Pereira v R

Remarks on sentence

1. The sentencing judge noted that there was no pre-sentence report or other material setting out the subjective circumstances of the applicant. The applicant had provided a 45 page statement about the circumstances of his offending. He gave brief evidence at the sentence hearing where he said that he was sorry for what he had done. He gave some brief evidence about his health, and that was supported by a brief report from his GP Dr Yee Kong Leong. The applicant also gave evidence of an unexplained wealth order made by consent with the NSW Crime Commission whereby, pursuant to s 28A of the Criminal Assets Recovery Act 1990 (NSW), he will pay $1.6 million to the Treasurer.
2. The sentencing judge noted concessions from the Crown that the applicant was unlikely to reoffend, had shown remorse through his early plea and taken responsibility for his offending as expressed in his statement, and that he had good prospects of rehabilitation. His Honour found, however, that there had been no insight by him into the impact the offending had on CCA or the community.
3. In relation to objective seriousness, the applicant did not contest the Crown's submission that sequences 33 and 34 were well above the mid-range of objective seriousness, a matter accepted by the sentencing judge. His Honour found that the fraud involved premeditation and considerable planning with a high degree of deception. His Honour found that the offending was aggravated by the fact that the applicant was in a position of trust, was motivated by financial gain, and was carried out over many years causing a total loss to CCA of $3.2 million.
4. His Honour found that sequence 36 was above the mid-range of objective seriousness. His Honour held that the offending in that sequence was also an abuse of trust and motivated by greed.
5. In relation to sequence 5 his Honour said the offending was planned and highly organised, it was an abuse of a position of trust and was committed for financial gain.
6. In relation to sequence 6 concerning the Mercedes Benz, the sentencing judge said it was above the mid-range and attracted the same aggravating features. In relation to sequence 37 concerning Gary Chua, his Honour said it was around the mid-range but he accepted that it was opportunistic in that, through a misunderstanding, the applicant found himself in possession of the money. However, rather than returning it to the CCA account the applicant kept it, and in that way he was motivated by greed and the offence was committed for financial gain.
7. His Honour said that there were a number of factors of universal application to the assessment of objective seriousness in fraud offences. They were the amount of money involved, the length of time over which the offences were committed, the motive for the crime, the degree of planning and sophistication, and an accompanying breach of trust. His Honour said the Courts must also have regard to the impact on public confidence and the impact on the victim. His Honour noted that general deterrence is an important consideration for white collar crime such as the present offending.
8. The sentencing judge found special circumstances, seemingly accepting the concession of the Crown that they should be found due to his age and the fact that it was his first time in custody. The statutory ratio was reduced from 75% to about 66%.
9. His Honour also provided a discount of 5% for past assistance and 10% for future assistance in relation to matters concerning the charges against Mr Georgiou and Mr Carter.

Ground 1: Impact of the offending on the victim not substantial

Submissions

1. The applicant submitted that the subjective impact of a crime upon its victim was a relevant and indeed important consideration. Reference was made to Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74.
2. The applicant submitted that his Honour effectively rejected the submission made to him that the effect of the applicant's offending on CCA was not substantial because it represented a very small portion of the profits earned by CCA over the offending period. The applicant submitted that the sentencing judge expressly accepted the Crown's submission that the loss to CCA was substantial. The applicant submitted that, to the extent that his Honour's approach was that the effect on CCA of a loss of $3.2 over a period of some 11 years was substantial, it was not supported by the evidence. The evidence tended to show that CCA made profits of several hundred million dollars in each of the years.
3. The applicant expressly eschewed a suggestion that his choice of a financially strong victim was a mitigating feature. Rather, he submitted that the capacity of the victim to absorb the loss was a matter relevant to the assessment of the objective seriousness of the offence. He submitted that the essence of this ground was that the Sentencing Judge had not taken into account the presence of a feature that was relevant to the assessment of objective seriousness.
4. The Crown submitted that this ground of appeal was predicated on the erroneous argument that the objective seriousness of an offence is mitigated because it could have been worse. Reference was made to what was said in GW v R [2018] NSWCCA 79.

