R v Stephen Michael Larkin

Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 194 CLR 610 Markarian v The Queen (2005) 79 ALJR 1048 Regina v Way [2004] NSWCCA 131 Wong v The Queen (2001) 207 CLR 584 CASES CITED: R v Allpass (1993) 72 ACrimR 561 R v Diaz [2004] NSWCCA 251 Thomson and Houlton [2000] NSWCCA 309 R v Zamagias [2002] NSWCCA 17 R v JCE (2000) 120 ACrimR 18 R v Dinsdale (2000) 202 CLR 321

PARTIES: Regina Stephen Michael Larkin

COUNSEL: Mr Calvert - Crown Mr Fliece - Offender

1 HIS HONOUR: In your case what I propose to do as follows: In relation to Counts one to three I propose to convict you and place you on a good behaviour bond for a period of two years in respect of each count.

2 In respect of Counts five, six, seven and eight I propose to sentence you to a term of imprisonment of thirteen months and that will be suspended pursuant to s 12 Crimes (Sentencing Procedure) Act.

3 In respect of Counts ten, eleven and twelve I propose to sentence you to imprisonment, to be served by way of periodic detention for sixteen months in relation to each of those offences.

4 In relation to Count four, taking into account the matters in the Form 1, I propose to sentence you to a term of imprisonment by way of non parole period of sixteen months, the balance of sentence of sixteen months, to be served by way of periodic detention. That sentence will be concurrent with the terms of imprisonment I impose in relation to Counts ten, eleven and twelve. Do you understand those orders? I will make those orders formally when I finish my remarks on sentence. I have got quite a deal of territory to cover, you can take a seat and I will give my reasons.

5 The prisoner, Stephen Michael Larkin, appears today for sentence in relation to two offences to which he pleaded guilty in this Court on 31 January 2007, brought pursuant to s 175 Crimes Act, 1900. Each offence carries a maximum penalty of ten years imprisonment.

6 The twelve offences, although each contain different particulars, allege against the prisoner that he, being a Director of Actwane Pty Limited did with intent to defraud make a false entry in the relevant records of the corporation.

7 The various offences each have different particulars, which I will deal with as I go through the objective facts. The false entries were made, as I understand the particulars in the indictment, in a document called the Actwane Pty Limited Expenditure Book Number One. The amounts involved varied from $1,850 through to an amount of $5,000, particularised in Count four.

8 In respect of Count four I am required to take into account a further seventeen charges which the prisoner has admitted his guilt to before me on a Form 1. These charges are likewise offences of acting as a director of the corporation that I have identified and making false entries with intent to defraud. The sums of money involved in relation to these charges vary on my calculation between $1,800 and $750. The total amount of funds that the prisoner defrauded from the corporation, as set out in the indictment, is $38,050. The seventeen matters on the Form 1 represent a sum of $19,250 defrauded by the prisoner.

9 In relation to the sentencing of the offender there are some important contextual legal matters that need to be taken into account. Firstly, of course, is the observation of the High Court in Ibbs v The Queen relating to the appropriate approach to assessing the objective criminality in the context of the maximum penalty available for a particular offence.

10 Furthermore, in this matter there are a larger number of charges which are required to be the subject of appropriate sentences in each case and then the Court must have regard to the totality of the criminality and where appropriate issues of concurrency and accumulation within the context of that concept of totality, as discussed by the High Court in Pearce v The Queen (1998) 194 CLR 16, at para 45.

11 Furthermore, there is the need to approach the sentencing of this offender as held by the High Court in Markarian v The Queen [2005] HCA 25, where the High Court criticised the over mathematical approach to sentencing and highlighted the need for the judge, in sentencing, to approach the matter exercising what has been described as instinctive or intuitive synthesis when analysing the relevant matters.

12 It is interesting that in Pearce v The Queen the High Court said, nearly ten years ago, that it is highly undesirable that the process of sentencing should become any more technical than it is already. Sentencing should not be attended by "excessive subtleties and refinements". It should not be approached as a matter of semantics, but as a matter of commonsense and also, most importantly, that sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. If anything, it must be said since Pearce v The Queen was decided, sentencing has somewhat gone in the other direction.

13 Similar observations have been made about the discretionary character of the exercise and the undesirability of approaching the matter with a rigid "mechanistic or arithmetic approach" in decisions such as Regina v Way [2004] NSWCCA 131, also reported at 60 NSWLR 168 particularly at [126], and of course the High Court judgment in Wong v The Queen (2001) 207 CLR 584, at [77].

14 Further, in this matter, there are a number of matters set out on the Form 1. The appropriate approach to the sentencing in respect of Form 1 matters was discussed by the Court of Criminal Appeal in the guideline judgment in respect of Form 1 matters in which the learned Chief Justice pointed out, amongst other things, that taking into account matters on a Form 1 was not a matter of no moment. The matters taken into account in relation to a particular charge may change the nature of the appropriate sentence for the principle offence and, in fact, may significantly increase the appropriate sentence for the principle offence standing alone.

15 Whilst there is no need to specifically ascribe a particular mathematical calculation of the extent of which the appropriate sentence for the principle offence has been extended and whilst the matters on the Form 1, as his Honour said have "less salience" in the sentencing process by reason of the legislative provisions governing their consideration, it is still the fact that the matters on a Form 1 may provide an appropriate context, for identifying the objective seriousness of the criminality identified in the principle offence.

16 Of course I paraphrase what the learned Chief Justice said, but I have taken into account what the Court of Criminal Appeal has said about the relevance of Form 1 matters in sentencing, as set out in that guideline judgment. It seems to me, with respect, that the offending behaviour set out on the Form 1 significantly changes the appropriate sentence for the principal offence.

17 The facts of this matter are set out in an agreed Statement of Facts. I do not propose to repeat the entirety of it, but it suffices to point these matters out from that document.

18 The prisoner, Dr Larkin, was a veterinary surgeon, who in the early 1980's, as I understand it, moved from professional practice to property development and hotel ownership. He had a chequered career as a businessman and the evidence before me reveals that in 1991, allegedly as a consequence of the share market decline, he became bankrupt and emerged from bankruptcy in 1994. At one stage, I am informed during the 1980's before that first bankruptcy, the prisoner owned fourteen hotels in the Eastern Suburbs.

