Commonwealth Director of Public Prosecutions v Kirby [2025] FCA 757

1. The CBH Account was capitalised on 10 September 2014 via a lump sum transfer of USD1,040,000 from "Algo Plus", an Israeli company unrelated to the Australian Algoplus entity referred to above.
2. A number of large transfers between June and September 2015, by persons other than Mr Kirby, reduced the balance of the CBH Account to USD10,135.08. After this date, there were no further transactions on the account save for quarterly deductions of service fees.
3. The CBH Account was closed on or around 24 October 2018. The balance immediately before the account was closed was USD1,678.33.

1. Berndale was required to have its financial and client accounts audited annually to ensure compliance with the conditions of their AFSL. Copies of their completed financial statements and auditor's report were required to be lodged with ASIC for each financial year.
2. Mr Tony Ng, of Tony Ng & Co Pty Ltd, was the registered Financial Service auditor for Berndale, and conducted the audits for Berndale for FY2014, FY2015 and FY2016. Mr Ng was assisted by Mr Jacky Mak from around October 2014.
3. Mr Ng would request relevant information from Berndale for the purpose of conducting the audit, including bank statements for bank accounts listed in Berndale's balance sheet. In relation to the 2015 audit, a relevant line of enquiry was the funds held in the CBH Account for the purpose of confirming Berndale held NTAs of more than $1 million as imposed by the AFSL.
4. On 19 August 2016, Mr D'Amore sent an email to Mr Ng with Mr Kirby and others copied in, with the subject line "Finalisation of 2015 Audit". A number of documents were attached, including a document purporting to be a bank statement from CBH for the period 1 January 2015 to 30 June 2015 (purported June 2015 statement).
5. The purported June 2015 statement was a statement for the CBH Account dated 25 September 2015 which stated that the balance of the CBH Account as at 30 June 2015 was USD1,038,756.11. That document was false, as the CBH Account contained only USD8,152.72 as at that date.
6. There was further correspondence between Berndale and the auditors in September and October 2016, with Mr Ng and Mr Mak concerned that Berndale had lost control over the CBH Account, as Mr Talmor was the sole signatory on the account and no longer a director of Berndale. An email from Mr Mak dated 28 October 2016 to Berndale general manager Mr Chris Kaltzidis, with Mr Kirby and Mr D'Amore copied in, requested "further information to show the company can access to [sic] the money". In a further email sent on the same day to Mr D'Amore, Mr Mak advised that the audit report could only be issued with a disclaimer of opinion about Berndale's financial wellbeing, due to the uncertain status of Berndale's access to the CBH Account.
7. On or around 29 October 2016, Mr Kirby made contact with Mr Raphael Kadosh of CBH, attempting to gain access to the CBH Account. At 1.18am, Mr Kadosh informed Mr Kirby that in order for him to be provided information about the CBH Account, he would require certain documents from Mr Kirby. Mr Kirby purported to provide these documents in an email at 1.30am, though no documents were attached. There was no further correspondence between Mr Kadosh and Mr Kirby.
8. At approximately 11.00am on 31 October 2016, Mr D'Amore, Mr Kirby and Mr Kaltzidis had a meeting with Mr Ng and Mr Mak to discuss the audit opinion for FY2015. During the meeting, Mr Kirby sent an email to Mr Mak and copied to Mr D'Amore, with the subject line "Emailing: CUMID0021820001.00.840". Attached to Mr Kirby's email was a document titled "CUMID0021820001.0840", being a letter dated 28 October 2016 purportedly signed by Mr Kadosh to the directors of Forex TG (CBH 2016 letter). The CBH 2016 letter stated:

This letter is verification that the customer(s) named above has an account with Compagnie Bancaire Helvétique SA. This account, Number 0021820 001. 000. 840 USD was opened 1 SEPTEMBER 2014 as FOREX TG PTY LTD and, Mr. DANIEL LUCAS KIRBY to date is the sole authoriser and signatory on this named account.

Balance request

As at June 30 2015 - $ 1,038,096.6

As at June 30 2016 - $ 1,035,458.86

1. The purported October 2016 letter from CBH was:

(a) provided to Mr Ng for the purposes of finalising the FY2015 audit; and

(b) relied on by Mr Ng for the purposes of finalising and signing the FY2015 audit.

1. The cash flow statement lodged with ASIC in respect of this financial year recorded Berndale as holding $1,801,848 in NTAs, and $1,476,858 in cash or cash equivalents.
2. The CBH 2016 letter was a forgery. It falsely implied that Mr Kirby had control over the CBH Account, and contained other information that he knew was false or misleading in material particulars, in that it stated that:

(a) the balance of the CBH Account as at 30 June 2015 was USD1,038,096.66 when in fact the actual balance of the CBH Account as at 30 June 2015 was USD8,152.72; and

(b) the balance of the CBH Account as at 30 June 2016 was USD1,035,458.86 when in fact the actual balance of the CBH Account as at 30 June 2016 was USD7,538.60.

