HIS HONOUR: Phillip Scahill appears for sentence in respect of four offences, the first being an offence that he dealt with money that was and that he believed to be proceeds of crime, and at the time of the dealing, the money was $100,000 or more, contrary to s 400.4 (1) and 11.2A of the Criminal Code (Cth) (Count 1). The maximum penalty provided is twenty years' imprisonment and/or 1,200 penalty units. The Crown case in respect of that offence was that the proceeds of crime was an amount of money in the sum of $473,359.30 recorded in the Scahill and Co Pty Ltd Trust Account in the false name of "Jeremy Smith".
The second offence was an offence of dealing with money that was and that he believed to be proceeds of crime, and at the time of the dealing, the money was $100,000 or more contrary to s 400.4 (1) of the Criminal Code (Count 2). The maximum penalty is again twenty years' imprisonment and/or 1,200 penalty units. As to the amount, the Crown's case was reliant on at least $200,000 of cash which had been held by the accused in a safety deposit box.
The third offence is deal with money that was and that he believed to be proceeds of crime, and at the time of the dealing, the money was $50,000 or more contrary to s 400.5 (1) of the Criminal Code (Count 3). The maximum penalty is fifteen years' imprisonment and/or 900 penalty units. In respect of the third offence, the amount relied on by the Crown was the sum of $53,850 in cash located at his residence.
The fourth offence is again dealing with money that was and that he believed to be proceeds of crime, and at the time of dealing, the money was $10,000 or more contrary to s 400.6 (1) of the Criminal Code (Count 4). The maximum penalty is ten years' imprisonment and/or 600 penalty units. In respect of the fourth offence, the amount relied on was $49,932 cash located in the drawers of the offender's office desk.
A trial by jury commenced on 24 July 2018 in respect of each of the four counts and on 15 August 2018 the jury returned verdicts of guilty in relation to each of the four offences.
In short, the facts in relation to Count 1 were that the offender either created himself or instructed one of his employees at Scahill and Co to create a ledger account within the Scahill and Co Pty Ltd Trust bank account for Anthony Parker in the false name of "Jeremy Smith". Between 1 May 2014 and 22 July 2014, Anthony Parker and six individuals recruited by Anthony Parker made cash deposits, each under $10,000, into the "Jeremy Smith" ledger account at various bank branches, totalling $473,359.30. The offender instructed Anthony Parker to keep notes of the amounts being deposited.
In respect of Count 2: on 25 July 2014. AFP members executed a search warrant on the offender's vehicle and found a backpack containing $226,263.30 cash in various denominations. The offender had removed this cash earlier that day from a safety deposit box held at National Australia Bank, Parramatta. The offender had previously created a handwritten ledger note titled "Siobhan Oliver 200,000k transfer." This ledger note outlines a transfer which never took place of $200,824.80 from the company, "Prime Appointments" to the company "IRB Consulting" for a "management fee." These companies were under the control of the offender and were used by him to give legitimacy to the asserted transaction and distance himself from the true source of the money.
In respect of Count 3: on 16 June 2014, the offender sent a text message to Anthony Parker requesting "$$". On 17 June 2014, Anthony Parker delivered $53,850 in cash to the Scahill and Co office. The offender took this money to his home and asked his de facto partner to put it in a safety deposit box until they could spend it on a building project.
In respect of Count 4: a number of envelopes containing Australian currency were seized from within a number of drawers in the offender's office desk. The amount of money seized totalled $49,930. A piece of paper wrapped around $10,000 was found to have Anthony Parker's and Siobhan Oliver's fingerprints on it.
Text messages downloaded from Mr Parker's phone show that on 13 September 2013, the offender requested that Anthony Parker give the offender $5,000. On 11 October 2013, the offender requested that Anthony Parker give him another $5,000. On 21 October 2013, the offender requested that Anthony Parker give the offender $1,500 in cash. On 30 October 2013, Siobhan Oliver told Anthony Parker that she had given the offender $3,020. On 31 October 2013, the offender arranged with Siobhan Oliver that she would leave cash in an envelope on the offender's desk and on about 30 January 2014, the offender requested that Anthony Parker give the offender $10,800.
The offender is a qualified accountant who is the principal of the firm Scahill and Co. As the principal of that firm, he had approximately ten full time employees and five casual employees. There was no dispute in the trial that Anthony Parker had been involved in the importation of prohibited drugs into Australia, which had resulted in him having substantial amounts of cash at his disposal, being in the millions of dollars.
The offender in about January 2013 advanced $200,000, supposedly as a loan to Siobhan Oliver, the girlfriend of Anthony Parker. The money came from the Scahill and Co Trust Account and from the business, according to the records, of Prime Appointments as a management fee to IRB Consulting. The money was used to purchase a property on which Parker and Oliver wished to build a house. Siobhan Oliver had been an employee of the firm "Rush Recruitment", being a labour hire firm that occupied the floor above the offices of Scahill and Co. Mr Scahill in his record of interview appears to indicate that he first met Parker through Oliver at a Christmas function at approximately Christmas 2012.
