R v Rostankovski

R v Rostankovski - [2021] NSWDC 847 - NSWDC 2021 case summary — Zoe

[5]

CIRCUMSTANCES RELATING TO AIDING AND ABETTING OFFENCE (s 16A(2)(a))

The offender pleaded guilty to aiding and abetting Adam Cranston's conduct, in the period from 8 August 2016 to 1 February 2017. During that particular period, the tax monies obtained by the Plutus conspirators totalled nearly $51 million, of which only about $28.5 million had been remitted to the ATO (of which nearly $1 million was garnisheed); thereby producing a net amount of $22,284,609.13 which was misappropriated by the Plutus conspirators in this period. The offender is not to be sentenced as a co-conspirator in the Plutus tax fraud conspiracy. He was unaware of the actual amount defrauded by the Plutus conspirators.
The offender agrees that Adam Cranston was the ultimate beneficiary of at least $7,572,635.62 of the misappropriated funds. Cranston participated in the early discussions in 2014 during which the fraud was agreed. Along with Onley, Cranston was responsible for the management of the second tier companies. Jason Onley participated in the early discussions in 2014 when the fraud was agreed. Along with Adam Cranston he was also responsible for the management of the second tier companies.
From mid to late 2015, the offender had been working for Adam Cranston, Onley and Larcombe. He began by running errands for Larcombe, who at that time was in business with Adam Cranston and Onley. He collected mail and completed various directed tasks; and thereafter recruited and managed persons who were directors (in name only) of the companies that some of the Plutus conspirators controlled. This was initially in relation to other fraudulent schemes unbeknown to the offender at that time. Prior to the period of his offending, the offender recruited to persons to be directors of the second tier companies that were controlled by Larcombe, Cranston and Onley.
But from 8 August 2016, the offender transitioned to aiding and abetting Adam Cranston's activities as part of the conspiracy to defraud the Commonwealth through his involvement in the Plutus tax fraud conspiracy. His primary role was to manage people who were directors of the second tier companies. These people played no role in the actual management of the companies but were instead paid monies merely to sign documents as and when required. The companies were controlled by the conspirators. The directors were people who were variously unemployed or otherwise unsophisticated. The offender was introduced to them under the fictitious name "James" (even though two of the directors that he had recruited prior to his offending knew him by his real name).
The offender misled the second tier directors regarding tax liabilities that were accruing to them as a result of fraud. For example when a second-tier director raised concern about an ATO notification of an outstanding tax debt of $3.5 million, the offender assured him it would be taken care of.
Under the direction of Adam Cranston and Menon, the offender arranged for second-tier company directors to sign documents incorporating companies in their name over which they have no knowledge or control, and then took them into bank branches to open personal and company bank accounts. The offender then retained the bank cards, bank tokens and accounts access information for Adam Cranston. He maintained regular contact with second-tier company directors and at the direction of Cranston and Menon, collected mail from the second-tier company directors and provided them to Menon. Further, he organised to pay second-tier company directors amounts of money between $500 and $1000, on a semi-regular basis, as part of his role in assisting Cranston's fraud. Although generally under others' direction, he had some discretion in how and what payments were made.
Between October 2016 and January 2017, the offender had several telephone communications with Cranston and Menon in which he negotiated his wage for his role. As will be indicated further below, from October 2016, the offender was dissatisfied with what he was receiving himself, relative to the substantial sums of monies being received by the conspirators. The content of those conversations demonstrated the offender's awareness of, and ability to, monitor second-tier company bank accounts being used by Cranston and others to carry out the Plutus tax fraud scheme. Menon, Cranston and Onley had their own conversations in October 2016; in which, they remarked upon the demands that the offender was making to improve his pay and tended to show that the offender was irritating them by his references to how much money the conspirators were earning. I agree with Senior Counsel for the offender that they also show that they were fobbing off the offender with false explanations. In one revealing part of a conversation between Onley, Menon and Cranston on 17 October 2016, Onley expressed concern that the offender might try to extort them so it was better for the conspirators to "try to keep him on side". Cranston himself was dubious about the likelihood of the offender trying to extort them. On 19 October 2016, Menon and Cranston had a telephone conversation in which they discussed how the offender might be given an opportunity to leave his role.
In October 2016, Menon and Cranston had discussed a mechanism for payment to the offender. The offender used an entity, California Auto Haus, to legitimise the payment of wages, or at least some of them. This entity was used to generate invoices but was also used for the purchase of cars, and other items, for Cranston's benefit.
On 24 January 2017, at the offices of Clamenz Lawyers, some of the Plutus conspirators attended a meeting. The offender joined them later. As will be remarked later, the offender had his own meeting with Hausman as part of his planning for blackmail on the same day. But when he joined the meeting with the conspirators, Onley directed the offender to open new bank accounts for the second tier companies. The offender was also directed to order new corporate keys for the second-tier companies so that they could change directors. Also, he was involved in discussion about paying second-tier director, Anthony Palumberi, to leave the country and paying him to remain there at least for a year so as to avoid him being questioned by the ATO and the Office of State Revenue.
In the latter part of January 2017, the offender was privy to conversations among the conspirators about dealing with the directors of the second tier companies in the light of the garnishee enforcement action taken by the ATO. At one such meeting, on 27 January 2017, the conspirators Menon, Cranston and Aaron Paull agreed upon the need for the second tier directors to be 'tight' and carefully managed. The offender was directed to speak to them. Further, he expressed to Menon his opinions of the intelligence of each director and the prospect of whether they would 'hold tight'.
As the Crown noted, the offender was playing a double game: ostensibly he was appearing to help the conspirators with their efforts at concealment of their conspiratorial activities, whilst at the same time, he was in the throes of planning to blackmail them, including his monitoring of the bank accounts of the second tier companies.
In summary, the offender was aware that by managing the straw directors, he was aiding and abetting Cranston to dishonestly cause a loss (tax revenues) to the Commonwealth. When managing the directors, the offender was aware that they were unemployed or otherwise unsophisticated. In addition to regular meetings with Cranston, and other Plutus conspirators, he also liaised with Lauren Cranston (Adam's sister) and Hammond, when there were issues with the second-tier directors or their bank accounts. He reassured the second-tier company directors that they were not engaging in illegal conduct and to trust him. He also negotiated with Adam Cranston a suitable remuneration for his role as during the period of his offending conduct received, at least, $192,000; with these monies being misappropriated by taxes diverted from the ATO as part of the Plutus tax fraud conspiracy. He knew that his payments were paid out of misappropriated taxes.

[6]

CIRCUMSTANCES RELATING TO BLACKMAIL OFFENCE

In 2015, the offender was introduced to Hausman. They formed both a business and personal relationship. From the middle to latter part of 2015, Hausman became aware that the offender was also working for Adam Cranston, Onley and Larcombe, by recruiting and managing other, unsophisticated persons, to become directors of companies. Those companies were controlled by Cranston, Onley and others.
In about October 2016, the offender told Hausman that he felt taken advantage of by Adam Cranston and some of the other Plutus conspirators: he was aware of the significant amount of money that was being transferred through the accounts of the companies used by Cranston and Onley and was satisfied with the amount that he was being paid.
Between October and November 2016, Hausman and the offender began discussing and thereafter planning to blackmail the Plutus conspirators by threatening media exposure, reputational damage and threatening Adam Cranston, in particular, whose father (Michael) was a Deputy Tax Commissioner, with scrutiny by the authorities, unless sums of money were paid.
In November and December 2016, Hausman and the offender discussed the latter's progress with monitoring the bank accounts and funds received each month by the Plutus conspirators. By November 2016, following the 'research' that the offender had performed, they appeared to be satisfied that the sum of $20 million had been received by the Plutus conspirators and was not likely to materially change. They discussed the need to threaten Adam Cranston and that they might commence the blackmail demand, with the involvement of the journalist Stephen Barrett, earlier than planned. Mr Barrett was a self-employed journalist whom Hausman had known for many years. The offender complained about the incompetence of the Plutus conspirators and indicated that he wished to stop working for Adam Cranston by February 2017. In November or December 2016, they agreed to meet to organise the timing of the blackmail. Hausman emphasised that the timing for the making of the demand was crucial. He mentioned to the offender that two laptops had been taken (by Hausman's personal assistant) from the Double Bay office that Hausman shared with Adam Cranston, Larcombe, Onley and others. These would be used as leverage when blackmailing the Plutus conspirators. But when talking with Adam Cranston and Menon, the offender spoke disparagingly about Hausman.
Also in November 2016, Hausman had suggested to the offender that he could contact Barrett to threaten Adam Cranston with media exposure. Hausman was aware that Barrett had worked on '60 Minutes' and was a Channel 7 producer. Hausman recruited Barrett to participate in the first blackmail demand and later had a series of telephone conversations and meetings with Barrett in late January 2017, including a meeting in Newtown with the offender on 28 and 30 January 2017.
From December 2016, Hausman discussed a strategy with a co-accused (Mr Sevag Chalabian), principal of the legal firm, Lands Legal, to conceal the funds received from the Plutus conspirators, as a result of the planned blackmail, and later instructed Chalabian as to his role in this plan. Hausman had engaged Chalabian as his solicitor on a number of property ventures and agreements over the preceding years. Hausman and Chalabian had discussions as to where the blackmailed proceeds could be sent and Chalabian provided some advice about that. The offender was not a party to those discussions.
In January 2017, Hausman contacted Barrett, to become involved in the blackmail plan in order to legitimise the threat of media exposure. They had several telephone conversations and also meetings in Newtown on 28 and 30 January.
On 24 January 2017, garnishee orders were served by the ATO on some of the bank accounts of the second tier companies. That day, as indicated earlier in these remarks, the offender met with his Plutus conspirators in order to manage the directors of those companies and to open new accounts for those companies. But unbeknownst to the Plutus conspirators, the offender was monitoring the bank accounts as part of the planning for the proposed blackmail.
On 24 January 2017 Hausman and the offender disclosed their plan to Barrett, their understanding of the nature of the Plutus tax fraud scheme and the garnishee orders issued by the ATO on the second tier companies.
On the evening of 30 January 2017 and on the morning of 31 January 2017, Hausman and the offender discussed preparatory arrangements and their plan to blackmail the conspirators at Clamenz in the next couple of days. They discussed the information which Barrett should be supplied with and the offender confirmed that he had access to the accounts of the second tier companies and the entities from which Adam Cranston was receiving monies; including 'Prescott Page' and 'Synep'. They planned the best timing to make the first blackmail demand so as to ensure that the main Plutus conspirators were present, including Adam Cranston, Onley and Menon.
At 11:24am on 30 January 2017, Chalabian sent Hausman a WhatsApp message, containing his firm's trust account details. Hausman passed these details on to the offender.

