The Queen v Albert Ooi [2017] VSC 157

2 The first count charged that, contrary to Common Law, between 1 January 2007 and 9 January 2014, you conspired with six others[1] to defraud the State of Victoria in the awarding of works contracts. The maximum penalty for this offence is 15 years imprisonment.[2]

3 The second count charged that, contrary to s 176(1) of the Crimes Act 1958, on 28 February 2011, you corruptly received a secret commission from Furphy's Foundry Sales Pty Ltd while an agent for the Department of Transport, being outdoor furniture valued at $6,740. The maximum penalty for this offence is 10 years imprisonment.[3]

4 The charges to which you have pleaded guilty arose out of your employment variously with the Victorian Government's Department of Infrastructure (DOI), the Department of Transport (DOT) and Public Transport Victoria (PTV). Your offending occurred over a period spanning seven years.

5 The charges arise from an investigation by the Independent Broad-Based Anti-corruption Commission (IBAC) named 'Operation Fitzroy' into allegations of corrupt activities in procurement in the Victorian Government's Transport departments.

6 You were employed by the DOI and DOT from October 2004 to January 2012 in the role of a project coordinator for bus infrastructure works, and then as a contractor to DOT and PTV from January 2012 until January 2013. Along with your charged co-offender, Mr Barry Wells, you were involved in a senior executive role with regard to project management and the selection of successful contractors for civil works projects for the DOI, DOT and PTV. You also participated in the review of tenders for the selection of contractors.

7 Your offending began soon after you commenced reporting to Mr Wells, who was the Manager, Bus and Regional Infrastructure.

8 Your offending commenced when Mr Wells suggested that he could source and supply the Government with bus shelters for public transport infrastructure projects. From 2007 to 2014, in concert with Mr Wells, you masterminded a fraudulent scheme to award transport works to various businesses which you covertly controlled with the assistance of compliant family members or business associates. In the evidence of the forensic financial witnesses, these businesses are referred to as 'managed entities' and are as follows: Property Services Network, PWIC Pty Ltd, De La Torre Consultancy Group Pty Ltd, Red Consultancy Group, Global Works Management Pty Ltd and Redback Civil Pty Ltd. Those family members and associates included Wells' stepson Justin Wells, and your son Andrew Ooi and stepson Michael De La Torre.

9 The managed entities were mostly incapable of carrying out contract works and sub-contracted the work to other companies managed by co-accused and other associates including Darrel Salter, Andrew Hayes and Graham Davis. The forensic financial witnesses described 'the related sub-contractors' in the evidence to be: Consalter Pty Ltd, Grand Earthwork Pty Ltd and Global Works Civil Pty Ltd. Other sub-contractor businesses that performed works contracts awarded to the managed entities included Tactile Australia and Country Works. More companies and businesses were set up and controlled by you in order to avoid detection of the movement of moneys in and out of the managed entities and related sub-contractors, including GWM Management Services Pty Ltd, HGO Management Services Pty Ltd and AMA & Associates Pty Ltd.

10 The full circumstances of your offending are set out in the very detailed prosecution opening on plea. I incorporate that document by reference and direct that it remain on the court file. You did not dispute the relevant facts set out by the prosecution and I will briefly outline your offending on the conspiracy to defraud charge.

11 Global Works Management Pty Ltd (GWM), incorporated on 21 January 2008, was the principal managed entity through which the fraud operated. After GWM was covertly established by yourself and Mr Wells, various family members and associates were installed as nominal directors and shareholders to disguise your association with it while you worked for DOI, DOT and subsequently PTV. In each case the directors appointed, including your stepson Michael De La Torre, and Wells' step son Justin Wells, were shadow directors who had no actual control over the business. GWM had capacity to carry out some, but not all, parts of the works contracts awarded to it.

12 Between 21 January 2008 and 9 January 2013 GWM was awarded a total of 92 government works contracts totalling $8,538,993.22. These contracts included a $2.3 million contract awarded in 2010 for the design and construction of 430 bus stops in Melbourne. In addition to the more than $8.5 million paid by the government departments, GWM received a further $1,019,929.74 from associated businesses in respect of work subcontracted to them by Wells for the performance of departmental contracts awarded to GWM.

