Ooi v The Queen [2018] VSCA 78

6 The appellant was employed by the Victorian Department of Infrastructure

('DOI') and then the Department of Transport ('DOT') from October 2004 to January

2012 in the role of a project coordinator for bus infrastructure works.4 He was then engaged as a contractor to the DOT and Public Transport Victoria ('PTV') from January 2012 until January 2013. Along with Wells, he was involved in a senior executive role with regard to project management and the selection of successful contractors for civil works projects for the DOI, DOT and PTV. He also participated

in the review of tenders for the selection of contractors.

1 R v Ooi [2017[ VSC 157 [81] ('Reasons').

1. The summary is largely drawn from the detailed Prosecution Opening on Plea which was tendered before the sentencing judge.

1. Sometime in 2007, when the appellant came under the supervision of Wells, it was suggested by Wells that he could source and supply the government with bus shelters for public transport infrastructure projects. Over the period between 2007 and 2014, the appellant and Wells masterminded a fraudulent scheme whereby contracts, largely related to the supply of bus shelters, were awarded to various businesses covertly controlled by them ('managed entities'), with the assistance of compliant family members or business associates. The managed entities mostly subcontracted the work to other companies managed by the appellant and Wells and other associates. The total value of contracts awarded to the managed entities and related subcontractors over the period of the conspiracy was $15,392,850.68.5 The appellant received profits from these contracts of $2,324,614.06.

1. Several companies controlled by the appellant and Wells were involved in the conspiracy. It is convenient to identify the entities and their involvement in the scheme chronologically. In order to explain our conclusions on the appeal, it is not necessary to recite the details in respect of each entity. As will appear, there was a repeated, sophisticated and corrupt pattern of behaviour that made up the conspiracy.

1. In 2006, the appellant's stepson, Michael De La Torre, started a cleaning and maintenance business through a company called Property Services Network ('PSN'). At the appellant's request, Mr De La Torre made PSN available to the appellant and Wells for the purpose of contracting with government. The appellant was given control of the PSN bank account. On behalf of PSN, Mr De La Torre also entered into a partnership agreement with HGO Management Services Pty Ltd ('HGO'), a company controlled by the appellant. This agreement enabled PSN to provide

services in infrastructure construction works, including bus stops and bus shelters,

1. On the plea by Wells, the prosecution indicated that the figure of $15.3 million was incorrect and that the total value of the contracts awarded was in fact $17,170,898.85. Wells accepted this evidence: R v Wells [2017] VSC 575 [49] ('Wells').

during the time that the appellant was working for the DOI and involved in bus infrastructure. Ownership of PSN was at this time split, with 90 per cent to HGO and 10 per cent to Mr De La Torre. Money derived from the contracts was channelled through HGO for the benefit of the appellant.

1. These arrangements allowed the appellant and Wells to covertly control PSN, and to shift money from government contracts awarded to it. Mr De La Torre was a compliant family member with a surname that did not reveal his connection to the appellant.

11 Between 1 January 2007 and 10 August 2009, PSN was awarded a total of 32

DOI and DOT civil works contracts, totalling $1,175,053.50. PSN subcontracted the bulk of the work to other businesses operated by an associate, Greg Morrissey. From payments received by PSN under these contracts, approximately $600,000 was paid to bank accounts in the name of, or controlled by, the appellant and Wells.

1. De La Torre Consultancy Group Pty Ltd ('DLTCG') was another business started by Mr De La Torre. It was an event management business in 2006, but subsequently came under the control of the appellant and Wells and was deployed in the conspiracy.

1. On 24 April 2007, DLTCG was awarded a DOI project management contract worth $97,788.90. Of that amount, $59,187.90 was paid into a bank account in the appellant's name.

1. The principal entity in the conspiracy was Global Works Management Pty Ltd ('GWM'). It was registered on 21 January 2008 and had family members and associates as its directors and shareholders to disguise the connection with the appellant and Wells while the appellant worked for the DOI, DOT and subsequently PTV. In each case, the directors appointed, including Mr De La Torre and Wells's

stepson Justin Wells, were shadow directors who had no actual control over the business. GWM had capacity to carry out some, but not all, parts of the works contracts awarded to it.

15 Between 21 January 2008 and 9 January 2013, GWM was awarded a total of 92

DOI, DOT and PTV civil works contracts totalling $8,538,993.22.6 These contracts included a $2.3 million contract awarded in 2010 for the design and construction of

430 bus stops in Melbourne. In addition to the more than $8.5 million paid by the government departments, GWM received a further $1,019,929.74 from associated businesses that had been awarded departmental contracts by Wells and subcontracted works to GWM.

1. While Wells had primary control over day-to-day operational matters, the appellant was primarily responsible for the financial management of GWM, including the movement of profits between it and other managed entities. The arrangement was a complex one, using various company trust structures and management/service agreements as devices allowing for the proceeds of the appellant's offending to be shifted out of GWM and accessed by the appellant and Wells.

