R v Megaloudis

Introduction 1On 17 July last, after a jury trial lasting some 5 weeks, the offender was found guilty of all 6 counts contained in the indictment presented against him. 2The first count was that contrary to section 6 of the Crimes (Currency) Act 1981 (Cth) ("the Act"), between about 30/6/2009 and 24/11/2010 at Sydney, the offender did make or began to make counterfeit money. The maximum penalty for this offence is imprisonment for 14 years. 3The second count was that contrary to s14(1) of the Act, between about 14/8/2010 and 16/9/2010 at Sydney, the offender did give information with respect to the manner in which counterfeit money may be disposed of. The maximum penalty for this offence is imprisonment for 5 years and/or a fine of $10,000.00. 4The third count was that contrary to s9(1)(a) of the Act, on 24/11/2010 at Sydney the offender had in his possession counterfeit money, knowing it to be counterfeit money. The maximum penalty for this offence is imprisonment for 10 years. 5The fourth count was that contrary to s11(2)(a) of the Act, between about 30 June 2009 and 24 November 2010 at Sydney, the offender did buy, offer to buy or procure ink and other materials, knowing they were intended for use in or in connection with the making of counterfeit money. The maximum penalty for this offence is imprisonment for 10 years. 6The fifth count was that contrary to s11(2)(b) of the Act, on 24 November 2010 at Sydney, the offender had in his possession ink and other materials knowing they were intended for use in, or in connection with, the making of counterfeit money. The maximum penalty for this offence is imprisonment for 10 years. 7The sixth and final count was that contrary to s11(1)(c) of the Act, on 24 November 2010 at Sydney, the offender did possess machines or other instruments, that to his knowledge were intended for use in, or in connection with, the making of counterfeit money. The maximum penalty for this offence is imprisonment for 10 years.

The Facts 8Before summarising the relevant facts surrounding the offences which I find are established to the relevant requisite degree and which are consistent with the verdicts of the jury, I note that there was little dispute at the sentence hearing as to factual matters. 9The main area at issue in this regard was the degree to which the offender participated in creating a false lease as to the premises at 201 Belgrave Esplanade, Sylvania Waters, being the premises at which he was living with his wife and family and which was searched by State and Federal police officers pursuant to a warrant on 24 November 2010. It was during the execution of such warrant that the officers located and seized three commercial grade Roland DG inkjet printers (count 6) and a considerable amount of printing related material and supplies (count 5) as well as over $32,000 in counterfeit $50 Australian notes (count 3). 10The lease in question listed one George Abouhaidar as the lessee and it was the Crown case that this was done to enable the accused to "distance" himself from the criminal activity being conducted from such address. Whilst I accept Mr Hatzistergos' submission that the offender was not solely involved in creating this false lease, I am nevertheless satisfied beyond reasonable doubt that he participated in its creation with others. Nevertheless, little, in my view, turns on this issue in any event as I am otherwise satisfied beyond reasonable doubt that the offender's role in relation to the counterfeiting operation described below was one of a principal, albeit in conjunction with another person or persons. 11The evidence establishes that in mid-2009 a brother of the offender, Mr Agapitos (Peter) Megaloudis came into possession of a commercial grade Roland DG inkjet printer. In July 2009, he contacted a Ms Alana Rojahn who was then employed as the commercial sales manager with Roland DG Australia being the company whose Japanese principal manufactured such printers and their supplies. Using the name John Peters ("Mr Peters") and indicating that his business was conducted from the Water's Edge Resort at Kurnell, he enquired about purchasing printing supplies for the subject printer. 12Shortly thereafter, Ms Rojahn delivered some supplies to the Water's Edge Resort premises where she met, inter alia, Mr Peters and the above-mentioned Mr Abouhaidar. At this meeting Mr Peters asked Ms Rojahn, inter alia, about buying further supplies from Roland DG. Over the course of further meetings of the Water's Edge premises Mr Abouhaidar sought finance for purchase of further printers through the Roland rental finance program which was ultimately declined. During one of these meetings Mr Peters told Ms Rojahn that "they were basically printing money. It wasn't any big deal or secret" and further that they were doing so for the "Government of Australia." 13Eventually, in November 2009 Roland DG delivered a new printer and two loan printers to the Water's Edge premises for an agreed price of some $70,000 for the new printer and a deposit of $10,000 for the two loan printers. In this regard, Mr Peters gave Ms Rojahn a large amount of uncounted cash together with a blank cheque for any balance which bounced when used for that purpose. 14In early 2010, Mr Peters arranged with Ms Rojahn for two machines said to be the loan machines to be returned and for another new machine to be purchased with cash. The machines which were returned were in poor condition. By this time, Water's Edge had moved its operations to an address in Botany. 15In March 2010, a Mr David Edwards, who was then employed by Roland DG as a field service engineer, went to the Botany premises of Water's Edge to repair one of the printers which needed extensive work to make it operational. Whilst there, he noticed that the printer in question was loaded with clear polymer film. On that occasion, he met a man by the name of Mr Tim Okkerse. Mr Edwards returned to these premises on two further occasions and I am satisfied beyond reasonable doubt that on such occasions the offender was present. 16During 2010, Ms Rojahn also started dealing directly with the offender in relation to the servicing and repairing of the printers and the supply of consumables such as inks. She had first met him at the Botany premises. 17Around this time, numerous telephone intercepts between, inter alia, all of the parties so far mentioned commenced (to be made) by the Commonwealth police. Transcripts of these calls became exhibit PPPP. Whilst the offender denied that it was his voice on any of such telephone intercepts, it became apparent from his ERISP as well from the evidence he gave during the trial, that he possesses quite a distinctive voice and I am satisfied beyond reasonable doubt that all of the recordings which the Crown allege involve him do so. 18On 14 October 2010, a telephone intercept between the offender and Mr Okkerse reveals them discussing some difficulty in relation to the distribution of what, I am satisfied of beyond reasonable doubt, were counterfeit $50 Australian notes (count 2). During this conversation, the offender said to Mr Okkerse "...understand they got to go to a fucken small town. Do they know that, or what?" A little later in the same conversation the offender says "... you got to go to a tourism, you know, a small town tourism shit" to which Mr Okkerse replies "... it's what they're doing...". 19A number of the telephone intercepts also involve Ms Rojahn and the offender and clearly demonstrate him arranging to purchase supplies for the subject printers which he did on more than one occasion (count 4). These transactions were also evidenced by various invoices and the like from Rolan DG. One occasion when the offender attended Roland DG's premises to meet Ms Rojhan for that purpose was caught on CCTV. 20The final supply of such materials took place at a Coles car park on 15 November 2010 on the way to which the offender and Ms Rojahn, whom were travelling to this meeting place from different directions, had several telephone conversations which were again intercepted. The meeting itself was video recorded by surveillance officers. Whilst the offender admitted it was him in the subject video, he again denied it was him speaking during any of these calls made on a phone registered in his name, the last of which took place shortly before he drove up near Ms Rojahn's parked vehicle and got out. 21The above-mentioned lease for the premises at 201 Belgrave Esplanade was signed by Mr Abouhaidar as the tenant on 9 October 2010. At this time, the offender and his family were living at 63 Tara Street Sylvania. On 21 October 2010, surveillance video captured a Mitsubishi truck leaving the Tara Street address and later reversing into the driveway of 201 Belgrave Esplanade. After it left, surveillance officers identified three large printers in the garage of 201 Belgrave Esplanade and a still photograph then taken became exhibit RRRR, in the trial. The offender himself was seen in the garage by such officers a short time later. During his evidence the offender said that whilst he repaired those printers at the Botany address of Water's Edge, he hadn't been asked to do so at Tara Street and was unaware they were located there until the day they were moved to 201 Belgrave Esplanade along with his family's belongings. 22On 24 November 2010, as stated, the relevant search warrant was executed whilst the offender was home. He was arrested at the start of the search during which the abovementioned printers, related material and counterfeit money was seized. The latter was located in the bottom of the offender's bedroom wardrobe. The offender told officers and maintained during his evidence, that this money was there when he moved in and he effectively knew nothing about it. I am comfortably satisfied beyond reasonable doubt this was a lie told by the offender to avoid being implicated in the counterfeiting operation. In this regard, I found considerable parts of the offender's ERISP and testimony as lacking in any credibility. 23Apart from the relevant printing machines and counterfeit money found on the premises, other material seized included large quantities of clear polymer which expert evidence established was the same type of material upon which the counterfeit notes had been printed. Some of this polymer, was found outside the garage area elsewhere on the premises. In addition, a slicing/cutting/trimming device was found in the second bedroom, an iPhone with closeup images of $50 notes contained in its memory was found in the door of a car parked on the premises. Further, numerous off cuts of polymer with partially printed counterfeit $50 notes thereon were found in the garage. 24Also seized from the dining room was a Sony laptop which later forensic analysis thereof revealed contained, inter alia, a number of partial images of $50 notes. 25These seizures were relied upon by the Crown as part of its circumstantial case that the offender was involved in the making of counterfeit in the garage of the subject premises utilizing the printers in question (count 1). The offender's explanation that he was only repairing the machines in return for free rent and cocaine and that they being operated by others whom apparently came in at night for purposes largely unknown to him, in my view, beggars belief.

