corporation staff as to the manner the invoices should be coded and paid. The Corporation paid $55,000 to the second respondent in July 2009. The second respondent then caused the transfer, directly and indirectly, to the first respondent of a total of $25,000.

14 The first respondent received from the Corporation's CDEP funding, directly and indirectly, the sum of $84,500 to which he was not entitled. The second respondent received $81,500.

15 In August 2009 the Corporation's accounts officer raised some queries about the Safenet invoices with the second respondent and others. A lengthy investigation of a number of matters commenced.

16 Prosecution notices were filed and served on the respondents in November/December 2012. Not guilty pleas were entered in January 2013.

17 On the Friday before the first scheduled day of trial on 28 April 2014, the second respondent indicated an intention to plead guilty and to provide assistance to the Crown. The trial was adjourned to 30 April 2014. On 30 April 2014, both respondents entered pleas of guilty to the offences.

18 The first respondent was aged 57 at the time of sentencing. The sentencing judge found that he had a traumatic childhood and as a result, had poor coping skills when placed in difficult situations. The sentencing judge attributed his 'rationalisations, justifications and neutralisation of his offending' to the insecurities and lack of healthy development as a young person (ts 139).

19 The first respondent was under financial, emotional and personal stress when the offending occurred and was motivated to offend by his financial circumstances and the ready availability of the money obtained by his fraudulent conduct.

20 The first respondent was well educated, had an excellent work history and no prior record. He was in employment at the time of sentencing.

21 The second respondent was aged 56 at the time of sentencing. At the time of the offending and at the time of sentencing the second respondent was a director of a number of companies. He is well educated, an experienced businessman and responsible for the employment of a great number of people. He also had a significant and diverse record of voluntary service to the community and to those in his personal circle. He had no prior record and the offending was out of character.

22 The second respondent had cooperated with investigators, provided a statement which implicated the first respondent and undertaken to give evidence at the first respondent's trial. It was accepted by the Crown and by counsel for the first respondent, in sentencing and in the appeal, that the second respondent's change of plea and provision of assistance was a significant factor in the change of plea by the first respondent. Further, the second respondent had made restitution of almost half of his share of the money defrauded from the Corporation.

The sentencing judge's reasons

23 The sentencing judge concluded that, from an objective point of view, the co-offenders' criminal culpability was the same and the involvement of each was crucial.

24 He described the second respondent's cooperation as of low utility, opportunistic and cynical and found that it did not emanate from a desire to expiate his wrongdoing.

25 Although recognising that the second respondent's restitution carried some mitigatory force, the sentencing judge said it involved an element of opportunism, was merely in anticipation of the inevitable (both offenders were going to be ordered to repay the money) and that it would be unjust to allow the second respondent's voluntary restitution to be used as a point of distinction between the co-offenders. He also regarded the mitigatory force of the pleas of guilty as the same.

26 On the subject of parity, the sentencing judge said:

So in their essentials the differences between the two offenders are not as significant as might be thought at a superficial level. The bottom line is that both committed the same corruption offences and, in my opinion, [the first respondent] would be entitled to a just grievance if his sentencing disposition was materially much different from that of [the second respondent]. So I'm satisfied there should be parity between the sentences (ts 143).

27 The sentencing judge then turned his attention to the sentences imposed in comparable cases. The Crown had provided the sentencing judge with a document headed 'Comparative Sentencing Schedule - section 142.2 of the Criminal Code (Cth)' (the sentencing schedule). The sentencing schedule provides details of 12 cases involving 13 sentences imposed at first instance around Australia (four in Queensland, three in each of New South Wales and Victoria, and one in each of Western Australia and the ACT) for contravention of s 142.2 and other similar Commonwealth offences. Non-custodial sentences were imposed in around 50% of the cases, at least some of which were objectively more serious than the offences committed by the respondents.

28 The sentencing judge said:

The Crown has provided me with a schedule setting out the sentencing dispositions in a number of cases, not all for the same offence. They do provide a helpful cross-section. They involve sums of money and schemes which were similar to the present matters and in which the offenders had similar mitigation. It is apparent that in many cases the offenders were ordered to be released on recognisance release orders either immediately or after serving very small proportions of the sentence.



In my respectful view, the sentences in those cases reflect a very elevated degree of leniency, bearing in mind the objective seriousness of the offending itself. I infer that matters mitigatory, including, it would seem, the prior good character of the offenders, carried a good deal of weight. I've taken those cases into account and given as much weight as possible to mitigatory factors in this case.