Financial forensic analysis identified, from 92 contracts awarded to GWM and tional work subcontracted to it:

41 payments, totalling $528,270.67, into accounts in the appellant's name;

payments totalling $771,821 into accounts in the name of GWM Management

Services Pty Ltd, also in the appellant's effective control; and

22 payments, totalling $524,125, to accounts in the name of HGO, also in the

The benefits that were derived from the profits of GWM also included a loan

On the plea by Wells, the judge accepted the prosecution's evidence that GWM had been awarded 'more than 70 government works contracts': Wells [2017] VSC 575 [22].

from GWM to GWM Management Services Pty Ltd for $750,000 on which no repayments were made, building works and improvements at the appellant's and Wells's properties and, with the use of false invoices, payment for items including a

$3,300 deposit on jet skis, a $15,600 piano, and a $11,000 payment and lease vehicle for the appellant's use.

19 Red Consultancy Group ('RCG') was registered as a business name on 3

August 2008 to the appellant's son, Andrew Ooi. Shortly after the formation of GWM, RCG was set up as an intermediary in the tender process, and GWM received DOT civil works contracts valued at $2,070,842.80 on the recommendation of RCG. Wells awarded directly to RCG six contracts, totalling $20,350, for the review of tenders. RCG was also awarded four design and construction contracts worth

1. These tender assessments were undertaken by the appellant and Andrew Ooi, who used the alias 'Andrew Yi' for the purposes of disguising the family connection. The interposition of RCG enabled the appellant and Wells to have effective control of tender allocation and facilitated the awarding of contracts to managed entities.

1. To avoid the appearance that GWM was being provided with an inordinate amount of work that might arouse suspicion or further investigation, the appellant and Wells registered PWIC Pty Ltd ('PWIC'). An associate, Gerry O'Neill, was installed as the director and secretary, with the company shareholding equally split between a company in his control and GWM. PWIC had no employees and no capacity to complete the works contracts awarded to it, instead subcontracting all works to other entities with which the appellant and Wells had business relationships. The appellant retained control of the company finances and project management.
2. Between 17 June 2009 and 2 December 2009, PWIC was awarded four DOT civil works contracts with a total value of $1,153,845.20. Each of these contracts was valued at over $200,000 and, as such, selection of the contractor required a tender or an expression of interest. RCG provided consultancy services for two of the contracts, relating to the construction of bus bays in Myrtleford and Beechworth. The appellant, his son Andrew, and Wells made up three quarters of the panel of tender assessors.

Grand Earthworks Pty Ltd and Global Works Civil Pty Ltd

1. Following the by then familiar path, Grand Earthworks Pty Ltd ('GE') and Global Works Civil Pty Ltd ('GWC') were set up with two associates, Andrew Hayes and Graham Davis, as directors and shareholders. GE and GWC were related subcontractors that were awarded various government contracts in their own right as well as subcontract work from managed entities. Together with Wells, the appellant assisted Mr Hayes and Mr Davis in establishing these entities in order to award DOT and PTV civil works contracts to them, and create the appearance of fair competition with other managed entities.

24 Between 23 June 2011 and 9 January 2014, GE was awarded a total of 26 DOT

and PTV civil works contracts totalling $2,291,049.12.7 Between 2 August 2012 and 9

January 2014, GWC was awarded a total of 10 PTV civil works contracts to the value of $1,004,446.78.8 The profits made from contracts that Wells awarded to GE and GWC allowed Mr Davis and Mr Hayes to finance the purchase of GWM for

1. In the Prosecution Opening on Plea tendered on the plea by Wells, the prosecution stated that GE was awarded 26 contracts totalling $3,180,689.51 and was paid $2,428,633.60 from these contracts. The judge mentioned a slightly different figure in his reasons. The judge said that GE was awarded 26 contracts totalling $3,180,689 in value 'from which those companies received $2,291,049.12': Wells [2017] VSC 575 [38]. The difference is not material.

8 On the plea by Wells, the judge accepted the prosecution's evidence that the total value of the

10 contracts was $1,135,790: Wells [2017] VSC 575 [38].

1. Redback Civil Pty Ltd ('Redback'), was registered in the name of Mr Davis, but the appellant retained control of it. Redback was incorporated to take fraudulent activities away from GWM, which was eventually sold to Mr Davis and Mr Hayes, and to give the impression of fair competition between companies tendering for government work. The appellant managed and administered the business of Redback, while Wells awarded it DOT and PTV contracts and assisted with project management. Between 20 October 2011 and 9 January 2014, Redback was awarded a total of 36 DOT and PTV contracts worth $949,750.46.