Pre Sentence Custody 26When the offender was arrested on 24/11/2010 he remained in custody before being released on bail on 9/12/2010. This is a period of 16 days. 27Upon being found guilty on 17/7/2013, I revoked the offender's bail and he has remained in custody since. This represents, up until but not including today, a further period of 106 days. 28Accordingly, the total period of presentence custody is 122 days. 29Therefore, the sentences imposed below will be backdated to commence on 1/7/2013.

The Sentence Hearing 30On the day that the offender was found guilty, I revoked his bail and at the parties' request, I stood the sentence hearing over until 13/9/13. As a result of the offender's solicitors contacting my associate and advising that different counsel was to be briefed for the sentence hearing it was rearranged with the Crown's consent and took place on 27/9/13. On that occasion, Mr Hatzistergos appeared for the offender. 31On that date, the Crown tendered a Corrective Services Pre-Sentence Report under the hand of Kerryann Thomas, Community Corrections Officer, dated 12/9/2013. In addition, the Crown's written submissions on sentence and a "statement of facts" became MFI 1. Copies of 4 sentences in other matters involving the making or possession of counterfeit money became MFI 3. As to same, not only are they very few in number but my focus must be on the unifying principles which such disparate sentences reveal: see Wong v The Queen [2001] HCA 64 at [59]. 32On behalf of the offender, Mr Hatzistergos tendered the following material. An affidavit from Mr Vasilis Megaloudis, the offender's father sworn 27/9/13 became exhibit 1. An affidavit from Mr John Megaloudis, another brother of the offender's sworn 24/9/2013 became exhibit 2. A bundle of medical records relating to the offender's time in custody since his arrest provided under cover of letter dated 17/9/14 from Justice Health became exhibit 3. A psychiatric report dated 18/9/13 from Dr Olav Nielssen arising from his examination of the offender at the Parklea Correctional Centre on 12/9/13 became exhibit 4. A report dated 12/8/13 from a Mr Kevin Judge, social worker, arising from his interview with the offender at such centre on 7/8/13 became exhibit 4a. Character references from Reverend Father John Varvaris and Father Constantine Varipatis together became exhibit 5. 33In addition, a written outline of submissions provided by Mr Hatzistergos became MFI 2. Finally, numerous authorities going to several issues as handed up by Mr Hatzistergos became MFIs 4 and 5. 34Neither party called any oral evidence. 35Whilst both parties agreed that the only appropriate sentences in relation to these matters were ones involving full time custody, there was a considerable difference between them as to, inter alia, issues of concurrency as well as related questions of totality. In addition, Mr Hatzistergos put forward a detailed argument that exceptional circumstances need not be demonstrated in relation to the probable effect that any sentence under consideration would have on any of an offender's family or dependants before it is taken into account pursuant to s16A(2)(p) of the Act.

