R v Clarke

Facts

1. Clark was employed by Atanskovic Hartnell ("AH") as a solicitor in December 2013. In summary, between 29 December 2015 and 17 August 2017, on eight occasions, a total of $9,753,070 was fraudulently transferred to Clark's private Westpac account from Deutsche Bank and the business bank accounts of entities associated with Bruce Gordon.
2. The first offence in time occurred on 29 December 2015 and involved the relatively minor amount of $18,035. He had carriage of a matter on behalf of the client, Director's Interests Pty Ltd, which was being acquired by Microsoft. At the conclusion of the work he sent an invoice to the client for the amount but it contained instructions for payment to be made to his own private Westpac bank account. The client paid that money to his account and it was never recovered.
3. Further offending involved entities associated with Bruce Gordon and his son Andrew Gordon, clients of AH. A share swap transaction involving the acquisition of an interest in Nine Network led to the Gordon's private investment company Birketu depositing $68,487,326 in cash with Deutsche Bank.

Sequences 001 and 002

1. On 16 August 2017 Andrew Gordon met Clark and signed various documents that related to an extension of the share swap transaction. Clark later attended the home of another director, Edwin Cowley for the stated purpose of obtaining authorisation to an "amendment to the Nine Entertainment Share Swap Offer". Cowley noticed that the document was signed by Andrew Gordon, and so he satisfied himself that it had been genuinely authorised before signing himself in the belief that it related to a legitimate amendment. Clark subsequently sent various documents to Deutsche Bank containing purported signatures of both directors. In fact they authorised the transfer of a portion of the deposit funds into the trust account of AH. However AH did not operate a trust account. The documents directed release of funds to Clark's private Westpac account, which purported to be the trust account of AH, in two amounts namely $4,455,000 on about 18 August, and $2,500,740 on about 1 September 2017.
2. The payment direction listed the contact phone number for Andrew Gordon as **** *** 615. Clark told Deutsche Bank that he needed a time slot which would enable him to "pin down" Andrew Gordon to take the call authorising the payments. On 17 August, Clark convinced a solicitor colleague employed by AH to lend him his mobile phone which had the same number listed in the payment direction. A Deutsche Bank settlements officer, in conducting due diligence, called the number and asked to speak to Andrew Gordon. Clark falsely told the caller that he was Andrew Gordon and confirmed details of the Westpac bank account. Deutsche bank then released the money into Clark's Westpac account.
3. On 1 September Clark used the same modus operandi in borrowing his colleague's mobile phone for 30 minutes, again falsely identified himself to the Deutsche Bank settlements officer as Andrew Gordon and received a further $2,500,740 into his private bank account. In total he received $6,955,740 in fraudulently obtained funds derived from the Deutsche Bank deposit.

Sequence 010

1. Between April and June 2017 Clark acted for Bruce Gordon in relation to the purchase of a property, and he billed Gordon's corporate entity for third-party consultancy services, land tax and legal fees. Based on discussions with Clark, Bruce Gordon instructed his CFO to make payments to the AH trust account, but Clark provided banking instructions relating to his own Westpac account. Between 21 April and 23 June 2017 on three separate occasions Burketu Pty Ltd transferred a total of $260,664 to Clark's private bank account.