1. In September 2009, an associate, Darrel Salter, registered Consalter Pty Ltd ('Consalter') which provided engineering services to the DOT and PTV directly, as well as to the managed entities and subcontractors GWM, Redback, GE and GWC. Consalter was awarded DOT and PTV contracts and other payments to the value of

$2,665,891.40, as well as being the recipient of a $2.3 million DOT tender partnership paid to GWM and then to Consalter.9

1. It is not necessary to set out in detail each aspect of the judge's reasons for sentence. Ground 1, the ground of manifest excess, turns on the assessment by this Court of whether the sentence is wholly outside the range having regard to all of the

circumstances.10 Grounds 3 and 4 relate to the question of parity and it is necessary

9 On the plea by Wells, the judge said in his reasons that Consalter ultimately received

$1,746,022: Wells [2017] VSC 575 [42]. This amount comprised $1,308,844 in contractual

payments from DOT and PTV, and payments totalling $437,178 from the $2.3 million tender partnership and from managed entities and related subcontractors in respect of various works and services contracts. However, the Prosecution Opening on Plea on Well's plea indicates that these payments were in addition to the contracts awarded to Consalter (which were said to be worth $1,356,429.80).

1. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ) ('Wong'); Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 70 [26] (French CJ, Hayne, Kiefel and Bell JJ), 78 -80 [59]-[61] (Gageler J) ('Barbaro').

to deal with some of the comparable features of the sentence imposed on the appellant and that imposed on Wells and an associate, Todd Huggard.

1. After reciting in some detail the circumstances of the conspiracy, the judge concluded that the offending was 'well-orchestrated, devious, and sustained.11 It became more sophisticated over time by, for example, the later use of supposedly independent tender assessment processes controlled by the appellant and Wells, allowing a double payment - first, a financial reward for consulting on the tender process, followed by the profits from the valuable contracts that were awarded to managed entities.

1. The judge remarked on the scale of the criminal enterprise, observing that total value of government contracts awarded to the managed entities and related subcontractors during the period of the conspiracy was $15,392,850.68.12 The forensic evidence, accepted by the appellant, calculated that the appellant received profits of $2,324,614.06 paid out of the contracts with the State.13 The judge observed that, although the loss to the State was indeterminate, the conspiracy undermined the public service procurement policies and involved corruption of the trust placed in public servants that taxpayer funds will be honestly expended and accounted for in the public interest.14

1. The judge concluded that the offending was very serious. That conclusion was informed by the fact that it was of long duration (seven years), was sophisticated in its planning and execution, involved large amounts of money, was motivated by greed and profit, and was not impulsive.15 The judge noted that those, like the appellant, who sit in control of expenditure, procurement and tender

processes in government departments and corporations are trusted to exercise that

power in an honest and independent manner. The temptations for personal enrichment by dishonest means are well recognised and arise not infrequently. Particularly in circumstances where the offending was motivated by pursuit of personal gain, the need to impose a sentence that has a significant general deterrent effect on others facing similar temptations is very strong.16

1. His Honour regarded the principal sentencing objectives in this case to be those of general deterrence, punishment and denunciation.17

1. On his plea, the appellant focused on four mitigating factors: his plea of guilty and remorse; his undertaking to give evidence against other co-accused at their trials; the hardship he would experience in custody given his age, personality and physical health, and because of his assistance to authorities; and the punitive impact of delay.18

1. The judge accepted that the appellant's rehabilitation prospects were clearly favourable and that the rehabilitative effect of a prison sentence would be very substantial.19 The judge took into account the appellant's remorse, as reflected in his early guilty plea and the assistance he undertook to provide to authorities, including by providing a long and detailed statement. 20

1. The judge remarked that it is in the nature of white collar offending that it is difficult to detect and prosecute, that offenders are often of unblemished record, and in positions of trust and high standing.21 It was these features that gave rise to the

1. Before leaving the judge's reasons, it is necessary to set out how the judge dealt with two particular considerations, assistance to authorities and parity, as these played a central role in the submissions on appeal.

1. The judge made a general observation that the provision of significant and reliable evidence has been regarded as a powerful consideration in favour of exceptional leniency in the imposition of a sentence, particularly in cases involving organised crime and the exposure and prosecution of corrupt officials, hidden organisers and financiers.22 His Honour noted that a discount is to be applied even if other offenders subsequently plead guilty, and that a sentencing judge is not required to ascertain objectively the extent to which the evidence provided by the accused is effective.23

1. The judge noted that it had been submitted for the appellant that his statement and evidence ought to earn him a significant discount because it would permit the prosecution to present in a compelling and comprehensible manner what would otherwise be a largely circumstantial case. The prosecution disagreed that the appellant's evidence was strictly necessary to prove documents, but did not dispute the extent of the appellant's cooperation and the detailed nature of the statement that he had provided.24

1. The judge said he would grant the appellant a 'substantial discount' in the sentence that would have been imposed but for the appellant's willingness to give evidence against his co-offenders. His Honour stated that he was 'not required to

1. The relative role played by the appellant compared with the other principal, Wells, and the other offenders, was important both for the judge's assessment of the appellant's role in the enterprise and for the purposes of parity of sentence. His Honour dealt with the relative culpability between the appellant and Wells. His Honour concluded that the appellant's high culpability was not entirely equal to that of Wells because it was the role of Wells within the relevant government departments to award the contracts in question and Wells was the appellant's manager. (On the plea by Wells, the judge accepted that Wells was not Ooi's manager but rather that they were both part of a business team that accounted to the same manager.)26 The judge considered that the appellant's culpability must be viewed as somewhat, although not by a significant degree, less than that of Wells.27

We shall return to the similarities and differences between the appellant's circumstances and those of Wells when we deal with grounds 3 and 4.