19 Certainly, putting aside his bankruptcy, he had demonstrated over a period of time, his capacity to be successful in business and property development which took up the bulk of his attention from the time that he left full time professional practice.

20 The prisoner, who is now sixty-seven years of age, in approximately 1998 approached William Moss, who at that stage was an Executive Director of the Macquarie Bank. Evidence before me reveals that Mr Moss was principally concerned in the property investments of that corporation and was himself a very highly successful individual.

21 The prisoner approached Mr Moss with the idea of purchasing country liquor licences and applying these licence to commercial premises in Western Sydney. A practice which has left many small towns in New South Wales, I hasten to say, without hotels.

22 A company called Actwane Pty Limited was registered on 23 January 1998 to be the vehicle for this joint venture. An arrangement was made whereby Mr Moss would provide substantial guarantees for the venture and Dr Larkin provided relevant guarantees. I have referred to the prisoner's experience in running licensed premises.

23 The financial backing initially was provided by Mr Moss and Dr Larkin was to provide practical expertise to the conduct of the operation. There was no documented partnership agreement, but the men were to be equal partners and, I understand, that essentially what was left to the prisoner was the effective running of the corporations and the premises that it controlled.

24 The directors of the company were the wife of Mr Moss and the prisoner, the two shareholders were the wife of Mr Moss and a company known as Wentworth Advisers Pty Limited. This was a company completely controlled by Dr Larkin, having been incorporated on 4 February 1998.

25 A cheque account was opened, not surprisingly with the Macquarie Bank, and this was a cheque account where the signatories were the wife of Mr Moss and the prisoner. A condition of the account was that one director was able to sign cheques up to the value of the sum of $5,000. Over that figure required the signature of both directors. Hence, as the facts reveal and the particulars in the indictment reveal, the prisoner was able to, as a single signatory, sign for cheques worth $5,000 or less.

26 There was a credit facility that was deposited into the account and the company in question purchased liquor licences from small country towns. A cashbook was used to record the expenses of the corporation and the prisoner, being the operating director of the corporation, was responsible for keeping and maintaining this cashbook. As at 2001, that is after the commission of these offences, the corporation operated a fully approved hotel at Canley Heights and a site at Carramar and had the lease of a hotel in Redfern.

27 There was a disagreement in 2001 between the prisoner and Mr Moss as to the future business direction of the corporation. Mr Moss became suspicious that monies were not being spent in accordance with the oral partnership agreement and a forensic accountant was engaged to conduct inquiries. That forensic accountant examined a number of discrepancies in cashbooks for the financial years 1999 to 2000. These discrepancies related to details on the cheques that did not correspond with entries in what have been described as the green books or cashbooks.

28 There was some difficulty in obtaining records from Dr Larkin and ultimately, in July 2001, a liquidator was appointed to manage the affairs of the company and various documents were produced to the court or sought to be produced to the court by Mr Moss. Ultimately documents were seized from a property over which the prisoner had control at Kurrajong and it would appear that these documents revealed the extent of the prisoner's activities.

29 There was revealed a discrepancy on a number of cheques as to the payee written on the cheque and the corresponding entry in the Actwane records as to the payee of the relevant cheques. There were references to payments to a firm of solicitors engaged by Dr Larkin to act for the corporation, when in fact the cheques had been made out to cash.

30 The prisoner was arrested on 4 November 2003. I will come to the issue of the chronology of this matter shortly. He exercised his right to remain silent.

31 Out of the investigation, the twelve charges on the indictment reveal that on 22 April 1999 a cheque in the amount of $2,200 was written with the payee "cash". The record in the company books stated that the cheque had been made payable to a firm of solicitors. The entry was false. The facts reveal other aspects of the matter underlining the fraudulent activity of the prisoner. That particular cheque and associated activity gives rise to Count one. Count two on the indictment concerns a cheque drawn on 24 June 1999 for $1,850, again to cash, again in the company's records purportedly made available to a firm of solicitors. Count three is concerned with a cheque drawn on 9 August 1999, exactly eight years ago, in the amount of $4,000. Again the payee was in fact identified as "Cash". Again the company books recorded a payment to a firm of solicitors. Count four involves the drawing of a cheque in the sum of $5,000 written out to "Cash". Again company books reported this cheque had been made payable to a firm of solicitors. This occurred on 24 August 1999. Count five is concerned with a cheque drawn on 2 September 1999 in the sum of $2,000, again to cash. Company records again indicating the payment had been made to the firm of solicitors. Count six involves a cheque drawn on 3 September 1999 in the amount of $3,800, the same modus operandi arose in relation to this matter. Count seven involves a cheque drawn on 8 September 1999 in the amount of $3,400, again with the same modus operandi. Count eight is concerned with the cheque drawn on the same date in the amount of $2,400, again the same modus operandi. Count nine is concerned with a cheque drawn on 11 October 1999 for $3,000. Count ten concerns a cheque drawn on 11 October 1999 in the sum of $2,600 and Count eleven a cheque drawn on 8 November 1999 in an amount of $4,000. Again the same modus operandi. The final Count on the indictment being in relation to the activities surrounding a cheque drawn on 8 November 1999 in an amount of $3,800 with the same modus operandi.

32 The seventeen matters on the Form 1 involve, as I have pointed out earlier, lesser amounts and I assume involve the same modus operandi. The offences commence on 6 April 1998 and continue through, on my understanding, to 22 September 1999.

33 In respect of the characteristics of the offences and their seriousness, relevant to the sentencing of the offender, I bear in mind of course that acting as the prisoner did the prisoner was in breach of trust that he owed to the other directors and shareholders and to the corporation. The prisoner in my view had a fiduciary duty to the corporation and took advantage of his ability to write cheques without scrutiny in circumstances where he could remain undetected for a period of time because he was the person who controlled the relevant corporation records and controlled the relevant chequebook.

34 It must be fairly pointed out, although this is obviously a serious situation, it might be distinguished to some extent from the activities of a director of a public corporation acting similarly to defraud the corporation's officers and shareholders.

35 Be that as it may, there can be no doubt that Mr Moss also reposed in the prisoner a great deal of faith and trust to run the affairs of the corporation honestly and that faith and trust was betrayed.