[7]

The first blackmail demand - 1 February 2017

At 3:21 am on 1 February 2017, Hausman sent a text message to the personal assistant, requesting that she collect two laptops from the Double Bay office and bring those laptops when she picked him up at 7:45am. Hausman believed that the laptops contained incriminating material, implicating the Plutus conspirators, not only in fraud, but also in money-laundering and could be used to leverage monies from them. The personal assistant did what she was instructed to do.
Hausman, the offender and Barrett congregated in the CBD.
At about 9:33am, the offender and Barrett met with Menon and Adam Cranston at Clamenz Lawyers' office in Martin Place in Sydney. The meeting was later joined by Onley and Anquetil. Menon was a principal partner of the firm. Barrett introduced himself as a journalist of 39 years' experience, who had worked with the ABC and two commercial television networks. Barrett informed Menon and Cranston that he had been told about a 'skimming operation' whereby monies which should have been remitted to the tax department were put in companies whose shadow directors were being lumbered with an ATO bill to pay up.
Barrett said that he had been approached by two shadow directors, Anthony Palumberi and Alex Nappa, who told him that they possessed paperwork disclosing the fraud and had also received letters requiring large sums of money to be paid to the ATO. He said he had spoken to the boss at 'A Current Affair', with whom he had a working relationship and he could put all of the named directors of the second tier companies in a room and have a joint meeting, discussing why they were receiving bills from the ATO. Barrett told them that he wished to interview Menon, Adam Cranston, Onley and also Adam Cranston's father, Michael Cranston. He implied that if they declined to be interviewed he might make disclosures to the then Commonwealth Treasurer, the now Prime Minister.
The offender threatened the release of information, stating that "Because we've information on Prescott Page we've got information on Kismet we've information on absolutely everything. Old scheme how it runs where the monies were taken where it's gone". He told Menon and Adam Cranston (and later Onley) that they would be arrested that afternoon.
At about 9:50am, Barrett then left the meeting. Soon after, Barrett rang Hausman and they spoke for 23 seconds.
But back in the meeting, the offender threatened that he had members of the Commancheros, the outlaw motorcycle gang, waiting downstairs and were ready to "come up and belt the fuck out of you guys". This threat of physical harm was not something of which Hausman had been aware and it is accepted was outside the scope of the agreement he had with the offender. There is no evidence that any people were, in fact, waiting downstairs.
The offender also called the second tier director, Alex Nappa and had him confirm, on speaker phone, his knowledge of the scheme and the names of Adam Cranston, Onley and Menon.
The offender says that during the conversation, he accused Cranston and Menon of lying to him about how the scheme would run, stating that he was told "they'll take a little bit of money … but it'll go for four years. Or they'll thrash it and make millions but it will end in a few months ... Nothing bad, we're not going to make much off it". The offender said that he had "seen it now and in three months it's smashed $25 million. Someone's pocketed $25 million."
The offender confronted Cranston and Menon about "$26 million missing". He demanded $5 million in payment. The offender stated that Cranston and Menon expressed concern about him speaking to the authorities and/or media even if they paid $5 million. The offender told them that that he would sign a 'gag order .. whatever needs to be done, and we will proceed as all good, as planned." The offender says he suggested that forensic accountants had matched up figures and processes from the old scheme and commented that the conspirators were 'dumb' to 'run the same fucking scam, again with new directors.' The offender complained over not being informed of the scheme's size, stating that he been used and that "we can see the whole scam here, this is money that hasn't been paid to the tax office and it was fucking huge bro don't lie to me cause if yous lie to me I'll take this and walk out and I'm just gunna hand it over." He also referred to the laptop computers in his possession which contained incriminating material.
According to the offender, Menon and Adam Cranston tried to convince him that he had got it all wrong, and that they had not hidden money from him. Cranston referred to speaking to Menon the night beforehand and that he had never wronged the offender. Menon also tried to convince the offender that he had not hidden the extent of any fraud from him. Amongst other things, he offered to call the accountants and told the offender that he had the wrong idea. He recalled Cranston challenging him as to how he, Cranston, could have been involved in the fraud. Also, when the offender repeated his demand for payment of $5 million, Cranston swore 'on his mother's life' that there was no $5 million. This prompted the offender to complain that someone had lied to him: he had seen tax bills. In three months, "it's over $26 million". Menon retorted that this statement was a "misunderstanding" and after supplying a further explanation asked him "why would I have any reason to con you …?" Cranston then supplied further explanation and sought to deflect responsibility to Onley. Cranston mentioned that he could call Onley to come now.
Two other Plutus conspirators, Anquetil and Onley, joined the meeting about 15 minutes later. The offender reiterated in their presence his demand that the $5 million was to be transferred to the trust account of Chalabian, acting for the second tier companies' directors. Acting on behalf of the conspirators, Menon confirmed that they would meet the demand and pay that sum of money; although it could not all be transferred in one hit and would have to be done in part payments, disguised as Plutus company overheads and other legitimate businesses, so as to avoid ATO scrutiny. Menon suggested that the best way was the transfer of an initial $1 million and to prepare a deed of settlement with the directors of the second tier companies. Menon said that he would speak to Chalabian to structure the deed as a dispute settlement and transfer the monies in part payments.
By the 'first blackmail deed' a commercial colour was given to the arrangement; whereas the real purpose was to further conceal the underlying Plutus fraud. In this way, the offender and Hausman would get their benefit, but the Plutus conspirators could continue to conceal their fraudulent conduct.
At 12:07pm, after having left the Clamenz meeting room, the offender rang Hausman. This was essentially a report. Hausman told the offender that he had instructed Chalabian to play "hardball" in his dealings with Menon, not to "settle for anything less than two and half (million) today" and confirming that the monies to be transferred, initially, to Menon's Clamenz trust account, before being transferred to Chalabian to make it appear as though it was a "commercial thing .. (not) being paid as fuckin' …. ATO money."
At about 3:40pm, the offender and Menon attended Chalabian's law firm, in the Sydney CBD. Later in the afternoon, at about 5:17pm, the sum of $250,000 was credited to Chalabian's account from Plutus' payroll account.

[8]

Preparing the first blackmail deed

Between 1 and 3 February 2017, Hausman had numerous communications with the offender, Chalabian, and Menon, sometimes singularly and sometimes jointly, regarding the drafting of the sham deed between Plutus and the directors of the second tier companies, the object of which was to disguise the transfer of the $5 million in response to the first blackmail demand. According to the offender, Menon had discussions with other Plutus conspirators regarding drafting of the first blackmail deed and negotiations with and resistance from the offender and Chalabian. Hausman provided instructions during the course of negotiations conducted by Chalabian and the offender in their dealings with the conspirators.
Hausman and the offender discussed, amongst other things, a message that might be sent in reply to one received from Adam Cranston who, in a screenshot, alluded to extortion attracting a substantial penalty. Hausman told the offender that this indicated that Cranston was panicking. They also discussed when and how they could inject Barrett into discussion with Menon. Hausman encouraged discussion as to the tactical side of negotiations, encouraging the offender to remain silent whilst Chalabian managed the negotiations with Menon.
At 12:09am on 3 February 2017, Hausman forwarded to Chalabian two screenshots of a screen provided by the offender, which itemised the names of the second tier companies and the corresponding named directors; with accompanying instructions as to how to explain the fact that a second tier director, Danielle McDonnell, was missing and to instead claim his personal assistant was co-director of that 2nd tier company.
At 10:22am, Hausman sent an iMessage to Chalabian, providing further instructions. He referred to "my guy" - a reference to the offender- having received 17 missed calls last night and "Dev (Menon) is freaking - as are the others. They're over a barrel but it's in their nature to fight till end."
By the end of 3 February 2017, the first blackmail deed was executed between Plutus and the named directors of the second tier companies. It was the offender who arranged for the directors to sign the documents on 3 and 4 February 2017. Clause 2(a) of the deed provided a payment schedule, commencing with payment of $1 million on execution (acknowledging receipt, already, of $250,000) and on-going payments of $500,000 for 8 weeks. Sub-clauses 2(b), (c) and (d) purported to require the second tier companies to pay wages and superannuation to workers. Clause 4 passed on the obligation to lodge Business Activity Statements.
Hausman confirmed receiving the first blackmail deed from Chalabian on 7 February 2017. In an SMS exchange with the offender that day, Hausman referred to the 'engineering' of the deed and instructions he had given to Chalabian and the need to start the distribution of funds the next week.