1. In his written submissions before this Court, the appellant submitted that the sentence imposed by the judge was manifestly excessive having regard to the following seven factors:

(a) the appellant's early plea of guilty; (b) his profound remorse;

(c) the very substantial assistance he gave to authorities in the form of a detailed written statement and an undertaking to give evidence against his co- conspirators;

(d) that the appellant's time in custody would be more onerous given his age, personality and physical health, and because his assistance to the prosecution

1. The judge noted, however, that Wells had the purchase order responsibility and control of the codes for use in the departmental software approval systems (although he allowed Ooi to use his codes): Wells [2017] VSC 575 [61].

(e) the appellant's mental health, which enlivens the fifth and sixth principles in

(f) that the appellant was otherwise of blameless character; and

the three-year delay between the revelation of the offending and the time of sentence.

1. In oral argument on the appeal, the appellant focused on the assistance given to the prosecution and the judge's treatment of that factor. The appellant started with the observation that the judge had said that he proposed to give a 'substantial discount' in the sentence that he would otherwise have imposed but for the appellant's willingness to give evidence against his co-offenders.29 It was then submitted that, given the appellant received a sentence on the conspiracy charge of one half of the maximum on a plea of guilty, the proposed substantial discount was not in fact reflected in the sentence.

1. At the least, it was argued, the appellant was unable to discern from the judge's reasons for sentence the extent to which the discount for assistance had in fact been given. In that respect, it was submitted that it should be apparent from the reasons and from the sentence that the appellant had received the substantial discount for his cooperation and agreement to give evidence that the judge said he proposed to give.

1. It was finally submitted that, had proper allowance for the assistance been given, the judge could not properly have arrived at the sentence he imposed.

1. It is not necessary for us to attempt to apportion or quantify the extent to which the appellant's assistance to authorities was reflected in the ultimate sentence imposed by the judge. That is so for a number of reasons.

28 [2007] VSCA 102; (2007) 16 VR 269

1. First, and most importantly, such an analysis is generally unproductive in the resolution of a ground of appeal alleging manifest excess in the sentence, especially if it wrongly implies that there is a 'standard' discount for assistance, or that the issue is to be approached as a mathematical or mechanical exercise.30 In order to establish manifest excess, the appellant must satisfy us that, having regard to all of the material, the sentence imposed fell wholly outside the range of available sentences.31

1. Second, it is clear that the judge was required to have regard to the appellant's plea of guilty both for its utilitarian value and its evidence of remorse, and also to the appellant's cooperation with and assistance to authorities. That was because they were matters that necessarily moderated the sentence that the judge was empowered to impose and they were heavily relied on by the appellant in his plea.32

1. It is equally clear that the judge took those matters into account and there is no contention that he failed to do so. There is no allegation of specific sentencing error. Where the attack on sentence is based on a contention that the sentencing judge did not properly or sufficiently take account of assistance rendered to authorities, an accused person must bring the ground within the rubric of manifest excess. 33

1. The weight that the judge gave to the appellant's plea of guilty and his assistance to authorities was a matter for the judge to determine; that is, the appellant cannot establish appealable error simply by persuading this Court that it would have given those factors a different weighting. The ground of manifest excess is not established without more by arguing that the judge gave inadequate weight to a particular factor or that the weight that the judge said he gave is not reflected in the

final sentence. The focus must be on the question that falls for decision: whether the

30 DPP v Cooper [2018] VSCA 21 [45] ('Cooper').

31 Wong [2001] HCA 64; (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ); Barbaro (2014) 253

CLR 58, 70 [26] (French CJ, Hayne, Kiefel and Bell JJ).

1. Section 5(2)(e) of the Sentencing Act 1991 also required consideration be given to the guilty plea.

33 Scerri v The Queen [2010] VSCA 287 [30].

sentence was wholly outside the range of available sentences.

1. The appellant relied on the decision of this Court in R v Johnston in aid of his argument that his assistance to authorities could not have been properly accounted for in the sentence.34 In that case, this Court allowed an appeal against the sentence that had been imposed on various counts including murder, kidnapping, false imprisonment and trafficking in large quantities of MDMA and methylamphetamine. The sentence imposed at first instance was 23 years with a non-parole period of 15 years. Nettle JA, with whom Buchanan and Ashley JJA agreed, allowed the appeal on the ground of manifest excess and resentenced the accused to 16 years with a non-parole period of 11 years.