1. During the relevant period, Mr Kirby did not have access to information related to the CBH Account.

Charge 2 - Dishonest use of position as a director

1. The Berndale companies conducted its business via bank accounts held with the Commonwealth Bank of Australia (CBA).
2. As at 26 April 2019, funds were held in the following accounts with the CBA:

(a) two accounts held in the name of "Forex TG" (Berndale's former name), being a term deposit account and a business transaction account;

(b) five accounts held in the name "Berndale Capital Securities Pty Ltd" which were opened in or around July 2015, prior to the company changing its name to "Berndale Capital Securities Management Pty Ltd" on 19 June 2018 (BCSM CBA Accounts):

(i) an Australian Dollar account number 063-000 12791174 (Deposit Account);

(ii) an Australian Dollar account number 063-000 12791182 (Segregated Client Account);

(iii) a Great British Pound account number 063-000 12812019 (GBP Account);

(iv) a United States Dollar account number 063-000 12802099 (USD Account); and

(v) a Euro Dollar account number 063-000 12802101 (EUR Account).

1. Algoplus held an Australian Dollar CBA account, account number 063-000 12781021 (Algoplus Account).
2. Mr Kirby, along with Mr D'Amore, was a signatory on these CBA accounts, and had a unique user identifier number (User ID) for the purpose of operating the accounts. When a transaction was made via electronic transfer, the trace details maintained by the CBA would record the User ID that authorised the transfer.

Operation of BCSM CBA Accounts & source of funds in Algoplus Account

1. Berndale operated its business via the BCSM CBA Accounts. The BCSM CBA Accounts were detailed in the financial accounts of Berndale. This included funds it received from clients.
2. The Deposit Account and Segregated Client Account represented Berndale's attempts to comply with various legislative provisions governing how AFSL holders must deal with client funds.
3. As a general rule, client funds were deposited into the Deposit Account.
4. The funds held in the Deposit Account were generally then transferred to the Segregated Client Account, though funds were on occasion transferred directly to Algoplus from the Deposit Account.
5. The vast majority of funds held in the Segregated Client Account were ultimately transferred to the Algoplus Account.
6. Between 1 January 2017 and 21 January 2019, a total of $9,858,422.77 was paid into the Algoplus Account. Of those funds, $1,021,707.18 was derived from the Deposit Account and $8,120,406.46 was derived from the Segregated Client Account.
7. Mr Kirby personally authorised a substantial number of funds transfers from BCSM's Segregated Client Account to the Algoplus Account, totalling $1,021,561.29 between 3 January 2017 and the cancellation of Berndale's AFSL.

1. Mr Kirby's remuneration was paid from the Algoplus Account. From January 2017 until August 2018, the funds were paid into an account held in the name of DLK & Associates Pty Ltd (DLK) (ACN 604 087 176).
2. DLK is Mr Kirby's personal company, registered on 6 February 2015. Mr Kirby was a director and the shareholder of DLK between 6 February 2015 and 11 June 2018. On 11 June 2018, Mr Graham Kirby, his father, was appointed sole director. A liquidator was appointed in July 2018 pursuant to a creditors' voluntary winding up.
3. After August 2018, Mr Kirby's remuneration was paid into an account in his own name.
4. Between the period January 2017 to November 2018, Mr Kirby received the following remuneration paid from the Algoplus Account:

(a) From January 2017, he received a salary of $30,000 per month, paid to an account held with Australia and New Zealand Banking Group Limited (ANZ) in the name of DLK (DLK Account). In September 2017, his monthly salary increased to $35,000 and increased again to $40,000 from 1 October 2017.

(b) From 1 August 2018, and until 8 November 2018, his monthly salary was paid from the Algoplus Account to an account held in his name with Internationale Nederlanden Groep (ING) (ING Account).

1. During the period 1 January 2017 to 5 December 2018 the following amounts, totalling $1,020,403.95 were transferred from the Algoplus Account to accounts held in the name of or controlled by Mr Kirby:

(a) $157,039.58 was transferred from the Algoplus Account to the ING Account by way of eight separate withdrawals;

(b) $122,970 was transferred from the Algoplus Account to an ING Bank (Australia) Limited account (a separate account to the ING Account) in the name of Mr Kirby by way of five separate withdrawals; and

(c) $740,394.37 was transferred from the Algoplus to the DLK Account by way of 35 separate withdrawals.

1. During the relevant period, Mr Kirby authorised $165,000 in transfers to himself which were over and above what he understood to be his remuneration.
2. These funds were misappropriated Berndale company funds.

Charge 3 - Dishonest conduct in relation to a financial product or financial service in the course of carrying on a financial services business

1. Berndale's AFSL was cancelled by ASIC on 22 November 2018 following an investigation and administrative hearing.
2. Around 3.55pm on that day, Ms Jacqueline Aherne of ASIC made a telephone call to Mr D'Amore and informed him that ASIC had made a decision regarding Berndale's AFSL and discussed service of the order and decision relating to Mr D'Amore and Berndale.
3. At around 4.22pm, Mr Kirby received two telephone calls from Mr D'Amore. These two calls were in relation to the updates previously conveyed by Ms Aherne to Mr D'Amore.
4. At 4.37pm, Ms Aherne sent an email to Mr D'Amore with the subject line "Stavro D'Amore and Berndale Capital Securities Pty Ltd Decision and Orders". Attached to Ms Aherne's email was the Order and Decision made by an ASIC delegate to cancel Berndale's AFSL together with the order and banning decision with respect to Mr D'Amore providing financial services. This email was forwarded to Mr Kirby at 4.58pm.
5. Mr Kirby made a number of relevant transfers on this date which are detailed below. The transactions were indirectly connected to the financial services provided by Berndale in that:

(a) Berndale was licensed to provide financial services at all material times;

(b) BCSM had been appointed as a corporate authorised representative of Berndale and was accordingly empowered by s 916A of the Corporations Act to provide the financial services covered by Berndale's AFSL; and

(c) the funds used by Mr Kirby for the relevant transfers had been deposited with BCSM by retail clients for the purposes of dealing in the financial products which Berndale, and by extension BCSM, were licensed to provide.