36 With regard to s 21A Crimes (Sentencing Procedure) Act and particularly aggravating factors that arise, particularly under subs (2) of that section, bearing in mind of course that the fact that a particular aggravating factor is relevant and known to the Court does not require the Court to increase or reduce the sentence of the offence, it is quite clear in relation to these matters that the loss suffered by the corporation and those associated with it was substantial, that the prisoner abused the position of trust or authority he had in relation to the corporation at least, if it could be relevantly described as a victim, and of other victims I have identified.

37 The offences were clearly planned offences. I am not of the view that the prisoner entered the arrangements with Mr Moss with the plan to defraud him. Clearly the defrauding of the corporation, in fact the defrauding of Mr Moss and his wife, was something that occurred in the course of the business of the corporation.

38 However, from the time that the prisoner commenced taking funds, as the facts and particulars in the charges reveal, the prisoner entered upon a course of conduct that clearly was planned and deliberated upon. Clearly the prisoner took advantage of a system and situation where he believed he could get away with what he was doing.

39 I will come back to mitigating factors under the act and other relevant aspects of the Crimes (Sentencing Procedure) Act shortly.

40 The prisoner was born on 17 January 1940. At the time of the commission of these offences he was a man without prior criminal convictions and on the basis of the totality of the evidence before me I accept that at the time that he commenced committing these offences he was a man of excellent character. I will separately deal with issues relating to the character of the offender shortly. I do not have any direct evidence from the prisoner about his circumstances, but notwithstanding that fact there is a body material within the Probation and Parole Service report, medical reports and various references and other documents tendered on behalf of the prisoner, to provide what I believe to be a relatively accurate picture of the prisoner's circumstances.

41 The prisoner was a person, as I mentioned earlier, who up until the time of the commission of these offences had experienced considerable success. He apparently was a very hard working person who had striven to succeed and free himself from a disadvantaged background. His father died apparently when he was aged eleven. There was consequential family hardship, as one would expect, particularly in the immediate post war years and this profoundly affected his approach to life and his desire to obtain financial success.

42 The prisoner studied at Sydney University and graduated with a Degree in Veterinary Science and became a veterinary surgeon. He was married for thirty-eight years and has two sons aged now twenty-five years and twenty-three years. One son gave evidence before me. His marriage to his wife ended in 2003. I am satisfied on the evidence available to me it ended in part due to various pressures, financial and other, that have arisen out of the prisoner's involvement in these matters and other financial difficulties that have arisen out of the prisoner's business affairs. The prisoner has a continuing close relationship with his sons.

43 The prisoner was involved in sport at University and beyond and has had a particular interest in the sports of boxing, particularly amateur boxing and wrestling. He has had an involvement both with sporting clubs both at Sydney University and in the wider university diaspora within Australia and with the Police Citizens Youth Clubs, particularly the club at Woolloomooloo.

44 The prisoner conducted his practice as a veterinary surgeon from 1964. There is evidence available to me in one of the medical reports tendered setting out a very extensive history of the prisoner, that for a period of time he practiced in the United States or worked in the United States in relation to matters concerned with veterinary practice and related affairs.

45 Apparently, from what I can work out of the chronology, he returned to Australia by 1970 and ran a number of successful practices in the Eastern Suburbs and, from what I understand of some of the surrounding publicity about him, was a person of some high public profile.

46 He turned to property development in 1982, as I earlier mentioned, selling his practices, and as I earlier mentioned became bankrupt in 1991. He left or emerged from bankruptcy in 1994, but was made bankrupt again in 2003. He has been discharged from that bankruptcy.

47 According to the Probation and Parole Service report, in relation to his property development activities, he owned, presumably through various corporations, at one stage 209 properties that had personal liabilities of approximately $120 million in mortgages. A number of business associates, other than Mr Moss of course, have expressed the view that in their dealings with him he has generally acted honourably and honestly. I will come back again to that body of material shortly.

48 The prisoner, after the affair concerning Actwane came into the public gaze or at least Mr Moss' gaze, turned to finance broking for a period of time, but that was a business that was unsuccessful.

49 The prisoner now has no assets. He is in receipt of an aged pension, receiving $610 per fortnight. He does not own the property in which he lives, he pays rent and has lived at the same boarding house accommodation for the past two years and he is to some extent dependent upon his children for financial support.

50 He owes a sum of money to government agencies and has no capacity to repay Mr Moss. In fact most probably, although I do not have the precise particulars of his financial circumstances, had no capacity to repay Mr Moss, at least, by the time the last of these offences were committed. Not that that is much consolation for Mr Moss and his wife.

51 Whilst I indicated earlier the prisoner had no prior criminal convictions at the time of the commission of these offences, subsequent to the commission of these offences he was convicted of making a false statement on oath not amounting to perjury. He was sentenced to a term of imprisonment to be served by full time custody by a magistrate and ordered to serve a term of imprisonment by way of non parole.

52 That matter was appealed to the District Court and in the District Court in March of this year apparently he was convicted and sentenced to a term of imprisonment suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. Although, I am prepared to accept at the time of the commission of these offences the conduct was uncharacteristic and he was a man of excellent character notwithstanding his previous bankruptcies. The facts of the matter are that the subsequent conviction is a relevant matter in these proceedings on one view of it, bearing in mind the false evidence relates to an investigation into the affairs of Actwane Pty Limited, the conviction itself might reflect a lack of remorse on his part. I am told by learned counsel for the prisoner, the matter is not disputed by the Crown, that the false statement was in fact a false statement relating to the prisoner's whereabouts to explain a previous failure to attend for examination by the liquidator of the company as I understand it. This does him no credit but ultimately it is a matter in its terms which may not necessarily reflect a lack of remorse. If the false statement had been in relation to the affairs of the company per se a conclusion otherwise would be more readily available.

53 In respect of this aspect of the matter, if I might just turn very briefly to the Crown's submissions, the Crown specifically submitted to the Court as to the issue of the criminal history of the prisoner, that it was of a character where he cannot call upon his record with a view to leniency. With that submission of the learned Crown Prosecutor I respectfully disagree, although as I say, the conviction is not irrelevant to these proceedings. It is not a matter where one could say that his criminal history relevant to the offences is one that disqualifies him from any leniency that is appropriate in the circumstances of the matter, as it postdates these matters and must be seen in conjunction with other evidence. I note also he has a finding of guilt I should say in relation to driving while suspended. That is a matter that has arisen in 2005 and to mind ultimately is irrelevant to these proceedings.