[9]

The second blackmail demand

On 10 February 2017, in a WhatsApp message to Chalabian, Hausman raised the idea of putting pressure on the Plutus conspirators to obtain an additional $20 million. He asked Chalabian to meet to discuss the idea and Chalabian said he could meet on 20 February.
At 12:07pm on 15 February 2017, Hausman had on his phone a photograph of a Blackberry screen containing a message which he drafted, which was partly as follows: "Now we have 9 weeks to bring down ARMAGEDDON and spank those cunts for the next 20 brother. Good stuff xx.. All you need to say is 'you irrevocably agree to pay B, C, D and E. Start fukin paying in same time frame and everything goes away"
At 6:33pm on 15 February 2017, Hausman sent the offender a draft message to be sent to Menon. Hausman wrote: "if their accounts get frozen no problem, the $ continues to minimum $20m under (b) (c) (d) etc and these directors will receive the $20m personally to remit off as they are, under the Act Dev, as you are well aware, personally liable for both super and PAYG which your clients Adam Cranston and Jay Onley would never pay. We are fully aware of GST ends up being worn by the company and is not a liable issue personally. So stop the bullshit and keep up the payments I strongly suggest."
After making some edits to this message, the offender sent the message to Menon on 15 February 2017. This is what constituted the second blackmail demand.
Later in the evening on 16 February 2017, in a message he sent to Chalabian, Hausman told him that they had enough leverage and encouraged Chalabian to keep the pressure up on Menon and pursue the receipt of the blackmail monies. He stated, amongst other things, that: "Trust me I've had Journo (Barrett) up my areas / plus we have enough LVR (leverage) - they call [the offender] every day to see if he's ok. If they can do 5m in 10 days - they can do another 15-20 in 8 weeks and we then do lunch. Keep the pressure on the scumbag Dev (Menon) as he knows with what we have, if released to Journo (Barrett), as well as the other 2 Cunts Jay Onley and Adam Cranston, Who's daddy is Michael Cranston, deputy comm of T … they're all going to long bay. They will pay. But it's in their nature to fight. Go get em you animal xx."
At about 6:01 pm on 17 February 2017, Hausman and the offender had a lengthy telephone conversation during which they discussed the second blackmail demand, in which they had threatened the Plutus conspirators with exposure to the media and authorities unless the additional $20 million was paid. Amongst other things said in that discussion, Hausman confirms that the changes made by the offender to the message sent to Menon were good. The offender expressed the opinion that their priority was to continue to exert pressure to ensure the regular payment of the blackmail monies. Hausman referred to having briefed Barrett and having him ready to exert further pressure if needed. They agreed that the offender would call Menon. They also discussed property developments and opportunities for the potential investment of 5 or 6 million of the blackmail monies into a property which one of Hausman's friends and associates, Michael Teplitsky, owned, worth $40 million. The offender spoke of doubling the 20 million that they would receive from the blackmail demands.
On 20 February 2017, Chalabian met with Hausman and the offender in the Four in Hand Hotel. When Chalabian indicated that he would bring with him the false invoices from Plutus to the second tier companies that Menon had provided, to that point, to legitimise the payments of the blackmail monies, Hausman confirmed that the invoices were "toilet paper" in so far as the directors of the 'subby' companies were concerned."
Later on the afternoon of 20 February 2017, Chalabian discussed additional matters with each of the offender and Hausman, via WhatsApp, including the fact that the offender wanted to be distanced from the arrangements. Hausman apparently respected this: he told Chalabian "DR doesn't want a file - need to create another file being one of the head subbies who takes orders from DR …." Hausman also conveyed his confidence in receiving the additional $20 million. Later, the offender and Hausman arranged with Chalabian for a second tier company director to sign an authority document and create a paper trail legitimising the transfer of the monies.

[11]

CIRCUMSTANCES CONCERNING THE MONEY LAUNDERING OFFENCE (s 16A(2)(a))

Between 1 February 2017 and 18 May 2017 the sum of approximately $24,244,760.64 was paid into the Lands Legal Trust account as a result of the two blackmail demands. About $4.8 million was received between 1 and 15 February 2017, after the first blackmail demand. About $19.4 million was received between 16 February and 18 May 2017, after the second blackmail demand.
The offender and Hausman provided directions and instructions to Chalabian to disburse the blackmail monies, and Chalabian did so for their benefit and the benefit of others. They all had numerous communications about the methods of laundering, including the drawing and presentation of cheques; payments made locally; preparation of loan documents to disguise the origin of disbursements; overseas transactions and cash withdrawals. The destination of the funds, aside from reward payments to second-tier company directors for each disbursement, was to associated entities that the offender and Hausman controlled or had connections to, including overseas entities. Disbursements were made from the Lands Legal Trust Account, mostly on Hausman's instructions, from 28 February 2017, but all disbursements were made with the offender's agreement.
On 2 March 2017, the offender had a WhatsApp exchange with Chalabian in which the latter assured the former that he would not action any disbursements requested by Hausman without ensuring that the offender agreed. Between 3 and 6 March 2017, the offender instructed Chalabian to set up a company, Luminous Investments Pty Ltd ('Luminous'); which was incorporated on 6 March 2017, with the offender as the sole director. The company acted as a trustee for a trust of which the offender and his wife were the first beneficiaries and the offender was the appointer on the trust deed. Luminous was partially intended to be a tool by which blackmail monies could be invested in property developments and also to be a company by which the offender's previous agreements with Hausman, relating to property developments, could be realised. A loan agreement was entered between Luminous and Tepcorp Surry Hills Pty Ltd ('Tepcorp'), relating to a property development from which both co-offenders intended to profit, which I will refer to shortly below.
Between 9 and 13 March 2017, Hausman and the offender instructed Chalabian to prepare a deed of agreement, by which the blackmail funds and profits from investment opportunities would be distributed between them. In its essentials, the agreement noted that the offender had access to approximately $25 million and Hausman would be paid 50% of profits from investment opportunities Hausman introduced to the offender. The agreement noted that the offender was the legal owner of the $25 million. Further, the offender was under no obligation to invest in any opportunity, but could decide to do so in his discretion. When returning his executed counterpart of the deed to Chalabian and the offender, Hausman acknowledged that the deed bound Luminous as the 'capital provider'.
For his involvement, Chalabian was to be paid at least $88,000, plus an additional $20,000 for each sum of $1 million received in the Lands Legal Trust Account, following the second blackmail demand.
The offender's Agreed Facts commonly set out in extensive detail examples of instructions and associated documentation to a range of disbursements from the Lands Legal Trust account between 28 February and 23 March 2017, as well as substantial monetary transfers from the Lands Legal account to companies in February and March 2017. These disbursements were made at the direction of either the offender and/or Hausman to Chalabian. The offender stated that most of the instructions were given by Hausman, but on those occasions, the offender was informed either prior to, or following the completion of the disbursement to the third party.
The offender agreed about certain representative examples of disbursements and Chalabian's authorisation of payments. These were emphasised by Senior Counsel for the offender. It is fair to say that they showed that Hausman was doing the lion's share of the work to implement the transfers, sometimes into companies managed by associates of Hausman, such as Jelvy Pty Ltd and Triswat Developments Pty Ltd. One transfer, made on 16 March 2017 was in favour of Tepcorp. Hausman and the offender intended to profit from a property development in 'Short Street', by investing funds from the blackmail.
Between 23 March and 18 May 2017, further disbursements were made from the Lands Legal Trust account at the direction or instruction of the offender and/or Hausman to Chalabian. Whilst most of the instructions were given by Hausman, on those occasions, the offender was informed either prior to, or following the completion of the disbursement to the third party.
These included money transfers to entities in Hong Kong and Lebanon.

[15]

Consideration

I consider that the offending occurred at about the mid-range of offending of this kind. I am mindful of the particular offence for which he was charged -aiding and abetting of a conspirator to the scheme - rather than the offence of actually being part of the conspiracy.
Later in these remarks, when I consider the offender's mental condition, I address the opinion of his psychiatrist about the psychological factors explaining his criminal conduct, as part of his subjective case. But this consideration, as was emphasised, was also relevant to his culpability which, in turn, affects consideration of the objective seriousness of his conduct. As I later explain at length, his impaired capacity to reason and exercise and judgment had greater impact in relation to this offence, than it did for the blackmailing and money laundering offences. But as I explain, whilst those psychological factors did contribute from the time, from mid to late 2015, when he commenced to work for Cranston and others and through the early part of 2016, the salience of these factors waned when he transitioned to becoming an 'aider and abetter' in August 2016, which is the period from which he commenced the subject offending. This is especially so from October 2016 when, motivated by greed, he sought a greater 'slice' of the spoils derived from the illegal activities of Cranston; and other conspirators; and where there was no real impairment in his capacity to 'exit' by lawful and proper means, or, as I say, by less desirable courses of action than the course he ultimately took. Instead he chose to exploit the situation even whilst he was ostensibly appearing to continue to aid and abet Cranston. In short, his culpability for this particular offence is partly reduced, but not to any substantial degree.
I also take into account the large sum of monies defrauded in the period covered by the offending. To some extent in his favour, the offender's involvement was not long, relative to the duration of the tax fraud scheme overall. It is not the case that he was an instigator, or shown to be more culpable than his principal. I agree with the offender's submission that the responses of Cranston and others when the first blackmail demand, by which they were purporting to supply explanations as to the operation of the scheme underscored the reality that the offender was not part of the 'inner circle'; but as indicated, whilst that is so, he has not been charged with the more serious offence of conspiracy.