13 While Mr Wells had primary control over day-to-day operational matters, you were primarily responsible for the financial management of GWM, including the movement of profits between it and other managed entities. The arrangement was a complex one, using various company trust structures and management/service agreements as devices allowing for the proceeds of your offending to be shifted out of GWM and accessed by you and Wells.

14 Financial forensic analysis identified, from 92 contracts awarded to GWM and additional work subcontracted:

a) 41 payments, totalling $528,270.67, into accounts in your name;

b) payments totalling $771,821 into accounts in the name of GWM Management Services, also in your effective control; and

c) 22 payments, totalling $524,125 to accounts in the name of HGO Management Services, also in your control.

15 The benefits that were derived from the profits of GWM also included a loan from GWM to GWM Management Services Pty Ltd for $750,000 on which no repayments were made, building works and improvements at your and Wells' properties and, with the use of false invoices, payment for items including a $3,300 deposit on jet skis, a $15,600 piano and a $11,000 payment and lease vehicle for your use.

16 In 2006 your stepson, Michael De La Torre, started a cleaning and maintenance business through the company called Property Services Network (PSN). Later that year you asked De La Torre whether you and Wells could borrow the PSN business. He agreed, giving you control of the PSN bank account. On behalf of PSN, De La Torre also entered into a partnership agreement with HGO Management Services Pty Ltd (HGO), a company you controlled. This agreement enabled PSN to provide services in infrastructure construction works, including bus stops and bus shelters, during the time that you were working for the DOI and involved in bus infrastructure. Ownership of PSN was at this time split 90% to HGO and 10% to De La Torre and you had an agreement that gave you the management of PSN.

17 These arrangements allowed Mr Wells and yourself to covertly control PSN, and to shift money from government contracts awarded to it. De La Torre was a compliant family member with a surname that did not reveal his connection to you and Wells.

18 Between 1 January 2007 and 10 August 2009, PSN was awarded a total of 32 DOI and DOT civil works contracts, totalling $1,175,053.50. PSN was unable itself to complete the work and in turn sub-contracted the bulk of it to other businesses operated by an associate, Greg Morrissey. From payments received by PSN under these contracts, approximately $600,000 was paid to bank accounts in the name of, or controlled by, Wells and yourself.

19 De La Torre Consultancy Group Pty Ltd (DLTCG) was another business started by your stepson, Michael De La Torre. In 2006, it was an event management business, but came to be used by yourself and Wells as a managed entity, under your control. On 24 April 2007, the DOI awarded to DLTCG a contract for 'Project Management and works supervision - Koo Wee Rup, Kilmore and Seymour' worth $97,788.90. Of that amount, $59,187.90 was transferred into accounts in your name.

20 Red Consultancy Group (RCG) was registered as a business on 3 August 2008 by your son, Andrew Ooi. Shortly after the formation of GWM, RCG was set up as an intermediary in the tender process, and GWM received DOT civil works contracts valued at $2,070,842.80 on the recommendation of RCG. Wells also awarded directly to RCG six contracts, totalling $20,350, for the review of tenders.

21 These tender assessments were undertaken by yourself and your son Andrew Ooi using the alias 'Andrew Yi', for the purposes of disguising the family connection. With Wells awarding tender review contracts to RCG, your effective control of tender allocation permitted numerous lucrative contracts to be awarded to managed entities, with the false appearance of independence through the use of a consultant.

22 PWIC Pty Ltd (PWIC) was another company registered by Wells and yourself in order to avoid the appearance of GWM being awarded an unusually large amount of work. A business associate, one Gerry O'Neill, was installed as the director and secretary, with the company shareholding equally split between a company in his control and GWM. PWIC had no employees and no capacity to complete the works contracts awarded to it, instead sub-contracting all works to other entities with which you had a business relationship. O'Neill took no part in the operation of PWIC, as you retained control of the company finances and project management.

23 Between 17 June 2009 and 2 December 2009, PWIC was awarded a total of four DOT civil works contracts with a total value of $1,153,845.20. Each of these contracts was valued at over $200,000 and as such selection of the contractor required a tender or an expression of interest. RCG provided consultancy services for two of the contracts, relating to the construction of bus bays in Myrtleford and Beechworth, with Wells, yourself and your son Andrew Ooi (again using the false surname 'Yi') making up three quarters of the panel of tender assessors.