The Offender's Prior Criminal History / Good Character 36The offender was born on 25/8/1971 and is currently 42 years of age. He has no criminal history of any nature. Accordingly, he is entitled to the leniency afforded to a first time offender. In addition, the evidence establishes that he is otherwise a person of good character, a factor which I have also taken into account in his favour.

The Offender's Personal Circumstances 37The offender's personal circumstances, all of which I have taken into account, are described in the abovementioned PSR and the materials tendered upon his behalf. They were also detailed to some extent in his evidence given during the trial. 38The offender is the youngest of 3 male siblings. His parents come from Kalimnos in Greece but met in Australia. His father worked for Telecom and whilst his mother did not work while he was young she later worked with his father when they opened a café after he left Telecom. The offender reporting having a good childhood although his parents were strict. 39As to his education, the offender went to Ramsgate Beach Public School, James Cook Boys High and then Endeavour Sports High from where he obtained his HSC. He was a talented sportsman and played for the Australian Schoolboys Rugby League team. Since leaving school, he has obtained an automotive mechanics certificate of some kind, a Bachelor of Arts "in Engineering" and an Associate Diploma in Business Management. 40The evidence about his work history is somewhat contradictory. It would appear that he worked as a partner in a family based telecommunications company for some years before it "went broke". Thereafter, he was declared bankrupt either as a result of this business' failure or after he moved into renovating homes when "one wrong purchase" led him into bankruptcy. He then ran a café for about 6 years at Bondi Beach before he sold it. The café closed sometime in 2010 and whilst the offender told Dr Nielssen that he built it up and "came out ahead", his brother deposes in exhibit 2 that when the offender closed it "he was in a very difficult financial position". 41As to his personal life, the offender met his wife in 1997 and they married when he was 19 years of age. He and his wife have 2 sons aged 13 and 12. After the birth of the younger boy, his wife had some sort of mental breakdown around 2004 and spent some significant time in a mental hospital. From then on, it would appear, that the offender cared for his wife and 2 young sons up until the time of his arrest. The evidence also establishes that the offender's wife has been in receipt of a disability pension since 18/6/2010. I will further detail the offender's wife's health when dealing with the issues raised by Mr Hatzistergos pursuant to s16A(2)(p) of the Act. 42As to the offender's own health, he had a serious motor vehicle accident at age 20 after which he developed symptoms of anxiety which returned when he was involved in the telecommunications business. He did not seek any treatment for this condition. He is also lactose intolerant and has suffered or continues to suffer from celiac disease, gastric ulcers, asthma, migraines and neck pain. 43As to alcohol and drug use, the offender told Dr Nielssen that he only drank alcohol in social settings and not to excess but that about six months prior to his arrest due to the stress of caring for his wife and the availability of drugs he commenced to use cocaine. He further reported that his cocaine use over this period increased to as much as a gram of cocaine per day. He went on to tell Dr Nielssen that since his arrest for these offences he has used any form of illicit drug. During his evidence before the jury, the offender also said he was using marijuana during this period of a night apparently to counteract the effects of the cocaine which he took during the day. 44Since his arrest, and in particular, since his bail was revoked the offender reported to Mr Judge that he was suffering from an exacerbation of symptoms of anxiety and depression together with "severe symptoms of agoraphobia". Rather oddly, the offender's self-assessment upon his reception into prison on 18 July last as recorded in the Justice Health notes in relation to what is described as the "Kessler 10" test indicates, inter alia, no feelings of nervousness, hopelessness, restlessness, depression or feelings of worthlessness over the last four weeks. Nevertheless, on the same date a "mental health screening" assessment records that the offender was "worried about wife and kids" as he was their primary carer. Also mentioned in such records is the fact that the offender was taken to Blacktown Hospital on 28 July last shortly after midnight after having suffered an asthma attack with a tick placed in a box next to the statement "life-threatening condition requiring immediate transport." 45As a consequence of his examination of the offender on 12 September last Parklea Correctional Centre, Dr Nielssen found him to be mildly anxious in manner and with an underlying depressive mood "in keeping with his circumstances." He further found his speech to be normal with the absence of indicators of any underlying psychotic illness and that he was alert and attentive and was able to provide a detailed history. Overall, Dr Nielssen diagnosed the offender as suffering from an anxiety or panic disorder and a substance abuse disorder, the latter of which was in remission. Dr Nielssen considered the possibility that the offender might have an underlying depressive illness but concluded that his symptoms were more consistent with a primary panic type disorder rather than secondary to a depressive illness. He opined that the offender was likely to derive some benefit from counseling and non-pharmacological management of panic attacks possibly with a trial of antidepressant medication. 46Mr Judge regarded the offender's symptoms of depression and anxiety as being extreme and opined that he "barely manages to cope.". In light of the Justice health records as a whole, whilst I accept that the offender does have symptoms of anxiety and depression complicated by his various physical health problems, I prefer the opinion of Dr Nielssen as to the degree of such symptoms. However, whilst Mr Judge describes the offender's symptoms as being at generally higher level than Dr Nielssen, I note that he goes on to state that he is "satisfied that Mr Megaloudis has a good prognosis for behavioural improvement and medical stability, in the context of a custodial sentence being imposed upon him whereby he has an assurance of being able to remain in regular contact within his family." In this regard, Mr Judge recommends that the offender be allowed to remain in the Sydney area whilst he served his sentence. I intend to make such a recommendation at the conclusion of the sentencing remarks. 47Overall, I am not satisfied that the offender's physical or mental health problems cannot be adequately managed whilst he is in custody. Nevertheless, they will make any period of custody more burdensome upon him and I have also taken this into account in his favour.