50 The appellant in Johnston had agreed to give evidence against his co-accused.

The prosecution conceded before the primary judge that the appellant was 'entitled to the maximum discount on sentence which proper sentencing practice is able to afford him'.35 We note that the appellant had been sentenced on the basis that he was the offender of the least culpability in the offending.36

1. Nettle JA applied the following methodology. First, his Honour concluded that in the circumstances of that case, which included the prosecution's concession, he would 'set the discount at 50%.'37 His Honour then turned to the sentences that would properly have been imposed in the absence of the informer discount and then halved them before dealing with the issue of totality and the non-parole period. His Honour expressly noted that each case was unique but that, in the circumstances of the case, a discount of less than 50 per cent would be an inadequate recognition of the quality of the information which the applicant had provided and the risks to

which he had subjected himself by agreeing to do so, and would also tend to

34 R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345 ('Johnston').

undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale involved.38

1. We would make a number of brief points in relation to the decision in Johnston. First, it was not submitted that the decision is authority for the proposition that the methodology applied by Nettle JA must be applied in each case. The appellant submitted that the methodology applied by Nettle JA was but one of the possible approaches to dealing with offenders who have rendered assistance to authorities.

1. Second, as the reasons for judgment of Nettle JA make clear, there is a distinct tension between his Honour's methodology and instinctive synthesis.39 In our view, the approach taken by his Honour comes close to embracing two-stage sentencing which entails a sentencing judge first determining a hypothetical sentence by reference to the 'objective circumstances' of the case, before increasing or reducing this sentence by reference to other factors, typically factors personal to the accused. In our view, such an approach at common law is generally foreclosed by authority.40

For that reason, we would respectfully decline to apply the method employed by the

1. Third, whatever the method used to arrive at the result, Johnston should not be seen as setting a benchmark or 'tariff' as to the discount to be applied where assistance is provided against a co-offender. There is no fixed tariff or discount that

can be applied in every case. As this Court said recently in DPP v Cooper:

1. Ibid 350 [20]. Nettle JA said: 'Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at

1. Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 ('Markarian'). Nettle JA acknowledged the force of Markarian but took the view that in Markarian it was recognised that the law strongly favours transparency and that the case before him was one where 'some indulgence in an arithmetical process will better serve these ends': Johnston [2008] VSCA 133; (2008) 186 A Crim R 345 350 [20], quoting Markarian [2005] HCA 25; (2005) 228 CLR 357, 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including - but not limited to - the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation.41

1. By way of more general observation, we would only add this. The use of the phrase 'discount' and 'substantial discount' have long since passed into common and legal usage in the context of sentencing, particularly in relation to guilty pleas and assistance given to authorities. However, in the context of instinctive synthesis, it would be wrong to see the recognition of a guilty plea or assistance given to authorities as other than a moderating factor to be taken into account by a sentencing judge in the course of considering all relevant factors.

1. We turn now to consider whether the sentence imposed in respect of the conspiracy to defraud charge was manifestly excessive.

1. There is no doubt that the offending was extremely serious. It was sophisticated, of long duration, and involved very large number of contracts and large amounts of public money. It involved a very high level of criminality. It entailed a significant breach of trust.

1. There were many features that bore out his Honour's description of the offending as sophisticated, well-orchestrated, devious and sustained. We have set out the key features of the conspiracy above and do not repeat them. We mention, by way of emphasis, the use of successive companies to assist in concealing the involvement of the appellant and Wells and the use of RCG to rig the tender process. RCG was interposed in the conspiracy for the ostensible purpose of vetting tenders. It is to be expected that the State might choose to use external consultants to provide some independent oversight to tender processes. The use of RCG to provide a

41 Cooper [2018] VSCA 21 [45].

1. In relation to the seriousness of the offending, the appellant submitted that there was no loss occasioned to the State by reason of the conspiracy. This was said to be a mitigating factor or, at the least, the absence of an aggravating factor that is often present in a case of conspiracy to defraud.

1. Although his Honour was able to make a specific finding in relation to the profit earned by the appellant from the conspiracy, the loss occasioned to the State was indeterminate. The prosecution did not seek to prove that the services acquired by the State under the various contracts were of an inferior quality or were purchased at a higher price than would have been obtained under an honest and open procurement process.42

1. If the only relevant loss that could be considered in the context of a conspiracy of the type perpetuated by the appellant and his co-offenders was one measured in dollars, and considered only from the perspective of the State, then that submission might have more force. However, it proceeded from too narrow a conception of loss in the circumstances. That is so for a number of reasons.

1. First, loss is not an element of a conspiracy to defraud. As McHugh J observed in Peters v The Queen,43 although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. A conspiracy to defraud may be established if the conspirators intended to obtain some advantage for themselves by putting another person's property at risk or depriving another person of a lawful opportunity to obtain or protect property.44 McHugh J also observed that it is well established that a conspiracy to defraud may be established if the defendants agree to deceive a person

into acting, or refraining from acting, contrary to his or her public duty.45

43 [1998] HCA 7; (1998) 192 CLR 493.