The supposed loan was made in January 2013, and in the offender's record of interview with police conducted on 8 September 2014, the offender indicated that the $200,000 loan had been paid back to him in cash in about March 2013, and that he had secured the loan by way of a caveat against the title. There was no evidence presented of any caveat having been taken out at any appropriate time. It is not possible from the limited information before the Court to determine when in fact the $200,000 which was said to have been placed into the safety deposit box had been obtained.
Mr Scahill is a businessman of considerable experience and an accountant. I find it difficult to accept that he would have advanced $200,000 from trust accounts without having first received the $200,000 in cash as collateral for it, as well as any fee that might be paid for engaging in the laundering process. However, on the material before the Court, I am unable to make any definitive conclusion in that regard.
As to the monies the subject of Count 1, as indicated, between 1 May 2014 and 22 July 2014, there were a significant number of individual cash deposits into various bank branches to the "Jeremy Smith" ledger account, each of the deposits being under $10,000, which was clearly designed to avoid the requirement for cash transactions to be reported to the authorities, that is, cash transactions of $10,000 or more. I find beyond reasonable doubt that the offender, a qualified accountant, was fully aware of the cash transaction reporting requirements, and that he provided advice to Mr Parker to adopt a means whereby cash funds might be deposited by various persons at various banks into an account which would be disguised by the fact that it was in a false name as well as by the fact that the transactions would each be under the reportable threshold. Clearly, the company's trust ledger accounting records in respect of the supposed $200,000 loan were also records created either by the offender, or at his direction, by staff. The records again were falsely created in order to avoid the disclosure of the significant cash sum and to legitimise the funds in a way that might avoid their detection in any subsequent investigation. There is no clear evidence in relation to how much the offender received as a result of his advice as to how to go about laundering the funds, however, as to Count 3, there was at least $53,850 provided to him in cash as payment which he requested his de facto to place in the safety deposit box until such time as they could use it on developments of their own. That would appear to be specific reward for his criminal conduct. In addition, at least some of the funds relevant to Count 4 found in his office drawer would appear to have the same character. As to the purchase of land and the development of a house, the offender's agreement with Parker and Oliver was that he would receive a thirty per cent fee for managing the construction.
At the time of the intervention of the Federal Police, the amount that had been either spent or was due to be paid to contractors and or due to be paid to the offender as the result of the thirty per cent management fee was a total of $437,366.57, as referred to on a spread sheet compiled by an employee of the offender, Luke Smith, on 27 August 2014, being trial Exhibit 1 Volume 2 p 262. There is a close relationship between that figure and the figure being the total of the deposits into the false "Jeremy Smith" trust ledger account. Monies actually paid to contractors appear to have come from unelated accounts in the Scahill Trust Account, and again, it would appear likely that the offender was endeavouring to ensure that there was a significant sum of cash that had been deposited into the trust account in order to cover the outgoings, although such funds that had been paid were not coming from the "Jeremy Smith" account.
Mr Bellanto QC, who appeared for the offender during the course of the trial and on sentence, submitted that the Court would find that Mr Scahill's role in relation to the money laundering in respect of each of the counts was as a "facilitator" operating at the direction of Anthony Parker. That is a submission which I reject.
In the offender's record of interview, he was asked the following questions and gave the respective answers [P367 of Exhibit 1, Volume 2]:
Q. 748. Now just on his money, you mentioned earlier that you've got a number of accountants that work for yourself either contracted or full time. Do you do any tax returns yourself?"
Although the transcript records no audible reply, the video recording was played during the course of the trial and the offender could be observed to shake his head indicating an answer of "No".
"Q. 750 No. Do you know who does Anthony and Siobhan's tax returns? If you-
A. Only one of us. I - I could dial into the system. It'd be just one of the - one of the staff.
Q. 751 So you've never done their tax returns yourself?
A. No.
Q. 752 Do you know what he does - what their incomes is like?
A. I do now ---
Q. 753 Yep.
A. --- that I've seen the brief.
Q. 754 Yep?
A. But prior to that it didn't even cross my mind. They were just another client.
Q. 755 What did you think they did for work, or roughly what their income was?
A. Oh well I know, well I know what they've done for work. They - Parker told me that he was a fitter and turner and worked on the baggage conveyor belts.
Q. 756 Yep.
A. Yeah, servicing those and keeping them running. And Siobhan, if you like, was just a consultant upstairs in an office.
Q. 757 Collectively, how much based on your experience would you estimate they earned together per year?
A. Ah, oh, I couldn't tell you off the top of my head. It's in here somewhere. It's - I think from memory when I've had a look it's maybe a hundred and fifty jointly."
Contrary to that evidence, tendered as part of Exhibit 1, Volume 1 were tax returns for the year ending 30 June 2013 in respect of each of Siobhan Oliver and Anthony Parker. Siobhan Oliver's return indicates that she was a recruitment consultant who had a taxable income of $46,180. The return in respect of Anthony Parker declared a taxable income of $113,449. Each of the returns was signed off by the offender, meaning that at least by June 2013 he was aware of their economic situation. Neither of the returns indicated any interest from any deposited assets or other income. He must have been fully aware, in my view, in particular in relation to the significant sums of money that were being deposited into the Scahill and Co account that there could be no legal source of the funds. He was aware that Anthony Parker worked at the international airport in relation to the luggage conveyor belts. The offender may not have been specifically aware of the individual offences committed by Mr Parker in relation to the importation of prohibited drugs, but in my view, he must have had at the very least a very strong suspicion that the significant sums of money being provided to him in cash or by way of deposits made in a fashion to avoid reporting conditions must have been the source of illegal conduct, and the only reasonable conclusion in relation to that would have been Mr Parker's occupation at the international airport. As to his knowledge as to what funds were available to Mr Parker, that is indicated by the content of some of the telephone calls between them which were intercepted by the Federal Police.