The offender's attitude towards the offences and the question of remorse 48The offender maintains his innocence in relation to all the offences for which he has been found guilty. In this regard, he told Dr Nielssen that after Mr Abouhaidar was arrested "he spent the next four months setting me up...He did a great job". He further told Dr Nielssen that "he was linked to the offences because he was staying at a house leased by the principal in the counterfeiting operation, George Abouhaidar." A similar case was run before the jury and clearly rejected by it beyond reasonable doubt, in my view correctly. 49Accordingly, it is apparent that there is no evidence of remorse.

Prospects of Re-offending and Rehabilitation 50Community Corrections Officer Thomas in the abovementioned presentence report concluded that the offender presented a low to medium risk of reoffending. As to this issue, Dr Neilssen opined that the offender carried "a low risk of further offending, based on the absence of the main criminogenic factors of a pattern of antisocial behaviour or a persistent substance abuse disorder that are associated with criminal behaviour...". Dr Neilssen went on to state that the offender "is a qualified engineer with strong family ties and was assessed to have good prospects for rehabilitation." 51A finding of good prospects of rehabilitation is not necessarily inconsistent with an offender's maintenance of innocence: Alseedi v R [2009] NSWCCA 185. In the present case, despite the offender's attitude towards the offences and his lack of remorse, I accept the opinion of Dr Neilssen and find that the offender's prospects of rehabilitation are good. He has never offended before, he has strong family support and the deterrent effect upon him by reason of the period of imprisonment imposed below will, in my view, be significant.