1. Second, the evidence established that the State had adopted procurement processes and also rules regarding conflict of interest.46 The purpose of those policies and rules was to prevent patronage and to ensure that the procurement of goods and services occurred in a competitive environment.47 The appellant and Wells subverted that process. In the case of some of the contracts that were of a lesser value, the appellant and Wells were able to allocate contracts directly to managed entities and related subcontractors without going through a tender process. Where a tender was required, they manipulated the tender process.

1. The corruption of the procurement process meant that there was patronage on a shocking scale to the enrichment of the conspirators. Self-evidently, honest persons will have missed out on obtaining relevant government contracts.

1. As his Honour found, the offending resulted in arrangements that were clearly contrary to government procurement processes and rules regarding conflicts of interest. The judge found that the criminal conspiracy effectively undermined the public service procurement policies that are designed to protect the revenue and ensure that government contracting works are put out at the most competitive available price. As such, the conspiracy involved corruption of the trust that citizens of this State place in public servants that taxpayer funds will be honestly expended and accounted for in the public interest. His Honour concluded on this aspect by saying that '[c]orruption of this kind strikes at the heart of our civilised democracy.'48

This was emphasised on the appeal as demonstrating that this form of corruption is in effect a breach of the social contract between members of our society.

1. It is also highly relevant to note the substantial benefits that accrued to the appellant and Wells. The judge rightly noted that the appellant had obtained substantial financial benefits from his illegal activities. His Honour accepted that the overall profits of the illegal enterprise were shared equally between the appellant

and Wells,49 and that the evidence established that the appellant had received profits of $2,324,614.06 out of the contracts that had been entered into between the State and the managed entities.50

1. The offending called for a sentence that adequately reflected the principles of general deterrence, punishment and denunciation. In DPP v Bulfin, Charles JA gave an explanation of why general deterrence can be a very important factor in sentencing in respect of white collar crime in terms that are apposite. 51 His Honour

The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme ... The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.52

1. Within that context, the appellant's cooperation and assistance to authorities and his plea of guilty were both powerful moderating factors in sentence. Of course, a person may plead guilty but not provide assistance to authorities. Such a course is

common place. On the other hand, a person who undertakes to give evidence

1. The judge later noted in Wells [2017] VSC 575 [50] that Wells conceded that he and Ooi intended to share the profits of the fraudulent scheme equally. The judge observed that the joint intention may not have been implemented given the forensic analysis of Ooi's receipts. Ooi may have received $1 million more than Wells. See [98] below.

51 DPP v Bulfin [1998] 4 VR 114.

against a co-offender will almost certainly have pleaded guilty and is entitled to the benefit of both his or her plea of guilty and his or her assistance. However, it would be artificial to treat them as entirely independent and cumulative.

1. In the present case, the assistance provided by the appellant was real and of value in relation to the prosecution of co-offenders. In the context of white collar crime, offences are often difficult to detect and to prove. Assistance in such cases will often be of great value and may result in a prosecution that would otherwise not be brought or which might founder for want of proof.

1. In this case, it appears that the corruption had been identified and investigated before the appellant provided his assistance to authorities. The real benefit provided by the appellant was that he was able to provide to a jury in narrative form the details of the conspiracy that would otherwise have to be proved simply by the tender of documents before a jury. That was of benefit and was required to be taken into account in sentence. However, there was a risk that over- reliance on those factors could swamp the necessary deterrent effect produced by a significant term of imprisonment.

1. The appellant's plea of guilty and his assistance provided powerful factors in moderation of sentence. Without those aspects, an even greater emphasis would need to have been given to general deterrence and denunciation. The appellant pointed to the declaration made by the judge, as required by s 6AAA of the Sentencing Act 1991, that he would have imposed a sentence of 10 years and six months with a minimum of eight years.53 It was said that this meant there was no room for the Court to have taken into account the assistance given to authorities. We do not agree. It is not possible to discern from the s 6AAA declaration the extent to which the assistance moderated the sentence that the judge would otherwise have imposed. Section 6AAA is simply not directed to that issue. Nor do we accept the

implicit submission that in no circumstances could a sentence of greater than 10years

and six months be imposed on a plea of guilty for offending of the kind undertaken by the appellant in the circumstances in which that offending occurred here.

1. The appellant submitted that the sentence of 10 years and six months was, in effect, the outer limit of sentence and the appellant was entitled to a reduction from that outer limit on account of both his plea and his assistance. It was said that the appellant's offending was not in the 'very worst category of case'. In R v Kilic, the High Court cautioned against the use of the term 'within the worst category' other than in the narrow sense of being an offence that warrants the maximum penalty prescribed.54 It was not contended by the prosecution that the appellant's offending was in the worst category in that sense. However, the fact remains that the offending was of a very serious kind and called for a very substantial period of imprisonment.