[16]

Principles

The offending was constituted by two separate blackmail demands in a rolled up offence. It was common ground that this was permissible on a guilty plea (R v De Leeuw [2015] NSWCCA 183 at [116]). This conferred at least a potential benefit upon the offender through the imposition of a single penalty for what might otherwise have been treated as separate instances of offending.
Section 249K(2) of the Crimes Act 1900 (NSW) is an aggravated form of the offence of blackmail. The relevant element of 'menace' is that the victim has committed a serious indictable offence. It was common ground that the 'threat' was the threat of exposure of the Plutus conspirators' illegal activities; although, as the Crown put it more specifically, the exposure was to be not only to law enforcement authorities, but also through the media and involved one of the Plutus conspirators, Adam Cranston's father, then a Deputy Tax Commissioner.
In the Court of Criminal Appeal's decision in Turner v R [2021] NSWCCA 5 ('Turner'), the matters that the Court had regard to (at [70]-[72]) when assessing the objective gravity of the offending included:

The nature of the threats;
The period of time over which they occurred;
The amount of money obtained under the threats

In Benasic and Malavetas v R (1987) 77 ALR 340 at 342, in relation to a cognate offence, the Court also noted whether the nature of the treat involved violence was relevant, and also the nature of the accusation or threatened accusation; including whether there were reasonable grounds for the making of the accusation or threatened accusation.
The Crown also noted, and the offender did not dispute, that additional considerations that were pertinent in similar offences included the sophistication of the offending, the motivation for the offending and the impact of the blackmail upon the victim; whether the duration of the threat was communicated to the victim, the degree of planning and premeditation involved; whether the offender acted with others in making the demand and whether the offender instigated the offence and his or her general role in making the demand with the menaces.

[18]

Consideration

In my opinion, the offender's offending was above the mid-range of objective gravity. The quantum of the blackmailed monies was plainly very high. The planning was extensive over a period of 3 months. There was a high degree of pre-meditation. Further, the circumstances in this particular case that what was threatened to be exposed was the high scale of tax fraud that had been and was continuing to be actually engaged in by the victims, rather than a threat of falsely alleging such activity was significant. This was not a case, like Turner, or R v Pughe [2019] NSWDC 897 ('Pughe'), where the serious indictable offence threatened to be disclosed was in the past. It was continuing to be engaged in by the conspirators.
Further, the veracity of the threatened accusation - the fact that it was true - and the offender's indications that the accusation was likely to be proven - the co-offenders' revelation of incriminating material - both made the threat more credible and, thus, the blackmail more effective.
The circumstances of the blackmail made the detection of the underlying criminal activity, the tax frauds, more difficult as the perpetrators were likely to (and did) not only accede to the threat, but also take steps to conceal the fashion in which they did do. Given the truth to the underlying threat, it tended to make it even less likely that the victims would complain about the blackmailing to the police than if the threatened accusation lacked credibility. The Agreed Facts suggested that Adam Cranston, at least, was aware that he was being extorted (Agreed Fact 119). Further, as the Crown noted, the treat of disclosure of real criminal wrongdoing might have (although in this case was not shown to have) led to efforts to destroy evidence of the underlying wrongdoing.
The blackmailing was made to multiple victims. The threats of media disclosure might also have had added salience in relation to the victim, Cranston, because of the position of his father.
I also accept the Crown's submission that regard may be had to the conduct from February to May 2017 as negating any suggestion of isolated conduct and diminishing the force of the suggestion that specific deterrence and the consideration of denunciation was reduced on that account.
However, I do not accept the Crown's submission that the conduct was in the high range of objective seriousness. The first, and main, respect, was the impact of the blackmail was comparatively less than other cases of offending. I distinguish, here, between the identity of the victim and the impact of the threat on the victim. I accept the Crown's submission that the principle of equal justice before the law would be impaired if I was to take into account that the victims here were engaged in serious and on-going criminal activities. But nevertheless, I accept that the impact here upon the Plutus conspirators of the blackmail who, to put it rather crudely but not wholly inaccurately, were able to pay off the blackmailers as an 'overhead' of their sophisticated and lucrative enterprise, was of a lesser order than the impact of the menace upon a lonely old man who is extorted into handing over his life savings upon threat of disclosure of indecent conduct towards a much younger woman (Attorney General's Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R (S) 98) or the ostensibly respectable suburban accountant who yields payment of close to $1 million because of the threat of disclosure of online activities (Turner and Pughe). Secondly, the nature of the serious indictable offence threatened - the tax frauds - although of course very serious, were of a lesser order than other serious indictable offences, such as for example, sexual assault. Thirdly, whilst acknowledging the degree of planning, and accepting that the offending conduct was not isolated, there were only two threats issued within a reasonably short period of time. In comparison, the threats in Turner were of a much longer duration, and, in that way, the psychological damage to the victim was extended.
So far what I have said commonly applies to the offender and the co-offender, Hausman. Now I address more closely the role of the offender and other considerations peculiarly pertaining to his position. This is not only necessary to address the parity principle but also goes to the objective gravity of his offending.
For reasons which I elaborate at greater length in my later remarks regarding the significance of the offender's mental condition, I do not regard any general impairment in the offender's capacity to make reasoned decisions, or susceptibility to the influence of others, as reducing his culpability for the blackmailing. From the time the planning for the blackmailing occurred, in October 2016, the offender was past the point where that explanation had real salience. Nevertheless, I think there is some differentiation in the offending at the level of culpability. Hausman was much older than the offender and ostensibly more experienced in property developments, and dealing with business persons and professionals, and there is sense that the offender looked up to him.
Nor do I altogether discount, altogether, as the offender invited me to almost entirely discount, his making of the physical threat to the victims during the first blackmail demand, with the threatened 'involvement' of the bikie gang. The submission that the threat was not credible was made in hindsight. This particular threat was likely made at a time when the victims were disoriented, and stunned: not knowing of the involvement of the co-offender Hausman behind the scenes, they were confronted by extortion by a person for whom they hitherto apparently had little regard and, who now, as it appeared to them, was engaging a journalist and a second tier director to help him with a blackmail. I do not consider that they would likely have regarded as altogether outlandish the idea that the offender could also organise the involvement of members of a bikie gang to add 'muscle'. Although there was not in fact any bikie members downstairs, there was no evidence (such as a layout of the offices, or building) to indicate that this was known to the Plutus conspirators. That said, there were no other circumstances pointing to the likelihood of the threat being capable of being carried out. I have regard to the making of the physical threat as aggravating the gravity of the offending, but not to any pronounced degree.
Having regard to the objective circumstances, although the offender's role and that of Hausman were complementary in nature, in my view, the offender did play a lesser role in the offending than Hausman. I accept that, in reality, even if this was not apparent to the victims themselves, that it was Hausman who was pulling the strings and whose engagement in the offending was more extensive. It was Hausman who provided the information - the 'script' - for the offender in relation to the first blackmail demand. A very important feature of which made the first blackmail demand was the involvement of Barrett, which Hausman had procured. Barrett's involvement gave real plausibility to the threat of media disclosure. That would have appealed to the victims as raising the prospect of tremendous reputational damage; to supplement the threat of disclosure to law enforcement authorities; which was itself plainly very damaging. I find that it was Hausman whose idea it was to press for the second blackmail demand. It was also Hausman who engaged Chalabian to collect the proceeds from the blackmail. Nevertheless, the offender's role was not markedly inferior. It was he who had access to the information in the bank accounts and influence with Nappa. Although I agree that without Hausman, the offending could not have got off the ground, because of his insight into the tax fraud scheme, the offender was indispensable to Hausman. It was the offender, also, who fronted the conspirators. Further, he had knowledge of and involvement in the efforts to conceal this offending.
I will return to other aspects of comparison between the offender and Hausman later in these remarks when I address the parity principle.

[19]

Principles

The offence under s 400.3(1), involving an intentional dealing of at least $1 million, makes this offence the most serious within the graduated scale of offences for money laundering. An essential element is actual belief in the offender that he or she is dealing in the proceeds of crime at the time of dealing.
In Kim v R [2016] VSCA 238 at [61] the Victorian Court of Appeal emphasised that evaluation of the objective gravity of the money laundering offence required consideration of what the offender did, including the actions constituting the dealing, the period of time over which the offence was committed, the number of transactions involved, the amount of the offending and the role of the offender in the money laundering arrangement (including whether the offender was author or instigator of the arrangement and the degree of authority reposed in the offender in carrying it out). The amount of money is highly significant. Generally, a larger number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount (which may betoken an isolated offence). How the money is dealt with and the offender's awareness of how the money is dealt with is also relevant.
A similar list of considerations was provided in R v Li (2010) 202 A Crim R 195, where Barr AJ at [41] (Allsop P, Basten JA, McClellan CJ at CL and Simpson J agreeing) observed that it was difficult to generalise about the sentencing exercise for this offence, but added: "Perhaps the most important will be an exact appreciation of what the offender did, what acts he performed and with what authority and over what period of time. The total value of money or property involved will be important, and whether the money or property belonged to the offender or to another. The degree of planning or deceit that led to the commission of the offence and whether actual loss resulted, and the extent of such loss, will be important. Just as there is a distinction between recklessness and belief, the precise nature of proved belief may vary so as to affect the sentence. There will be a range of possible strengths of belief, rising to certain knowledge"
In R v Anquetil [2020] NSWSC 995 at [92], Payne J identified as relevant considerations to the determination of the objective gravity of the money laundering offence the duration, quantum and conduct engaged in to effect the money laundering.

