These matters were listed before me today for the purposes of sentence, the matter previously having been listed for a sentencing hearing on 6 October 2023. On 21 November 2023 I received a notice of motion on behalf of the offender, Mr Kelu, with an affidavit in support from his solicitor, Ms Bannister.
Pursuant to the motion, Mr Kelu sought an adjournment of the proceedings on the basis that he wished to obtain and serve evidence which essentially related to what had happened to the money generated by the tax fraud and the personal benefit he might have received from the two gold trading schemes.
On commencement of the proceedings today, Ms Avenell of Senior Counsel appeared on behalf of Mr Kelu. The Crown opposed the adjournment on the basis that there was no point to it because the evidence which Mr Kelu sought to obtain and the submissions which might be made subsequent to such evidence did not appear on any relevant sentencing factor. Further, during exchanges with the Crown during oral submissions, it became apparent (if it was not already apparent from the last sentencing hearing) that the Crown was not submitting that the recovery of only approximately $16 million was an aggravating feature; indeed, the Crown intended to submit that the amount of money recovered was not a relevant sentencing factor. The relevant sentencing factor was the amount of the loss to the Commonwealth, being approximately $40 million.
Further, it became apparent that the Crown was not submitting that either Mr Millner or Mr Kelu had hidden away vast sums of money for use at a later time. The Crown accepted that neither Mr Millner nor Mr Kelu had used the money to fund some lavish lifestyle over the past ten years; there is no evidence of that and, as the Crown accepts, to the extent that the Crown might seek findings adverse to the offenders, the Crown must prove these matters beyond a reasonable doubt.
I should say that Ms Hall, on behalf of Mr Millner, initially supported Mr Kelu's application. However, having heard exchanges between the Crown and the Bench, further instructions were obtained and I understood the position to be that there may be some question about whether Mr Kelu was intending to proceed with his application. However, that was never formally indicated to the Court. Instead, after a number of adjournments during the course of the morning, Ms Avenell announced that her instructions and the instructions of Ms Bannister had been withdrawn and that Mr Kelu would be representing himself on any further argument on sentence.
R v Kelu; R v Millner [2023] NSWSC 1544 | Case summary | Zoe
After a further adjournment, I invited Mr Kelu to approach the Bar table and indicate his position. He indicated that he sought to provide me with a bundle of documents which he wanted to be considered on sentence.
By this stage, Ms Avenell had removed herself from the Bar table, as was appropriate and proper, consistent with Mr Kelu's apparent instructions that he did not wish for her to speak on his behalf any longer. That is the only inference I can draw from the fact that her instructions were withdrawn.
Mr Kelu then showed the bundle of material to the Crown prosecutor, who did not object to the tender of material. However, the Crown prosecutor sought some time to respond by way of further written submissions to the material, in effect, leaving me to give such weight to the further material as I might consider appropriate.
In the meantime, whilst this issue was being dealt with, Ms Hall, on behalf of Mr Millner, made an application without notice. That is not a criticism; she simply informed the Court today that Mr Millner sought an adjournment so that he could potentially adduce further evidence on the issue of contrition. As I understand the submission, Mr Millner has entered or wishes to enter into some further discussions, dialogue or agreement with the Australian Federal Police ("AFP") in relation to the proceeds of crime recovery proceedings.
As Ms Hall pointed out (and as is noted in a letter from the AFP dated 21 August 2023), pursuant to s 320 of the Proceeds of Crime Act 2002 (Cth), a Court passing sentence on a person in respect of the person's conviction may have regard to any cooperation by the person in resolving the action taken against the person.
The effect of Ms Hall's submission was that, unfortunately, although the AFP had written to Mr Millner or his solicitors in August 2023, no one dealt with the correspondence. Ms Hall apologised, citing inadvertence. It is, of course, regrettable that this issue was not dealt with in the lengthy period between the sentencing hearing and today, but I accept Ms Hall's explanation that the correspondence was overlooked.
It seems to me, and the Crown does not suggest to the contrary, that evidence relevant to contrition is evidence which is relevant to an important sentencing factor. It is now ten years since the 2013 gold trading scheme shut down. If Mr Millner would like an opportunity to put on further evidence on contrition, in my view, he should be allowed to do so.
As such, having heard from Ms Hall, Ms Avenell (and then personally from Mr Kelu), as well as the Crown prosecutor, I determined to adjourn the proceedings for sentence until 10.00 am on 15 December 2023. I also fixed the matter at 9.30 am on 7 December 2023 for the purposes of a short further sentencing hearing, which is estimated to take no longer than one hour.
In my view, that will afford Mr Millner ample opportunity to put on any further evidence relating to contrition and afford the Crown an opportunity to respond to Mr Kelu's volume of material which he tendered on sentence after he had withdrawn Ms Avenell's instructions.
Thereafter, the Crown made a detention application in respect of Mr Kelu. For completeness, on 13 July 2023, the Crown made detention applications in respect of both Mr Kelu and Mr Millner. Both offenders opposed the applications. I granted the Crown's detention application in respect of Mr Millner, who has been in custody since that day. I refused the application in respect of Mr Kelu for the reasons set out in my judgment of that date, which I delivered ex tempore.