The Hardship Question - s16A(2)(p) of the Act 52A considerable proportion of the sentence hearing was taken up with Mr Hatzistergos' abovementioned argument the probable effect of any sentence under consideration upon family members or dependents must be taken into account pursuant to section 16A(2)(p) of the Act regardless as to whether such effect rises to the level of being considered "exceptional". 53Section 16A(2) of the Act makes it mandatory for a Court to take into account the numerous considerations listed therein "as are relevant and known to the Court". 16A(2)(p) lists as one of those considerations "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents". In New South Wales, this provision has long been read in accordance with the common law as if it were preceded by the words "in an exceptional case": see R v Togias [2001] NSWCCA 522, R v Hinton [2002] NSWCCA 405; R v El Hani [2004] NSWCCA 162. Similar interpretations had been adopted in other states: see R v Berlinsky [2005] SASC 316; R v Nguyen [2001] WASCA 72; R v Gaw [2006] VSCA 51. 54Despite these lines of authority Mr Hatzistergos' argument, in short, was that such an interpretation was contrary to the words of the subject provision itself and also to the decision of the High Court in Wong v The Queen [2001] HCA 64 where at [71] Gauldron, Gammow and Hayne JJ, so the argument went, their Honours made it clear that no such requirement of "exceptional circumstances" is to be read into section 16(2)(p). Whilst Mr Hatzistergos accepted that many subsequent decisions in this and other Australian states have continued to so read such words into this provision, he argued that in none of these decisions had Wong's case being drawn to the relevant Court's attention. He also relied upon the decision of the ACT Court of Appeal in DPP v Ip [2005] ACTCA 24 where that Court disassociated itself from the reasoning in Togias, preferring an unqualified construction of section 16A(2)(p) whilst acknowledging that the weight to be accorded to a given sentencing factor is a discretionary matter. 55I found Mr Hatzistergos' argument based on Wong, quite persuasive and if it were not for some more recent decisions I may well have been prepared to adopt it. The first of such decisions is Le v R [2006] NSWCCA 136 where Latham J, with whom McColl JA agreed, at [25] expressed the view that Ip's case was "against the weight of authority in this state and in other states" and went on to state that "in any event, Togias is binding on this Court". Before leaving this decision, I note that Wong's case was not drawn to the Court's attention. Much more recently a similar construction as urged for by Mr Hatzistergos was urged upon the Court of Criminal Appeal in R v Zerafa [2013] NSWCCA 222, a decision which Mr Hatzistergos very properly drew the Court's attention after the sentence hearing in this matter. In that case, whilst R v Wong was again not drawn to the Court's attention, Hoeben CJ with whom Latham J agreed at [93] stated that in "relation to section 16A(2)(p) it is not appropriate for this Court to overrule or depart from such cases as Togias and Hinton". His Honour went on to approve Spiegleman CJ's comments in Togias at [17] that "if there is to be any change in this position... only the High Court can affect it". Before leaving this decision I should also point out that Beech-Jones J who dissented as to this point stated at [144] "that the construction of section 16A(2)(p) which reads the provision as though it were proceded or preceded "by the words in and exceptional case" is plainly wrong...". 56Whilst Mr Hatzistergos argued that I was bound by what the High Court said in Wong's case and that accordingly I should decline to follow the long line of authority in this State, I am not prepared to do so, especially in light of Zerafa and in circumstances where the issue was not fully ventilated in Wong's case which dealt with the validity of a guideline judgment arising from the importation of narcotics. 57Accordingly, before the probable effect of any sentence under consideration upon the offender's family or dependents can be taken into account it must be found to be exceptional. However, there is ample authority for the proposition that even if such an effect does not rise to the level of "exceptional" it can be taken into account as part of the general factual matrix in selecting an appropriate sentence and in relation to the length of the non parole period: see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40]. 58I now intend to summarise the evidence relevant to section 16A(2)(p) of the Act in relation to the current matter before making a finding as to its probable effect and whether that effect can be characterized as exceptional. 59I have already recorded that the offender's wife had some form of mental breakdown in approximately 2004 and that since such time the offender has cared for her as well as being involved in the care of his two sons. During the trial the offender gave evidence that if he had not been arrested, he and his family intended moving into his parents house which is located at 50 Alfred Street, Ramsgate as soon as some "renters" moved out. Apart from saying that his parents home was "large", he did not say why they intended to move in although it would seem to have something to do with his then financial position and the fact that his recent accommodation "was all temporary accommodation". 60In Exhibit 1, the offender's father deposes that when the offender was first released on bail "he was living in my family house at Ramsgate with his wife and children." The offender's father goes on to state that he had "witnessed the difficulty that (the offender) has with his wife Maria in relation to her medical needs" and that the offender "makes sure that she is properly medicated and attends hospitals and appointments with doctors as and when required." He also states that as "long as (the offender) is (in) jail, I will support his family as much as I can." However, in this regard he goes on to state that he has "multiple health issues including diabetes, hypertension, arthritis and morbid obesity". He is also currently 76 years of age. As to his wife, whom is currently 75 years of age, the offender's father describes her as "elderly and infirm" with no license to drive. He says that neither of them are "very mobile" and that he is worried about the offender's wife and two sons and "the impact of their father's imprisonment on them". 61In exhibit 2, the offender's brother deposes that consequent on the offender's incarceration the "burden on the family, particularly my elderly father...has been enormous" and that his father and mother "are left with the responsibility of looking after Maria and their grandchildren." He also states that the offender had been the primary carer for his wife and that she has very little support from others" being estranged from her own family although she does have some irregular contact with her youngest brother." He further deposes that until recently the offender's wife was a patient at the Prince of Wales Mental Health Service and that it was the offender's task "to ensure that she attended monthly medical appointments and took her daily medication at morning and night" and that now that "task has fallen to my very elderly father and mother who have health conditions of their own". 62More particularly, the offender's brother describes the current situation in the following terms at paragraphs 17-20 of exhibit 2: "17. In recent weeks her care has been transferred to St George Hospital where she has monthly meeting with her treating psychiatrist. Her condition means that it is difficult to have a serious conversation with her. She is very forgetful and almost child-like in how she behaves. She seems to be "not there" and has a blank expression on her face when you talk to her. She regularly talks to herself. 18. The care of the children has always primarily been Nick's responsibility due to Maria's illness. Nick was responsible for disciplining the children, helping them with their homework, and taking them to where they needed to go for extracurricular activities. Although Maria has a driving license, the family does not allow her to drive long distances so I have stepped in to do a lot of the driving including taking the children and Maria to see Nick is prison. 19. In my view the family are seriously struggling now Nick is in prison. Maria is not up to the task of looking after herself, let alone the children too. Without reminders she would struggle with her personal hygiene and cleaning, she has no ability to manage her finances or do the shopping. Nick took care of all these things. Now that he is in prison, my mother and father are doing their best to help her and the children, but they are really finding it extremely difficult. 20. The children are naturally upset about their dad being in prison and away from them. I have been taking them and Maria to visit Nick regularly. My mother has attended once, but struggled with the journey and not gone again. My father has not been to visit. He is simply too unwell." 63Annexed to exhibit 2 are a number of short medical reports in relation to, inter alia, the offender's wife's health. These reports do not contain the factual basis upon which the opinions expressed in same are grounded and were criticised by the Crown in this regard which it argued meant that they were therefore of limited weight. 64Firstly, there is a report from a Dr Futeran, staff specialist psychiatrist, at the Prince of Wales Hospital dated 31 July 2013. It records that the offender's wife is a patient at the that hospital's mental health service and has severe schizophrenia and a severe anxiety disorder and that whilst she "functions reasonably, with the help and support of her family", the offender "is a vital part of her support system and his absence has significantly impacted on her mental health which has deteriorated since his absence." Secondly, there is a report from a Dr Medhat Kerlous, apparently a general practitioner, which states, inter alia, that the offender's wife is "in great need for her husband Nick to care for her and their kids, due to her health status." Finally there is a short handwritten report from a Dr Salem, GP, that states that the offender's wife suffers from, inter alia, depression. 65As to the offender's father's health there is also a short report annexed to exhibit 2 from Dr Kerlous stating that he "is not fit to be carer for somebody else due to his current health status, and he needs a carer to himself". 66At the sentence hearing, I asked Mr Hatzistergos what were, in his view, the "exceptional circumstances" if I was ultimately against him in relation to his submission based upon Wong's case. In this regard, he answered in the following terms: "The exceptional circumstances are in this case referable to (p), which would be the impact on the family. Obviously the age - the condition of the wife, the need for her to effectively have supervision, they're referred to in the affidavit of Mr John Megaloudis, in particular the need for supervision of her medication, the need to assist her with her household tasks, shopping, budgeting and so on, taking to medical appointments and the particular difficulty that her father-in-law Mr Vasilias Megaloudis has also sworn an affidavit before your Honour as in attending to those matters in light of his and his wife's own medical ailments are issues that in our respectful submission will be accentuated with time." 67The question of whether there are exceptional circumstances relevant to the issue of family hardship is a question of fact. However, it is not to be determined in isolation and without any consideration as to the nature of the offending. As Howey J stated in R v Hinton (supra) at [31]: "But each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person. It should be emphasised that the question of whether the probable effect of a sentence upon a third party will give rise to an exceptional case, cannot be considered in isolation from the facts of the particular matter and the degree of criminality involved in the offences for which sentence is to be imposed" 68Based upon the evidence, I am satisfied that the probable effect that any sentence of imprisonment, which is accepted by both parties as being the only appropriate sentence in relation to each offence, will be to cause, as it has to date, a need for others to step in circumstances where some of these others will have not insignificant difficulty in doing so because of their own age and health. 69Nevertheless, it would seem in relation to the offender's wife, that her monthly assessment at St George Hospital is able to continue and that there have been no failures as to her taking her medication to date. Further, she is apparently able to self care, albeit with reminders, and there is no evidence that she is aggressive or violent or needs supervision from a safety perspective or wanders off or becomes lost. In this respect, the evidence as to precisely what care the offender's wife needs is rather general. I also note that the offender himself has chosen not to give any evidence as to what he did for his wife, or his children, a situation which leaves the Court having to piece the situation together from other evidence. Further, the short nature of the medical reports referred to which lack reference to any history that was taken into account by their authors does effect the weight of their opinions to a degree as does the fact that these reports contain little information as to their authors' involvement in the offender's wife's care. 70In relation to the children, I note that Mr Hatzistergos made no specific submission in relation to any effect upon them of their father's incarceration and there is no evidence that would suggest that any such probable effect was "exceptional" in relation to them either alone or in conjunction with that relevant to their mother. Indeed, there is little evidence as to the effect upon them of their father's absence. However, I accept that his absence will have an emotional effect upon them which is an unfortunate but inevitable consequence of their father's offending: see generally Wirth (1976) 145 SASR 291 at 295-296 per Wells J and R v Edwards (1996) 90 A Crim R 510 at 515 - 516 per Gleeson CJ. Further, I note that the offender used to help them with their homework although there is no other suggestion that their schooling has in anyway been affected. 71In Eken v R [2007] NSWCCA 320 a submission that leniency ought to be extended to an offender was rejected in circumstances where the offender (who himself suffered from a mental illness) had been primarily responsible for the care of severely physically and intellectually disabled adult brother, who was confined to a wheelchair and required 24-hour care. In that case, other family members had taken over that responsibility since the offender's incarceration. Hidden J, with whom Handley AJA and Hoeben J agreed, pointed out that, where family members other than the offender were available to care for a gravely ill or disabled child, however onerous the task, the Court generally failed to find exceptional circumstances. 72In Roberts v R [2007] NSWCCA 112, the offender's five year old daughter was seriously disabled but his mother was able to care for her, albeit with difficulty. The Court held that it was open to the sentencing judge to conclude that the case was not sufficiently exceptional to justify taking into account on sentence the undoubted effect upon the child of the offender's imprisonment. On the other hand, in R v Dibb (CCA, unreported, 13 September 1991), exceptional circumstances were found where an offender's teenage son had serious brain damage and there was effectively no one else to care for him. 73In Elsobky v R (supra) a finding that there were not exceptional circumstances was upheld by the Court of Criminal Appeal in circumstances where the wife of the offender who had suffered serious spinal injury requiring the offender to be her carer as well as that of their three children in circumstances where their youngest suffered from significant urethral and bladder problems causing him to be incontinent and to wear pads or nappies. However, the Court did approve the trial judge's decision in those circumstances to significantly reduce the non-parole period. 74I have not found determining whether there are exceptional circumstances in the current matter easy. Apart from the cases just mentioned, I have had regard to the circumstances falling on either side of the line as outlined in the following decisions: R v Hart [1999] NSWCCA 204; R v Luong [2000] NSWCCA 139; R v Bednarz [2000] NSWCCA 533; R v Capper [2000] NSWCCA 63; R v Aller [2004] NSWCCA 378; R v Lo; R v Ouyang [2004] NSWCCA 382; R v Wood [2005] NSWCCA 233; Le v R [2006] NSWCCA 136; Dipangkear v R (supra). 75 However, ultimately in the current circumstances where I regard the level of the offender's overall criminality as quite significant as detailed below, I am not prepared to find that the probable effects that I have found will be occasioned upon his family as a result of the sentences of imprisonment that I intend to impose can be characterised as exceptional although I have taken them into account, firstly, as part of the general factual matrix in selecting an appropriate sentence and, secondly, in relation to the length of the non-parole period I have imposed.