Sequence 011

1. While acting for the Gordon interests on a purchase of property, Clark gave instructions for the CFO to settle stamp duty surcharges of $360,000 and $160,000 which were assessed as being payable by the OSR due to the determination that Bruce Gordon and his wife were considered foreign residents and therefore foreign owners of the relevant property. On 21 August and 16 September 2016 these two payments totalling $520,000 were made into the purported "AH trust account" which was in fact the personal Westpac account of the offender. These payments were never refunded or paid towards the legitimate purpose.
2. In June 2017 Clark was acting for WIN Corporation in a contractual dispute with the TEN Network in which WIN was owed $2,016,666. WIN had withheld funds intended to be sent to TEN Network to compensate for the disputed amount. On 30 June 2017 the CFO received a phone call from Clark when he explained that the best option was to hold the disputed funds in the AH trust account. Acting on advice from Clark, WIN transferred the money into what it believed to be the AH trust account, but it was the offender's private account. The CFO subsequently asked for repayment. Clark made the excuse that there had been an administrative mix-up in the firm's accounts department and the funds had been put on a 30 day term deposit. By 17 July when the funds still not been returned the CFO was told by Clark that he was continuing to negotiate with the bank to break the term deposit. On 18 August 2017 the funds were returned to WIN but they had been transferred from the Westpac account using the $4,455,000 in funds which had previously been wrongly taken from Deutsche Bank.

Sequence 009

1. After his arrest, police uncovered a further similar offence on searching his laptop computer. They found a letter dated 11 November 2016 with an invoice attached dated 30 October 2016 in the amount of $82,070 purporting to be from AH and addressed to Aurora Funds Management Ltd, a Melbourne-based funds management business. In accordance with the previous modus operandi, the invoice had instructed Aurora to transfer funds to the Westpac account, which they did, and the amount was never recovered.

Confession

1. The way the whole sorry saga unravelled on the morning of 28 September 2017 is described in detail in the evidence of Daniel Collis, the CFO of WIN Corporation and Burketu Pty Ltd. He received a phone call from Bruce Gordon asking whether he knew about a loan of $7 million from Deutsche Bank and he said he knew nothing about it. Collis made enquiries and was told that Clark had arranged the loan in relation to the TEN Network acquisition bid. He was suspicious. He spoke to Clark at about 10:30 am and was given an explanation that the loan was a cash collateralisation against the Nine Entertainment Company share swap to cover fluctuations in the market. He did not understand this and when he relayed his dilemma to Clark he was told that he would receive a spreadsheet to explain how the funds had been utilised. That spreadsheet never arrived.
2. John Atanaskovic, the senior partner of AH, was bought into the investigation and when they were told that funds were drawn into the AH trust account with Westpac, Collis reached the view that the loan had been fraudulently obtained by Clark. By noon Atanaskovic had questioned Clark but been unable to obtain an adequate explanation for the loans, and he immediately froze any bank accounts and assets held by Clark, including the Westpac account, a Sports Bet online gambling account, and a Betfair online gambling account.
3. The whereabouts of Clark on that day, after he left the office at some stage, are not clear. He called his father and told him he was not in a good position and wanted to arrange his affairs prior to killing himself but his father called his brother who came to collect him. He was taken by his brother to Cumberland Hospital as an involuntary patient under the Mental Health Act, with suicidal thoughts in the context of significant stressors. He remained in hospital until 6 October.
4. At some stage on 28 September, Clark made contact with Mr Thomas of counsel, with whom he had worked while studying law. He found him at the courthouse and made some form of confession and instructed Mr Thomas to report his conduct to AH and to the police. Clark telephoned his account manager at Sports Bet and told him to transfer the balance of his account, about $700,000, to a nominated account of Burketu. The evidence contains a great deal of detail in relation to civil proceedings and subsequent developments in the investigation.
5. On 27 February 2018 Clark was arrested and declined to participate in a recorded interview.

Discounts

1. It is common ground that a term of imprisonment should be discounted by 25% to take account of the utilitarian value of the pleas of guilty at an early stage.
2. A confidential affidavit was provided to the court in closed session. Detailed written submissions by counsel for the offender have been taken into account on this issue. As these remarks are being delivered in open court, I do no more than indicate that a further 15% discount should be allowed pursuant to section 23, of which 10% is referable to the past and 5% to the future. To go any further would require trespassing into material dealt with in closed court. I take account of the principles summarised in SL v R [2015] NSWCCA 30 at [39].