1. The transactions were dishonest as they occurred after Mr Kirby had become aware that Berndale's AFSL would be cancelled and that the company's ability to generate legitimate income would be extremely limited.

1. On 22 November 2018, Mr Kirby made four transfers from the Segregated Client Account held by BCSM to the Algoplus Account using his CBA User ID:

(a) Transfer 1: $30,000 to the Algoplus Account;

(b) Transfer 2: $100,000 to the Algoplus Account;

(c) Transfer 3: $90,859.29 to the Algoplus Account; and

(d) Transfer 4: $28,477.48 to the Algoplus Account.

1. The total value of the transfers was $249,336.77.

1. The day prior to the cancellation, three CBA accounts were opened in the name of Mr D'Amore's brother, Mr Mario D'Amore:

(a) a NetBank Saver Account with a nil opening balance (Mario D'Amore AUD account);

(b) a USD Foreign Currency Account with a nil opening balance (Mario D'Amore USD account); and

(c) a GBP Foreign Currency Account with a nil opening balance (Mario D'Amore GBP account).

1. On 22 November 2018 at around 4.28pm, Mr Kirby made a transfer of $100,000 from the Algoplus Account to the Mario D'Amore AUD account using Mr Kirby's CBA User ID.

1. Mr Kirby is to be sentenced in accordance with Pt IB of the Crimes Act 1914 (Cth), which requires that the sentence imposed by the Court be of a "severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act.
2. In determining the sentence to be passed, in addition to any other matters, the Court must take into account the matters set out in s 16A(2) as far as they are relevant and known to the Court. This list relevantly includes: the nature and circumstances of the offence: s 16A(2)(a); if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, that course of conduct: s 16A(2)(c); any injury, loss or damage resulting from the offence: s 16A(2)(e); the degree to which the person has shown contrition for the offence: s 16A(2)(f); if the person has pleaded guilty to the charge in respect of the offence, that fact, the timing of the plea, and the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g); the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences: s 16A(2)(h); the deterrent effect that any sentence or order under consideration may have on the offender: s 16A(2)(j) (specific deterrence); the deterrent effect that any sentence or order under consideration may have on other persons: s 16A(2)(ja) (general deterrence); the need to ensure that the person is adequately punished for the offence: s 16A(2)(k); the character, antecedents, age, means and physical or mental condition of the person: s 16A(2)(m); if the person's standing in the community was used by the person to aid in the commission of the offence, that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates: s 16A(2)(ma); the prospects of rehabilitation of the person: s 16A(2)(n); and the probable effect that any sentence or order under consideration would have on any of the person's family or dependents: s 16A(2)(p).
3. The sentencing process involves the judge weighing all the relevant circumstances and making a judgment as to what is the appropriate sentence. It involves the balancing of many different and conflicting features: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75]. This has been described as a process of "instinctive synthesis", namely, as described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) at [51] as:

... the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.

1. That said, general deterrence is of particular importance in "white-collar" offending because it is difficult to detect, investigate and prosecute successfully.
2. As succinctly explained by Wood J in R v Pantano (1990) 49 A Crim R 328 at 330:

... those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust ... to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crimes of the kind here involved, or of the possibility for substantial loss by the public.

1. And to similar effect, in DPP (Cth) v Couper [2013] VSCA 72; (2013) 229 A Crim R 115 which involved offending contrary to ss 1307 and 1309 of the Corporations Act, Tate JA observed at [118]:

It is precisely because of the nature of this form of offending, and the difficulties involved in its detection, that general deterrence must play a particularly important element in sentencing for these type of offences.

1. As general deterrence is ordinarily a primary sentencing consideration for such offending, factors personal to the offender such as good character and other mitigatory factors are necessarily afforded less weight than they otherwise might be: Commonwealth Director of Public Prosecutions v Vina Money Transfer Pty Ltd [2022] FCA 665; (2022) 294 FCR 449 (Vina Money) at [112]; and Director of Public Prosecutions (Cth) v Page [2006] VSCA 224 (Page) at [37].
2. It is a feature of white-collar crimes that offenders are likely to have no prior convictions, to have good character references and to have good prospects of rehabilitation: Page at [37]. The relevance of good character is of lesser significance for white-collar crimes, since it is that factor which normally places the offender in a position, where they are able to commit the offence: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 (Rivkin) at [410].
3. The maximum penalties applicable to this offending are described above. In this regard, in Markarian, the plurality observed at [31]:

... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

1. It is important to recall that in sentencing a court may not take into account facts adverse to the interests of the offender unless those facts are established beyond reasonable doubt. For facts in favour of the offender, it is enough that those facts are proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. The onus is on the offender to establish those mitigating factors. That said, as noted above at [56], s 16A of the Crimes Act requires that those matters be taken into account so far as they are "relevant and known to the court". That phrase is not to be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [21]- [22].