On 23 May 2014, there was an intercepted call in relation to which the offender and Mr Parker discussed a development. The offender was advancing the prospect of them investing by purchasing property for $2 million and then developing that property into some fifty-six units which were estimated by the offender as costing some $14 million. That would have been a total investment of $16 million. Having discussed the prospects, he said to Mr Parker, "I thought just a little bit big, a little bit big," but he indicated that it would be nice to get a low buying price like $2 million for the site because they could then fund the build costs themselves. Clearly, he had an anticipation that Mr Parker was going to have substantial funds available to him. He indicated that they might need to wait awhile before they could advance to such a sizeable project. In addition, in a further conversation on 3 June 2014, he was encouraging Parker to invest the sum of $100,000 into a business called "Bartercard". In due course, the correspondence indicates that Parker had accepted that he would invest US $100,000 into that business. His consultant in relation to the investment was the offender. He also provided advice to Ms Oliver as to the prospect of purchasing various businesses that might suit her. The inevitable conclusion is that the offender must have been aware of Mr Parker having substantial cash assets or being likely to come into possession of substantial cash assets.
Rather than being a "facilitator" of the laundering process, he used his skills as an accountant to establish a laundering process by which Mr Parker's proceeds from the importation or importations would be laundered in such a manner as would make it difficult for the authorities to detect, and if detected, to be able to trace back in such a way as would result in Mr Parker losing his illegitimate gains. While it is not necessary to describe in particular terms Mr Scahill's role in relation to the laundering, in my view he can be accurately described not as a "facilitator" but as an "architect" knowing that the funds that were supplied to him as cash to be laundered and as payment for his role were in fact the proceeds of crime.
As for the $53,850 cash delivered to the office, the offender spoke with Diane Hollis, his partner, and asked her in an intercepted telephone call if she had "… looked after that little, that little present that I brought you home last night." She replied, "Well, I haven't gone down and done it but I put it away. …Well, don't you want me to go down and get a safety box?" To which he responded, "Oh, yes, yeah." He said that, "In time, once we've sorted out Brian, I'd like you to, you can put it into your bank account," and went on to state, "Because I can't put it in." Clearly, an indication that he did not wish to place it in his account. She acknowledged, "… but for now it's got to go in the safe deposit box, that's what I'm saying," with which he agreed.
After he was aware that the offender Parker had been arrested by the Federal police and of their enquiries in relation to himself, on 24 July 2014 he had a further conversation with Diane Hollis. He rang her to indicate the Federal police had a search warrant and that she could expect them to visit at the home premises. He said, "They just want to see if there's any paperwork at home for Caringbah or any of the related stuff that we're doing, which there will be of course." He informed her that they were going to search the whole house and said, "There's no money laying around is there?" She replied, "I don't think so." He said, "Good. All right, well, let them in and give me a call back when they're finished." In my view, the offender was concerned about the possible location of the $53,850 that he had left there as previously referred to, and was endeavouring in the call to alert her to the fact that the Federal police would be soon attending, which would have given her the opportunity to remove the $53,850. Unfortunately for him, she was not at home, or there before they attended and searched the premises and located the $53,850 he had previously been supplied in cash by Mr Parker.
At an earlier time, on 23 July 2014, he had a revealing conversation with Luke Smith, the person who was ostensibly the onsite manager for the building of the Parker/Oliver residence. Luke Smith, in the call, which I note was before the execution of any search warrant on the offender's office or home, indicated his concern regarding Parker, who had been due to meet the plumber onsite to provide details, and said;
"No one has been able to get in contact with him so I thought, oh."
Scahill: "That's unusual."
Smith: "Yeah, I know it's concerning isn't it? Who knows, maybe he broke his phone or something, I don't know."
Scahill: "Hope he hasn't been arrested."
Smith: "That's the first thing that comes to my mind, but yeah I don't know."
Scahill: "Me too."
Smith: "Yeah, I know, and that's the first thing the plumber said too."
Scahill: "Sorry?"
Smith: "It's the first thing the plumber said too. It's ridiculous, the plumber even thinks like that because of the way he conducts himself there."
Scahill: "Oh, he's just a bit, well that's, if he's going to talk, if he's going to talk and work to the wrong person he's going to get caught."
Smith: "He tells everyone, he gives everyone the impression - I don't know why he does that."
Other calls indicate that the offender suspected that his telephone would be the subject of interception, referring in some calls to an unknown male. On 24 July 2014, he was called by someone who said, "I called, it rang and then it made horrible noises. I tried two or three times and it just made really horrible noises and I gave up." The offender replied, "Probably a phone tap."