Further evidence for offender

1. His curriculum vitae shows that a company founded while he was a student, SMRC Ltd, is a financial services group which expanded to serve over 15,000 clients, including major financial institutions. It now has a number of employees in Australia and the Philippines and is independently valued at $7 million. Clark was a founder of the industry-based professional association, and wrote the Constitution and Code of Professional Conduct for the Personal Insolvency Professionals Association. His equity in the business is now only about 10%, but it will be consumed in his bankruptcy.
2. From 2006 to 2010 he worked in the corporate group at Blake Dawson Waldron, or Ashurst, on a range of very high value mergers and acquisitions and equity capital markets transactions. He then spent two years at JP Morgan in the same area, again working on significant financial transactions. He then spent 18 months as an associate director at Goldman Sachs, having been approached by that firm as a result of work undertaken in a large transaction with his previous employer. Despite an offer to relocate to New York he decided to return to private practice and commenced with AH in December 2013. He worked predominantly on mergers and strategic investments and divestments.
3. A history contained in the sentencing assessment report was not challenged and is consistent with evidence given by the offender. Problems initially arose because he had a debt of about $50,000 on credit cards and borrowings from his parents and partner. His financial management skills had been poor ever since he started to earn good money in his late 20s. He was gambling on a daily basis through online betting organisations in an impulsive way with no real thought. He thought he could take money from the law firm, gamble, double his money and repay the money. He started transferring relatively small amounts of about $20,000 into his personal bank account. This quickly escalated to large amounts of up to $1 million that he then put into his online betting account. Surprisingly, there were never any checks or balances on his bank account or any questions raised by Westpac in relation to the large sums going to his personal account even though he had suspicions that it might have been reported to Austrac. He described his offending as opportunistic and stupid. While at AH he was working seven days a week with no holidays, occasionally living in his car in the law firm's car park and using the gym facilities to shower. He had a long-standing cocaine habit commencing after university, and this increased with the stressful requirements of work. He had significant debts around his drug use even though he was spending about $500 a week on drugs according to his evidence. He was drinking heavily, with long lunches at work and again after work. He has been diagnosed with bipolar disorder and has been prescribed medication. He has expressed regret and engaged in counselling to address his gambling addiction. He has been assessed as having a medium to low risk of reoffending.
4. He has undertaken to give assistance to the plaintiffs in the civil proceedings and said that he had a very strong desire to rectify any wrongs, particularly towards Mr Gordon and his companies as the primary victim's. From November 2017 until February 2018 he was in a full-time alcohol and gambling rehabilitation program with the Salvation Army. A mental health plan for depression is in place and involves prescriptions of Lithium and Seroquel.
5. His betting was demonstrated by documents listing bets of up to $1.5 million per sporting event. Gambling had become a problem from about 2011, before he started work at AH. The moral delinquency of the online betting industry emerges starkly from his evidence that no one ever contacted him to discuss what might be regarded as absurd or unusual transactions on his bank account or his betting account. He described himself as a high roller who was a very valuable client of SportsBet as long as he kept on losing, because if you win they will shut you off because that's not in the business model to have a client who wins on a sustained basis.