73 In our view, the sentence imposed by the judge on charge 1 was very stern.

However, we are not satisfied that it was wholly outside the range of sentences available to the judge in the proper exercise of the sentencing discretion.

1. As part of ground 1, it was also submitted that the sentence on charge 2 and the order for cumulation were manifestly excessive. The judge observed that the second charge concerned the receipt by the appellant of a secret commission from Furphy's Foundry Sales Pty Ltd ('Furphy's'). The commission took the form of garden furniture valued at $6,740. The gift of the furniture was intended to influence either or both the appellant and Wells in the awarding of government contracts. Wells continued to award contracts to Furphy's following receipt by the appellant of the commission.55

75 In his reasons for sentence, the judge said that:

54 [2016] HCA 48; (2016) 259 CLR 256, 266 [19]-[20].

the crimes of which you have been convicted are very serious crimes. The Crown submits that your conduct was a serious example of such offending. I will now tell you why I agree with that submission. Your crimes were committed with a sophisticated degree of orchestration and planning...56

1. It was submitted that the judge's reference to 'the crimes' included both the offences on charges 1 and 2. It was further argued that the receipt of the commission could not be regarded as sophisticated, orchestrated or planned, or a serious example of the offence. This was said to be relevant to two points on the appeal. First, it was argued that the sentence on charge 2 was manifestly excessive. Second, it was contended that this evidenced an error in assessing the gravity of the secret commission charge, which is the contention made in the second ground of appeal.

1. Read fairly, we do not consider the reasons reveal an error in the judge's assessment of the gravity of charge 2, nor do we consider the sentence on charge 2 to be wholly outside the permissible range. It is convenient to address those matters in reverse order.

1. The offence of receiving a secret commission is very serious. It carried a maximum penalty of 10 years' imprisonment. In the present context, the offending comprising charge 2 had to be considered in its context. The appellant had been involved in a conspiracy to defraud since 2007 and the secret commission was received in 2011. That conspiracy subverted the procurement process largely by entering into contracts with related parties. That subversion opened up the opportunity for subcontractors to provide goods and services through the managed entitles and on to the State. The appellant received a 'kick back' from Furphy's and Furphy's had obtained contracts organised through Wells. Although the value of the furniture was modest, the receipt of any secret commission by a public servant from

a supplier is a serious matter that of itself undermines the due procurement process.

1. In those circumstances, a sentence of 12 months was not wholly outside the range. The order for cumulation of 6 months was likewise within the range that was open to the judge.

1. It is convenient to deal with the final aspect of ground 1 before turning to the specific error alleged in relation to charge 2.

1. The final basis on which it was argued there was manifest excess in the sentence related to the setting of the non-parole period of six years. A critical part of the sentencing discretion is for the judge to determine a non-parole period, being the minimum time which justice demands the offender should spend in gaol before becoming eligible for release.57

1. In setting a non-parole period, the judge was required to have regard to the same matters as were relevant to the head sentence. His Honour was not bound to give them the same weight in both contexts. However, it was open to the judge to conclude that it was necessary to set a relatively long non-parole period in terms of its proportion to the head sentence lest the impact of general deterrence be undermined.

1. The setting of a non-parole period of six years did not mean that the overall sentence or any part of it were manifestly excessive.

85 By ground 2, the appellant alleges that the judge erred in assessing the gravity

1. Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628-9 (Barwick CJ, Menzies, Stephen and Mason JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 533 [40]-[41] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 543 [15] (Nettle JA), 545 [27] (Redlich and Osborn JJA).

1. What we have said in dealing with the manifest excess ground in respect of charge 2 covers much of the terrain relevant to ground 2. In our view, the judge did not misapprehend the gravity of the offending covered by charge 2. The judge correctly understood the offending in the context in which it occurred.

1. We do not accept that the offending caught by charge 2 was of no real moment. It is true that it was a single incident involving the receipt of furniture of comparatively modest value. However, the receipt by a person in authority of a secret commission which is given in order to procure work is a serious offence. There was no error in the judge's assessment of it.

1. By ground 3, the appellant argued that the sentence imposed on the secret commission charge when compared with that imposed on the person who gave him the garden furniture led to a justifiable sense of grievance such as to evidence error.58

1. The person who provided the furniture was the general manager of Furphy's, a Mr Huggard. Mr Huggard was sentenced in the Magistrates' Court to a fine of

$20,000 without conviction on a plea of guilty to one charge of making a false document and two charges of giving a secret commission (one of which related to him giving the appellant the garden furniture). It appears that the false document was an invoice that was prepared recording a sale of the garden furniture to the DOT. In fact, no such sale occurred. The DOT did not pay for the furniture, but it was provided to both Wells and the appellant as a secret commission.