24 Grand Earthworks Pty Ltd (GE) and Global Works Civil Pty Ltd (GWC) were set up with your co-accused Mr Hayes and Mr Davis as directors and, in the case of GWC, shareholders. GE and GWC were related sub-contractors that were awarded various government contracts in their own right as well as sub-contract work from managed entities by yourself and Wells. With Wells, you assisted Hayes and Davis in establishing these entities in order to award DOT and PTV civil works contracts to them, and create the appearance of fair competition with your other managed entities.

25 Between 23 June 2011 and 9 January 2014, GE was awarded 26 DOT and PTV civil works contracts totalling $2,291,049.12. Between 2 August 2012 and 9 January 2014, GWC was awarded a total of 10 PTV civil works contracts to the value of $1,004,446.78. The profits made from contracts that Wells awarded to GE and GWC allowed Davis and Hayes to finance the purchase of GWM for $107,062.30 in August 2012.

26 Redback Civil Pty Ltd (Redback) was another managed entity that you and Mr Wells established in October 2011. It was registered in the name of your co-accused, Graham Davis, but you controlled it. Redback was incorporated when you were transitioning your fraudulent activities away from GWM, which was eventually sold to Davis and Hayes, and to give the impression of fair competition between companies tendering for government work. You managed and administered the business of Redback, while Mr Wells awarded it DOT and PTV contracts and assisted with project management. Between 20 October 2011 and 9 January 2014, Redback was awarded a total of 36 DOT and PTV contracts worth $949,750.46.

27 In September 2009, your associate Mr Darrel Salter registered Consalter Pty Ltd (Consalter) which provided engineering services to DOT and PTV directly, as well as to the related managed entities and sub-contractors GWM, Redback, GE and GWC. Consalter was awarded DOT and PTV contracts and other payments to the value of $2,665,891.40, as well as being the recipient of a $2.3 million DOT tender partnership paid to GWM and then to Consalter.

28 As is readily apparent from the full prosecution opening and the foregoing summary, I am satisfied that your offending was well-orchestrated, devious, and sustained. It became more sophisticated over time by, for example, the later use of supposedly independent tender assessment processes that you controlled, allowing a double payment - first a financial reward for consulting on the tender process followed by the profits from the valuable contracts that were awarded to managed entities.

29 You accept that the total value of government contracts awarded to the managed entities and related subcontractors during the period of the conspiracy was $15,392,850.68.

30 The second charge concerns receipt of a secret commission from Furphy's Foundry Sales Pty Ltd (Furphys). Furphys supplied bus shelters to the managed entities. Tony Huggard was its general manager. In February 2011, Huggard arranged for Furphys, to provide you at no cost with $6,740 worth of outdoor garden furniture. During the execution of IBAC search warrants this furniture was located at your Cottles Bridge residence. The gift of this furniture was intended to influence you and/or Wells to show favour to Furphys in awarding government contracts, and Wells continued to award contracts to Furphys following your receipt of this furniture.

31 You personally obtained substantial financial benefits from your illegal activities. The overall profits were shared equally by yourself and Wells. The forensic evidence that you accept calculated that you received profits of $2,324,614.06 paid out of the contracts with the Victorian Government. The prosecution accepted this figure as the appropriate calculation of the profits that you received from your offending. Given the concession that you shared the spoils equally with Mr Wells, the gains collectively made from your criminal conduct exceeded $4.5 million.

32 It has not been possible to calculate the amount of loss to the State occasioned by your offending conduct. It was not contended by the prosecution that the relevant infrastructure works were not carried out or were not carried out to an appropriate standard. Although your offending conduct meant the process for awarding government works contracts was uncompetitive, it cannot be established that the Government paid higher prices for the relevant works to the various entities and sub-contractors than it otherwise would have paid. Had it been otherwise, the loss to the State might have been an aggravating factor of your offending. I do not sentence you on that basis. I was informed that the State expects to successfully recover on the pecuniary penalty order that I will make.