[20]

Consideration

I find that the offender's offending was above the mid-range of objective seriousness for an offence of this kind. Most significant was the amount of money laundered, vastly in excess of the statutory threshold for this offending, and the offender's awareness of the illegal sources of the monies. These two matters have been described as the primary indicators of objective gravity for the offending: R v Guo (2010) 201 A Crim R 403 at [85]-[91]; R v Li (2010) 202 A Crim R 195 at [18], [41]; R v Ansari (2007) 70 NSWLR 89 at [122].
The offender was intimately involved in the efforts at concealment, including the involvement of other persons, such as a second tier company director. He agreed that he was involved in communications about all of the means by which the monies were laundered, including the drawing and presenting of cheques. He was no mere passive 'investor' who happily acquiesced to the acts of the co-offender, Hausman, and the solicitor, Chalabian, to deal in the proceeds for his benefit. He instructed Chalabian, and the latter agreed, that the offender be kept 'in the loop'; and instructed him in the use of a company, Luminous, as a vehicle for the investment of proceeds.
I do not accept the Crown's submission that he was in the higher range of offending. This is partly a function of the offender's main role, comparative to Hausman, but also partly because of the nature of the enterprise. I do place some significance upon the circumstance that the scheme, as between himself and Hausman, and those who assisted them, could not be characterised as what is commonly known as 'organised crime', in the well-understood meaning of that concept, featuring: the exposure to a diverse range of criminal activities, a design to be self-perpetuating and with a hierarchical structure, including the use of underlings to engage in activities to conceal the work of principals, to enable that to occur. The authorities identify a connection to organised crime as a factor pointing to additional severity and it is missing here (eg R v Huang; R v Sui (2007) 174 A Crim R 370 [at [36]). Here, the laundering concerned the combination of two blackmail incidents, to facilitate the offenders' enjoyment of the fruits of their blackmailing and to conceal that criminality. But there was no suggestion of a sustainable criminal enterprise involving the offender into the future, such as might be seen with organised crime.
As with the blackmailing offence, I consider that Hausman's role was greater than the offender's role, and in such way I find that the former's role was more objectively serious than the latter's. I agree with Senior Counsel for the offender's characterisation of Hausman as being the architect of the scheme to launder the money and the facts amply indicate the lead role that Hausman had in driving the laundering; even if that was visible to the offender. But this does not afford much assistance to the offender. He gained as much financially as the Hausman did, through their profit-sharing agreement. In a sense, it might be thought that because of Hausman's greater involvement, the offender had a lesser risk of detection, but this was probably only marginal. It has been said that sentences should be higher for offenders who obtain higher rewards and have a lower risk of detection than persons lower in the hierarchy whose criminality is lesser and who run a higher risk of detection: Ihemeje v R [2012] NSWCCA 269 at [63], [87]. I think it can be said that the offender stood to obtain more from the arrangement in the sense that he stood to obtain an even share of the profits, but had a lesser risk of detection than Hausman, who was more active; even though he was privy to what was going on.

[22]

Injury, loss or damage from the offending and the circumstances of the victim (ss 16A(2)(d) and 16A(2)(e))

The offender accepts, and I agree, that the ATO a was victim of the aid and abetting and money laundering offences.
I have noted that in the period of the offender's offending, the total loss to the Commonwealth was $22,284,690.13. In an affidavit from Mr McCaulay, a solicitor for the offender in the restraint and forfeiture proceeding, Mr McCaulay deposed to his belief that the vast majority of the monies that were received into Mr Chalabian's trust account, being the sum of nearly $24.25 million; which had been dispersed to various entities, had been traced and recovered by the relevant authorities.
The Crown did not submit, and I do not find, that an aggravating factor to the offending was the unlikelihood of the Commonwealth suffering a substantial loss, in view of recoveries made, or expressed to be made, essentially, because of the co-offender Hausman's conduct.
Irrespective of the extent to which, if at all, forfeiture proceedings may recover from the offender (or co-offender) any monies, I accept the Crown's submission that it remains the position, as was stated by McLure P in R v Host [2015] WASCA 23 (Buss JA and Mazza JA agreeing in this respect) at [24] that: "the Commonwealth incurs very considerable, unrecoverable costs in compliance, audit and investigation systems designed to protect its revenue from, and to detect, fraudulent and other dishonest conduct. Of course, the real victims of such conduct are the members of the Australian community as a whole because it reduces the funds available for essential and other services and increases the taxation burden on honest taxpayers".
I do not regard the second tier company directors as 'victims' in the requisite sense. There was no evidence from any of them about the impact of the offending. The significance of the second tier companies' directors was to illuminate the nature of the offender's offending.

[23]

Adequate punishment and general deterrence (ss 16A(2)(ja) and 16A(2)(k); and CSP Act, s 3A(a)-(b))

There is no dispute that general deterrence is fundamental to the sentencing exercise in relation to all three offences.
As has generally been said in relation to tax fraud offences, which involve significant sums of money and multiple acts of dishonesty occurring over a period of time, the conduct usually leads to a term of imprisonment because of the significance of general deterrence and the lesser significance of the offender's subjective circumstances (Magdi v Western Australia [2010] WASCA 234 per Anderson J (Murray J and Templeman J agreeing) at [38]). The High Court said in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [63] that tax fraud is a species of offending which affects the whole community and the sentences imposed require both a deterrent and punitive effect. In Commonwealth Director of Public Prosecutions v Gregory (2011) 34 VR 1, the Victorian Court of Appeal said (at [57]): "A sentence imposed for fraud upon the taxation revenue is intended to reaffirm basic community values that all citizens according to their means should fairly share the burden of incidence of taxation so as to enable government to provide for the community, that the revenue must accordingly be protected and that the offender should be punished through manifest denunciation".
In Turner, Garling J (with whom Payne JA and Davies J agreed) observed (at [68]) that blackmail offences have always required emphasis in sentencing on general deterrence and protection of the community.
Money laundering is inherently serious because of the disposition of monies which makes the detection of underlying crime more difficult. It has added salience when the offender knows of the illegal source of the funds dissipated and therefore intended to prevent their recovery (see R v Anquetil [2020] NSWSC 995 per Payne J at [123]). The importance of general deterrence for this offence has been repeatedly emphasised (Dickson v The Queen [2016] NSWCCA 105 per Schmidt and Wilson JJ, Macfarlan JA agreeing) at [212]).

[26]

Mental condition and observations on the offender's culpability for the offences

Senior Counsel for the offender eschewed any suggestion that the mental condition of the offender was such as to make him an unsuitable 'vehicle' for general deterrence. Nevertheless, he maintained that there was a causal connection between the offender's mental condition and his offending which served to reduce his culpability, thereby affecting the objective gravity of the offending, reducing the force of the consideration of denunciation (Muldrock v The Queen (2011) 244 CLR 120 at [58]), and also limiting the weight to be accorded to specific deterrence (Commonwealth Director of Public Prosecutions v De La Rosa (2010) 243 FLR 28 at [177]-[178]). It was said that his mental state compromised his capacity for sound judgment at the time of the commission of the offences.
The offender relied upon the evidence of Dr Dayalan. Dr Dayalan is a forensic psychiatrist. Dr Dayalan psychiatrically assessed the offender on 26 February 2021. The offender gave a history to Dr Dayalan of a childhood featuring physical and emotional abuse by his father and growing up believing that he was a disappointment to him. He reported being bullied in his teenage years at school after showing some promise in his studies.
The critical part of Dr Dayalan's report, aside from the diagnosis, was his view that several psychological factors contributed to his offending behaviour: chronic low self-confidence and self-esteem and a sense of inadequacy; making him susceptible to influence from people around him.
Dr Dayalan diagnosed an adjustment disorder, however acknowledged that this had only developed after his arrest. The offender's Senior Counsel submitted that what his mental condition really proved was his vulnerability, or susceptibility, to being drawn into a large scale criminal conspiracy. This, it was said, diminished his culpability; without which the true extent of the offender's criminality could not be evaluated.
The extent to which an offender's mental state renders his or her conduct less culpable depends upon the nature and degree of the putative abnormality and the extent of its contribution to the offending. Considerations such as the extent to which an offender had a reduced capacity to engage in rational thinking and exercise judgement is relevant, and so too is the extent of his susceptibility to being led by another person.
A notable feature, in both Dr Dayalan's report, and the submissions of the offender was that no differentiation was exercised when assessing the offender's culpability in relation to the three different offences. This, to my mind, was a significant omission.
As I have already remarked, I accept that psychological factors played a contributing role in the offender's commission of the aid and abetting offence. It may be accepted that for a person in his position and background, association with Cranston and other Plutus conspirators, some of whom were professionals or ostensibly experienced and successful business persons, and the significant money he was receiving - for a person with his lack of qualifications and working career to that point - may have had a dizzying impact on the offender and that this compromised, to a degree, his powers of judgement and led him to make a poor decision to enter into the conspiracy from August 2016 under the sway of other persons.
However, this explanation in my view could only go so far. Whilst I accept that his powers of judgement were compromised to some degree, when immersing himself in the activities of the Plutus conspirators, those powers, and his moral compass, were not altogether diminished. His decision to involve himself in the aiding and abetting offence substantially remained a matter of choice for him and the diminution in his culpability only slight. Most of the influence to which he was particularly susceptible was exercisable before he engaged in the offending, from the time he commenced working with Cranston, and others in 2015.
Further, in my view, such 'impairment' of his powers of judgement had little if any real causative effect in diminishing the offender's culpability, as he became aware of the scale of frauds perpetrated and continued to aid and abet Cranston and the other conspirators generally. From there, he had several choices. In descending order of the proper courses of action available to him, he could have:

withdrawn from his involvement in the frauds and reported the activities to law enforcement authorities;
simply withdrawn his involvement in the fraud;
continue on as he had, rendering minor clerical assistance without offending; or
find a means to exploit his knowledge and association for his personal benefit and advantage.