It must not be forgotten that a significant sum of money was involved and the corruption was very high. And, to be perfectly frank, until about two hours ago both men were looking at going to gaol today so that has been a near-run thing.



... 



Bearing in mind and not forgetting that I have a discretion, a point hammered home to me by the Court of Appeal in the case called [The State of Western Australia v Legge [2014] WASCA 47], the disposition in the lenient cases does establish a range which could apply to this case and the law requires me to consider it and take it into account.



Personally, from a forensic point of view, not in terms of any idiosyncratic view I have about sentencing but from a forensic point of view, I find it difficult to understand the point of distinction between the Commonwealth's acceptance of the leniency in the category of cases I've enumerated or outlined as being lenient compared to those that weren't. As I said during submissions, the cases where there was no leniency seemed to involve an additional element of perniciousness in the corrupt behaviour of the offender.



And it seems to me that the Commonwealth in accepting the sentences at first instance that they've brought to my attention and asked me to consider is asking me to make considerable allowance for human frailty, and also to proceed on the basis that the amount involved in the corruption is not [decisive], and nor is the position or modus operandi involved, and that the degree of mitigation carries a significant amount of weight.



That’s the Commonwealth's view and I have to take it on board. It's not a concession that I'm free to ignore. It has established a sentencing regime that must be taken into account. It is a requirement of sentencing that there be consistency within individual cases and within broad sentencing dispositions across the community.



To accentuate this point the Commonwealth has not strongly pressed for immediate imprisonment in [the second respondent's] case. They did so only in [the first respondent's] case. But that is based on a view of parity which I have rejected. So the point is, of course, that leaving parity aside, the irresistible inference is that the Commonwealth does regard there to be scope for leniency in cases involving significant corruption and large amounts of money.



Forensically that’s a difficult view to accept, but it's not for me to overturn a line of case law. This case does seem to lack an additional element of perniciousness that is present in the cases that fell into the other category (ts 143 - 145).

Ground 2 - sentences customarily imposed

29 This appeal raises important issues relating to the role and relevance of first instance, unappealed sentencing decisions in comparable cases in the sentencing of Commonwealth offenders.

30 At the hearing of the appeal senior counsel for the Crown informed the court that there was only a small sample of first instance sentences for the offence of abuse of public office contrary to s 142.2 of the Code (and no appellate consideration thereof) so the sentencing schedule was widened to include broadly comparable types of offending. The other offences included misuse of position cases involving theft of property from a Commonwealth entity (s 131.1) and dishonestly obtaining a gain from a Commonwealth entity (s 135.1). Of the four sentences imposed for a contravention of s 142.2 of the Code, a period of immediate imprisonment was imposed in three (including in the Western Australian case). However, in the s 142.2 case in which a non-custodial sentence was imposed, the offending was very serious. The offender, in her capacity as an official with the Australian Quarantine Inspection Service, abused her office for gain in connection with the importation of a commercial quantity of pseudoephedrine.

31 It is clear that, but for the information in the sentencing schedule, the sentencing judge would have sentenced both respondents to a term of immediate imprisonment. It is fair to say that the sentencing judge was surprised at the leniency of the sentences in the sentencing schedule. So indeed am I. Counsel for the Crown was silent on the subject.

32 It is necessary to start with first principles. First, there must be consistency in federal sentencing, meaning consistency in the application of the relevant legal principles and the treatment of like cases alike and different cases differently: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [49].

33 Second, in seeking consistency, sentencing judges must have regard to what has been done in other cases but that history does not mark the outer bounds of the permissible sentencing discretion. Rather, the history stands as a yardstick against which to examine a proposed sentence and what is important is the unifying principles which those sentences both reveal and reflect: Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 [41]; Hili[54].

34 Third, the role and duty of the prosecution is to draw to the attention of the sentencing judge, inter alia, what has been done in other (more or less) comparable cases but not to proffer some statement of the specific result or of the bounds of the available range of sentences: Barbaro [39].

35 Fourth, consistency in federal sentencing is to be achieved through the work of intermediate courts of appeal:Hili [56].

36 Fifth, in dealing with appeals against sentences passed on federal offenders, there is a need for consistency of decision throughout Australia: Hili [57].