54 There was a body of evidence in this particular case in relation to three general topics if I might identify them that way. There was a body of evidence that was said to be relevant to an assessment of the issue as to whether the prisoner had suffered what is described by lawyers as "extra curial punishment". There was a body of evidence in relation to the prisoner's past and present medical condition and there was a body of evidence in relation to his character which I have alluded to in the course of these remarks.

55 I wish to deal with the issue of the extra curial punishment matter firstly. It was a matter that took a great deal of time and certainly involved a great deal of material. This material is said to represent what is portrayed as a campaign of vilification conducted against the prisoner by Mr Moss. The campaign has included, it was submitted, comments and interviews appearing in both the print and electronic media since particularly the prisoner was charged, during which the prisoner has been personally criticised, vilified and been the subject, it is submitted, of exaggerated allegations.

56 I have read all the material that has been tendered. I have watched the videotape that was tendered. Within this material there are to be found a number of personal criticisms of the prisoner with regular identification of the prisoner, particularly from Mr Moss, where the opportunity arises either directly or indirectly, as a "fraudster" and an undesirable person who had violated Mr Moss' trust.

57 As I said, this material includes newspaper articles, print media interviews with Mr Moss, a segment from the program Business Sunday from November 2005 and sections of a book entitled "Fraud Busters" which apparently has been published with the financial support of either Mr Moss or the Macquarie Bank.

58 A number of claims are made about the prisoner in this material which are not represented in the facts and particulars of the charges before this Court. At one point a claim has been made that the prisoner is responsible for defrauding Mr Moss of a million dollars or more. These claims are either deliberately exaggerated or alternatively those who make them, or Mr Moss, are privy to information which is not provided to this Court. I point out that where claims are made in this material that I have read that do not match the evidence. I ignore them. Whether these claims are deliberately distorted, I cannot conclude. But certainly the proved misconduct alleged against the prisoner falls substantially, perhaps significantly, short of a number of the allegations that have been made against him in terms at least of the scope of the dishonest conduct, if not the fact that the conduct was dishonest.

59 Judge Berman SC in early 2006 when determining not to grant the prisoner a permanent stay of proceedings in relation to the matters that are now before me, because of this supposed program of vilification, made certain findings regarding the effects of the claims of the media or through the media upon the prospects of the prisoner receiving a fair trial and some assessment of the material presented to him, much of which is presented to this Court, with which I agree and need not reiterate.

60 I note that there is no evidence of any substance before me that the comments, which figure so prominently up until the beginning of 2006, particularly by Mr Moss, have been repeated. Although there has been further press coverage about the matter that reflects upon matters that have been previously published which seems to be the way of modern media communication nowadays whether previous material is correct or not.

61 The material presented to this court establishes to my mind these matters; Firstly, that Mr Moss is extremely aggrieved by the prisoner's conduct and probably, in fact certainly, rightly so. Secondly, he regards the conduct of the prisoner as a gross breach of the trust that he reposed in him. Thirdly, he himself places great weight upon personal relationships in the conduct of his private and public business affairs. Fourthly, he is unforgiving of the prisoner and fifthly, his pride has been greatly dented by what has happened and he feels as a consequence of the prisoner's conduct he has lost some face or reputation.

62 Of course one of the unfortunate consequences of harping upon the matter is that it generally exaggerates the effect of the prisoner's conduct, particularly of the last matter that I have identified. Mr Moss, in the material available to me, presents himself, or is presented as, a tough but professional and ethical property investor dominating at one stage a portfolio of $16 billion worth of property for Macquarie Bank, an organisation I understand he is no longer associated with at least on a permanent basis. He is highly successful and highly professional. For him to be defrauded and to have a trust that he gave to somebody else broken demeans him and his reputation. He presents himself as a person who has the means and the commitment to spread the message widely that not only is he aggrieved, embarrassed and angry but that this conduct should not affect others in the future. There is a strong element of altruism in this but there is some element of self-interest.

63 The campaign, clearly on the material available to myself and Judge Berman, has been a very public one and clearly has been aided significantly by the connections that Mr Moss has with high profile people and his reputation. The exposure of the prisoner has been very public, has been very personal and very focussed. In my view the extent and frequency of the exposure of the prisoner's conduct has ultimately been somewhat disproportionate to the wrong exposed in the objective facts before this Court.

64 It is a rare situation, I hasten to say, where while a matter is before the courts, that a victim of a crime can so publicly castigate the perpetrator or persons, obviously reporting material provided to them from that victim or persons associated with that victim, can publicly castigate the perpetrator. I appreciate there is an absence as to sources of third-party reports. I would have hoped that the prosecuting authorities would take an active interest in ensuring that persons who are victims of crime give proper respect to the court process to avoid personal grievances, some entirely justified, prejudicing any prospect of a fair trial where that issue should arise.

65 Be that as it may, Mr Moss' motives seen in a pure sense are worthy. Ridding a society of violence and dishonesty is an important task of all of us. Courts have an important role to play in that but this is a task about which, as history has shown, it is impossible to be completely successful.

66 Of course in dealing with this particular prisoner I am required to sentence him in relation to the objective facts and assess the matter in the context of where this offence may stand in relation to other offences that courts such as this and the higher courts have dealt with from time to time. Two very recent cases I have dealt with have involved much larger amounts of money and in one sense greater betrayals of friendship.

67 In relation to this particular matter Mr Moss' approach, as expressed in the third person in the "Fraud Busters", seems to be that one of the egregious aspects of the prisoner's conduct was that the prisoner had inveigled his way into the trust of Mr Moss, presumably with an intention of defrauding him. I cannot find any evidence of this in the material available to me.

68 In fact Mr Moss in his book, which I have read, has specifically been quoted referring to the prisoner in the chapter under the heading "An Extraordinary Banker" that he had known the prisoner "for a long time", he was "a close friend of the family and he had gone out of his way to help me with my muscular dystrophy". Mr Moss, the article says, had been diagnosed with this debilitating condition in his twenties and it was an hereditary and progressive disease. He concedes in his book that before meeting Dr Larkin "Nobody had ever said to me that they would like help fix my major problem in life". He said the prisoner: "Found overseas specialists and hospitals for me, arranged travel, even picked me up from home and sent me to the airport. He gave me hope which on hindsight pointed to a true conman. My way of responding was to help him with his problems and help him re-establish himself financially as he had been bankrupt."