A further call on 24 July 2014, which was when the Federal police in fact executed a search warrant on his office premises, indicated that he was concerned that the Federal police might think that he had been involved in money laundering with Parker, and he referred in the call to the monies owed in respect of the development of the residential premises,
"We'll need to, um, we'll need to work out to. We'll need to work out how much that bastard owes us"... "We can lodge a caveat over the property. I don't know how I'm going to get paid for that. I know he's put the money in the trust account but I'll probably just bloody, I don't know, take that."... "I knew he was a bugger."
The offender did not give evidence at trial and nor did he give evidence on sentence. Called in relation to subjective matters were a number of referees, being Kim Louise Norris, a person who has known the offender for some thirty years, having first met him at Macquarie University when they were both studying a Bachelor of Economics. She has had ongoing interaction with him over the years since and is the godmother of his two children, one of whom is now of university age, and one who is approximately sixteen years of age. She referred to the offender as having lost his first wife in 2009, the mother of the two children, and his subsequent relationship with his current de facto and her children. She referred to her belief in him as being a hardworking and reliable, trustworthy friend, being loyal and supportive and a good parent, having taken on the responsibility for his de facto's three children as well as his own. She said that she had been made aware of the monies involved in relation to each of the counts, and that knowing the significant sums involved did not change her view of him.
However, in cross-examination, she indicated that she had not been aware that the funds that he had dealt with had been the proceeds of drug importations. Although she had not herself practised as an accountant for some twenty years, she indicated that even at the time that she finished practise, money laundering was considered a significant matter. When asked whether she would change her view as a result of being provided with the information as to the source of the funds, she indicated that that would not affect her view of the offender because she believed that he was not guilty. It appears that Ms Norris was acting on blind faith having buried her head in the sand.
Also called was the offender's five year younger sister, Vanessa McPherson. She held the offender in high regard but again, indicated that she did not believe that he committed the offences, and that it would not change her view of his character even if he had been doing the laundering for a drug importer.
The other witness called as to the offender's character was Rodney Hunwick, a resident in Queensland who had previously had a business in Parramatta and had used the services of the offender as his accountant for that business, and still had some ongoing relationship with him in relation to a business he was endeavouring to set up titled "Decentralised Literacy Organisation". He, like the other two witnesses called on sentence, held the offender in high regard.
However, it is evident from the evidence before the Court that the offender was living in effect a double life. He was no doubt well-regarded as a businessman; he no doubt had substantial business acumen, being involved in his own property developments, and was an adviser to various clients of the accountancy business in relation to their financial affairs. I accept that he was regarded as a good parent and a good friend, as indicated by the evidence of Ms Norris, his sister and Mr Hunwick, but he was not engaged in money laundering for them, and in each case, their view of him is limited to his façade of being a legitimate law-abiding accountancy practitioner and family man.
The matter proceeded as a defended trial. There is no evidence before the Court of any remorse or contrition.
Mr Bellanto QC referred the Court to a number of newspaper articles on the basis that the reputation of the offender had been significantly adversely affected by the publications. One was an article from the Sydney Morning Herald titled, "The Facilitator: How a Dirty Accountant Washed Millions for Crime Ring," and another from the Financial Review titled, "Plutus conspirators accused of controlling new network of payroll companies." As a result of the reference in the written submissions of Mr Bellanto QC in order to assess the submission made by him, I have accessed the articles. I note the references to two of the witnesses called in the Crown case, Mr Phillip Milne and Mr Greg Mitchell: Greg Mitchell being the operator of the business one floor above Scahill and Co, "Rush Recruitment".
I am of course sentencing Mr Scahill only in respect of the matters that are before me as a result of the trial, although there are references in the material to which I have been referred by Mr Bellanto QC which might lead to the inference of Mr Scahill having been involved in other offending conduct, I will sentence him on the basis of the material that is before me as a result of the trial, not as a result of the submission made by Mr Bellanto QC.
The articles do indicate that the offender's role in relation to the laundering of Mr Parker's drug money was the subject of publicity. There is nothing extraordinary or unusual about that, particularly in the light of the very significant sums of money involved with Mr Parker and the very significant sums of money involved by way of these offences in respect of this offender.
As to the prospect of rehabilitation, I am unable to make any finding. The offender has not given evidence, and as I have said, he had essentially been living, it would seem, at least during the currency of these matters, a double life. As to the seriousness of the respective offences, in each case I regard them as being very serious examples of money laundering offences, particularly where the proceeds must have been strongly suspected at least as having been received from the commission of drug offences, and where the offender, in order to launder the money, set up a sophisticated scheme whereby the funds could be disguised as they were laundered bit by bit in a relatively untraceable fashion into property and or other assets.
In R v Ly [2014] NSWCCA 78, the Court of Criminal Appeal set out the significant factors in relation to Federal money laundering offences, pointing out;
"(i) The statutory scheme has a graduated series of offences varying in gravity depending on the value of the money or property and the offender's state of mind."
In this matter, the charges were each that he dealt with the money believing it to be proceeds of crime. In each case in my view, although the amounts range between approximately $50,000 and $470,000, the sums involved are significant.
"(ii) The offences are broken down into the mental element of the offender: belief, intention, recklessness or negligence, the prescribed maximum penalty depends upon the culpability of the offender's mental state concerning the source of the money for offences involving proceeds of crime or what is to become of it, for offences involving an instrument of crime."
As I have previously indicated, in my view, the offender, being an intelligent man with university qualifications, had to have been capable of drawing the obvious inference that Mr Parker was involved in drug importation and that that was the source of the funds.