1. These offences, committed between October 2016 and November 2018 reflected an ongoing, deliberate disregard by Mr Kirby for responsibilities he held, and the trust reposed in him, given his position in the business.
2. To carry on its business, Berndale required an AFSL. The AFSL regime was designed to protect consumers, enhance the confidence of retail investors and enable them to make better financial decisions. Since 2012, financial services licensees that issue OTC derivatives to retail clients have been required to hold NTAs of at least $1 million or 10% of their average revenue per the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705. This is to ensure that retail OTC derivative issuers carry sufficient financial resources to protect against operational risk and unexpected losses. The regulation aims to ensure that AFS licensees have adequate financial resources to operate their business in compliance with the Corporations Act, and to manage the risks inherent in the OTC derivatives market.
3. Berndale was required to have its financial and client accounts audited annually to ensure compliance with the conditions of their AFSL. It was in this context that Berndale's auditors required information about the CBH Account. The forged document provided by Mr Kirby to Berndale's auditor in relation to the CBH Account, was to enable the auditor to report in a way that falsely reflected the conditions of Berndale's AFSL were being met. In addition to being forged, the letter:

(1) falsely implied that Mr Kirby had control over the CBH Account when he knew he did not;

(2) falsely stated that the balance of the CBH Account as at 30 June 2015 was USD1,038,096.66 when it in fact held just USD8,152.72 - an overstatement of more than USD1 million;

(3) falsely stated that the balance of the CBH Account as at 30 June 2016 was USD1,035,458.86 when it in fact held just USD7,538.60 - another overstatement of more than USD1 million;

(4) was provided to Berndale's auditor in the knowledge:

(a) that information about the account was being sought for the purposes of the 2015 audit, in order to confirm that Berndale held NTAs of more than $1 million as required by its AFSL; and

(b) that it would be used and relied upon for the purposes of finalising the FY2015 audit.

1. The 2016 Financial Report for Berndale Group Pty Ltd included the cash which was said to be available in the CBH Account as part of the $1,940,345 in cash assets stated to be held by the company. The Report was signed off by the financial services auditor engaged by Berndale, as giving a true and fair view of the company's position. Financial Reports for the years 2017 and 2018 continued to include the funds said to be in the CBH Account as a cash asset.
2. In practical terms, the forged document to the auditor enabled the business to continue to operate, for otherwise, the breach by it of its AFSL conditions would have been revealed. That conduct is Charge 1 on the indictment.
3. In addition, on numerous occasions over a period of about 11 months Mr Kirby transferred money from the Berndale business to his own accounts. He obtained significant financial benefit from his offending conduct, dishonestly transferring $165,000 of company funds to himself (to both his personal company and his personal account) (Charge 2). On 22 November 2018, Mr Kirby transferred more than $249,000 of client funds out of the company on the date of Berndale's AFSL cancellation into Algoplus (a company of which he was a director), and some $100,000 of that into an account held by Mr D'Amore's brother (Charge 3).
4. The conduct showed a complete disregard for the regulations in the Corporations Act that concern how client money should be dealt with by AFSL holders. By his conduct in Charge 1, Mr Kirby deliberately undermined an audit process to bypass a regulatory measure designed to protect consumers. His conduct in Charges 2 and 3 involved direct harm to actual consumers, being Berndale's clients. Their funds were misused. In essence, the offences were committed in a context where Mr Kirby held a senior position in Berndale's business and abused that position to benefit himself and others, at the expense of its clients. In Charge 3, Mr Kirby knew that the funds he transferred were primarily from client deposits. The conduct was done in the face of being informed Berndale's AFSL had been cancelled, and so Berndale's ability to generate legitimate income thereafter would be extremely limited. The transfers had the effect of thwarting the ability of the authorities to obtain funds held by the company.
5. In February 2025, the liquidator of Berndale distributed a first and final dividend of 4.5 cents in the dollar to 128 creditors (of which 123 were former Berndale clients) who had claims totalling $5,531,772.35. The Berndale companies incurred a total of $5.2 million in debts that will remain unpaid. The $165,000 Mr Kirby transferred to himself was never repaid. I note that the $100,000 transferred to Mr D'Amore's brother was repaid.
6. But there are broader implications. Offences of this nature undermine the integrity of Australia's financial markets and system of corporate regulation and erodes the confidence of participants in the commercial world. Victims of these types of crimes are not confined to those who directly suffered through loss of their funds, but extend to the investing public at large, "the injury being that related to the loss of confidence in the efficacy and integrity of the market in public securities": Rivkin at [412].