69 He goes on to say he trusted him and his trust had been betrayed. He is quoted as describing the building of trust as being "slow and deliberate" followed by "milking".

70 That material of course is before me for a limited purpose, but as I have earlier indicated, even allowing for the fact that the offending of the prisoner started a relatively short time after this corporate vehicle for hotel acquisitions had been created, I find it difficult to accept that the prisoner's altruistic conduct towards Mr Moss was only designed to obtain his trust to defraud him.

71 Getting back to the key issue, it is submitted on behalf of the prisoner that this case raises issues of what might be described as extra curial punishment as has been discussed by decisions of the Court of Criminal Appeal such as Allpass (1993) 72 ACrimR 561, and Diaz [2004] NSWCCA 251. In my view there has been an element of humiliation of the prisoner which has added to the pressure upon him and the shame that he feels and also affected the prisoner's relationship with others. Anyone held to account in the public media is the subject of considerable scrutiny and occasionally there may be misinformation which exaggerates the damage done.

72 I have come to the ultimate conclusion that the conduct portrayed in the material presented to me could not be described as extra curial punishment of the severity identified in Diaz, a very specific case, and Allpass, who was the subject of harassment and intimidation in a most vile way. On the other hand there has been, in my view, a suffering imposed upon the prisoner beyond that which would be reasonable when such conduct as this is exposed to the public gaze.

73 In my view however the material is probably more relevant to understanding and assessing material that relates to the current medical state of the prisoner, both physically and psychologically. Certainly the material presented to the court is not irrelevant to these proceedings.

74 In relation to the medical situation of the prisoner I have a number of reports. I have two reports from Dr Clark, one dated April 2007, the other dated August 2007. Attached to the April report are historical reports from 1997. I have a very short report from Dr Jonathan Carne, a consultant psychiatrist as is Dr Clark. I have some medical opinions expressed by Dr Malouf, the prisoner's general practitioner and apparently a close friend and the material as I said, contained in the historical reports.

75 I do not propose to go through this material in close detail. The evidence satisfies me, bearing in mind I had the opportunity of Dr Clark giving evidence before me and being tested by the prosecutor, that the prisoner has suffered from a form of attention deficit hyperactivity disorder for a long period of time, probably since his childhood, but which has persisted through his adulthood and this disorder has the capacity to affect his conduct in a significant way, affecting problems with concentration, jumping from project to project, rapid mood swings, impulsive behaviour, undertaking high risk adventures, but also ironically procrastinating and putting aside his problems, not acting upon them to quell them.

76 The very helpful report of May 1997 from the neuropsychologist particularises the specific symptoms of this condition. The prisoner was prescribed Ritalin and it is clear on the evidence available to me that that has substantially ameliorated many of these symptoms. But the condition to some extent explains some of the activities of the prisoner over the last twenty-five years in business and circumstances which have led him to plummet, on at least two occasions, from high success to significant failure.

77 What role this condition the prisoner suffers from had in the commission of these offence I am not quite able to identify. Clearly it might have some relevance to his conduct in defrauding a friend, in acting the way he did uncharacteristically. But the causal relationship is not entirely clear, particularly when I bear in mind at the relevant time the prisoner was subject to the medication which, as the psychologist had noted, significantly improved the symptomology. The possibility of a connection, albeit not significant, is real.

78 The prisoner has been diagnosed with early symptoms of "Parkinsonism". Whether it is Parkinson's Disease or some related condition as a result of some damage to the brain stem, the evidence is unable to clearly establish. I have noted the prisoner has a history as an amateur boxer and it may well be that he suffered some damage through this activity but there is clearly some symptomology and some other clinical diagnosis consistent with him suffering from this degenerative illness which could significantly disable him in the future.

79 The evidence to my mind is overwhelming that at least since this affair became a matter for a police investigation, if not before, the prisoner has suffered significant depressive symptoms. Whether he is suffering from a major depressive illness or whether he has a chronic depressive condition I am unable to conclude. He is being treated with antidepressant medication which is having some effect. The likelihood is that the condition is reactive to the circumstances in which he finds himself as a consequence of this matter and matters relating to his personal financial affairs beyond this matter. It is clearly not a matter that has any causal relationship to the commission of the offences but it is still relevant in the disposal of this matter.

80 The prisoner suffers from hypertension and has suffered a minor ischaemic episode in July this year and his health will require considerable monitoring. I bear in mind of course that he is sixty-seven years of age and as we all know with our health, things can deteriorate quickly beyond a certain age. The prisoner has a significant inventory of daily medications and those medications would appear to be consistent with the existence of the condition for which they are designed to treat in the prisoner.

81 Whilst the various conditions are under control, to use an expression in the latest report of Dr Clark, I do note the potential for deterioration of the prisoner's condition, particularly having regard to coronary issues and the Parkinson's Disease issue. I note both Dr Carne, to a more limited extent, but also Dr Clark, have had extensive consultations with the prisoner over a period of time and it is clear that the prisoner has suffered a great deal of stress relating to these and other events. The extreme stress to which he has been subject of course is not entirely due to these charges and certainly not entirely due to any activities of others in media releases and interviews and the like. But the culmination of events have taken a toll upon the prisoner and his health and I have taken that into account.

82 I have also taken into account the fact, as reported by a referee of the prisoner, Mr Lloyd, who conducts a veterinary practice in the Western Suburbs of Sydney, that whilst the prisoner's criminal convictions do not necessarily preclude him from practice, under the Veterinary Practice Act 2003, the adverse publicity he has received over a period of time may affect his capacity, if he so desired, to obtain employment as a veterinarian. I bear in mind of course his age would make it difficult for him in that respect in any event. His medical conditions may preclude him from going back to veterinary practice and of course he has not been a practising veterinarian for over two decades. But I accept that the culmination of matters, publicity, health and the like, affect the capacity of the prisoner to go back to his original professional qualification.

83 With regard to the character evidence, if I may turn to that, there were a large number of referees who prepared references and reports ranging from professional men to persons in business with the prisoner, relatives, particularly the prisoner's son and the like. I received oral evidence from Mr Bruce and the prisoner's son. I need not dwell upon the detail of that evidence beyond noting that the prisoner has excited from a range of people a great deal of loyalty as is expressed in their references and clearly the prisoner, notwithstanding what might be said about his conduct in relation to these charges, has a number of positive qualities that have impressed people of good character themselves.