Issues of Parity 76Prior to the offender being found guilty 3 co-offenders, the above-mentioned Mr Tim Okkerse and Mr George Abouhaidar and a further man by the name of Mr Oliver Pedersen had already been convicted and sentenced. The trial of the offender's brother Mr Agapitos Megaloudis in relation to matters arising out of the same events, is listed for trial next month. 77Mr Okkerse pleaded guilty to one count of attempting to possess a marketable quantity of a border controlled drug, being cocaine, and had two offences of buying counterfeit currency under section 11(2) of the Act and one offence of give information in respect of counterfeit currency under section 14(1) of the Act taken into account on a section 16BA schedule. He received a sentence of five years and three months with a non-parole period of two years and six months and he is due to be released on parole on the 4 February 2016. 78Mr Abouhaidar was initially dealt with in the Local Court after being convicted of two offences under the Act being uttering counterfeit currency (section 7(a)) and receiving materials for use in counterfeiting (section 11(2)(a)). He appealed the sentences to this Court whereupon the appeals were allowed and he was resentenced to 9 months imprisonment fully suspended under a section 20(1)(b) recognizance. 79Mr Pedersen pleaded guilty in the Local Court to possessing counterfeit currency under section 9(1)(a) of the Act and possessing a false document under a section 255(b)(i) of the Crimes Act (NSW) with a charge of possess a prohibited drug under section 10(1) of the Drug Misuse and Trafficking Act 1985 taken into account on a form one. He received a three-year recognizance for the Commonwealth offence and a two year section 9 bond for the State offences. 80In these circumstances, the Crown submitted that issues of parity did not really arise in relation to the current offender as Mr Okkerse was sentenced primarily for the attempted possession of a marketable quantity of a border controlled drug and he and Mr Abouhaidar and Mr Pedersen all pleaded guilty with the latter two men being sentenced in the Local Court. 81Mr Hatzistergos did not suggest that any issues of parity did arise. 82In my view, there are no real parity issues between the current offender and the persons mentioned. Mr Okkerse was sentenced, as stated, primarily for a different offence. Mr Pedersen whilst sentenced for 1 matter under the Act, was also sentences for NSW offences. As stated, both he and Mr Abouhaidar pleaded guilty and were dealt with in the Local Court. Mr Abouhaidar was also called and cross-examined at length during the offender's trial and I am satisfied that his role in the matters at hand was relatively minor. 83On the other hand as mentioned above, I am satisfied that the evidence establishes beyond reasonable doubt that the offender was a principal of the counterfeiting operation, being not only involved in the actual making of the counterfeit notes but in the purchasing of material to facilitate same and in advising as to their distribution. In making this finding, I am cognizant of the fact that there is no evidence that the offender was involved in the financing of the operation as submitted by Mr Hatzistergos. Nevertheless, the offender was still a principal in my view.