1. Mr Kirby submitted that his moral culpability in the offending is reduced [REDACTED]. This was relied on by Mr Kirby to submit that the first and third principles in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Verdins) come into play. That is, he has reduced moral culpability for the offending which affects the issue of just punishment and denunciation, such that the element of general deterrence is moderated or eliminated as a sentencing consideration.
2. The onus is on Mr Kirby to establish, on the balance of probabilities, the factual basis for the submission. He has failed to do so. [REDACTED].
3. Mr Kirby chose not to give evidence, despite bearing the onus of proof. Rather, the evidence relied on of what he says are the circumstances in which the offending occurred, [REDACTED], is his hearsay account of the events to a psychologist, Ms Pamela Matthews. Based on that account, Ms Matthews opined as to Mr Kirby's conditions, and his conduct in offending [REDACTED] in a report dated 30 January 2025 and in oral evidence given at the sentence hearing. His underlying account is untested.
4. It has been observed that limited weight ought to be given to self-serving, untested statements made to experts which are tendered in sentence hearings: see for example, R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; Vina Money at [175]; Commonwealth Director of Public Prosecutions v Alkaloids of Australia Pty Ltd [2022] FCA 1424 at [180]; and Commonwealth Director of Public Prosecutions v Aussie Skips Bin Services Pty Ltd & Ors [2024] FCA 122 at [80].
5. Ms Matthews assumed the correctness of the account Mr Kirby gave her. [REDACTED].
6. [REDACTED]. The Director accepted that although both Mr D'Amore and Mr Kirby held senior positions and each had a high level of involvement in the offending, there is evidence that Mr D'Amore had the greater role in controlling the business. [REDACTED]. The Director submitted that what Mr Kirby [REDACTED] conveyed to Ms Matthews, was that he was impressed by Mr D'Amore's apparent success and wanted to emulate him. The Director submitted that is what occurred, in that Mr Kirby followed Mr D'Amore seeking to emulate him, [REDACTED].
7. [REDACTED]
8. The Director submitted that the reasoning is apt in the circumstances of this case where the offender is relying on a self-serving account made to a psychologist.
9. I am not persuaded that the account Mr Kirby gave to Ms Matthews is reliable. To the contrary, the account given to Ms Matthews is inconsistent with the evidence he gave in the examinations conducted by ASIC pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) on 28 February 2019, and the liquidators of the company on 25 August 2020 and 3 September 2020. It is inconsistent with the agreed facts. How he described the events, the subject of the offences, to Ms Matthews is, at times, diametrically opposed to those versions. [REDACTED].
10. First, the circumstances in relation to Charge 1, being the provision of false and misleading information to the auditor. The version of events described to Ms Matthews [REDACTED]
11. However, that version is inconsistent with the agreed facts in relation to Charge 1, referred to above at [9]-[26]. He agreed, inter alia, that he contacted a representative of CBH on 29 October 2016, attempting to gain access to the CBH Account. This was in a context where their auditors had raised concerns that Berndale had lost control of the CBH Account. Two days later, on 31 October 2016, Mr Kirby had a meeting with Mr D'Amore, Berndale's general manager, and their two auditors to discuss the audit. It is agreed that during that meeting, Mr Kirby sent the CBH 2016 letter, being the falsified letter to the auditors. [REDACTED].
12. The current version of events is also inconsistent with what he said on oath in his examination with ASIC and the liquidators of the company (noting also he accepted in the first liquidator's examination that when he swore an affidavit about the existence of the CBH Account, he was satisfied as to the accuracy of the information). I note that in the examinations, Mr Kirby was given every opportunity to inform them of [REDACTED], if the events had transpired as he now contends (including because in the liquidator's examination he was probed about [REDACTED]. He did not do so.
13. Second, the circumstances of Charge 3, being money transfers after Berndale's AFSL was cancelled, are also telling. That offence involved transferring money out of the BCSM Segregated Client Account to the Algoplus Account and subsequently some of it to Mr D'Amore's brother. [REDACTED] to Ms Matthews, Mr Kirby said he did so because [REDACTED]. However, in his s 19 ASIC examination, Mr Kirby said that the transfers to Mr Mario D'Amore were made by him by mistake and explained how the error occurred, with the account provided being detailed.
14. Third, little was said by Mr Kirby in his submissions in relation to Charge 2, misappropriating funds, in which he repeatedly transferred money to his own accounts over a period of about 11 months. [REDACTED], he does not refer at all to himself having misappropriate funds. [REDACTED]. Further, he did not tell Ms Matthews that he had misappropriated clients' money for his own use and benefit. [REDACTED].
15. [REDACTED].
16. [REDACTED].
17. [REDACTED].
18. [REDACTED].
19. It is appropriate to address the Director's submission about Ms Matthews' diagnosis of Mr Kirby's PTSD, which is said to relate to his current mental state, and not that at the time of the offending. [REDACTED]. That is because the diagnosis depends on his own reporting of the extent of his symptoms and the nature of his symptoms, and his attribution of those symptoms [REDACTED]. The Director submitted that on the material, there are potential other sources for those kind of symptoms, and it would not be a difficult thing for someone in Mr Kirby's position, who is giving a self-serving version of events to a psychologist (one that contains some truth but also some exaggeration) to add details and attribute symptoms to a source in order to generate a diagnosis. This is particularly so given Ms Matthews' evidence that it was only after he was invited, at her instigation, to focus only on [REDACTED] that the rest flows. I note, as the Director correctly pointed out, Ms Matthews' report does not mention other sources attributable for Mr Kirby's symptoms, or that the information was obtained after she asked Mr Kirby to focus on [REDACTED]. That is how the symptoms were then obtained. Ms Matthews said she did so because otherwise things get "messy" if there are multiple sources. It is concerning that the explanation for how the information was obtained for this diagnosis was only made apparent through cross-examination.
20. The diagnosis does not lend any credibility to his account. The discussion above reflects an obvious discord between what he says occurred, other accounts given by him on oath, and the offending. I am not satisfied that the account [REDACTED] given by Mr Kirby to Ms Matthews is reliable. I accept the Director's submission that in any event, on the material, there are other potential sources for the symptoms.
21. The submissions on behalf of Mr Kirby did not grapple with the conduct he has pleaded to, nor the implications of that on his account given in his proffered statement and to Ms Matthews.
22. There was some inconsistency in Mr Kirby's case, as advanced. [REDACTED]. Neither is doing something one knows is wrong but doing it because everyone else is doing it. These were acts Mr Kirby deliberately undertook.
23. Mr Kirby has not established the account [REDACTED] and the impact it had on his offending. [REDACTED]. The principles in relation to the importance of general deterrence apply in this case.
24. I am not persuaded that either the first or the third elements of Verdins apply.