84 Mr Bruce has provided a further document today which asserts the factor, from Mr Bruce's perspective, that the prisoner continues to suffer from the publicity he has received. Mr Bruce's evidence before me several months ago attested to the strain upon the prisoner of these matters and related matters. Of that I have no doubt.

85 The son gave some evidence of the fact that the prisoner's conduct had had an adverse effect upon him. I agree with the submission of the Crown that it is not a matter of relevance in sentencing in this particular matter. It is certainly not a matter that constitutes exceptional circumstances of itself. However the son's evidence I accept as truthful, that his father has been a loving parent, a supportive parent and I note of course notwithstanding the difficulties of which the son spoke, that the son has had himself considerable success albeit that in the financial world in which he operates there must be for him some considerable embarrassment because of his father's activities. There is little, if anything, I can do about that one way or the other.

86 Arising from the totality of the character evidence I have come to the conclusion that firstly, the acts of dishonesty that I am concerned with, at the time were very uncharacteristic acts. The prisoner has been both before the commission of these offences and since, in a range of ways, except for the criminal conviction I have pointed out, generally honest and straightforward and he is regarded by respectable people of accomplishment themselves as a man of accomplishment.

87 Secondly, I accept that the prisoner throughout his life has made a contribution to our community, providing amongst other things, when in practice, pro bono veterinary services to the RSPCA and also providing considerable support to sporting organisations such as the Sydney University Sports Union, the Woolloomooloo Police Youth Club or Police Boys Club, as it was known, and other sporting organisations, both boxing and wrestling particularly.

88 He has also provided positive assistance to indigenous people, in particularly their sporting aspirations. I accept further that the evidence from the referees show him to be a generous friend, good father to his children, as I have noted, and I accept the view of all those that have provided references, that his public shaming has affected him considerably. I have also noted by reference to the medical evidence, that the public shaming has had a significant effect upon his health.

89 I accept further that the prisoner is a man of intelligence and accomplishment. It makes his fall from grace in these circumstances harder to understand, and although the full reasons for his dishonesty are not exposed to me, it clearly relates to his financial circumstances and financial pressures. However, it is not to his credit that he succumbed to the temptation and the opportunity provided to him.

90 The prisoner clearly, as I have said earlier, has been a success in business and elsewhere, but he has also been a failure on occasions. Whether his personality has contributed to his failings I am unable to ultimately conclude, but as I have earlier pointed out, the long undiagnosed ADHD may well have contributed to the prisoner over-extending himself.

91 I accept from the evidence available to me, the prisoner suffers, as a consequence of his own conduct, severe financial difficulties from which I would expect he would probably never recover, and his age, of course, works against him in that regard. I note in conclusion in relation to both the character material and the medical evidence that it is felt, particularly by Dr Clark, that a custodial sentence would have an adverse effect upon the prisoner's health.

92 I note Dr Clark, who it must be fairly said is generally sympathetic to prisoners and accused persons, has been a person who has worked in the prison system for close to three decades. Whilst, if in particular cases might from time to time have reservations about opinions he may express on particular issues, I have no doubt that his summation of the effect of the prison system upon this prisoner is entirely accurate.

93 His age, his need for medication and his lack of experience in the gaol system of course would render him at high risk of exploitation and even worse, whilst in custody. It certainly is the case that a man of his age, background and physique would find imprisonment at the very least a daunting and challenging experience. Of course, age and physical disability is not a basis for not imposing a term of imprisonment where it is appropriate.

94 Ultimately it is clear the authorities state that the effect of imprisonment upon a prisoner's health and the maintenance of a person's health whilst in custody is a matter largely for the Corrective Services authorities to manage, but of course the health of a prisoner is not irrelevant to the sentencing task.

95 There are a great deal of submissions that have been provided in written form by both the Crown and the accused. The written submissions have been supplemented by some oral submissions today. One particular matter that occupies a great deal of attention in the written submissions is the issue of what discount the prisoner should receive for the pleas of guilty in accordance with the guideline judgment of Thomson and Houlton [2000] NSWCCA 309.

96 I have available to me a chronology of court proceedings which commences, of course, with the charging of the prisoner in 2003. I am mindful of the fact, of course, that one of Mr Moss's complaints, and it may well be a legitimate complaint, is that his concerns about the prisoner's conduct for a period of time were not properly investigated by the police, and it was not until he became more proactive in relation to the matter, and quite properly so, as he had corporate interests and family interests to protect, that anything was done in a concrete manner to investigate this offending behaviour.

97 But it is the fact, it would appear to me on the chronology from the agreed facts and the chronology of court proceedings, that there was a delay of nearly two years, or perhaps over two years, before the prisoner was charged. There and after there were various delays in the matter proceeding through the Local Court. The chronology available to me suggests that between 24 November 2003 and 21 December 2004 it is thirteen months, time was taken for the "service of brief," reply and argument regarding a subpoena. These types of delay would just be intolerable in this court.

98 Be that as it may, there and after once the matter came to this court on committal, with the committal occurring on 24 February 2005, there were then a series of delays, trials being vacated and the like, to the point where in early 2006 an application was made for permanent stay of proceedings, which was unsuccessful. There was an appeal to the Court of Criminal Appeal, which was ultimately abandoned. Trial dates were listed for late last year, which were vacated, and ultimately the matter came before me after an initial trial date of 22 January 2007, and the pleas were entered on 31 January 2007.

99 It was submitted on behalf of the prisoner that I should give the prisoner a discount of twenty five per cent. In accordance with what has been said in the guideline judgment, that is not an appropriate discount for the utilitarian benefit of the plea. I appreciate ultimately the plea of guilty has saved some court time in terms of the conduct of the trial, but a great deal of court time has been taken up with vacating trial dates and dislodging arrangements, hearing applications for a stay of proceedings and the like.

100 It is the fact, too, as it has emerged in the submissions, that the twelve charges on the indictment to which the prisoner has pleaded guilty are matters that the prisoner could have pleaded guilty to, as I understand it, at the Local Court. Likewise, one might have thought that pleas of various types could have been entered to matters that appear on the Form 1. However, some of the matters on the Form 1 have been brought ex officio.