37 Sixth, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong: Hili [57].

38 Thus the Crown had complied with its duty in providing the sentencing judge with the sentencing schedule and the sentencing judge was correct to have regard to it.

39 The Crown contends that the sentencing judge erred because he regarded himself as 'bound by the sentences imposed in comparative cases' (appellant's case [50]). The Crown also submits that the sentencing judge misunderstood the proper role and limitations of Crown sentence appeals. According to the Crown, its appeal rights do not and cannot exist to seek to correct each and every sentence considered unduly lenient.

40 The second respondent contends that, to the contrary, when the reasons are read as a whole, the sentencing judge did not regard himself as bound by the sentences imposed in the sentencing schedule.

41 There are certainly statements in the reasons that point in both directions. In the end I am satisfied that the sentencing judge's approach falls somewhere in the middle.

42 The sentencing judge undertook an analysis of the cases in the sentencing schedule. He distinguished the lenient dispositions (a non-custodial sentence or an extremely short non-recognisance period, of which there were nine) from the cases in which there was a fairly substantial period of immediate imprisonment (of which there were four, three of which were for a contravention of s 142.2).

43 From that analysis he concluded that mitigating factors, including matters personal to an offender, were given significant weight at the expense of objective factors, such as the amount defrauded and the modus operandi of the offender. He also concluded that a fairly substantial period of immediate imprisonment was only imposed where there was 'an additional element of perniciousness' in the corrupt behaviour of the offender. There can be no natural justice issues as the sentencing judge had informed the parties of his analysis of the cases (ts 122 - 123).

44 The next step in the sentencing judge's reasoning was to infer from the Crown's presentation of the sentencing schedule to him and its failure to appeal the lenient sentences that the Crown conceded the correctness of the sentencing approach he had extracted from the cases in the sentencing schedule. That is, the sentencing judge did not regard himself as bound by the sentences imposed but rather by the sentencing approach which he thought to be revealed and reflected in those decisions.

45 Having considered the facts of the cases in the sentencing schedule, I do not understand what the sentencing judge means by 'an additional element of perniciousness in the corrupt behaviour' said to distinguish the lenient from the non-lenient dispositions (ts 144). The differences in outcomes cannot be rationalised in that or indeed in any meaningful way.

46 There are in fact broad inconsistencies in the outcomes in the cases in the sentencing schedule, particularly as to type of sentence, notwithstanding the application of the same sentencing framework and broad principles mandated by pt 1B of the Crimes Act 1914 (Cth). I use the term 'broad inconsistencies' to signify that allowance has been made for both the variability in the relevant facts and circumstances of the offenders and the offending and the fact that there is no single correct sentence, but a range of appropriate sentences.

47 Moreover, the fact that the Crown presented the sentencing schedule to the court and did not appeal any of the sentences does not permit an inference that it agreed with or conceded the correctness of the sentencing approach extracted by the sentencing judge. Nor is it correct to say, as the sentencing judge does, that the failure to appeal means the Crown has established a sentencing regime. The courts establish the sentencing regime and must take ultimate responsibility for it. Thus, the courts are not bound by concessions, express or implied, made on behalf of the State or the Crown. As to which, see The State of Western Australia v Peacock [2013] WASCA 248[38] - [39]; Beins v The State of Western Australia [No 2] [2014] WASCA 54 [50].

48 There may be reasons not known to the court for the Crown's failure to appeal against what in this jurisdiction would be regarded as a manifestly inadequate sentence. As this court noted in R v Lee [2013] WASCA 216 [26] - [40], the application of substantially the same sentencing principles does not always produce broadly consistent outcomes in the types of sentences around Australia even at the intermediate appellate level.

49 It may be inferred that the decision of the Commonwealth Director of Public Prosecutions on whether to appeal against a sentence will be informed by an assessment of the prospect of success in the intermediate appellate court in the relevant jurisdiction. That is an added complication not faced by State Directors of Public Prosecution. However, when it is apparent that an undesirable pattern of inappropriately lenient sentencing may be developing, it may be reasonable to expect the Director to identify a suitable vehicle to engage the intermediate appellate system.

50 I am satisfied that the sentencing judge erred in his approach to the comparative sentences and the Crown's position in relation thereto. I would uphold ground 2.