"(iii) The amount of money involved is a highly significant matter and is the primary identifier of what is the maximum penalty for an offence."
As I have previously referred to, these offences in relation to Counts 1 and 2 are each provided with a maximum of twenty years, Count 3, fifteen years, and Count 4, ten years, indicating the seriousness with which they are regarded by the legislature.
"(iv) The number of transactions and the period over which they occurred are also significant matters as they indicate the extent of an offender's criminality. Generally speaking, a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount, for the latter may be seen as an isolated offence."
The offender dealt with the money over a period of some months in 2013 and 2014. As to the deposits in respect of Count 1, there is no indication that he recruited the persons who deposited the individual sums, nor that he was aware of the precise amounts being deposited. However, he received a weekly summary of deposits from the trust account and must have been aware from that summary first of all that the deposits were being recorded in the false name of "Jeremy Smith", that they included amounts of in excess of $40,000 in some weeks, and it would have been readily available to him to check the accounting records in order to determine that the amounts being deposited at various banks were on each occasion less than $10,000. However, he would have had no need to do this, because in my view, they were being deposited in that fashion because that was the advice that he had provided to Mr Parker in order to avoid detection. He did not recruit the persons who made deposits, they being friends or acquaintances of Mr Parker and Siobhan Oliver themselves, but he knew precisely what they were doing.
"(v) The offences are not only concerned with the source of the money or property dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal."
In this matter, it is clear that the intention was to launder the money so that it could be invested in property or other assets after having been, as it were, washed and dried. While the money was obtained by the commission of crime and dealt with to disguise that crime there is no evidence that it was to be used for any further illegal purpose.
"(vi) The serious criminal activity of money laundering warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case."
There is no clear evidence of the extent of any profit to be made by the offender from his criminal conduct, but the inevitable inference is that he anticipated a substantial direct or indirect benefit sufficient to justify putting his career and liberty at significant risk.
In my view, both general deterrence and specific deterrence are very significant matters to take into account when sentencing this offender, who so abused his position in the community of a qualified, legitimate, law-abiding accountant by assisting a drug importer to launder his ill-gotten proceeds.
"(vii) Knowledge as to the illegality of the conduct is clearly a matter that increases the seriousness of the offence."
Clearly, in relation to the offence of laundering, the offender was absolutely aware because he was the one who was the architect of it.
Before sentencing in relation to a Commonwealth offence, the Court is required to take into account the matters referred to in s 16A(2) of the Crimes Act 1914. I have referred to the offender's motivation for participation being clearly for financial reward although there is difficulty in determining exactly what the financial reward was in the circumstances. It was at least the monies referrable to Count 3 and at least in part, some of the monies referrable to Count 4 as well as in my view, it is likely that the thirty per cent project management fee for the building of the property represented an inflated management fee in order to reward him for that particular form of money laundering.
General deterrence in respect of money laundering offences is, as I have previously said, a highly relevant factor. Those who engage in criminal offending, particularly in relation to offences such as drug importation or drug sale on any significant scale, need the assistance of skilled persons to assist them to hide the money. Accordingly, professionals such as the offender should be discouraged by significant sentences being imposed from assisting criminal offenders to launder the proceeds of crime. The legislature has identified money laundering offences as being necessary to prevent the movement of illegally obtained money and property, both domestically and internationally and it has prescribed maximum penalties that reflect the seriousness of the offences. That was highlighted in the matter of R v Huang (2007) 174 ACR 370 at 36. It is of course necessary to send the signal that despite the significant potential financial rewards to an offender, the consequences are neutralised by the risk of severe punishment.
"Money laundering… should be considered as serious criminal offence that is at the very heart of organised professional crime syndicates. It warrants severe punishment, not the least in order to reflect general deterrence to a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case,"
The offender, in terms of his personal circumstances, is fifty years of age. He has a de facto partner and children from a previous marriage. As I understand it, his youngest child is sixteen and residing with the de facto partner as well as one or more of her children from her previous marriage. I note the offender has no previous criminal convictions other than driving offences, which can have no adverse effect in respect of sentence for these offences. The Court is only entitled to pass a sentence of imprisonment for a Federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances, s 17A (1) of the Crimes Act. There has been no submission made on behalf of the offender that there is any alternative to a sentence of full time imprisonment, and such a concession was appropriate in the circumstances of this matter.
As to the prospect of the offender committing further offences, it would appear to be highly unlikely that he would be able to continue to practise as an accountant at all. Indeed, it would be of serious concern if he was permitted to do so, having regard to the nature of this offending. That may make it difficult for him to commit such offences in the future. There is, however, nothing other than the law to stop him from providing advice to others as to how to go about creating circumstances to disguise illicit funds; he does not need to be a qualified or practising accountant to do so. I am in the circumstances unable to find that there is a good prospect of rehabilitation or a good prospect that he will not re-offend in the future.
In the circumstances where the matter proceeded as a defended trial and the offender having given no evidence on sentence, I have had to take into account the potential question of parity in relation to these offences.