By October 2016, the offender had enough gumption to question the pay he was receiving and effectively challenged Cranston and Menon in the light of his inquiries of them. From then on, and through to late January 2017, he engaged in double-dealing: on the one hand planning for blackmail whilst on the other continuing efforts to conceal the activities of the Plutus tax fraud conspiracy. This was not conduct consistent with what Dr Dayalan described as explaining his criminality: of low self-confidence and self-esteem or emotional distress with an unconscious desire to prove himself worthy to his father. There was no suggestion that his father was, at least in his working life, anything other than an upstanding citizen; who could, in the least sense, have been impressed with his son if he knew what he was doing.
Even if, as I have remarked, his initial involvement in aiding and abetting is party explicable by the circumstances Dr Dayalan, it was not inevitable that his extrication from those activities would result in his engaging in blackmailing and money laundering. His association with Hausman in October 2016 was not long. Because of the income he was deriving from his contributions to the illegal enterprise, he was not financially desperate; even if other conspirators appeared to be gaining much more materially than he did. There was therefore no financial necessity to engage in blackmail. Accepting, on the probabilities, that he had some unconscious desire to prove himself to his father, or others, he could hardly have persuaded himself that his father, or others, would have been impressed by the money he was making and the company that he was keeping; and even less impressed with his engaging in blackmail.
I do not accept any causal connection between any susceptibility to the influence of others and consequent impairment of a capacity to make rational judgments and the blackmailing and money laundering offences. His decision to engage in offending of that kind was not driven by any deep-seated desire to impress his father or anyone else. The offender could not have thought that engaging in this conduct would have impressed any person with any moral fibre, including his much-maligned father. Blackmailing others, even criminal associates, to the tune of $25 million was not something which this offender did, or could have thought would make his father, or anyone else, proud of him. His decision to engage in this conduct could hardly be considered spontaneous or impulsive: it was the result of at least 3 months' planning. There was on-going planning and machinations involving the offender even after the first two blackmail demands had been made to pressure the Plutus conspirators. It was motivated by naked greed: in one instance, on 17 February, the offender spoke to Hausman in terms of doubling the $20 million they received from the blackmail demands.
Similarly, I do not accept any causal connection by reason of any impaired capacity to reason in his money laundering. The preponderant part of the proceeds had been received and laundered. He took very careful steps to conceal: he self-consciously involved Chalabian in taking steps to distance himself in documentation, indicating the awareness of his criminality, but remained active in charting the progress of the funds. As indicated, I accept the Crown's submission that even after April 2017, when almost all of the funds had been disbursed, he remained consumed by greed in acquiescing to, if not actually supporting, Hausman's efforts to retrieve the balance of the blackmailed monies.

[27]

Lack of antecedents and prior good character

The offender had no criminal record prior to these offences.
The offender furnished written testimonials from family members, but also persons outside the family, including an obstetrician (Dr Kowalski), a Parish priest (Father Koutsouras), a public servant associated with Sydney Trains (Kire Grbasilev), an owner of a civil construction company (Paul Barbara) and an old school friend (Nick Ristevski), which I have taken into account. They all speak of the offender's good personal qualities. Having regard to that evidence, and his absence of a prior criminal record, I accept that prior good character is established.
However, I agree with the Crown's submission that prior good character has lesser weight for the subject offending. Especially is that so for the aiding and abetting offence since in tax fraud offences, considerations of denunciation, punishment and general deterrence are elevated (Noble v R [2018] NSWCCA 253 at [46]. In relation to the money laundering offence, an offender's prior good character is of less significance than might otherwise be the case when the activity is engaged in for profit, over a significant period of time and involves a large number of transactions: R v Huang (2007) 174 A Crim R 370 at [36]; R v Guo (2010) 201 A Crim R 403 at [89]. In this case, the period of offending was not especially long and although there were numerous transactions, they were not of the number typically associated with the 'structured' money laundering of substantial enterprises. Nevertheless the point about prior good character assisting in the accumulation of profit by illegal means retains force.
Contrary to the offender's submission, I find that his prior good character contributed to the commissioning of the aiding and abetting offence (R v Rivkin (2004) 59 NSWLR 284 at [410]); in that, at least, the second tier directors, who the offender was responsible for managing, were unemployed and unsophisticated and, as the Crown submitted, vulnerable to the offender's manipulation. His prior good character assisted him in that manipulation; which was essential to all of the offences, in differing ways.

[28]

Guilty pleas (s 16A(2)(g); CSP Act, ss 21A(3)(k) and 22)

The offender was arrested on 17 May 2017 and granted conditional bail on 18 May 2017. The original version of the Crown brief of evidence was served in January 2019. In an affidavit of Mr Gear, an employed solicitor of the firm representing the offender, the deponent deposed that on 14 February 2019, the first written representations were made to the Director to try to resolve the matter. In April 2019, an updated Crown brief of evidence was provided.
In an affidavit of Mr McGuiness, a federal prosecutor (Exhibit D), it was observed that on 2 July 2019, the offender applied for a permanent stay of the prosecution. On 12 July 2019, a solicitor for the Commonwealth DPP sent an email to legal representatives for the offender, including his present junior Counsel, Ms Ghabrial, conveying observations by Fullerton J in related Supreme Court proceedings which doubted the power of a Magistrate to determine a stay application. On 6 August 2019, the stay application was withdrawn.
On 3 September 2019, in the face of opposition of the Director, the offender unsuccessfully applied to adjourn the matter for two weeks. It was listed for a contested committal hearing on 13 November 2019.
On 12 November 2019, Mr Andrew Sant wrote to the Local Court indicating that he now represented the offender and foreshadowed an adjournment application the next day. On 13 November 2019, that adjournment application was made, but refused and the offender was committed to the Supreme Court for trial following waiver of committal. In an affidavit sworn by Mr Gear, an employed solicitor of the firm representing the offender, it was explained that after the tender of the committal waiver, negotiations continued with the Crown to try to resolve the matter prior to listing for arraignment.
The offender first appeared in the Supreme Court of New South Wales on 6 December 2019. He was then arraigned and entered pleas on all three counts on the indictment. By consent, the matter was remitted to this Court for the sentencing proceeding.
I take into account the offender's guilty pleas. The question is what level of discount should be made on account of them.
In some respects, the considerations applicable to the discount to be accorded for guilty pleas on the federal offences have been assimilated to the considerations applicable to the state offence: Xiao v R (2018) 96 NSWLR 1 and Huang v R [2018] NSWCCA 57. The critical factors are the timing of the plea and the extent of their utilitarian value. Relevant also is the subjective willingness of the offender to facilitate the course of justice.
Weighing these competing considerations, I think that a discount should be provided of 20% for each plea. I accept that the brief was complex. I am not persuaded, on the probabilities, that the pleas were entered at the earliest practicable opportunity. Although an explanation was supplied for the delay, to some degree it did erode its utilitarian value and in view of lies and falsehoods the offender supplied in his record of interview, such positive steps he otherwise took to facilitate the administration of justice were to some degree neutralised. The comparison with Mr Anquetil's position is inapt: the sentencing judge took into account that the plea was entered in the Local Court (R v Anquetil [2020] NSWSC 995 at [112]). The offender's plea was not at the earliest possible opportunity. Further, whilst it is acknowledged that the offender's plea spared the community the expense of a contested trial, it remained the case, virtually up to the point of the sentencing hearing was heard, where many factual matters remained in dispute on the counts; thereby further eroding, to a degree, the utilitarian value of the pleas.

[29]

Contrition and remorse (s 16A(2)(f); CSP Act, s 21A(3)(i))

Contrition and remorse, where it exists, exists as a matter of degree and may reduce the need for specific deterrence whilst elevating prospects for rehabilitation. There are a variety of factors indicative of contrition and remorse. One of them is the entry of the pleas. But the essence of it is acceptance of responsibility - the criminality is to be 'owned' (R v Thomson & Houlton (2000) 49 NSWLR 383 at [116]).
I noted the written testimonials supplied relating to the offender. The offender himself and his wife have also provided letters to the Court which speak to his contrition and remorse. His wife spoke of his expression of regret; particularly for his failure to walk away and his feeling sorry for what he did. Dr Dayalan referred to the offender's distress during his assessment of the offender and articulated comments consistent with remorse.
In his letter of apology to the Court, the offender accepted blame for his conduct and explained how he became 'embroiled' (to use his Senior Counsel's word) in the Plutus tax fraud scheme: he emphasised the impressions made on him of ostensibly well-educated persons in positions of trust and power and lots of money. As he had done to Dr Dayalan, the offender alluded to the physical and verbal abuse he received as a child from his father. He described himself as becoming a person he never wanted to become; and acknowledged that he was motivated partly by greed and partly by a desire to succeed and to impress his father - to disprove his description of his son as being a 'waste'. He spoke of at least one attempt at suicide.
As the Crown reminded me, with reference to the Court of Appeal's observations in Imbornone v R [2017] NSWCCA 144 per Wilson J (Hoeben CJ at CL and R A Hulme J agreeing) at [57], out of court statements made by an offender to third parties, be they psychiatrists or other professionals, or loved ones, must be treated with care in circumstances where the offender does not give evidence and cannot be subject to cross-examination. Whilst accepting that caution, I find that the professions of regret are genuine. They have been attested to by persons outside of the offender's family and Dr Dayalan's opinions carry weight.
The Crown drew attention to what it said were lies or falsehoods provided by the offender in his record of interview on 17 May 2017. This included, amongst other things, and without being exhaustive, that when working with the conspirators, he did not consider that the monies he was receiving were not justified and just kept his mouth shut and stating that he had not spoken to Adam Cranston, Onley and others since December 2016; and also his denial that he ever had an agreement with Hausman to split the $5million blackmailed money. (Agreed Facts 166(e), (f) and (n). Further, the circumstance that in May 2017, he went on to assist Hausman to add pressure on the Plutus conspirators to press for the balance of the blackmailed monies even though a small percentage of those monies remained outstanding does not assist him. He did not voluntarily cease to offend until his arrest.
These matters relied upon by the Crown were true, but nevertheless, they were matters which occurred at a point contemporaneous with offending, or his arrest. In the intervening period of nearly 4 years, the offender's conduct has tended to corroborate the genuineness of his assertions of regret for his crimes.
I accept that he is remorseful and contrite for his offences, which to a degree moderates the force of specific deterrence and elevates his prospects of rehabilitation.