Determination

1. In his Remarks the sentencing judge noted that the fraudulent operation led to a loss of $3.2 million to CCA. His Honour went on to say (at T2): The annual reports of Coca-Cola, or CCA as it is referred to, for the ten years from 2004 were tendered on behalf of the offender and demonstrated as is public knowledge that the company was making several hundred million dollars a year in profit each year. It was submitted that the effect on the victim was not substantial and that this was relevant to objective seriousness. That is a bold submission and was not put as a mitigating factor under s 21A as it could clearly not be said that the loss was not substantial, notwithstanding the resources of the victim, CCA. His Honour also referred to the purposes of sentencing and included amongst them the recognition of harm done to the victim.
2. In GW Fullerton J (Hoeben CJ at CL and Davies J agreeing) said at [31]: … This Court has repeatedly observed that the objective gravity of an offence is not assessed by the absence of features which would elevate the particular offending into a different category of seriousness.
3. In Bravo v R [2015] NSWCCA 302 RA Hulme J (Beazley P and Johnson J agreeing) said at [45]: … [T]he absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: "[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse."
4. In Mills v R [2017] NSWCCA 87 RA Hulme J (Leeming JA and Beech-Jones J agreeing) said at [57]: Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. …
5. The Crown's submission in relation to this ground is correct. Nothing said in Siganto suggests otherwise. Although the applicant denied that he was putting the matter as a mitigating feature, that is the effect of the argument. Had the victim here been a small company that perhaps went into liquidation as a result of the frauds, that may have been an aggravating matter. From an objective point of view, a fraud involving a little over $3 million is objectively serious and the fact that CCA was able to absorb the losses does not make the offending less serious. As Hoeben CJ at CL said during argument, the evidence in relation to this matter only leaves the issue of the impact of this offence on CCA as neutral.
6. The sentencing judge noted the applicant's submission but rejected it because, he said, the loss was substantial notwithstanding CCA's resources.
7. This ground fails.

Ground 2: Sequence 5 not aggravated by breach of trust

Submissions

1. The applicant submitted that although he stood in a position of trust with CCA and there could be no doubt that the other offences for which he was sentenced involved a breach of trust, the offence in sequence 5 was in a different category and it ought not to have been aggravated on account of breach of trust.
2. The applicant submitted that the gravamen of the offence of dealing with the proceeds of crime with the intention of concealing the fact is not the loss by CCA of the funds the subject of the charge, nor is it the criminal enrichment of the applicant. Instead, it is the mere dealing with the funds in such a manner as to conceal their true provenance.
3. The applicant submitted that implicit in a finding that an offence involves a breach of trust is a suggestion that the victim trusted the offender not to commit the crime in question. Here the crime in question was the concealment of another crime. In that way, it was highly artificial to suggest that CCA had trusted that, if the applicant were to commit the principal offences in sequences 33 and 34, he would not seek to conceal his wrongdoing.
4. The Crown's written submissions initially asserted that the funds which were the subject of the count in sequence 5 were not the subject of any other offence of which the applicant was convicted. At the outset of the hearing of the appeal, the Crown accepted that the concealed funds of $504,900 did form part of the funds that formed the basis of the offence in sequence 34, that is, dishonestly obtaining financial benefit by deception.
5. The Crown submitted, in any event, that the activities in which the applicant was involved in respect of the count in sequence 5 imbued him with the knowledge that the relevant funds were the proceeds of crime. The Crown submitted that by virtue of his position as a senior manager entrusted with authority to spend large sums of company money, the applicant stood in a relationship with his employer in which he was relied upon to deal openly and honestly with company suppliers and spend the company's money for legitimate purposes. The Crown submitted that this was a position of trust that involved an obligation not to engage in corrupt criminal conduct to the detriment of the company by manipulating the company's purchasing and accounting processes in order to deal with and conceal the proceeds of corrupt criminal activity.

Determination

1. The offences in sequences 5 and 34 arose out of the same course of conduct. They arose in the course of the 2013 Fleet Flip directed by CCA management. The arrangement was made between the applicant and Mr Georgiou, and in the course of it the applicant approached the accountant, Andrew Wong, to set up the company SRS Pty Ltd so that the applicant could invoice Orix for the work that he had supposedly completed. The offence in sequence 34 focused on the deception of CCA and the loss it sustained which formed part of the $1,791,304.41. The offence in sequence 5 focused on the funds which the applicant obtained and concealed through SRS Pty Ltd. Those funds could not have been dealt with and concealed in that way had it not been for the applicant's position of trust in respect to CCA.
2. Because the offence in sequence 5 formed part of the same course of conduct as the offence in sequence 34, it is difficult to see how it could be said that there was no breach of trust involved in the offence for sequence 5. To do so would be to impose an artificial cut-off point between obtaining a financial benefit by deception and knowingly dealing with the funds comprising that benefit with the intention of concealing them.
3. This ground fails.