I have been provided with the decision of Sweeney DCJ in relation to offences brought against Mr Parker and a number of other sentences, in particular in relation to Cathy Macdessi by Handley DCJ. I have found little assistance in relation to sentence and no real relevance on parity resulting from the reasons on sentence in respect of Cathy Macdessi, there being significant distinctions between her and her offences and this offender. I have also been informed as to the result of a number of other matters in respect of persons in particular who deposited funds into the "Jeremy Smith" Trust Account, being Gregory Bond and Denise Carter, and I have found little assistance, their role being limited, in respect of parity to this offender.
Siobhan Oliver has also been dealt with. On 5 November 2018 she was sentenced in respect of a single count of dealing with property that was and she believed to be proceeds of crime, being property to the value of $1,000,000 or more. She received a sentence of five years' imprisonment with a non-parole period of three years. The actual reasons on sentence are not yet available, but there is a significant distinction in that she appears to have been dealt with by way of a rolled up count, totalling $1,000,000 or more.
There is some overlap in relation to the offences for which Mr Parker was dealt with. In relation to the deposits which related to Count 1, it appears that one of the offences that he was sentenced for dealt with some $312,450 of those funds. Count 1 in respect of this offender, however, is the total amount of $473,359.30. Mr Parker received a sentence of eight years' imprisonment in respect of that offence, but in regards to a lesser sum, being approximately $160,000 less than here concerned. In respect of Count 3 in respect of this offender, being the $53,850 in the bag located at his residential premises provided to him by Mr Parker, Mr Parker received a sentence of five years' imprisonment, and in respect of the funds located in the drawer, Mr Parker received a sentence in respect of $30,800 of that sum of four years' imprisonment. Each of those sentences in respect of Mr Parker was ordered to be served concurrently. Before me are the reasons provided by Sweeney DCJ and I note from that that the offender Parker indicated a plea of guilty in respect of each of the money laundering charges that he faced at the outset of the commencement of the trial, in which he then defended a number of charges relating to the importation of the prohibited drugs and in respect of which he was eventually convicted. That her Honour made the sentences in respect of the money laundering offences entirely concurrent with each other was no doubt a matter of practical sentencing convenience in circumstances where the sentences would be largely subsumed by the sentences imposed in respect of the defended importation charges.
Sweeney DCJ indicated that his pleas in respect of the money laundering did not involve contrition or remorse or even an acceptance of responsibility for those offences, as a result of evidence he gave in the trial in relation to the importation offences. However, she found that they permitted the Crown to lead evidence about the money in the trial in a shorter form than if they had had to prove the money transactions strictly, and she considered that the pleas saved some time in the conduct of the trial and to that extent demonstrated some willingness to facilitate the course of justice. She therefore discounted his sentences in each case for the money laundering offences by ten per cent and in addition, rounded down some of the sentences after making that deduction. I have had regard to the individual sentences for the relatively like offences imposed by Sweeney DCJ in establishing an appropriate sentence in respect of this offender.
I note that one of the submissions made by Mr Bellanto QC on behalf of his client that,
"Mr Parker's culpability is of a higher order and can be distinguished from that of Mr Scahill. Objectively the offending can be distinguished principally on the basis that the benefit of the offending was substantially for Mr Parker. Mr Parker was the person involved in the predicate offending; Mr Scahill knew nothing of the predicate offending and was there not involved in it; Mr Parker was the author and instigator of the scheme. In those circumstances, Mr Scahill's offending might be assessed as below the mid-range and well below that of Mr Parker … in those circumstances the application of the parity principle is to the benefit of Mr Scahill as he ought to be assessed as less culpable both morally objectively viz-a-viz Mr Parker."
In relation to the money laundering offences, I am unable to find that Mr Scahill is any less morally culpable than Mr Parker. Indeed, as I have said during the course of these reasons more than once, in my view, Mr Scahill can be accurately described as the "architect" of the money laundering offences, being the adviser and the arranger of them to the benefit of Mr Parker. I regard his moral culpability in relation to the money laundering offences as being of the highest character and significantly serious. Mr Parker was no doubt a significant criminal in relation to the importation of prohibited drugs and also in relation to endeavouring to launder his money, but he relied on the skill and expertise of Mr Scahill and his position as a legitimate accountant in order to effect the laundering of the funds.
I have previously referred to the persons depositing funds of less than $10,000 into the "Jeremy Smith" Trust Account, an account that could not have been accidentally set up within the Scahill and Co office but in my view, had to be a deliberate result, arranged by the offender to ensure some form of plausible deniability should there be any discovery by the authorities. Just as the loan of $200,000 according to the Scahill and Co records came from businesses or companies essentially under the control of Mr Scahill rather than from any monies provided to him in cash.
I have taken all of those matters into account and I intend to proceed by way of an aggregate sentence. Accordingly, I will provide an indicative sentence in relation to each of the four counts.
In respect of Count 1, the indicative sentence is ten years' imprisonment. In respect of Count 2, the indicative sentence is seven years' imprisonment.
In respect of Count 3, the indicative sentence is five-and-a-half years' imprisonment. I
n respect of Count 4, the indicative sentence is four-and-a-half years' imprisonment.
The aggregate sentence will be thirteen years' imprisonment with a non-parole period of eight years and six months and a balance of term of four years and six months.
The sentence will commence on 15 August 2018 and I make an order that he be released on parole on 14 February 2027. The sentence of thirteen years will expire in 14 August 2031.