101 I bear in mind, of course, in reflecting upon this matter that the prisoner was charged originally with fifty seven charges. He now faces twenty nine charges. A large number of matters, on my calculation twenty eight, have been no billed. That being acknowledged, it does not appear to be to be a reason for the prisoner not to have admitted his guilt to matters that he knew he was guilty of, and it seems to me also that to say that there was some reason associated with the absence of material for the prisoner not pleading guilty at the Local Court, in my view, ignores the obvious.

102 Ultimately, of course, I must give the prisoner a discount for the utilitarian benefit of the plea of guilty in each matter. I have come to the conclusion, when one looks at this chronology and understands the history of the matter from the court file, which I have inspected again today, that the appropriate discount in this matter should be no greater than ten or perhaps eleven per cent of the otherwise appropriate sentence.

103 I have noted, of course, the supplementary submissions from the Crown in relation to this particular topic. I do not believe I need dwell upon a number of the authorities that are referred to. I have taken into account what has been cited in the authorities, but whilst there should be some discount, the discount is one that in the context of the history, should be at the very lowest level, within the range recommended by the guideline judgment of Thomson and Houlton, for the reasons that are discussed by the learned Chief Justice.

104 The objective criminality of the prisoner, I have already dealt with. Many of the Crown's submissions are concerned with the aspects of the objective criminality, some of which I have already touched upon. I do not believe the matter necessarily needs any further analysis so far as the moral culpability of the prisoner is concerned, and I have noted what the Crown has said about that particular matter.

105 I have also noted what the Crown has said about the available evidence concerning the prisoner's character and matters such as remorse and the like. With regard to the issue of remorse, in my view in all the circumstances, it would have to be fairly said that the remorse has been slow in forthcoming. I have taken that into account, but it is also fairly to be said that the prisoner has expressed regret for his conduct and shame for his conduct, particularly to the Probation and Parole Service officer.

106 Of course, part of the prisoner's regret and shame may arise out of the very public exposure of his conduct, to which I have earlier referred. With regard to that aspect of the matter, the Probation and Parole Service report, setting out the material that I have either directly referred to or dealt with in another way, states that the prisoner was a person who presented in the period of time between August 2006 and March 2007 as a person who had not attempted to manipulate or present a false impression.

107 The Probation and Parole report noted that Dr Larkin accepts full responsibility for his offending, and acknowledged his awareness of his criminality and the repeated offending aspect of it. The Probation and Parole Service officer observed that it was difficult to reconcile or adequate understand his repeated offending actions given his experience and knowledge of his responsibilities as a company director, and I have not lost sight of that aspect of the matter.

108 This is not a man who is new to business or new to corporate responsibility. But ultimately on analysis of the offending behaviour, it was the opportunity the prisoner had to gain access to the cheque account through his role as a director that tempted him to behave the way he did. It is claimed that there was some conflict and a falling out with his business partner regarding payment of fees in key management decisions as a significant factor in his offending actions. That is a claim about which I can make no finding whatsoever.

109 It seems to me, with respect, on the agreed facts that the falling out between he and Mr Moss occurred after he had committed these offences, which is inconsistent with that analysis. In any event, the judgment of this matter does not depend upon the analysis of the Probation and Parole Service officer. The Probation and Parole Service officer, consistent with the evidence of Dr Clark and other evidence through Dr Malouf and Dr Carne, has noted a discernible decrease in the presentation of the prisoner so far as his state of health and the prisoner's level of optimism.

110 Whilst it is acknowledged the prisoner is unlikely to benefit from supervision because of his low risk of re-offending, in my view the prisoner does need professional assistance of the Probation and Parole Service in the future in a range of ways, particularly, in my view, to assist him in relation to his financial and professional affairs and to assist him in terms of adjusting his life to the new reality in which he has found himself over the last few years.

111 The offending behaviour, if I might just say this, departing from the Crown's submissions, is to be regarded seriously of course. The maximum penalty dictates that that is so, and the role of the offender was clearly that of a principal breaching the trust to which I have referred.

112 With regard to the issue of delay, in this matter I do not agree that the delay shows that there has been no progress in the rehabilitation of the prisoner. In one sense the aspect of "rehabilitation" is a little academic when one considers the fact that the prisoner is at an age when his professional and public life are behind him. There has been the offending to which I have referred, but I do not believe that represents a deterioration in the conduct of the prisoner such as to come to the conclusion that the prisoner has no prospects of rehabilitation.

113 The delay of course has had an effect upon the prisoner in a range of ways, particularly in respect of his health. The prisoner has contributed to a deal of that delay but it might also be fairly said that one can identify in years delay over which he has had no control, and I have taken that into account. The Crown says there is no "relevant delay on the part of the prosecuting authorities in this matter". I certainly accept on the material available to me that the Director of Public Prosecutions has sought to prosecute the matter expeditiously and that there have been a number of occasions when the matter has been delayed for reasons beyond the Director's control and those that represent him professionally.

114 I note the prisoner has been subject to some restriction upon his liberty by reason of bail conditions, but that matter is of little substance. With regard to his counsel's submissions, his submissions are largely directed at the current health of the prisoner, his age, his prior good character, his community contribution and the fact that the prisoner is a person who might be regarded as being of little risk of re-offending, and in that regard, I agree.

115 The matter of "extra curial punishment" has been dealt with already. As for the remorse expressed by the prisoner, in my view a degree of that must be attributed to self interest. I have heard no evidence of any apology by the prisoner to Mr Moss, which might have been a clearer expression of remorse to my mind than the evidence of remorse, which does permeate through the material, particularly in the references and the like.

116 With regard to mitigating factors that arise under s 21A Crimes (Sentencing Procedure) Act I have come to the conclusion that the prisoner did not have a record of previous convictions as I found, and, as I said, was a person of good character. I have come to the conclusion the prisoner is unlikely to re-offend, and by reason of his age and his education and the close monitoring of his health, has good prospects of rehabilitation. Furthermore the opportunity for him to behave this way, in my view, would be denied him both by reason of publicity and the reality of his financial circumstances.

117 He has shown remorse in the ways that I have identified, and his pleas of guilty, some evidence of remorse, albeit that they were delayed, a plea of guilty is to be taken into account as a mitigating factor as provided for in s 22 of the Act but also receives a discrete discount. The fact that such mitigating factors are relevant and known to the court does not require the court to increase or reduce the sentence of the offence.