6. Clark wrote a heartfelt letter of apology for his reprehensible actions to Mr and Mrs Bruce Gordon describing how he treasured their personal relationship and how he viewed Mr Gordon not only as a client, but as an icon of Australian corporate life. He will do everything within his power to assist the Gordon companies in any civil proceedings. That undertaking is set out in detail in an email from his counsel to the solicitors for the Gordon interests dated 27 December 2018. He says that he has undergone mental health therapy and intends to make it a primary focus of his life, recognising that the environment and culture at AH only exacerbated his underlying condition.
7. A reference from his father notes that as early as 2012 there were increasing signs that Clark was not behaving as a functioning lawyer, with regular requests to borrow money from his family without any logical explanation. They heard that he was abusing drugs and sleeping in his car but when they questioned him he said he was just depressed and he would try to work things out. They have noticed a positive change in temperament and his unwavering commitment to ongoing psychiatric treatment. I have regard to other references from people who have known him for a long time and express surprise and disappointment but hope for the future.
8. As early as September 2014 the records show that he was referred by a GP for treatment of alcohol dependence with a history that he "drinks everything you can see and this causes night sweats and vomiting on a frequent basis and has an impact on his concentration and attention and increasingly disordered work as a lawyer during the day. This has been snowballing over the last three months and he has effectively isolated himself from friends and family with only parents for support".
9. In January 2015 his GP referred him to a psychologist and prepared a mental health treatment plan for him, in the context of a diagnosis of depression and discussions about the issue of self-harm. Although he was admitted to Cumberland Hospital for several days with suicidal thoughts in September 2017, he was not examined by a psychiatrist.
10. Surprisingly, his first presentation to a psychiatrist was not until July 2018. Dr Tanase diagnosed bipolar affective disorder and polysubstance abuse/dependence, and recommended Lithium and Seroquel.
11. Dr Nielssen, psychiatrist, prepared a report based on interviews with Clark in October 2018 and January 2019. After a review of relevant records, he came to a similar view to that of Dr Tanase, namely diagnoses of bipolar disorder (manic depressive illness), gambling disorder and substance use disorder. The closest that Dr Neilssen came to attempting to establish a causative link between any mental illness and the offending was to assert that "his offences took place when he was affected by a combination of an unstable mood disorder exacerbated by his substance use disorder".
12. He attended many gambling counselling sessions during 2018 at the Gambling Treatment and Research Clinic in the School of Psychology at the University of Sydney. He also had numerous consultations with Sam Boresntein, psychologist, during 2018. The history there include some details of a motor accident in 2002 where he fell asleep and was charged with drink-driving and negligent driving, leading to the only matter on his record. He was introduced to amphetamines in 2002 which allowed him to complete university tasks in record time and provided energy to attend to his business interests. He remains suicidal; having overdosed on Seroquel as recently as November 2018.
13. He surrendered his practising certificate to the Law Society in February 2018.
14. There is some evidence (tabs 45 and 46 of Exhibit 1) of payment by Clark for the benefit of the Gordon interests for which he was not charged, but the significance of this is not clear.
15. The evidence on behalf of the offender also includes a number of documents in relation to the Supreme Court proceedings.