I have no doubt that Mr Scahill having been in custody since 15 August 2018 at the conclusion of the trial, bail being refused, would understand that if when released on parole he is in breach of the conditions of his parole, he will be likely to return to custody and continue serving the sentence. Mr Crown is there any matter that I've omitted, or error?
FLOOD: I just wanted to bring to your Honour's attention in case it makes any difference one matter by way of transcript which is transcript reference is 26 July 2018 at p 143, it's during the evidence of Federal agent Barton and it relates to your Honour's remark about the telephone call with Ms Hollis and your Honour's remark about the removal of the money, if your Honour looks at the transcript at line 12 the evidence in my submission supports the conclusion. The police had already arrived at the premises. Mr Scahill was made aware of that.
HIS HONOUR: So it may be that in fact Ms Hollis had no opportunity to remove the funds.
FLOOD: Indeed, that's right, your Honour.
HIS HONOUR: All right, I refer to her not taking the hint. In my view, there was obviously a hint but I will adjust my reasons to reflect that fact Mr Crown.
FLOOD: Thank your Honour. The other--
HIS HONOUR: It doesn't in fact make any difference to the sentence.
FLOOD: --matter your Honour is that there was dispute between the parties in relation to the amounts for Counts 3 and 4. If your Honour goes to p 4 of Mr Bellanto's written submissions in relation to Count 3, the defence submitted that your Honour would sentence on the basis of 50,000. It was the Crown's position that it would be 53,000--
HIS HONOUR: Nine hundred and whatever dollars--
FLOOD: $53,850. Your Honour hasn't made a specific finding of fact about that, and obviously I'd ask your Honour to do so, and in relation to Count 4, it was the defence position that it was $10,000 and the Crown's submission that was that it was $24,520.
HIS HONOUR: Was that specifically referred to in your submissions?
FLOOD: Yes, your Honour, it was, but only by way of addition. If your Honour goes to para 17(d) on p 5 of the Crown's submissions the amounts referred to in that paragraph were 10,000, 5,000, 5,000, 1,500 and 3,020. The 10,800 referred to in the last paragraph being the same $10,000 that had the fingerprints on it.
HIS HONOUR: Yes. I'll just indicate that in relation to finding as to the amounts relevant to the sums referred to in the - when I referred to what the Crown relied on, I find beyond reasonable doubt in respect of Count 1 that the sum was $473,359.30. In respect of Count 3, that the relevant sum beyond reasonable doubt was $53,850 and in relation to Count 4, the sum was $24,520.
FLOOD: And your Honour didn't say Count 2 but I think it's agreed that it was 200,000 between the parties.
HIS HONOUR: Yes, well I would've happily found 226,000 Mr Crown. You're only asking for 200,000, I'll find 200,000. The fact is that there was $226,263 taken from the safety deposit box for which there was no explanation other than that it was money that had been put into the box by Mr Scahill, and to the extent that there is some explanation, in his record of interview he referred to receiving $200,000 and putting it into the safety deposit box. In my view, it's likely that the balance was in fact payment for that conduct, however, all right. In relation to Count 2 on the indictment I find beyond reasonable doubt that the relevant amount was $200,000. Is there anything anyone else would like to raise?
BELLANTO: No, your Honour.
FLOOD: No, your Honour. Your Honour, in relation to the forfeiture application, there should've been an amended summons filed, I have hard copies available.
HIS HONOUR: Yes all right, I have the amended summons.
FLOOD: I also have prepared written submissions in relation to the forfeiture application which I will hand up, a copy marked and a working copy for your Honour.
HIS HONOUR: Mr Crown, your amended summons has the relief claimed set out at Schedule Part 1 simply being the repetition of three of the counts in the indictment that is, leaving out Count 1, presumably because that money was recovered through the proceedings against Mr Parker.
FLOOD: It's already been forfeited, yes, your Honour.
HIS HONOUR: I note that as to what is referred to as part 2, $226,313.30 which is Count 2 in the indictment, $53,850 which is Count 3 and $49,932 which was Count 4.
FLOOD: Yes, your Honour.
HIS HONOUR: All right, so the forfeiture orders are -
FLOOD: Your Honour, those amounts are subject to your Honour's findings now in relation to the matters that your Honour's found beyond reasonable doubt.
HIS HONOUR: Yes.
FLOOD: The Crown is no longer pressing those total amounts, and indeed there are exclusion orders that have been consented to in relation to various amounts that also further affect the total amount that the Crown is seeking forfeiture in relation to. I'll hand up handwritten consent orders in relation to - the notice of motion as I understand was filed on 22 November on behalf of Mr Mitchell. Unfortunately the parties don't have copies of these documents your Honour.
HIS HONOUR: Sorry, Mr Mitchell, that was the gentleman who ran Rush--
FLOOD: Yes, your Honour, that's correct.
HIS HONOUR: Who's referred to in a number of the articles that I was referred to by Mr Bellanto.
FLOOD: Yes, your Honour.
HIS HONOUR: Being a - no, Mr Mitchell was - yes, did you say Mitchell?
FLOOD: Mitchell, yes, your Honour. I think he is in the articles as well, your Honour.