The Objective Seriousness of the Offending 84The most serious offence presently under consideration is count one involving the making of counterfeit money. It was the Crown's submission that this offence fell just above the middle of the range in terms of seriousness. I agree. 85Some of the relevant considerations in this regard are set out in Bellas v The Queen [2006] NTCCA 8 at [12]. Whilst only a little over $30,000 in counterfeit currency was found at the offender's premises, there is no doubt that this was an ongoing operation which was only brought to an end by his arrest. Further, the offender had obviously been involved in it for some time. While the Crown led evidence at the trial that the amount of polymer film found on the premises was enough to print some $40 million in further counterfeit $50 notes, I accept Mr Hatzistergos' submission that the evidence disclosed that one or more of the machines were in a poor state and that there was nowhere near enough ink and other material to achieve such a result. In these circumstances, I can make no finding as to what the potential of the operation was nor indeed what amount of currency may have been made prior to the offender's arrest. However, as stated, there is no doubt that this was a continuing operation of some size which had operated for a fairly significant period. 86The quality of the $50 notes, being the second highest denomination of Australian currency, tendered in evidence was such that I was unable to tell them apart from real currency. In this respect, they were described in the evidence by Dr Muke, the manager of the counterfeits and Research at the RBA as being a "fairly sophisticated counterfeit which achieved a very good quality which would be difficult for most people to identify," 87However, it was also apparent on the evidence that some of the notes produced which were not in evidence, were of a significantly lesser quality. 88As to count 2, Mr Hatzistergos submitted that it involved a very low level of criminality and fell into the very low end of the scale. I accept this submission. The evidence relevant to this count was one phone call whereby the offender gave some short pieces of advice as to the distribution of counterfeit currency in circumstances where he was told after giving it that those involved in that part of the operation were already aware of the methods suggested by him. 89As to count 3, the sum of money in question, while significant, is not particularly large and, in my view, this offence falls just below the middle of the range for offences of this type. 90As to count 4, the evidence establishes that the offender bought not insignificant amounts of ink and other materials from Roland DG on a number of occasions over a fairly significant period of time. In my view, this offence falls into the middle of the range for offences of this type. 91As to counts 5 and 6, the amount of polymer film and other material found in the offender's possession was considerable and the number of machines involved, whilst not great, was significant. They were of a sophisticated commercial nature capable, at least when running correctly, of the production of a considerable amount of counterfeit money. In my view, counts 5 and 6 also fall just below the middle of the range for offences of this type.

Deterrence 92The seriousness of offences involving counterfeiting is well accepted. As Levine J said in R v Institoris [2002] NSWCCA 8 at [38]: "The offences under the Currency Act, in my view, are particularly insidious in their very nature. The trick or deceit practised upon the community by the manufacture and uttering of counterfeit banknotes is immediately damaging and potentially disastrous. The achievement of the criminal objective, founded in greed, requires (as in this case) a determination from the outset to employ modern technology and experimentation. The objective is calculated to abuse every member of the community. Everyone should be free to conduct day-to-day affairs without concern about the integrity of this country's currency." 93In that case His Honour went on to approve the often quoted statement of Brooking J in The Queen v Rohde and Ors (1985) 17 A Crim R 166 at [173] which is as follows: "The community must protect its currency. Forgery of bank notes is by no means a prevalent offence .... but this state of affairs may not continue if the crime is not severely punished when it is committed. The need to deter others overshadows other considerations. The potential rewards for the counterfeiter are great and the potential damage to the community is even greater. Put forged notes into circulation, and confidence in the currency is at once destroyed. Further, crime is spawned and public and private loss, direct and indirect, and inconvenience are suffered. Ordinary people, suspecting that they have given good money for bad, are tempted to become criminals by passing the note. If there were no receivers, there would still be some thieves stealing for their own use, but if there were no utterers, there would be no counterfeiters, for the forged note is useless, unless it can be passed. And so uttering bad notes goes hand in hand with making them. Both are very serious crimes. In England, where currency offences seem more common, the Court of Appeal has said time and again that a custodial sentence will almost invariably await offenders. Forging Australian banknotes is an offence of such gravity as ordinary to call for a substantial custodial sentence, notwithstanding prior good character. Moreover, the forger who sets out to produce lare quantities of bank notes can expect to receive a substantial custodial sentence in all but the most exceptional of circumstances, and previous excellence of character and other mitigating considerations personal to the offender can only in highly unusual circumstances save him from such a sentence" 94It is therefore clear that general deterrence in matters of this nature is of the utmost importance. Personal deterrence must also not be forgotten even when this offender's subjective circumstances are taken into account.