Ground 3: The instigation of the offending

1. In his Remarks on Sentence, the sentencing judge said: 23. Pereira agreed in evidence that although Ward approached him in relation to the introducer fee deals, the other offences were on his own initiative. … 43. As I have noted, the agreed facts in this case show that Ward approached Pereira to discuss how they could both make some extra money. Apparently Ward made an induced statement saying it was Pereira who came up with the scheme and made all the demands and he did what he was told and Ward received a discount on sentence for this information. It is unnecessary for me to make a finding on this as I accept the Crown's submission that both offenders were willing participants in the ongoing fraud so as to receive the corrupt payments. The introducer fee fraud would not have continued over nine years without both offenders fulfilling their roles, Ward sending the invoices every month, collecting the commissions and paying a share to the applicant. Pereira maintained the relationship with Georgiou and approved the ongoing introducer fee on behalf of CCA and concealed this fact from CCA.

Submissions

1. The applicant submitted that the finding that both offenders were willing participants did not obviate the need for making a finding about which of the two co-offenders instigated the scheme to defraud CCA. The question of who instigated the conduct bore upon the role that the applicant played in the offending conduct and was clearly relevant to the sentencing process.
2. The applicant submitted that it was not open to the sentencing judge to have regard to facts which were found in separate sentencing proceedings in respect of Mr Ward. The purpose of tendering the Remarks on Sentence of Judge Frearson was to inform the sentencing judge of the facts found and sentence imposed in respect of a co-offender so as to allow his Honour to comply with the principle of parity. The applicant submitted that his Honour ought not to have allowed the facts contained in those remarks to have influenced his own independent fact-finding function in the proceedings against the applicant, particularly where they stood in stark contrast to the Agreed Facts tendered to his Honour and other uncontested evidence before him.
3. The Crown submitted that, given the dispute about which of the two offenders was the instigator, it was perfectly proper for his Honour to decline to make a finding one way or the other. The Crown submitted that, even if his Honour had made an affirmative finding that the scheme was initially the idea of the Mr Ward, it is practically impossible to envisage that such a finding would in any way reduce the criminality of the applicant.

Determination

1. In a statement made by the applicant that was before the sentencing judge, the applicant made a number of statements which tended to show that he regarded as insignificant who the instigator was. He said that Ward approached him and explained the deal and that on that day he agreed to be part of it. He also said: I do not mean to impute responsibility to Ray Ward by explaining his engaging me in this way in this dishonestly (sic). It is just the plain fact of the matter and I willingly engaged in this contrivance.
2. He also said: I can see that Ray Ward has a different version of these events and I am unsurprised by this but in any event how the events unfolded is inconsequential to me now as I willingly engaged on this dishonestly and Ray Ward's matter has been finalised.
3. For the applicant to succeed on this ground, it would be necessary to show that it was an error of law not to make a finding about which of two people instigated the course of conduct.
4. A sentencing judge is not required to make a finding on every matter where there is a factual dispute and certainly not where such a finding was neither requested, nor determinative of any matter. In circumstances where Judge Frearson's Remarks on Sentence of the co-offender were before the sentencing judge, and where a finding in those Remarks conflicted with evidence before the sentencing judge, it might have been an error for the sentencing judge to have rejected the evidence that was before him in favour of the factual finding made by another judge, but that is not what happened in the present case.
5. The applicant submitted that determining who instigated the offending informed the nature of his role in the offending. However, his Honour made it clear that it was not necessary for him to make a finding about the matter because, as the evidence disclosed, both offenders were willing participants in the fraud from the outset. Moreover, where the fraud continued for some nine years involving the applicant and Mr Ward, it is inconsequential who it was that first came up with the idea. The role each played in the offending was clear. No issue of parity is raised.
6. No error of law is shown. This ground fails.