Objective seriousness

1. In assessing objective seriousness of fraud offences the court must consider several factors: 1. the amount of money and whether the loss is irretrievable: R v Todorovic (2008) NSWCCA 49 at [19]; R v Hawkins (1989) 45 A Crim R 430; Whiley v R [2014] NSWCCA 164; 2. the length of time over which the offences are committed: R v Pont (2000) 121 A Crim R 302 at [74]; R v Woodman [2001] NSWCCA 310 at [29]; Luong v R [2014] NSWCCA 129 at [21]. 3. the motive for the crime: R v Mears (1991) 53 A Crim R 141 at [145], R v Hill [2004] NSWCCA 257 at [6]; Khoo v R (2013) 237 A Crim R 221 at [27]; Johnston v R [2017] NSWCCA 53. 4. the degree of planning and sophistication: Stevens v R [2009] NSWCCA 260 at [59]; R v Murtaza [2001] NSWCCA 336 at [15]; R v Yildiz (2006) 160 A Crim R 218. 5. the extent of any accompanying breach of trust: R v Pont (2000) 121 A Crim R 302; R v Stanbouli (2003) 141 A Crim R 531 at [35].
2. These factors were addressed in detail in written submissions for the offender. These acknowledge only that the amount of money involved in sequences 001, 002 and 011 is substantial, but sequences 009, 010 and 012 also involve significant, but admittedly lesser, amounts of money, and as counsel acknowledges this is not the single determinative factor.
3. The length of time over which the offences are committed can be relevant to determine the level of criminality involved, the degree of planning and to demonstrate that they were not committed by impulse; it may also ameliorate the weight to be given to good character. There are a series of discrete offences: sequence 012 was in December 2015, sequence 009 in December 2016, two offences against Deutsche Bank in August and September 2017, three against Burketu in April to June 2017 and three against WIN Corporation over an 11 month period between August 2016 and June 2017. I accept that although they are discrete offences they do not contribute in any meaningful way to significantly elevate the objective seriousness of the offending.
4. As to motive, Mr Thomas concedes that if the fraud is based on greed rather than need, the sentence imposed should be longer, but the fact that an offence is committed for motives other than greed is not a factor in mitigation. It is true that there is no evidence of the offender living a high life. He was affected by a gambling addiction, and the evidence shows that the scale of his betting was completely disproportionate with his knowledge and research of the prospects of success.
5. Dr Tanase and Dr Neilssen do not assert any causal connection between the offender's mental health and the commission of the offence; nor is there any compelling evidence that at the specific time of commission of each offence he was suffering from a mental illness which impaired his judgement or played a part in the commission of the offences. The psychologist, Sam Borenstein, states that "leading up to and during the offending period, Mr Clark self-medicated with alcohol, amphetamines and cocaine, and exhibited high risk taking behaviour consistent with bipolar II disorder, and hypomania, all of which acted as drivers for the offending behaviour". To the extent that this asserts a causal connection between a psychiatric disorder, the gambling addiction and the commission of the offences, I accept the Crown's submission that he does not have the relevant expertise to diagnose the existence of a mental illness or to establish a causative link: R v Lam [2015] NSWCCA 143 at [73], [87]-[90]. I take into account, as Mr Thomas submits, that Mr Borenstein was not cross-examined on his report, and that it should be taken into account in conjunction with the reports of the two psychiatrists to establish that he was suffering a condition which was undiagnosed and untreated during the offending period: R v Van Ryn [2016] NSWCCA 1, per RA Hulme J; Alkanaan v R [2017] NSWCCA 56 at [109]
6. The well-recognised principles in DPP (Cth) v De La Rosa (2010) 205 A Crim R 1 have been raised by the offender, but they have a limited application here. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced, and it may have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise be imposed. His moral culpability is not significantly reduced, for he was a very intelligent man and a successful lawyer/banker operating at a high level in complex commercial transactions. He acknowledged that he knew he was doing the wrong thing, but he took advantage of his clients by virtue of his position as their lawyer.
7. Further, it is semantic to say that the offending was not motivated by greed or financial gain beyond the parameters of the potential for financial gain within the context of a gambling addiction based on little or no information or knowledge. All of the proceeds of the offences, save for the money repaid, were dissipated through gambling. The offender accepts that it is not uncommon for fraud offenders to suffer from a gambling addiction, as referred to in Johnston v R [2017] NSWCCA 53. At most, addiction may mitigate the sentence in rare cases.
8. Other factors bearing on objective seriousness, namely the degree of planning and sophistication and the breach of trust, are addressed by counsel as aggravating factors. It is recognised that caution should be exercised in considering the relevance of offending for financial gain when an element of the offence itself involve the obtaining of a financial advantage. It is accepted that each offence was committed in circumstances where the offender abused his position of trust or authority as a solicitor.
9. It is unnecessary to determine whether this is more or less objectively serious than that considered in R v Pereira [2018] NSWCCA 171. In that matter a senior executive at Coca-Cola Australia defrauded the employer of approximately $3.2 million over an 11 year period. I imposed a sentence of six years with a four-year non-parole period after a discount of 40%, and that sentence was upheld by the Court of Criminal Appeal.
10. Notwithstanding the varying amounts involved in the charges, essentially the same modus operandi was utilised. The Crown's submission is that each offence is slightly above mid-range, while Mr Thomas submits that sequences 001, 002 and 011 are under or towards mid-range, and the balance were towards the lower end of the scale. Given the way in which the offences were conducted, the position of trust and the significant amounts involved, I regard sequences 001, 002 and 011 as slightly above mid-range and the balance of sequences slightly below mid-range. I make such finding even though it is strictly not necessary to do so, particularly in a case where no standard non-parole period is relevant, but it is instructive to go beyond stating the obvious, namely that this is a particularly serious course of offending.