1. The Court is required to take into account not only the fact of the plea of guilty, but also its timing and the degree to which the timing resulted in any benefit to the community or any victim of, or witness to, the offence: s 16A(2)(g) of the Crimes Act. This requires the Court to take into account the utilitarian effect of the plea, in addition to any subjective significance that may flow from it (for example, as a reflection of remorse or contrition, or a willingness to facilitate the course of justice). The utilitarian value involves an objective assessment to be undertaken. On the other hand, if an offender has demonstrated contrition involving the facilitation of the course of justice as evidenced by the plea, this is a subjective factor and involves an enquiry as to the attitude of the offender and an assessment of contrition. It may be taken into account in the offender's favour: s 16A(2)(f); see Bae v R [2020] NSWCCA 35 (Bae) at [55]-[57]; Khalid v R [2020] NSWCCA 73; (2020) 102 NSWLR 160 at [88]. Although there is no requirement in the Crimes Act to specify or quantify the reduction given for the guilty plea, it has become the practice in some states to do so.
2. Following the introduction of s 16A(2)(g), its operation was considered by Johnson J in Bae (with whom Bell P and Walton J agreed), who concluded at [57]:

The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

1. The approach described in Bae has repeatedly been applied.
2. The advantage of specifying the reduction for the utilitarian value of the plea is that it recognises the degree of discount for the step taken, and provides, inter alia, guidance to others as to the possible impact of a plea of guilty on the sentencing process. It also provides transparency in the sentencing process, as it is (with assistance to law enforcement authorities) the only aspect of the sentencing process where a discount is given. Other factors, both mitigatory and otherwise, are weighed in the instinctive synthesis sentencing process.
3. I give Mr Kirby a 25% reduction on each of his sentences for the utilitarian value of his pleas. His are pleas, which as the Director accepted, were indicated at an early stage, shortly before a contested committal hearing was to commence.
4. The Director also accepted the pleas indicate a willingness to facilitate the course of justice, and an acceptance of responsibility, and that it is open to treat them as demonstrating a degree of contrition on Mr Kirby's part for his offending. I take into account the subjective aspects evidenced by the pleas, in the weighing of all the relevant factors in the instinctive synthesis sentencing process.

1. The Director also accepted that, to an extent, Mr Kirby has cooperated with authorities, for the purposes of s 16A(2)(h). He indicated an intention to plead guilty at an early stage of the proceedings. [REDACTED].
2. [REDACTED].

1. It has been recognised that weight is a relative concept. Not surprisingly, if more weight is given to one factor, less weight may be afforded to others. As explained above, if general deterrence is a primary sentencing consideration in a particular case, factors personal to the offender such as good character and other mitigatory factors are necessarily afforded less weight than they otherwise might be. That is not to say that the other factors are not taken into account, or might not, depending on the facts, be an important factor.
2. As to the issue of good character, the observations in R v Kennedy [2000] NSWCCA 527 (Kennedy) at [21]-[22], have recently been cited with approval in Kabir v R [2020] NSWCCA 139 at [81]- [83] and R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 at [234]- [242]. In Kennedy, Howie J (with whom Simpson J, as her Honour then was, agreed) said:

[21] It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

[22] Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time ...