Issues of Concurrency / Totality and Pearce v The Queen 95Mr Hatzistergos submitted that the making of the counterfeit currency, the subject of count one, could not have occurred without the material and machinery found in the offender's possession being the subject of counts five and six. He made a similar submission in relation to count four. As to count three, he submitted that it was clearly the product of the "making". Accordingly, he submitted that these counts overlapped requiring that the sentences for same should all be made concurrent with that for count one to give effect to the principles in Pearce v The Queen (1998) 194 CLR 610. As to count 2, I have already noted his submission as to its objective seriousness. Mr Hatzistergos went on to submit that any degree of accumulation between this offence and the other counts should be minimal. 96As I understand the Crown's submission, it was that counts 3, 5 and 6, being the possession counts which all occurred on 24 November 2010, could rightfully be disposed of by concurrent sentences but that there should be a degree of accumulation between such sentences and each of those imposed for counts 1, 2 and 4 which should also be partially accumulated. 97Care must clearly be taken in this matter not to offend the principles in Pearce and to ensure that the overall sentence reflects the offender's total criminality and is just and appropriate in all the circumstances. 98Ultimately, to achieve these ends, I have imposed concurrent sentences for counts 1, 3, 4, 5 and 6. Further, not only are they are all related and overlap to varying degrees, the sentence imposed for count 1 can, in my view, reflect the criminality of the other counts. The same cannot really be said in relation to count 2 which is somewhat different in nature. To give effect to all relevant considerations, I have partially accumulated the sentence for this count with the concurrent sentences for the other counts.

Only Appropriate Sentence 99Pursuant to section 17A of the Act, after having considered all available sentencing alternatives, I am satisfied that no sentence other than imprisonment is appropriate in all the circumstances of this case and in relation to each offence. Indeed, this was the position of both parties.

Overall Approach 100Pursuant to section 16A of the Act, any sentences that I impose must be of a severity appropriate in all the circumstances of the case. In doing so, I have had regard to all of the matters referred to above including those contained in section 16A(2) as discussed and as are relevant and known to the Court. I have also been guided by the approach of McHugh J in Markarian v R [2005] HCA 25 at [51].

The Sentences 101The offender is convicted of each offence. 102In relation to count 2, the offender is sentenced to imprisonment for six months commencing on 1 July 2013 and expiring on 31 December 2013. 103In relation to counts 3, 5 and 6, the offender is sentenced to imprisonment for two years in relation to each count commencing on 1 October 2013 and expiring on 30 September 2015. 104In relation to count 4, the offender is sentenced to imprisonment for 2 years and 6 months commencing on 1 October 2013 and expiring on 31 March 2016. 105In relation to count 1, the offender is sentenced to imprisonment for a period of four years commencing on 1 October 2013 and expiring on the 30 September 2017. 106Pursuant to section 19AB of the Act, I am required to either fix a single non-parole period in respect of the sentences imposed or make a recognizance release order unless I decide that neither is appropriate in which case, I must give reasons. In Hili v The Queen [2010] HCA 45, the High Court determined that all of the circumstances, including the non-inclusive matters referred to in section 16A(2) must be taken into account in fixing a non-parole period or making a recognizance release order. Further, in determining what order is to be made, section 16A(1) requires the sentencing court to make an order that is of the severity appropriate in all the circumstances of the offence. In addition, what is the "severity appropriate" is to be determined having regard to the general principles identified by the High Court in Power v The Queen [1974] HCA 26. In doing so, the High Court in Hili further held that there was no "norm" or starting point whether expressed as a percentage of the sentence or otherwise for the period of imprisonment that a Federal offender should actually serve before release. The High Court also held that a critical consideration is the determination of the period of imprisonment that justice requires the offenders must serve in custody. 107In considering the relevant statutory matters and adopting the approach set out in Power v The Queen, I am mindful of all the matters referred to above. These include, on the one hand, that this will be the offender's first time in prison and that he has good prospects of rehabilitation. To facilitate such rehabilitation, in my view, the offender also needs a longer than normal period of supervision once released. As stated, I also take into account the probable affects that the offender's incarceration will have upon his family. On the other hand, I am mindful of his overall level of involvement in the offences and the degree of criminality involved. 108In all the circumstances, in my view justice requires that I set a non-parole period of two years and two months commencing on 1 July 2013 and expiring on 31 August 2015. 109I direct that copies of the reports of Dr Nielssen and Mr Judge accompany the offender's warrant of commitment. I also recommend that the offender be permitted to serve his sentence in the Sydney area. 110Mr Megaloudis, I have imposed a total sentence in all of four years and three months. You will be kept in custody for a least two years and two months from 1 July 2013 until 31 August 2015. On that day you will be eligible to be released to parole. If you are released to parole on that day or a day thereafter you will still be serving your sentence in the community and you can be returned to custody if you do not comply with the conditions of your parole. You would then continue serving your sentence in custody until it expires on 30 September 2017. Do you understand? 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: 17 November 2014