The basis on which I refused the Crown's detention application in respect of Mr Kelu is that I was satisfied that special or exceptional circumstances existed in respect of Mr Kelu at that time.
The application made by the Crown today is made pursuant to s 22B of the Bail Act 2013 (NSW) ("Bail Act"). Section 22B is in the following terms:
22B Limitation regarding bail during period following conviction and before sentencing for certain offences
(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court -
(a) on a release application made by the accused person - must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or
(b) on a detention application made in relation to the accused person - must refuse bail, unless it is established that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail.
(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified.
(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.
(4) This section applies despite anything to the contrary in this Act.
(5) In this section -
conviction also includes a plea of guilty.
Note -
Conviction is defined in section 4(1) to include a finding of guilt.
I will not repeat the essential facts which I recited in the original judgments in respect of the detention applications. Suffice to say, s 22B(1)(b) of the Bail Act provides that on a detention application such as this the Court must refuse bail unless it is established that special or exceptional circumstances exist which justify the decision to grant bail or, in this case, continue bail.
As was observed in Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 and Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173, the question of whether special or exceptional circumstances exist which justify the decision to grant or dispense with bail is a question of fact to be determined on the balance of probabilities (s 32(1) of the Bail Act).
The convicted person, Mr Kelu, bears the onus of establishing that special or exceptional circumstances exist. Whether such circumstances exist is essentially a matter of evaluation, having regard to the evidence put before the Court.
In support of his opposition to the detention application, Mr Kelu provided me with extensive written submissions in the form of a letter addressed to me dated 22 November 2023. It is not necessary that I comment on all of these submissions. It is only necessary to say that Mr Kelu relies on the following important matters.
Firstly, he says that he is in steady employment and does vital work in the community and that people (in particular, people with a disability) will suffer if he is sent into custody.
Secondly, he says that he never intended to do anything wrong and has learned his lesson and this problem has all arisen because of ambiguous wording in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act").
Next, he says he has never failed to appear in court and he is not a flight risk. He also says that he has had nothing do with the gold industry since the execution of the search warrants on 29 October 2013 and will not be committing any further offending.
Next, Mr Kelu submits that there is no possibility of him interfering with witnesses or evidence. As such, he says there should be no bail concerns. He says that, in all the circumstances, he does not pose an unacceptable risk.
The problem with that analysis is that this is not an application for bail. This is a detention application which is governed by s 22B of the Bail Act. I must apply s 22B. It is a different test from the test which must be applied in assessing whether someone should be granted bail. The fact is that Mr Kelu has been on bail since being charged. At this moment, he remains at liberty.
In his written submissions, Mr Kelu seeks to demonstrate special or exceptional circumstances with reference to a number of factors, including:
1. he has been extremely involved in his defence. His autism spectrum disorder compels him to contribute in every way possible, and he needs to be at liberty to continue to prepare for his appeal against his conviction;
2. he will not be able to contribute as efficiently to the proceedings because his handwriting suffers from a lack of coordination consequent to his heavy metal poisoning and is practically illegible;
3. without access to his notes and files, his ability to contribute to the appeal will be restricted; and
4. he continues to suffer from chronic heavy metal poisoning and there are still significant amounts of heavy metal stored in his system. He suffers from other chronic health problems which were the subject of evidence on the last occasion.
Finally, he says there should be consideration given to his prospects of appeal. He endeavours to outline the arguments which he seeks to run. He says that the Crown's claim that the arrangements were a sham will be easily overturned on appeal for the reasons he sets out.
In other words, as I understand it, the essential aspect of his appeal is that the arrangements put in place in 2012 and 2013 were not a sham; they were genuine arrangements for the purposes of genuine transactions and did not involve any dishonesty on his part.
I accept that Mr Kelu continues to suffer from health problems. It is a sad reality for people who commit criminal offences and suffer from health problems that they still have to go into custody. Their health problems are managed by Justice Health whilst in custody.
Unlike the last occasion (when I refused the detention application), there has been no suggestion that Mr Kelu needs to have further testing imminently or that something is going to happen to him over the next month which cannot be provided to him by Justice Health. As such, the circumstances which I considered special or exceptional on the last occasion no longer exist.
Mr Kelu may consider that he has strong prospects of appeal but, having regard to the jury's verdicts against him, nothing he says in his written submissions today leads me to the conclusion that he does have strong prospects of appealing his conviction. It is always difficult, of course, to determine a person's prospects of appeal when a notice of appeal has not already been filed, but he does not direct me to any case and I am not aware of any case that would support the proposition that a convicted person who wishes to appeal and believes that he has strong prospects of appeal would form special or exceptional circumstances. It would rather defeat the very purpose of s 22B if special or exceptional circumstances could be constituted by an assertion of a strong appeal case.
That is not to say that I am forming any judgment about Mr Kelu's prospects of appeal, other than I am not satisfied, on what he has shown to me, that he does have strong prospects of appeal. It would be a matter for him and those who may represent him in the future as to how he pursues the appeal.
In all of the circumstances, Mr Kelu has not satisfied that there are special or exceptional circumstances and, as such, the detention application is granted. I direct that Mr Kelu be taken into custody immediately.
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Decision last updated: 15 December 2023