[30]

Likelihood of re-offending (CSP Act, s 21A(3)(h)

I give some weight to the offender's attempts since his arrest, to put himself on a better footing. I acknowledge the certificates and qualifications that he has acquired. Since his arrest, he has become married and has two young daughters and is acutely conscious of the consequences of his offending upon them. A theme that was picked up in the testimonials is that no longer feels a need to prove himself to anyone and is desirous of becoming a role model for his children.
Dr Dayalan opines that he would have a low risk of re-offending, when considering factors commonly associated with recidivism.
I accept the offender's submission that he has come to develop insight into his offending, but with a reservation. A matter of concern to me is that the offender's letter of apology to the Court, though admittedly it speaks of greed, appears to me directed more to explaining why he became embroiled in the Plutus conspiracy in the first place. He did not address, at least to any close degree, the blackmailing or the money laundering. This has some significance when evaluating his Senior Counsel's submission that the blackmailing and subsequent money laundering were engaged in as the way of exiting out of his involvement as conspirator; even if a foreseeable and perhaps inevitable consequence of engaging in the blackmailing was to achieve that result. There was no reference, as might have been expected, to any insight that when faced with glaringly demonstrable criminal activity in which he was implicated, his response was to exploit those engaged in criminal activity, and thereafter the involvement in activities designed to enjoy the fruits of his exploitation whilst concealing their source. Whilst it can be comprehended, albeit not excused, that the offender thought that he might impress his father by mixing with ostensibly 'successful' professional and business people and earning a wage from them, it is incomprehensible that he might have perceived his father, or anyone else as being impressed when, for circumstances of naked greed, he might blackmail $25 million out of them.
Nevertheless, in his letter of apology, when considering his conduct in retrospect, the offender stated that he did "not need money, power or any materialistic item to make me happy." I am satisfied, on the probabilities, that the offender has developed insight, and learnt, of the role of greed in his offending, not simply in relation to aiding and abetting offence, but also in relation to the blackmail and money laundering offences.
I accept that his prospects of re-offending are very low.

[34]

Extra-curial punishment

This consideration arises where an offender has suffered a significant detriment as a result of the commission of the offence and the detriment may be properly characterised as 'punishment' (Jehan Jodeh v R [2011] NSWCCA 194 at [49]).
The offender submits that extra-curial punishment has been suffered in two respects. First, he has not been engaged in paid employment since being on bail after his arrest; and secondly, his wife lost her employment.
As to the former, the offender understood that orders made by the Supreme Court of New South Wales, in the proceeds of crime proceeding prevented him from engaging in paid work. Reliance was placed upon an affidavit from Mr Robert McCaulay, a solicitor, who acts for the offender in those proceedings. Mr McCaulay attached only a single page of orders in the Supreme Court proceeding. What was excluded from the attachment was any reference to exclusions from the general restraining order and a complete version of the ancillary orders made. Be that as it may, he made specific reference to order 160 which defined 'property', the subject of the restraint, in the following terms: "any and all of the property (within the meaning of property as defined in section 338 of the Proceeds of Crime Act 2002 (Cth) held by (the offender)(including any property acquired by (the offender) after the date of this order) and which is not already specified in any Schedule to the Summons, is not to be disposed of or otherwise dealt with by any person."
Mr Macaulay deposed to his "view" that on a strict interpretation of order 160, the offender could not engage in any paid employment following the date of the order. He also deposed to be being made aware that the offender had been advised by his previous solicitors that this order effectively prevented any employer paying him. Mr McCaulay also deposed to the instruction received from his client that the AFP had advised him that he could not engaged in paid work and, further, that the offender had not in fact engaged in any paid work since the date the order was made.
A curious feature of Mr McCaulay's evidence is that 3 orders down in the edited extract of the orders made in the POC attached to his affidavit, there is a sub-heading of 'Ancillary orders' and a reference to s 39 of the subject legislation. Further, s 29(1) of the POC Act contemplates application being made to exclude specified interests in property from a restraining order at a "later time", after the restraining order has been made. Section 29(1) is analogous or similar in terms to s 94 of the POCA Act, and the latter provision was interpreted by Button J in Commissioner of the Australian Federal Police v Mulder (2013) 278 FLR 103 at [35]-[37], as indicating that one circumstance when property will be excluded is where the Court is satisfied that the property is not the proceeds of unlawful activity, nor the instrument of unlawful activity, and the Court is satisfied that the property was lawfully acquired. Sections 39 and 44(1)(a) of the POC Act provides opportunities for a person subject to a restraining order to apply for exclusion and variation.
There is no evidence that Mr McCaulay, or the offender's earlier solicitor, gave consideration to, or advised the offender, whether any application be made for an exception or a variation of the restraining order made against him, so as to permit him to earn income from employment.
In my opinion, any perceived inability of the offender to earn in the last 4 years was not a detriment imposed upon him, effectively as punishment, through a court order arising from the commissioning of the offending. It was a restraint to preserve the status quo, which the offender substantially assumed by not taking steps to seek an exclusion or variation of a restraining order imposed under ss 29(1) and 39(1)(a). It makes no difference, in my view, that the offender subjectively considers that the effect of the order is to impose a punishment; even if that understanding is influenced by a lawyer or lawyers. It could not be said that any sentence which I now impose will violate the principle against double punishment (Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [41]), because of a restraint imposed in the POC proceeding when the offender had the capacity to apply to remove or vary that restraint. At any rate, even if that is not right, I find it difficult to accept that a restraint upon property, as distinct from any forfeiture of it, could have a penal purpose (see Attorney-General v Emmerson (2014) 307 ALR 174 at [20] on the purposes of a forfeiture order).
Alternatively, I accept the Crown's submission that s 24B of the CSP Act would preclude my taking into account this matter as a mitigating factor, at least in relation to the blackmail offence. The Crown submits that s 320 of the Proceeds of Crime Act 2002 (Cth) has no application. The offender submits that it may apply to an anticipated forfeiture, but says that its main import is that the Commonwealth is prevented from arguing that the offending was aggravated by the fact that the Commonwealth was likely to suffer a substantial loss. I referred earlier to this potential aggravating factor. In my view, it is unnecessary to engage in further consideration about the legal effect of s 320, as it applies to this offender's circumstances.
The second aspect of the 'extra-curial punishment' related to the offender's wife, who the offender married, whilst out on conditional liberty, in 2018, Ms Sophia Rostankovski referred, amongst other things, to her being employed within the customer service division of an online clothing store at the time of the offender's arrest in May 2017. But 4 months later, the media published certain articles with her name, face and photo. One such article and photo was attached to her affidavit. This referred to her, by her maiden name (she was still unmarried at that point) as a former 'X Factor Australia' contestant and the article referred to her being accused of money laundering and receiving payments comprising the proceeds of white collar crime. She deposed to informing her manager about the publicity who, in turn, disclosed this to the owner. She was thereafter dismissed from her employment. She also deposed to foregoing the opportunity of appearing on 'The Voice' in the following year (2018).
The offender relied upon the circumstances of his wife's suffering a loss of employment and singing opportunities not only as impacting upon herself, but also upon him.
Such indirect detriment that the offender has indirectly suffered through his wife has not been shown to be detriment sustained as a result of his offending conduct. Ms Rostankovski's dismissal did not result from disclosure of the offender's conduct, but an attribution, apparently false attribution, in the media, to her own conduct. Those articles made no reference to the offender. No evidence was given by Ms Rostankovski as to whether she sought any advice about whether she might have a legal remedy for her dismissal, or any attempts she has made for alternative employment. In relation to her singing, there was no evidence of the extent of her intended involvement in 'The Voice' was likely to be realised and what if any earnings, or other opportunities, may have been foregone. It appears as though she was a contestant on X Factor Australia, but I do not consider that it is controversial for me to say that even if she auditioned for 'The Voice', there was no certainty that she would have been successful and, even if she went through to the competitive rounds, what she would have been paid or what, if any other opportunities would have followed. It is too speculative to say what, if any, material disadvantage she suffered; and therefore what the offender indirectly suffered. But as with the dismissal from her work, it is not shown how such disadvantages flowed from the offender's conduct as a factor meriting leniency.

[35]

Delay

I accept that there has been delay and that the prospect of sentencing has generated stress, however I do not consider that this gives rise to substantial measure of leniency. Offset against effects on his health is the happiness he obtained from his marriage and his wife's giving birth to two children and the counselling he has received in which, as I earlier remarked, he has developed insight into his offending. As I have remarked, the offender has used his time productively, and this has and will be taken into account in demonstration of the likelihood that he will not re-offend and his prospects of rehabilitation and (for the state offence) his case for 'special circumstances' (and assessment of the appropriate non-parole period for the federal offence, or offences). The applicable position is, as stated in Giourtalis v R [2013] NSWCCA 216 when Bathurst CJ said (at [1791]: "In the case of a complex fraud it will always be necessary to balance the effect of the delay on the offender against the difficulty and complexity of proving the offence and the need for general deterrence. In particular, although an accused person is entitled to rely on the rights and protection of the criminal law, in circumstances where such reliance has necessitated a complex and lengthy investigation which is carried out with reasonable expedition, the extent that delay can be called upon as a mitigating factor is limited, although the conduct during the period of delay remains relevant to the extent it indicated prospects of rehabilitation."
There was no suggestion that anything done by the prosecutorial authority which contributed to delay or that the delay may be attributable to anything other than the ordinary difficulties in white collar crime cases of detecting, investigating or proving the offending conduct.
When reference is made to the somewhat more elevated consideration of the offender's rehabilitation prospects, and somewhat moderated subjective deterrence are taken into account, in light of the conduct demonstrated by the offender since his arrest, in my view, the consideration of delay does not add any further weight to a case for leniency.