Manifest inadequacy

51 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest inadequacy relies on the implication of error. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

52 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

53 The sentences imposed on the respondents did, having regard to all relevant sentencing considerations, fall within the standards of sentencing customarily imposed at first instance in (more or less) comparable cases. However, that does not immunise the sentences from a finding of manifest inadequacy at the intermediate appellate level, particularly where there is a lack of broad consistency in outcomes at first instance.

54 In its claim of manifest inadequacy, the Crown relies on the factual findings and evaluative assessments of the sentencing judge (save those relating to the comparable case exercise).

55 However, the second respondent submits that the sentencing judge made weighting errors in relation to his plea of guilty, cooperation and restitution. The second respondent does not claim that the weighting errors give rise to express appealable errors. His contention is that the weight given to a relevant sentencing consideration is part of the evaluative exercise which does not bind an intermediate appellate court. That is correct. This court considers and weighs all relevant sentencing factors and considerations in order to determine whether the sentence is manifestly inadequate. It is not bound by the weight accorded to a relevant sentencing consideration by the sentencing judge even in the unusual case when that is apparent from the reasons. See Trompler v The State of Western Australia [2008] WASCA 265 [32].

56 The second respondent also contends that the sentencing judge erred in finding that the second respondent's cooperation was 'opportunistic and was cynical and did not emanate from a desire on [the second respondent's] part to expiate his wrongdoing' and that the payment of restitution had 'an element of opportunism' about it (ts 141, 142).

57 In overview, the second respondent's submission is to the following effect. The sentencing judge undervalued the mitigating factors in his case by highlighting the negatives and making unsustainable adverse findings of fact which led to the sentencing judge rejecting the Crown's submission that it was open to impose different types of sentences on the co-offenders.

58 I start with the pleas of guilty. The sentencing judge said that the pleas of guilty of both respondents 'are mitigating in equal measure' (ts 140, 142).

59 The relevant facts are as follows. Although both respondents pleaded guilty on 30 April 2014, the second respondent indicated his intention to do so on the Friday before the commencement of the trial (25 April 2014). The plea of guilty was associated with the second respondent's cooperation in the form of providing a statement and agreeing to give evidence against the first respondent at trial. Counsel for the first respondent accepted at first instance and in the appeal that both the second respondent's decision to plead guilty and his cooperation had an influence on the first respondent's decision to plead guilty. There is no justification for rejecting the concession which is also consistent with the written submissions of the Crown at sentencing (at [6], [28]).

60 Moreover, the pleas of guilty had significant utilitarian value as they avoided a trial scheduled to take three weeks.

61 On the subject of the second respondent's cooperation, the sentencing judge said he did not intend to place a great deal of weight on it; that his cooperation with authorities was 'opportunistic and was cynical and did not emanate from a desire on [the second respondent's] part to expiate his wrongdoing'; and that cooperation with authorities 'can only have limited mitigatory force where there is a large amount of other mitigation' (ts 141).

62 The second respondent contends that the finding that his cooperation was opportunistic and cynical and did not emanate from a desire to expiate his wrongdoing was not open on the evidence and was made in breach of the rules of procedural fairness.

63 The Crown did not seek a finding to that effect. To the contrary, the Crown conceded at sentencing that the second respondent's cooperation was a significant matter in mitigation (written submissions [6]) and also demonstrated contrition for the offending (written submissions [26]).

64 The sentencing judge was entitled to make his own findings of fact on those matters provided he had indicated his intention to the second respondent. I am not persuaded there is merit in the procedural fairness challenge. In the course of the first respondent's plea in mitigation, the sentencing judge informed counsel for the first respondent that the second respondent did not get much credit for cooperation, saying 'I think [the second respondent's] actions were opportunistic and cynical' (ts 117 - 118). The second respondent's counsel was present when that remark was made. The sentencing judge also made substantially the same point at a later stage to counsel for the second respondent (ts 129).

65 However, I am unable to identify any proper factual basis for the sentencing judge's positive adverse finding that the second respondent's conduct in cooperating with authorities was opportunistic and cynical. Its lateness does not support such a finding. It was open to the sentencing judge to fail to be satisfied that the cooperation supported an inference (on the balance of probabilities) of real contrition on the part of the second respondent. Even so, a substantial discount is given to an offender who provides useful information or assistance to law enforcement authorities irrespective of whether it demonstrates remorse or contrition. Full and frank cooperation is to be encouraged whatever be the motive: A Child v The State of Western Australia [2007] WASCA 285 [11]; Barany v The Queen [2000] WASCA 240; (2000) 114 A Crim R 426 [23].