1. This is not to suggest that prior good character is not a relevant, or an important matter. The Court is bound to take good character into account: s 16A(2)(m) of the Crimes Act. What weight is to be attached to it, to an extent, depends on the character of the offence committed: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [51]; Ryan v R [2001] HCA 21; (2001) 206 CLR 267 at [33] and [143]; and Lee v R [2020] NSWCCA 307 at [129].
2. Mr Kirby has no prior convictions. I accept that his prior good character and antecedents is relevant, and important. However, the circumstances of this offending call for general deterrence to be a primary consideration.
3. Mr Kirby is now 39 years old. It was submitted that he had an unremarkable family life growing up. He had learning difficulties and required academic support which it is said resulted in him being bullied at school and in his employment. After completing school, he obtained a real estate license and worked for Ray White where, it was submitted, he was bullied and dominated by his employer. After leaving this role, he obtained two diplomas, the first in financial planning and the other in financial services. He worked as a mortgage broker from 2006 to 2008. It was again submitted he was bullied and dominated in the workplace by his employer in that role before leaving two years into the job. The next position he obtained was with Berndale (then known under a different name), where he became a sales and personal account manager. That is where Mr Kirby met Mr D'Amore (who had a senior role at the time).
4. Since Berndale ceased operating, Mr Kirby has worked multiple jobs. He sold new homes for approximately six months, sold semi-trailers for three and a half years and now has a company that is an automated trading platform software for trading clients.
5. He submitted that he has had two tumultuous personal relationships, with both marked by him being bullied and dominated by his partners. The relationships caused friction between him and his family and saw him turning to alcohol to cope. Mr Kirby also has long-standing drug and alcohol issues. [REDACTED]. He submitted he would use cocaine four to five days per week and that he only recently ceased its use in the last 12 months.
6. Mr Kirby submitted he was remorseful and contrite, referring to his early guilty pleas, and his offers to assist the authorities.
7. Mr Kirby relied on the evidence of Ms Matthews as to Mr Kirby's mental health who opined: (1) he currently has suicidal ideations which is concerning; (2) his current mood state is depressive and anxious consistent with a DSM diagnosis of an adjustment disorder with mixed mood symptoms. These stressors are currently in respect of his financial situation; (3) he is someone who conforms as opposed to acting independently or critically thinks; (4) [REDACTED] (5) at the time of the offending he was suffering from alcohol use disorder and stimulant use disorder; and (6) he currently suffers from PTSD [REDACTED].
8. Mr Kirby submitted, relying on the evidence of Ms Matthews, that the fifth and sixth principles in Verdins, being that the existence of his conditions could mean a sentence would weigh more heavily on the offender than it would on a person in normal health, and there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, apply.
9. This was said to apply for three reasons. First, Mr Kirby is somebody who, disproportionately for his peer group, has high suicidal ideations that stem from notions surrounding failure, poor self-esteem and shame, such that a custodial setting would bring it further to the forefront of his functioning. Second, given he has a mixture of an anxious and depressive related symptomology, imprisonment will be more burdensome for him. Third, his general functioning, as somebody who would not have the tools or psychological means to function, whilst in a custodial setting.
10. The Director accepted that the fifth and sixth principles do have some application in this case, but the weight to be given to them (in particular, the sixth principle) is said to be limited given the other applicable sentencing principles. The Director also pointed to the fact that much of the evidence that Ms Matthews gave about Mr Kirby's likely reaction to imprisonment would apply to anyone in his position, that is, a white-collar offender who has no prior convictions and no exposure to the justice system or a custodial environment. She submitted that even someone with a relatively shy or reticent personality is still a person in normal health, and one would expect that person to have a significantly adverse reaction to imprisonment. The shame and separation from his family Ms Matthews referred to when assessing Mr Kirby, is normal and to be expected. That said, the Director acknowledged Ms Matthews' evidence went beyond that description as Mr Kirby has been diagnosed with a disorder that is associated with symptoms of anxiety and depression, that would be exacerbated in a custodial environment. I note that in Ms Matthews' cross-examination, she clarified that that diagnosis is situational in that the depression and anxiety relate to the events at Berndale (as opposed to endogenous depression). Nonetheless, the Director submitted it is of limited significance. I note in this context that the issue of Mr Kirby's PTSD diagnosis has been addressed above.
11. I note also that Ms Matthews gave evidence that Mr Kirby needed counselling, with "a very good clinical psychologist". Mr Kirby accepted that he is not attending any counselling. I note that although Mr Kirby submitted that he attended counselling while at Berndale in 2018 for stress, there is no evidence of that, or the basis for it, and there is no suggestion of him having had any following the events the subject of this proceeding. It was submitted that Mr Kirby is not attending any counselling because of the situational nature of this offending, and that he is now working and trouble-free. This was said to reflect that removed from the environment, Mr Kirby can be a functioning and contributing member of society, notwithstanding, "this very serious indiscretion which is before the Court". The lack of counselling is put on the basis he does not need it, given his current employment. This is a rather unusual approach if the position is as Ms Matthews describes.
12. That said, I do accept that the considerations referred to in the fifth and sixth principles are relevant in this case, and I take the evidence in respect to them into consideration.