[38]

Money laundering offence

The Crown drew attention to Anquetil, with the reservation that the decision was subject to a Crown appeal against sentence which has been heard but not yet determined. In Anquetil, the offender was sentenced for his role in the Plutus tax fraud conspiracy. He pleaded guilty to two federal offences, one being his participation in a conspiracy to defraud the Commonwealth of a sum of over $100 million; and the other money laundering offence for which he personally dealt with the sum of approximately $28 million (there was also a scheduled offence). The sentencing judge characterised the money laundering offence as being well above the mid-range of objective seriousness; noting that the amount laundered was at the upper end of offences previously dealt with. The sentencing judge noted that the offender had incorporated and used various corporate entities and created records to disguise the transfer of funds. The offender was given discounts both for his pleas and past and future assistance and received a sentence, for the money laundering offence, of 6 years (from a starting point of 12 years); though that starting point sentence was affected by the schedule offence.
In R v Hammond [2020] NSWSC 888 another offender was sentenced for her role in the Plutus tax fraud conspiracy. She pleaded guilty to the two counts of conspiracy to defraud the Commonwealth and also conspiracy to money laundering. She belatedly became involved in both conspiracies, and insofar as she was involved in the latter conspiracy, she assumed the identity of directors of the second tier entities for the purpose of facilitating the movement of the proceeds of the frauds. She obtained a comparatively small financial gain for her involvement in both conspiracies and whilst her motivation was partly financial, she was also motivated by misguided trust and loyalty. After receiving an overall discount for her pleas and past and future assistance, her starting sentence of 6 years for the money laundering offence was reduced to 3 years.
The Crown also cited two sentencing decisions involving a different tax fraud conspiracy, involving the false lodgement of company tax returns with inflated depreciation expenses for the cost of acquiring medical technologies; with the consequence of reaping significant tax losses. The decisions were Dickson v R [2016] NSWCCA 105 and R v Issakidis [2018] NSWSC 378, two co-offenders, Dickson and Issakidis, were both charged with counts of tax fraud conspiracy and a money laundering conspiracy. They dealt with the sum of approximately $68 million in cash payments which were sent to offshore accounts disguised as payments for medical technologies, but thereafter repatriated through elaborate commercial structures, often disguised as loans. The period of money laundering was 6 years and 7 months. Both pleaded not guilty. Neither showed any contrition and both were motivated by greed. Following a Crown appeal, Dickson received a sentence of imprisonment for 12 years for the count concerning conspiracy to money launder. Issakidis, who, amongst other things, was regarded as having good prospects of rehabilitation, and low prospects of offending upon his release, did not appeal the sentence he received for the conspiracy to money launder; which was 8 years and 3 months.

[40]

As between Hausman and The offender

I am conscious of the principle of equal justice which requires, as between co-offenders, there should not be such a marked disparity which might give rise to a justifiable sense of grievance (Postiglione v The Queen (1997) 189 CLR 295). However, the principle is not violated where there are different degrees of culpability and/or different circumstances as between the co-offenders (Green v The Queen (2011) 244 CLR 462 at [28])
As a matter of technique, the principle requires fixing an appropriate sentence in the conventional way, for each co-offender, and then to consider adjusting it, having regard to the consideration of parity. The principle serves as a 'check' on the sentencing exercise (Commonwealth Director of Public Prosecutions v Gregory (2011) 34 VR 1 at [31]). That is what I have done when indicating the sentences later in these remarks.
It is accepted that the principle potentially applies as between Hausman and the offender, in relation to the blackmail and money laundering offences.
As previously observed, I accept that there is a disparity in the objective offending in both the blackmail and money laundering offences. I find that Hausman was more culpable and contributed more to the blackmail offending and also the money laundering. However, Hausman has rendered very material assistance to law enforcement authorities, in the past and into the future, which significantly elevates his subjective case, in comparison to the offender. In particular, whilst I accept that Mr Hausman may have been in a position to render more assistance in relation to the recovery of properties than the offender, so as to effectuate restitution, that does not say anything in itself about the offender's relative capacity, or incapacity, to assist authorities in relation to the investigation and prosecution of other offenders. In this regard, on the evidence before me in this proceeding, and having been privy to the past and future assistance the co-offender Hausman has rendered, the latter is entitled to a very materially increased discount on his sentence; relative to the offender. The sentences I impose upon the offender have been framed having regard to those findings.

[41]

As between the offender and other Plutus conspirators

It is unnecessary, for the purposes of the parity principle that there be a formal identity of charges between persons involved in the same criminal enterprise (Green v The Queen (2011) 244 CLR 462 at [30]). The offender thus invokes the principle for his aid and abetting offence, relative to the conspiracy to defraud offences of the Plutus conspirators.
The Court was referred to the sentencing remarks in the cases of the Plutus conspirators Anquetil, Kitson and Hammond (all dealt with by Payne J, sitting at first instance).
After a discount of 50% for his early guilty plea and past and future assistance, Anquetil received a sentence of 4 years and 8 months' imprisonment for the conspiracy to defraud offence. He was found to have operated at the apex of the tax fraud conspiracy hierarchy, with his offending well above the mid-range of objective seriousness (R v Anquetil [2020] NSWCCA 995 at [91], [93]). The Crown noted that the Court of Criminal Appeal is currently reserved on a Crown sentence appeal with respect to that sentence.
After a discount of 50% for his early guilty plea and past and future assistance, Kitson received a sentence of 4 years and 6 months and non-parole period of 3 years for the conspiracy to defraud offence. His involvement was characterised as being at "slightly below the principal architects and beneficiaries of the conspiracy" and his offending was at the top of the range of objective seriousness (R v Kitson [2019] NSWSC 1109 at [47], [45].
After a discount of 50% for her early plea and past and future assistance, Hammond received a sentence of 2 years' imprisonment for the conspiracy to defraud offence. She was found to have operated at the bottom of the hierarchy of the two conspiracies charged and her offending was considered to be at the just below the mid-range of offending (R v Hammond [2020] NSWSC 888 at [64], [63]). On the facts, her conduct included operating the second tier companies' bank accounts or as a 'bookkeeper' assisting the directors. Senior Counsel for the offender submitted that of the other Plutus conspirators, his position most closely resembled that of Hammond. The Crown agreed with this submission, in the sense that whilst acting on instruction from others, she played an important role in perpetrating the fraud.
The Crown pointed out that in comparison to the Plutus conspirators identified (in Exhibit 2), the offender entered a plea to the 'aid and abet' offence. The undisputed circumstance that he was not of the 'inner circle' and generally had a lesser involvement than other Plutus conspirators was reflected in the offence for which he took the plea (s 135.1(3)); in comparison to the offence of conspiracy to defraud (s 135.4(3)), the latter being a much more serious offence (with a maximum penalty of 10 years imprisonment and/or fine of 600 penalty units) than the aid and abet offence (with a maximum penalty of 5 years and/or fine of 300 penalty units). Nevertheless, the Crown accepted that the offences do not need to be identical for the party principle to apply, at least so long as offenders are part of the same enterprise (Elias v The Queen (2013) 248 CLR 483 at [30]). The Crown submits that as between the offender and the Plutus conspirators, parity has little application; not only because of the different charges and differential maximum penalties, but also because of the differences in roles, conduct and involvement.
In relation to the aid and abet offence, I accept the Crown's submission and do not regard the sentences imposed on the conspirators, for the different offence, to be of much assistance. Among those three offenders to whom the offender made reference, I accept that the offender Hammond's position most closely resembles the offender's position. I have considered the description in the sentencing remarks of that offender's role in the conspiracy (especially at [24]-[39]). But having read Payne J's sentencing remarks in relation to that offender, I do not regard that particular offender's conduct as being more culpable than the offender, or vice versa, but unlike the offender, Hammond yielded past and undertook to provide further assistance to the law authorities. The parity principle has no real application to the offender so as to require adjustment in relation to the aid and abet offence.

[42]

Structuring the sentences

Because I am sentencing for multiple offences, in the case of this offender, I am required to fix an appropriate sentence for each offence, and thereafter consider accumulation, concurrency and totality. Complexity is also injected by the circumstances of mixed federal and state sentences, with the requirement for separate non-parole periods.
I consider that it is important that an element of accumulation is required to comprehend the full extent of the criminality, and recognising the different features of the criminality. Nevertheless, substantial notional concurrency is appropriate. By way of one example, at a time in which the offender was involved in planning the blackmails co-incided with the period for the aid and abetting offence; and the blackmailing could not have occurred but for the knowledge of pertinent information which the offender obtained during the course of his aiding and abetting. Further, the money laundering was plainly connected and occurred within a short period of time, and to some degree almost contemporaneously, to the blackmailing. The laundering would not have happened but for the aiding and abetting. I am also conscious, however, that the overall effect of the sentencing should not be 'crushing', and have striven to apply the 'totality' principle in this regard.
Senior Counsel submitted that it was permissible for the Court to impose an aggregate sentence for the two federal offences (Commonwealth Director of Public Prosecutions v Beattie (2017) 270 A Crim R 556 at [145]-[146]); although in such case, it remains necessary for the Court to provide indicative sentences for the multiple federal offences.
Because of the complexities surrounding sentencing for the mix of federal and state offences, I propose to aggregate the sentence for the federal offences.
The indicative sentences for counts 1 and 3, taking into account the guilty pleas, are as follows: Count 1: 1 year and 7 months' imprisonment Count 3: 9 years and 6 months' imprisonment
I impose an aggregate sentence for counts 1 and 3 for the period of 10 years imprisonment, taking into account the pleas. This recognises a degree of accumulation to reflect the circumstance that there would not have been any money laundering but for the aiding and abetting of the frauds and a common motivation of greed.
The starting point for the sentence for count 2 is 6 years which, with the 20% discount for the plea, reduces to 4 years and 9 months.
Applying the principle of totality, as between aggregate federal sentence and the state sentence result in a notional net effective term of 12 years imprisonment. The aggregate federal offence has been adjusted to provide for a significant measure of concurrency, whilst maintaining some level of accumulation, and to generally reflect the totality principle I have applied.
In terms of starting date for the sentence, I factor in the circumstance of the offender having spent a day in custody.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (40)