118 Ultimately, in my view, given the large number of charges and the progression of the charges over time, I have determined, as I have foreshadowed, that there should be in effect a staged approach to the sentencing of this prisoner. In the context of Pearce principles I am of the view, if I look at the first three offences in time, that they are offences that ordinarily would require the granting of a good behaviour bond.

119 In my view, however, the seriousness of the conduct of the prisoner increases with the passing of time and of course Count 4 requires an increased sentence because of the need to take into account matters on a form 1, as I have indicated. I am sorry to have taken so much time. There has been a great deal of material, a deal of it of course was placed before me again today. I came to the view though, in the circumstances, that I had a positive obligation to the prisoner and the community to deal with this matter as quickly as I can. In the best of all worlds I would have preferred probably to have reserved again, but I had ample opportunity to digest the material previously presented, and, as I said, further delay in the matter would have only exacerbated the stress that the prisoner has suffered.

120 Ultimately taking into account both the objective facts and the subjective circumstances of the prisoner, I have come to the view that I cannot accept the Crown's submission that a term of full-time custody ought be imposed.

121 In terms of the suspended sentences I have determined that whilst terms of imprisonment are appropriate in the context of the staged approach to sentencing, the suspension of those sentences in accordance with principles set out in a decision such as; Zamagias [2002] NSWCCA 17, JCE (2000) 120 ACrimR 18, and Dinsdale (2000) 202 CLR 321, arise for consideration. In my view, although the prisoner will be serving periodic detention, he still will have the suspension of some of these sentences for a period of time hanging over his head, as a personal deterrent to him to return to business, if that attracts him, and behave similarly, although I doubt that that will occur.

122 Naturally in sentencing the prisoner I have had regard to s 3A Crimes (Sentencing Procedure) Act. These offences involve a very delicate balance of not only giving proper recognition to general deterrents and the need to ensure that company directors act with honesty and probity and also recognising the need to personally deter the prisoner, but also giving proper weight to promotion of his rehabilitation, recognition of his past good conduct in the context of denouncing his conduct, making him accountable and recognising the harm that he has done to the victim.

123 I have determined in relation to the term of imprisonment in respect of Count 4 that there are special circumstances. I realise the Probation and Parole Service does not believe that the prisoner needs a great deal of supervision, that in my view he should have the benefit of professional guidance to assist him to adjust in the limited way that it is understood to community living once he has completed the term of imprisonment to be served by way of periodic detention.

124 I understand, of course, the periodic detention carries with it an inherent leniency. This has been discussed in a range of decisions, but that inherent leniency on all the facts of this case, in my view, is appropriate for this prisoner.

125 Now, just stand up please, Dr Larkin, I have to just go through these orders one by one.

126 In relation to Counts 1, 2 and 3 you are convicted. Pursuant to s 9 Crimes (Sentencing Procedure) Act I order that you enter into a good behaviour bond for these matters for a period of two years from today. Conditions applying during the term of this bond or these bonds are as follows. Firstly you are to appear before court if called to do so at any time. Secondly, are you to be of good behaviour. Thirdly, you are to advise the Criminal Listing Directorate of any change of residential address. Fourthly, you are to accept the supervision and guidance of the New South Wales Probation and Parole Service, particularly at the city office throughout the period of the bonds, and you are to obey all directions of the officers of that service, especially as to any directions regarding medical treatment and work related programmes. Fifthly, to enable such supervision and guidance to commence you are to report to the Officer in Charge of the Probation and Parole Service at the Sydney office, but in seven days of today.

127 In relation to Counts 5, 6, 7 and 8 you are convicted. You are in each case sentenced to a term of imprisonment of thirteen months. That represents, I hasten to say, a discount of just slightly more than ten per cent, to round the period of custody off. Pursuant to s 12 Crimes (Sentencing Procedure) Act each of those terms of imprisonment are suspended and I direct that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence. Conditions applying during the term of the bonds, so I should say are as follows:

Firstly, you are to appear before court if called to do so at any time. You are to be of good behaviour. You are to advise the Criminal Listing Directorate of any change of residential address and you are to accept the supervision and guidance of the New South Wales Probation and Parole Service on the terms that I previously indicated, and, further, you are to report to the Probation and Parole Service of the city office within seven days of today.

128 In relation to Count 9 the prisoner is convicted and he is sentenced to a term of imprisonment by way of periodic detention for a period of thirteen months and that will commence on the date that I have earlier indicated, 18 August 2007. It will expire on 17 September 2008. That sentence will be concurrent with Counts 10, 11 and 12 and concurrent with a non-parole period in Count 4.

129 With regard to Counts 10, 11 and 12 you are in each of those matters convicted. I have had regard to the matters contained in s 66(2) Crimes (Sentencing Procedure) Act 1999. In each of these matters you are sentenced to a term of imprisonment to be served by way of periodic detention for a period of sixteen months. Each of those sentences of imprisonment will commence on 18 August 2007, that is, as I understand it, a Saturday, at the Metropolitan Periodic Detention Centre at O'Connell Street, Parramatta. You will be required to report to that centre at 8.30am and thereafter report each Friday at 7pm.

130 In respect of Count 4, taking into account the matters on the form 1, you are convicted and to a period of imprisonment by way of non-parole period to be served by way of periodic detention of sixteen months to commence on 18 August 2007. It, as with the earlier sentences that I just mentioned, will expire on 17 December 2008.

In respect of this sentence I fix a balance of sentence of sixteen months, that is one year and four months, and on my calculation, that sentence will expire on 17 April 2010. At the conclusion of the non-parole period I direct that you be released to parole and be subject to the supervision of the Probation and Parole Service and obey all reasonable directions of the officers of that Service.

131 Likewise with that Service, you are required to report to the officer in charge of the Metropolitan Periodic Detention Centre at O'Connell Street, Parramatta. The sentence will commence on Saturday, 18 August 2007 at 8.30am. Therein after you will be required to report each Friday at 7pm. You will be given further instruction by the managers of the Periodic Detention Centre, but I should tell you that if you fail to perform the periodic detention imprisonment that I have ordered, or if you fail to attend upon the Periodic Detention Centre without lawful excuse, you will be the subject of an order by the Parole Board that you serve the sentences I have imposed by way of full-time custody and you will be released at the discretion of the Parole Board. Thank you. Just take a seat. oOo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.