1. The Director submitted that given the seriousness of the offending, a term of actual imprisonment is required in this case, despite the matters relied upon in mitigation. I note that Mr Kirby has not served any time by way of pre-sentence detention.
2. Mr Kirby submitted that given the circumstances of this case, and notwithstanding the objective seriousness of the offending, it is within the sentencing range to impose a period of imprisonment with a recognizance release order such that no custodial period is to be served immediately. That is the approach he urged upon the Court. It was advanced on the basis that: (1) the offending is dated; (2) the offending all stems from the same entity and Mr Kirby's tenure in that entity; (3) Mr Kirby has not breached his bail, nor come to the attention of authorities in two years (showing his ability to comply with Court orders); (4) Mr Kirby has no prior convictions; and (5) the role Mr Kirby played in the offending. That said, Mr Kirby also acknowledged that if I was against him on that approach, a sentence with a recognizance release order which had the effect of an immediate term of imprisonment was also within the sentencing range.
3. This was a course of conduct engaged in by Mr Kirby over approximately two years, which involved multiple acts of dishonesty, whilst he was in a position of seniority, trust and control.
4. In relation to Charge 1, as the Director submitted, there is only so much that regulators and, in this case, an auditor can do where officers of the company occupying the most senior positions go so far as to forge banking documentation to deceive them. Supplying auditors with false documents significantly undermines the protections that exist in the regulatory scheme for people who invest their money in companies like this. This offence was done to cover a breach of the AFSL, to mislead the auditors to sign off on the accounts to enable Berndale's AFSL to continue, and for it to continue in business.
5. Charges 2 and 3 involved Mr Kirby misappropriating funds for his own financial benefit and that of others, which involved engaging in conduct where he was one of only two signatories and controllers of the Berndale companies' bank accounts. He was in a position of ultimate trust and control over client funds. Charge 3 relates to siphoning money from the accounts to frustrate the ability of regulatory bodies to obtain the funds after the cancellation of Berndale's licence.
6. The seriousness of this offending is self-evident, as is the impact on Berndale's clients and the broader financial markets. The importance of general deterrence and denunciation for conduct of that nature has already been explained. I have not accepted Mr Kirby's submission that he has lesser moral culpability, or that general deterrence should be given less weight in his case. [REDACTED].
7. Specific deterrence also has a role to play in the sentence, as the submission that the offending was situational does not address what, if anything, Mr Kirby is doing to address the issues he says were relevant to his offending. This is particularly so, for although Mr Kirby admitted his offending, his approach during the sentencing hearing attempted to minimise his moral culpability for it.
8. In that context, the matters personal to Mr Kirby, his good character and other mitigating factors, necessarily must be given less weight. I take into account the matters identified above in considering the submissions as to Mr Kirby's subjective case and the circumstances advanced in his submission for no custody being served.
9. The most significant of the matters in mitigation are the early pleas of guilty by Mr Kirby with all that entails. I place great weight on that factor. As explained above, for the utilitarian aspect of the pleas of guilty, I allow a 25% discount for each offence. In addition, the other factors taken from the plea (the subjective factors of remorse, contrition, and the willingness to facilitate the course of justice) have been taken into account in Mr Kirby's favour in the instinctive synthesis process. I have given weight to the cooperation [REDACTED], although, as explained above, in my view, it is of limited value. I have regard to Mr Kirby's personal circumstances, including his lack of prior convictions and that he has not come to the attention of the authorities since the offending. I take into account, in accordance with Verdins (as explained above), the effect imprisonment may have on him and his mental health.
10. Noting the maximum penalties and given the relevant sentencing principles and their application to the facts of this case, I am satisfied that a sentence of imprisonment for each offence is the only sentence appropriate in all the circumstances of the case.
11. Each offence is different, in that even though there may be overlap in context, consequence or motive, each reflects significant criminality and different conduct. Charge 1 concerned the provision of a falsified document to the auditor, to conceal a breach of Berndale's AFSL. It was directed to maintaining Berndale's AFSL, to enable it to continue in business. Although Charges 2 and 3 both involved misappropriation of client funds, they were committed in different circumstances. Charge 2 involved Mr Kirby breaching his directors' duties to financially benefit himself and others through the misappropriation of client funds. Charge 3 was committed to frustrate regulators in seizing the company funds after Berndale's licence had been cancelled (which would have enabled regulators to use them to cover the clients' losses).
12. To reflect the difference, there should be some degree of accumulation of the sentences (which will result in some degree of concurrency between them): see, for example, the oft cited Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [37]. I am mindful of the principle of totality which obliges a judge "who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.
13. The Director put before me some cases said to be comparative cases, although accepted the circumstances in each are different to this case. Mr Kirby submitted they were of limited value, a submission the Director accepted. I agree. The cases referred to reflect the application of the relevant principles to those facts, and apart from general guidance as to those principles, are of limited assistance.
14. Having regard to the relevant sentencing principles, considering and weighing all the relevant factors, I impose the following: on Charge 1, 15 months' imprisonment; on Charge 2, 12 months' imprisonment; and on Charge 3, 15 months' imprisonment. Each of those sentences would have been substantially higher but for the guilty plea on each, for which I have given a 25% reduction.
15. The sentence on Charge 2 is to commence after 12 months of Charge 1 has been served. The sentence on Charge 3 is to commence after 8 months of Charge 2 has been served. The total aggregate sentence is therefore two years and 11 months. The degree of concurrency that exists has regard to the principle of totality.
16. Turning to the imposition of a recognizance release. The Court is required to fix a recognizance release order where (a) a person is convicted of a federal offence (or of two or more federal offences at the same sitting); (b) the Court imposes a federal sentence that in the aggregate does not exceed two years and 11 months; and (c) at the time the sentence is imposed, the person is not already serving or subject to a federal sentence, unless it exercises its discretion to decline to do so: ss 19AC(1), 19AC(4)(a) and 20(1)(b) of the Crimes Act. A single recognizance release order is to be imposed: s 19AC(1).
17. Section 20(1)(b) enables a court, before which a person is convicted of one or more federal offences, to sentence the person to imprisonment in respect of the offence, or each offence, but "direct, by order, that the person be released, upon giving security of the kind referred to in [s 20(1)(a)] either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with [s 19AF(1)]": Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [27]. In Hili, the High Court observed at [40]:

... ss 16A(1) and (2) "make it plain that all of the circumstances, including the matters in the non‑inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment". In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to "make an order that is of a severity appropriate in all the circumstances of the offence". What is the "severity appropriate" is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen, and Bugmy v The Queen.

1. The purpose of fixing a recognizance release order in relation to a sentence of imprisonment that has been imposed, is to provide mitigation in favour of rehabilitation through conditional release. Although the considerations taken into account at this stage are the same as those applicable to fixing the sentence of imprisonment, the weight attached to them may differ due to the different purposes to be served. In determining what period is required to be served, the objective gravity of the offending and general deterrence must also be taken into account, as must the interests of the community which imprisonment is designed to serve: see for example Page at [53]-[54]; and see also Vina Money at [198].
2. I do not accept Mr Kirby's submission that it would be appropriate that an order be fixed such that he would be released forthwith, with the effect being that he serves no immediate time in custody. To do so would fail to properly reflect the gravity of the offending and the importance of general deterrence. As reflected above, general deterrence is a sentencing consideration relevant to the recognizance release order, as it is to the head sentence, albeit the weight attached may differ. However, all that said, taking into account and weighing all the relevant factors I propose to impose a recognizance release order of 12 months which is less than might ordinarily be imposed on a head sentence of this length. Thereafter, he will be released on a recognizance to be of good behaviour for three years, in the amount of $1,000.
3. If Mr Kirby breaches that recognizance, he will be liable to serve the remaining one year and 11 months of his sentence, and to forfeit $1,000.

I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.