HIS HONOUR: Yes he is. He's referred to as having been banned as the director for a number of years in relation to failed companies et cetera. Yes, all right. A person in respect of whose evidence in the trial I took an exceedingly dim view, however, you have resolved these matters.
FLOOD: That's right, your Honour, thank you, so that will impact upon - sorry I withdraw that. The other consent orders are in respect to Mrs Stewart and I hand up handwritten consent orders in relation to her as well.
HIS HONOUR: Sorry, is Mrs Stewart the wife of Mr Milne?
FLOOD: No, Mrs Stewart is the wife of Mr Ross Stewart; Mrs Stewart also gave evidence in the trial. She was the director or purported director of--
HIS HONOUR: She didn't know what had happened to the funds that have been left from the sale of the business she shared with her husband.
FLOOD: That in part was her evidence that's right, yes, your Honour, and there were monies that were given to be placed into the safety deposit box and a ledger in relation to those monies was provided to the Court as part of the evidence by Mr Scahill, so there's consent orders in relation to her as well. As far as the forfeiture application is concerned, the total amount that is now being sought to be forfeited in relation to Count 1 on the indictment is $194,413.30.
HIS HONOUR: Sorry, is that written down somewhere?
FLOOD: I can hand up amended short minutes of order, I'll just complete those.
HIS HONOUR: I'll make the orders you seek, Mr Crown, but I must say I have some difficulty in understanding how the Crown in the circumstances of all this cash was ever able to establish any objective basis on which these could be calculated.
FLOOD: Your Honour, documents have been provided to the Crown by way of the AFP that have determined that these are the appropriate orders, so I hand up amended short minutes of order. The amounts referred to at part 2 reflect either the amounts that have now been excluded by consent or as far as the third party is concerned, the total amount that your Honour found beyond reasonable doubt for Count 4 on the indictment.
HIS HONOUR: All right, first of all in relation to the plaintiff, being the Commonwealth Director of Public Prosecutions and the defendant, Phillip Scahill and interested party, Clare Stewart, by consent, I order
1. In respect of Clare Stewart,
The Crown excludes from the application for forfeiture brought in these proceedings the sum of $31,900 and
The Court directs the plaintiff to pay Clare Stewart an amount of $31,900 by 21 December 2018.
1. Each party is to bear their own costs in respect of the motion filed on 22 November 2018 and
2. The notice of motion dated 22 November 2018 be otherwise dismissed.
Yes, I note, Mr Crown, I had some sympathy for Ms Stewart. When she gave her evidence she seemed to have little knowledge as to what had happened with any of the funds.
FLOOD: Yes, your Honour.
DANIELS: Your Honour, sorry to interrupt, I represent Mrs Stewart. No formal application was actually filed. We haven't had an opportunity yet. We were only advised yesterday, I'm not sure if that's going to--
HIS HONOUR: Well, I've made the orders.
DANIELS: Sure.
HIS HONOUR: All right, in respect of the matter of the plaintiff, the Director of Public Prosecutions and the defendant, Phillip Scahill, interested party being Gregory Ian Mitchell by consent, I order
1. In respect of Gregory Ian Mitchell's notice of motion filed 22 November 2018,
The Crown excludes from the application for forfeiture brought in these proceedings the sum of $15,000 and
The Court directs the plaintiff to pay Clare Stewart an amount of $15,000 by 21 December 2018.
1. Each party is to bear their own costs in respect of the motion filed on 22 November 2018 and
2. The notice of motion dated 22 November 2018 be otherwise dismissed.
Perhaps Mr Crown you could inform the appropriate interested parties as to the prospect that Mr Mitchell might have some funds that they can pursue.
DANIELS: Just before your Honour deals with the rest of Mr Scahill's forfeiture, my understanding was that your Honour would make the same findings in the forfeiture application as your Honour did on sentence, and that's why I understood Mr Crown to be asking your Honour at the end of the judgment to make those findings so in respect of Count 2 which is in part 2.1,the amount there is $226,000. I understood your Honour to be deducting the amount of 31,900 from the 200,000, not 226.
FLOOD: No, your Honour, the original application amended summons was for the total of the--
HIS HONOUR: The 226,000, less that amount gives you--
FLOOD: Yeah, so it's less the 31,900 from that amount.
HIS HONOUR: Yes, that is correct. All right then, pursuant to s 48 (2) of the Proceeds of Crime Act 2002, I order that,
1. In respect of the conviction of Phillip Scahill of the offences set out in part 1 of the schedule, the property specified in part 2 of the schedule is forfeited to the Commonwealth.
There is to be no order as to costs. I will simply note in respect of the Schedule Part 1 that it sets out in effect Counts 2, 3 and 4 from the indictment and in respect of Part 2 I will specifically note
1. $194,413.30 cash seized by the AFP on 25 July 2014 from the defendant's car.
2. $53,850 seized by the AFP on 24 July 2014 from the defendant's home and
3. $24,520 seized by the AFP on 24 July 2014 from the defendant's business premises.
Now, I think that is everything, Mr Crown. I presume you would like photocopies of your handwritten--
FLOOD: Yes thank you.
HIS HONOUR: --material back at least we will photocopy it and keep the photocopy on the file and you can have the originals.
FLOOD: Thank your Honour.
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Decision last updated: 18 February 2019