Submissions

1. The applicant submitted that the aggregate sentence was infected with three errors: (a) the indicative sentence in respect of sequence 5 was manifestly excessive; (b) the indicative sentence in respect of sequence 36 was manifestly excessive; and (c) the aggregate sentence involves an excessive measure of notional accumulation between the individual sequences.
2. First, the applicant submitted that the indicative sentence of three years and eight months in respect of sequence 5 was substantially longer than the indicative sentence in respect of sequence 33 taking into account sequence 34. That sentence was two years and nine months.
3. The applicant submitted that sequences 33 and 34 comprehended the totality of the fraud perpetrated by the applicant and his co-offender at the expense of CCA, except for sequence 6. Sequence 5 was a money laundering offence and related to the way in which the applicant dealt with part of the proceeds of his own fraud. The applicant submitted that the criminality involved in sequences 33 and 34 was far greater than that in sequence 5. For one thing, the applicant submitted, the quantum of money involved in sequences 33 and 34 far exceeded that which was the subject of sequence 5.
4. The applicant said that he did not overlook the very substantial disparity in the maximum penalties for the two offences, but that disparity did not justify the imposition of a longer sentence in respect of sequence 5. That was because the circumstances of the sequence 5 offence were very unusual and rendered the maximum penalty a poor guide to the seriousness of the conduct involved in the offence. In this way, the applicant submitted that sequence 5 was a highly technical use of the money laundering offence analogous to that in Thorn v R [2009] NSWCCA 294. The applicant submitted that the criminality of the offender's conduct resided in the principal offences, with the result that the money laundering offence should be seen as being towards the bottom of the range of objective seriousness.
5. In relation to sequence 36, the applicant submitted that the criminality involved in that offence was wholly subsumed in sequences 33 and 34.
6. Secondly, the applicant submitted that the notional accumulation which was evident in the aggregate sentence was excessive. The applicant pointed to R v Brown [2012] NSWCCA 199 and R v Crowe [2016] NSWCCA 39, and submitted that they supported the proposition that an examination of the notional accumulation or concurrency can shed light on whether the ultimate aggregate sentence was manifestly excessive.
7. The applicant submitted that a comparison of the aggregate sentence to the indicative sentences reveals that there was a very significant measure of accumulation. The applicant pointed to a contrast between the longest indicative sentence and the aggregate sentence to suggest that the measure of accumulation was excessive.
8. The applicant again submitted that sequences 33 and 34 represented the vast bulk of the criminality and that the conduct of sequences 36 and 37 was wholly subsumed in sequences 33 and 34 and involved no additional criminality which would justify any accumulation.
9. Finally, the applicant submitted that a consideration of the aggregate sentence as against the total criminality of the applicant's conduct also yields the result that the aggregate sentence is in all of the circumstances excessive.
10. The Crown submitted that the principal enquiry is whether the aggregate sentence itself was manifestly excessive when judged by the principles for determining manifest excess as set out in a number of cases and recently summarised in Hughes v R [2018] NSWCCA 2 at [86]. The Crown also identified the features which the authorities say are relevant considerations in determining a sentence for fraud offences. Those features are: (a) The amount of money; (b) The length of time over which the offences are committed; (c) The motive for the crime; (d) The degree of planning and sophistication; and (e) An accompanying breach of trust.
11. The Crown submitted that the sentencing judge had regard to each of those factors. The Crown submitted that the sentencing judge also noted that general deterrence was a particularly important sentencing factor for fraud offences.
12. The Crown submitted that taking into account the maximum penalties, the objective seriousness of the offences and the applicant's subjective case, the applicant does not demonstrate that an aggregate sentence of six years with a non-parole period of four years is unreasonable or plainly unjust.