Aggravating and mitigating features

1. As is clear, the offender abused a position of trust and this is an aggravating feature. Despite the Crown's submission, the fact that the offence was committed for financial gain is, in my view, an element of the offence and is not an aggravating feature.
2. A number of mitigating factors are urged on behalf of the offender. I do not accept that the offences were not part of planned or organised criminal activity. However it is clear that he does not have a record of previous convictions, he was of previous good character, he is unlikely to reoffend, he has good prospects of rehabilitation, has expressed significant remorse and regret, and has pleaded guilty. His prior good character is of less relevance as a mitigating factor as it was that very feature which enabled him to be in a position of trust which he abused, which makes general deterrence a significant consideration: R v Gentz [1999] NSWCCA 285 at [12]. I reject the submission that he was not fully aware of the consequences of his actions.
3. Submissions as to pre-trial disclosure within the meaning of section 22A do not assist the offender, as there was no trial and as was said in R v XX [2017] NSWCCA 90 at [39] by Beech Jones J, that section is directed to rewarding assistance provided by an accused person to the court by narrowing the issues and the like.
4. I reject the submission that a further Ellis type discount should be made on the basis that further offences were unlikely to have been detected in the absence of the offender delivering his devices and pass codes to investigators. The principle applies where an offender makes voluntary disclosures of involvement in serious crime in respect of which the police had no knowledge and where it is unlikely that guilt would be discovered and established were it not for the disclosure by the offender: R v Ellis (1986) 6 NSWLR 603 at 604.

Gambling addiction

1. The relevance of a gambling addiction as a potentially mitigating factor was considered by Bathurst CJ in Johnston v R [2017] NSWCCA 53. The fact that offences were committed to feed a gambling addiction will not generally be a mitigating factor on sentence, even where it is pathological. This is particularly so in cases where general deterrence is an important factor and the offences are planned and perpetrated over an extended period. A gambling addiction will not generally reduce moral culpability where the offence is committed over an extended period as the offender had a degree of choice as to how they would finance their addiction. The disorder will often not be connected to the commission of the crime but merely provide a motive or explanation for its commission and so is therefore only indirectly responsible for the offending conduct. His Honour referred to the Victorian decision in R v Grossi (2008) 183 A Crim R 15 where Redlich JA said "the conduct was premeditated, calculated and systematic. Counsel properly acknowledged that, to satisfy her addiction, the offender had repeatedly exercised the choice to reoffend over a lengthy period and that this bore upon the weight to be given to her addiction".
2. Further, the court had noted in R v Henry (1999) 46 NSWLR 346 that addiction to drugs or gambling is not of itself a mitigating circumstance, and Bathurst CJ said that those comments apply equally to cases of fraud to feed a gambling addiction. However his efforts to overcome his gambling addiction are reflective of his favourable prospects of rehabilitation: Siwek v R [2017] NSWCCA 187 at [23]

Deterrence

1. There is no challenge to the Crown's assertion that the offences are serious, the offender being a solicitor who committed fraud offences against his clients. This is not only a breach of trust, but conduct unbecoming an officer of the court. Legal practitioners are held to high standards by the community as their position involves a great deal of trust, integrity and a high standard of ethical behaviour. The court should have regard to general deterrence, not only for the community, but for all legal practitioners, who must understand that this type of offending conduct is unacceptable. To the limited extent already referred to, there is a need for moderation of general deterrence due to the expert evidence as to a mental condition and gambling addiction.