1. The reasons for the sentence by the magistrate were not in evidence before the sentencing judge, nor before us. It is enough to note that the offence of receiving a secret commission has a different character from both the offence of giving a secret

58 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609-10 (Gibbs CJ), 613 (Mason J), 623 (Dawson J).

commission and the offence of making a false document. Further, and importantly, the appellant stood in a different position to that of Mr Huggard.

1. The appellant was in a position of both trust and influence. The breach of trust inherent in receiving a secret commission made the offence a serious one. Those differences undermine any contention that there was a breach of the principle of parity. In our view, ground 3 is not made out.

1. We have already set out the fourth ground of appeal. In essence, it alleges a breach of the principle of parity by reference to the sentence imposed on Wells.59

93 Mr Wells was sentenced on four charges as follows:

(Crimes Act s

commission (Crimes Act s

commission (Crimes Act s

commission (Crimes Act s

94 The principle of parity is engaged where there is a differential treatment that

gives rise to a justifiable sense of grievance. Different treatment, like discrimination

59 Wells [2017] VSCA 575 [96]-[100].

generally, can take the form of treating the same things differently or in treating different circumstances in the same way.60

1. Here, both the appellant and Wells were given the same head sentence on the conspiracy charge, being a sentence of seven years and six months as the base sentence. Wells had three secret commission charges compared to the single charge against the appellant. It will be recalled that the judge accepted that the appellant's culpability was somewhat, although not by a significant degree, less than that of Wells.61 Given the relatively narrow differences in culpability found by the judge and the high need for general deterrence, it is not to be expected that the differences between the appellant and Wells, such as they were, would have much, if any, impact on sentence.62

The appellant pointed to the following differences between the two offenders e basis for this ground:

the appellant was sentenced in respect of government contracts worth $15.3

he appellant pleaded guilty at a comparatively early stage whereas Wells had

run a contested committal and a pre-trial application for a permanent stay

the appellant gave assistance in the form of a detailed statement and

undertaking to give evidence at a time when a number of co-offenders,

including Wells, had not indicated an intention to plead guilty. Wells, by

contrast, provided assistance at a time when only two co-offenders were left

the appellant had suffered more by reason of delay and came within the fifth

See, eg, Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 572-4 (Gaudron J); Wong

[2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ).

Relevantly, the judge said in Wells [2017] VSC 575 [61] that '[a]lthough I was then, and remain now, satisfied that Ooi's culpability was not entirely equal to your culpability, I am persuaded that the distinction between your respective moral culpability is slight and does not warrant, on that basis alone, that I should impose a higher sentence on you.'

and sixth principles stated in R v Verdins;63 and

(e) on the secret commission charge, the appellant received furniture and was the subject of a single charge whereas Wells had organised and received large amounts of cash and other items of significant value.

1. The sentences imposed on the appellant and Wells respectively came to be determined on the facts tendered on each plea.

1. In relation to the appellant, the evidence established, and was not contradicted by the appellant, that he had received $2.3 million in profits from the conspiracy.64 (On the plea by Wells, the judge accepted that the profits earned by the appellant and Wells had been intended to be split evenly between them but ultimately Ooi may have received $1 million more than Wells.65 On the forensic evidence accepted by Wells, the prosecution calculated that the profit earned by Wells from the conspiracy was $1.375 million.)66

1. On the question of assistance, the judge noted that the prosecution accepted that the appellant had cooperated and provided a very detailed statement.67 It will be recalled that the judge stated that he proposed to give the appellant a 'substantial discount' in light of his cooperation.68 In respect of Wells, his Honour noted that he had made an undertaking to give evidence against his co-offenders and provided a statement to investigators, but the value of his statement was limited because only two co-offenders remained before a jury. Nonetheless, the prosecution had accepted

that the statement was of value, and the judge accepted that Wells had sought to

63 [2007] VSCA 102; (2007) 16 VR 269.

65 Wells [2017] VSC 575 [50].

1. Ibid. On Ooi's plea, the judge accepted the prosecution's evidence that the scheme had netted Ooi and Wells at least $4.6 million: Reasons [45]. However, on the plea by Wells, the judge said that he could 'not be satisfied beyond reasonable doubt what the collective benefit derived from the conspiracy actually was.' However, he was satisfied that the collective profit was 'at least a figure of approximately $3.7 million': Wells [2017] VSC 575 [51].

genuinely cooperate with the prosecution and had made a full and frank disclosure of matters within his knowledge.69 His Honour stated that he would discount 'to some extent' the sentence that he would have otherwise imposed.70

1. This ground does not require an appellate court to undertake a line-by-line comparison between the various weightings given to different aspects of the two sentences that are being compared. The appellant has to establish a justifiable sense of grievance which is to be considered objectively. Given that there were differences, including in the profit earned by the two co-offenders, we are not satisfied that the sentences, when placed side by side, offend the principle of parity.

1. We would grant leave to appeal in respect of ground 4 but we would not uphold that ground.

1. As none of the grounds of appeal have been established, we would dismiss the appeal.

69 Wells [2017] VSC 575 [77].