66 However, the sentencing judge went further than the evidence permitted in making a positive finding of opportunism and cynicism.

67 In my assessment, the second respondent's pleas of guilty together with his cooperation are significantly mitigatory in light of the concessions by the first respondent and the Crown that those matters influenced the first respondent's decision to plead guilty with the utilitarian consequences of that outcome.

68 Finally, the sentencing judge said that cooperation with authorities 'can only have limited mitigatory force where there is a large amount of other mitigation' (ts 141). It is correct that a discount for cooperation cannot be such as to result in a sentence that is manifestly inadequate: MXP v The State of Western Australia [2010] WASCA 215 [52]. I infer the sentencing judge was intending to make this point.

69 The second respondent also challenges the sentencing judge's finding that his payment of restitution had 'an element of opportunism' about it (ts 142). The basis for the challenge is that there was no evidence that the second respondent 'was anticipating the inevitable' making of a restitution order (ts 142). The Crown did not make any submissions to the effect that the restitution was opportunistic. The sentencing judge's attitude is clearly informed by his intention to make restitution orders against both respondents. The sentencing judge said:

[The second respondent] has made restitution thus far of $40,000 or thereabouts and has undertaken to pay another $41,500 in the next fortnight. He will thus return his ill-gotten gains and it must be said that the restitution is voluntary but again there is an element of opportunism about this. By making voluntary restitution he was anticipating the inevitable, as orders are to be made today for restitution which, as far as I'm concerned, he's in a position to satisfy and it must be assumed he would comply with the court's orders. So it carries mitigatory force but it merely anticipated the inevitable (ts 142).

70 A finding that the second respondent's act was motivated by opportunism requires that the second respondent knew the Crown would seek a restitution order, that the sentencing judge would or may make one and that the second respondent had the financial means and intention to comply with the court order without the judgment creditor having to execute on it. The evidence falls short of establishing all of those matters. I have no doubt that the voluntary repayment of a significant part of the amount defrauded is mitigatory, in that it reduces the harm to the victim without it having to execute, even if it does not reflect contrition.

71 Against that background, I turn to the question whether the sentences are manifestly inadequate, starting with the first respondent.

72 The first respondent's conduct was a gross breach of trust. He abused his position as CEO to defraud the Corporation of a significant sum of money earmarked for the benefit of Aboriginal people in the Goldfields. He put his staff in the position of innocently facilitating the fraud. The offending was premeditated and implemented over an extended period of around five months. As is in the nature of these things, the time, effort and cost to first identify and then prove the fraud is significant.

73 Notwithstanding that the first respondent was in care and foster care from the age of 6, he attended school regularly until completing year 12, performed well both academically and in the sporting arena and attended Churchlands Business College after graduating from secondary school. He has a long history of gainful employment. He has worked for, inter alia, the Department of Aboriginal Affairs, ATSIC and his father's goldmining company before becoming the CEO and a board member of the Corporation.

74 He had no relevant physical or mental condition and no relevant prior criminal history. At the time of the offending the first respondent was suffering from emotional and financial strain, the latter arising from the fact that he was unable to meet the payments on several properties he owned. The psychologist notes that the first respondent engaged in a series of 'rationalisations and minimisations regarding his offending behaviour and motivations' (7). Notwithstanding this lack of insight and acceptance of responsibility, which the sentencing judge attributed to the first respondent's disadvantaged childhood, there was no finding of any need for personal deterrence. I infer the sentencing judge regarded the first respondent as rehabilitated.

75 The positive personal factors present in this case are often present in white collar offences of the type committed by the respondents. As a result, there was (at least in the recent past) grounds for a perception that courts treated white collar criminals more favourably than other categories of offending of a similar nature, such as social security fraud. This troubled the sentencing judge (ts 83). However, it has come to be recognised that fraudulent conduct of the type committed by the respondents requires significant emphasis on and weight given to the need for general deterrence with correspondingly less weight given to matters personal to the offenders. That is particularly so in situations where the fraud depends for its success on an insider abusing their position of trust. Indeed, the sentencing principles that apply in the circumstances of this case are the antithesis of those extracted by the sentencing judge from the sentencing schedule.