Totality and accumulation

1. I bear in mind the principles as to totality and accumulation set out by Hall J in R v XX (2009) 195 A Crim R 38 and accept that a level of accumulation should apply bearing in mind principles of totality, given the distinct criminality involved in each offence.
2. An accumulation of sentences does not automatically give rise to a finding of special circumstances. I must fix an appropriate sentence for each offence and then consider matters of accumulation and concurrency: Pearce v The Queen (1998) 194 CLR 610. The application of the totality principle must not result in a "blanket assessment" of each offence. The ultimate sentence must be appropriate to the totality of the offending and the personal circumstances of the offender: Stratford v R [2007] NSWCCA 279 at [29]. It is conceded that an aggregate sentence is appropriate, but the sentence should not be crushing having regard to the objective seriousness of each offence, the relevant aggravating and mitigating factors, the purposes of sentencing, the importance of the offender's rehabilitation, and the principles of totality and proportionate sentencing: R v MAC (2006) 167 A Crim R 159.

Repayment

1. It is not appropriate to specify or apply any discount to reflect the repayment of money: Siwek v R [2017] NSWCCA 187 at [15]. In any event, the offender conceded in evidence that the money that had been repaid had come from another victim, so he was not using his own money or loan funds to make repayments, but simply moving defrauded funds from one victim to another. There is no prospect of any substantial sum being provided by or on behalf of the offender to reduce the deficiency of some $6 million.

Special circumstances

1. The Crown points to Ward v R [2013] NSWCCA 46 where McLellan CJ at CL said that an absence of a criminal record and a first time in custody is unlikely to justify a finding of special circumstances. However in this case, those factors in conjunction with the accumulation implicit in an aggregate sentence and the ongoing need for rehabilitation provide ample support for a significant finding of special circumstances.

Time spent in custody and other relevant matters

1. The offender was in custody for two days after his arrest and this will be taken into account in backdating the commencement date of the sentence. It is also appropriate to take into account, again to a limited extent, further matters relied upon by the offender. He engaged in the full-time residential rehabilitation program between November 2017 and January 2018 which may be regarded as a form of quasi custody: Kelly v R [2018] NSWCCA 44. Although it is not submitted that this should form part of a precise reduction in sentence, it should be taken into account in a meaningful way as part of the instinctive synthesis of all relevant factors to be taken into account by the court in arriving at an appropriate sentence: Markarian v R (2005) 228 CLR 357. He has been subject to very strict reporting and residential conditions while on bail and has gone to considerable inconvenience to provide assistance in various proceedings.

Sentence

1. The indicative sentences that I would impose for each offence before application of the discounts are as follows:

• sequence 001 - six years
• sequence 002 - five years
• sequence 009 - 18 months
• sequence 010 - 30 months
• sequence 011 - five years
• sequence 012 - one year

1. The indicative sentences will reflect a reduction of 40% for the discounts to which I have referred. Ultimately the sentencing judge must stand back and ask whether the resulting sentence is just and reasonable, not only to the offender, but also to the community at large after taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts: SZ v R [2007] NSWCCA 19 at [5]. I have done so.
2. The orders that I make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 6 years, to commence on 14 January 2019 and expiring on 13 January 2025. 3. I impose a non-parole period of 3 years, expiring on 13 January 2022. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. Sequence 001 - 3 years, 7 months; 2. Sequence 002 - 3 years; 3. Sequence 009 - 11 months; 4. Sequence 010 - 18 months; 5. Sequence 011 - 3 years; 6. Sequence 012 - 8 months. 1. I find special circumstances.

SCHEDULE OF OFFENCES AND INDICATIVE SENTENCES Sequence Offence Date Amount Indicative Sentence 001 17 August 2017 $4,455,000 3 years, 7 months 002 1 September 2017 $2,500,740 3 years 009 2 December 2016 $82,070 11 months 010 23 June 2017 $260,664 18 months 011 30 June 2017 $2,537,266 3 years 012 29 December 2015 $18,035.97 8 months

Amendments 16 January 2019 - Amended catchwords 18 January 2019 - Redaction of mobile number at [14]. 12 February 2019 - Redaction at [22]. 24 April 2019 - Case name amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2019