Determination

1. The applicant's complaints with regard to sequences 5 and 36 in the nature of their relationship to sequences 33 and 34 are answered largely by the fact that an aggregate sentence has been imposed. If individual sentences had been imposed the task of the sentencing judge would have been to examine to what extent the criminality in sequences 5 and 36 were comprehended by the criminality in sequences 33 and 34: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [25]-[30.
2. It is evident that the sentencing judge was constrained in sentencing in respect of sequences 33 and 34 by: (a) the maximum penalty for sequence 33; (b) the fact that sequence 34 had been placed on a Form 1 when there were strong indications it ought not to have been because of the seriousness of the offending and the amount involved relative to sequence 33; and (c) the fact that an overall discount of 40% for early plea and assistance had been given.
3. Moreover, the facts in the present case are not analogous to Thorn in terms of the use of a money-laundering offence in the charging of sequence 5. In Thorn, Howie J (Campbell JA and Rothman J agreeing) said at [31]: But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.
4. In the present case, the applicant arranged for the setting up of SRS in a manner that concealed the applicant's connection with that company, and used that company to conceal the fraudulently obtained funds. In no sense was it inappropriate that the offence charged in sequence 5 should have been brought against the applicant. It could not be considered to be at the low end of objective seriousness as a result of the means taken by the applicant to conceal his relationship with the company that was used to invoice Orix for the work that he had supposedly completed.
5. Where an aggregate sentence has been imposed, any challenge is to that sentence and not to the indicative sentences. However, in certain cases the indicative sentences may point to a problem with the aggregate sentence.
6. In R v Brown, Grove AJ (with whom MacFarlan JA and McCallum J agreed) said at [17]: The facility for imposing an aggregate sentence does not extinguish the obligation to assess criminality for individual sentences: Section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999; cf Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Whilst an indicative sentence recorded in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act is not in itself amenable to appeal under s 5(1)(c) of the Criminal Appeal Act, an erroneous approach in the indication of the sentence that would have been imposed for an individual offence may well reveal error in the aggregate sentence reached.
7. His Honour also said at [35]: … Of course, in the exercise of power to impose an aggregate sentence, accumulation would in a sense be notional but an examination of the potentials for accumulation can cast light upon whether the aggregate sentence represents a sound exercise of sentencing discretion.
8. In PD v R [2012] NSWCCA 242, Beech-Jones J (Basten JA and Hall J agreeing) said at [44]: … An indicative sentence is not itself amenable to appeal but an "erroneous approach in the indication of the sentence that would have been imposed for an offence may well reveal error in the aggregate sentence reached" (R v Brown [2012] NSWCCA 199 at [17] per Grove AJ with whom Macfarlan JA and McCallum J agreed). However, that is not necessarily the case. The materiality of any error in an indicative sentence to the overall aggregate sentence will need to be demonstrated before this Court would intervene. As the length of the aggregate sentence imposed on the applicant was the same as the indicative sentence for count 2 then any error in that indicative sentence is likely to affect the aggregate sentence but even that does not necessarily follow.
9. The decisions in Brown and Crowe do not assist the applicant in the present case. It was possible by reason of the factual situation and the approach of the sentencing judge in those cases to examine the indicative sentences and the way they were dealt with in reaching the aggregate sentence to reach a view that the aggregate sentence was not an appropriate one.
10. In Brown the large number of offences of varying types and the manner in which the sentencing judge approached the indicative sentences when considered with the facts relating to the individual counts enabled the Court to reach a view that the indicative sentences pointed to a problem with the aggregate sentence. In Crowe, because the sentencing judge had, contrary to authority, provided a commencement date for each of the indicative sentences, it was possible to see how each of the indicative sentences had been accumulated. In that way, the Court of Criminal Appeal was able to conclude that the aggregate sentence was manifestly inadequate (see at [58]).
11. In the present case, it cannot be said from an analysis of the indicative sentences and the overall sentence, if that is even an appropriate task, that any error is indicated by the accumulation of the indicative sentences to produce the aggregate sentence.
12. Much of the applicant's oral submissions, and some of his written submissions, concentrated on the notion that the whole of the offending was located in the offences that constituted sequences 33 and 34 because the total amounts of money concerned in those offences constituted the amount of CCA's loss. In terms of the amounts defrauded, so much is correct. That does not obviate the need to indicate an appropriate sentence for each of the offences. An indicative sentence for sequence 5 of three years and eight months with a starting point of six years does not stand out as indicating any problem when the maximum penalty was 20 years and the Sentencing Judge found the offence involved elaborate planning, was committed in breach of trust and for financial gain. Issues of notional accumulation and concurrency arise, but it is difficult to see how that has not been appropriately dealt with when the total of the indicative sentences exceeds 11 years against an aggregate sentence of six years.
13. It may be accepted that the amounts of money in sequences 5, 36 and 37 are subsumed within the total defrauded in sequences 33 and 34 (there seems to be some doubt about sequence 6 although the Crown appeared to concede that it was also subsumed), but that ignores the conduct of the offending. When viewed overall, there were four courses of conduct that went to make up the offending and resulted in the defrauding of that total sum.
14. In the first place, there was the arrangement made between Mr Ward and the applicant in 2004 which led to the applicant receiving $859,000.00 from introducer fees. The second was the new arrangement that did not involve Mr Ward made in 2014 that resulted in the applicant receiving $504,900.00. The third arrangement concerned the receipt by the applicant of the Mercedes-Benz in April 2011. The fourth arrangement concerned the benefit received from Gary Chua of $47,200.00 in July 2013.
15. In sentencing the applicant, the sentencing judge had regard to the following significant factors: (a) the offending led to the loss of a substantial amount of money of approximately $3.2m dollars; (b) the offending took place over 11 years from 2004 to 2015; (c) the offending was motivated by greed and committed for financial gain; (d) the fraud involved premeditation and considerable planning with a high degree of deception and sophistication over a long period of time; and (e) the offending was aggravated by the fact that the applicant, as a senior executive in a large company, was in a position of trust.
16. Even taking into account the discounts received by the applicant for his early pleas and the assistance offered, it cannot be said that an overall sentence of 6 years imprisonment with a non-parole period of 4 years for the frauds is unreasonable or plainly unjust, bearing in mind the principles in Hughes at [86].
17. I would reject this ground of appeal.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.

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