76 Having regard to all relevant sentencing considerations, I am satisfied that the sentencing judge erred in imposing a wholly non-custodial sentence on the first respondent. I would not alter the length of the individual sentences or the total sentence imposed by the sentencing judge. However, I would set aside the order that the first respondent be released forthwith upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 16 months. In lieu thereof, I would order that the first respondent be released after having served 8 months upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 8 months.

77 The content and application of the principles of parity are well-known and do not require repetition. See Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. The sense of grievance is to be assessed by reference to objective criterion: Green [31].

78 As to the second respondent, there is no challenge to the sentencing judge's assessment that the objective culpability of the respondents was the same. However, I would attribute greater weight to the mitigating factors than did the sentencing judge. Even so, with the focus on general deterrence and the consequential reduction in the weight given to matters personal to the second respondent, the outcome must be that the sentencing judge erred in imposing a non-custodial sentence. In the circumstances of this case, parity does not require that a different type of sentence be imposed. The mitigating factors should weigh more heavily in the length of the term. I would reduce the total sentence to 10 months' imprisonment with an order that the second respondent serve 5 months upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 months.

Residual discretion

79 The second respondent submits that if the court decides to uphold one or both grounds of appeal, the appeal should nevertheless be dismissed in the exercise of the court's residual discretion. As to the existence of a residual discretion to dismiss a prosecution appeal in the exercise of federal jurisdiction, see R v Ng [2012] WASCA 180; R v Lee; R v Cidan [2014] NSWCCA 66.

80 The second respondent contends that a recognised ground upon which an appeal court may exercise the residual discretion is where the prosecution seeks to resile from a concession made at first instance that a particular sentence would be within the range reasonably available to the sentencing judge. Reliance is placed on DPP v Karazisis [2010] VSCA 350 [115], which was referred to with approval in Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [72] and Cidan [102].

81 Whilst Karazisis was referred to with approval on this point in Munda, the question arises whether it is consistent with Barbaro, which held that the prosecution is not permitted to make a submission as to the range of sentences that may be imposed.

82 The second respondent submits that it is and always has been open to the Crown to make submissions on whether the court can be satisfied that a term of imprisonment, immediate or otherwise, is the only appropriate sentence in all the circumstances of the case. The Crown supports the second respondent's submission, which is consistent with the recent decision of the Victorian Court of Appeal in Matthews v The Queen [2014] VSCA 291 [27]. As the point has not been thoroughly ventilated, I am prepared to assume in the second respondent's favour that the prosecutor's conduct in this case falls outside the scope of the prohibition in Barbaro.

83 The parties disagree about whether the prosecutor made any relevant concession and if so its terms. The second respondent claims the prosecutor conceded that it was open to the sentencing judge to impose a non-custodial sentence on the second respondent regardless of the weight he gave to the mitigating factors (ts 38 - 39).

84 Based on a consideration of the transcript of the sentencing proceedings, I am satisfied that the prosecutor did not make a concession in those terms. The relevant statements are at sentencing transcript 83 B - C, 89 D, 90 B - D, 108 B, 135 B - C and 136 A - B. Further, it is clear from the sentencing judge's reasons that he understood that the prosecutor did not make a concession that it was open to impose a non-custodial sentence on the second respondent regardless of the weight given to the relevant mitigating factors. The sentencing judge said, relevantly:

[T]he Commonwealth has not strongly pressed for immediate imprisonment in [the second respondent's] case. They did so only in [the first respondent's] case. But that is based on a view of parity which I have rejected (ts 144).

85 The sentencing judge's view of parity was informed by his rejection of the prosecutor's assessment of the weight which could be accorded to the mitigating factors in the second respondent's sentencing.

Conclusion

86 For these reasons, I would allow the appeals. In relation to the first respondent, I would order that the recognisance release order be set aside and in lieu thereof order that the first respondent (Mr Combo) be released after having served 8 months upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 8 months.

87 In relation to the second respondent, I would order that the order for cumulation and the recognisance release order be set aside and in lieu thereof order that the sentences imposed by the sentencing judge be served concurrently and that the second respondent (Mr Crake) be released after having served 5 months upon entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 months.

88 When judgment is delivered it will be necessary to make an order pursuant to s 19(2) of the Crimes Act as to the date on which each individual sentence is to commence.

89 NEWNES JA: I agree with McLure P.

90 MAZZA JA: I agree with McLure P.