33 Nevertheless, your offending resulted in arrangements that were clearly contrary to Government procurement processes and rules regarding conflicts of interest, processes and rules of which you were well aware. Fundamentally your offending relied on the authority of Mr Wells as your manager to award, or recommend awarding, works contracts on behalf of the Department, and your knowledge and expertise as to the setup and management of various commercial structures to hide your offending and extract the profits. I find that the criminal conspiracy that you engaged in effectively undermined the public service procurement policies that are designed to protect the revenue and ensure that government contracting works are put out at the most competitive available price. As such, your crime involved corruption of the trust that citizens of this State place in public servants that taxpayer funds will be honestly expended and accounted for in the public interest. Corruption of this kind strikes at the heart of our civilised democracy.

34 The prosecution submitted that you ought be sentenced on the basis that you were an equal offender with Wells in terms of your roles as co-architects and administrators of the corrupt and fraudulent scheme I have described. You were both involved over the entire period of offending, shared the profits equally, and shared the key roles of awarding contract work and financial administration of those contracts respectively that enabled the scheme to operate. It was submitted on your behalf that for virtually the entire period covered by the first charge you were in fact reporting to Mr Wells.

35 I am satisfied that you and Wells were the two key figures at the top of a sophisticated conspiracy designed to deceive government departments that employed you to grant contracts to companies in which you had an undisclosed interest. Although you were not involved in awarding contracts you were from time to time involved in assessing and evaluating tenders and expressions of interest for various works. You were primarily responsible for the financial management of the scheme and were responsible for moving profits between the various managed entities, to family trusts and in making cash and other forms of payment to Mr Wells. In the circumstances I am satisfied that your high culpability was not entirely equal to Mr Wells' culpability. Because it was his role within the relevant government departments to award the contracts in question and he was your manager, I consider that your culpability must be viewed as somewhat, although not by a significant degree, less than his.

36 Finally, and importantly, you exerted considerable influence over the other co-conspirators, including your son, Mr Andrew Ooi and stepson, Mr Michael De La Torre, the latter of whom is a prosecution witness in this case. In sentencing Mr De La Torre to a three year Community Corrections Order following his guilty plea to 11 charges of obtaining a financial advantage by deception,[4] his Honour Judge Murphy accepted that your leading role significantly influenced his involvement in the conspiracy. I am satisfied that you took advantage of your significant influence over your stepson in furtherance of your criminal conspiracy.

37 You have pleaded guilty to what is commonly called 'white collar crime'. That characterisation identifies a number of important sentencing considerations.[5] Your motivation to engage in criminal conduct recognised how easy it was for you to corrupt a position of trust to earn enormous rewards. Together with Wells, you abused a position of high authority in the Victorian Public Service and I am satisfied that you did so assuming that discovery or proof of your wrongdoing was unlikely. Whatever your motivation, whether it was greed or weakness in succumbing to pressure from Wells and others to use deceitful means for personal gain, you engaged in a carefully calculated course of conduct over a long period that involved repeated deliberate acts of dishonesty and substantial amounts of money that corrupted the systems protecting the public purse.

38 You held a position that made such criminal conduct possible and permitted you the ability to disguise or camouflage your offending. You thought you would get away with it and but for investigation by a specialist corruption commission you might have. Detection was difficult and the investigation of your crime was lengthy and very expensive. Had you not pleaded guilty, your trial and proof of your offending would have presented challenges to the prosecution. As I said, these are common features in white collar offending.

39 These considerations, in my view, require that the element of general deterrence is a particularly important sentencing objective for your crimes, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation of such conduct by the sentencing court.

40 General deterrence of persons contemplating corporate or white collar criminality requires not so much a significantly long head sentence but a sentence under which the offender spends a substantial term in actual custody by virtue of the non-parole period. It is inappropriate to fix an unduly short non-parole period that would, in your case, be subversive of the goal of general deterrence. Moreover, in white collar cases generally, and in your case, your previously good character is not to be generally regarded as significant a mitigating factor as it is in other cases. Persons of poor character are usually not employed in responsible positions in the Victorian Public service of the type that provided you with the opportunity for your offending.

41 Your rehabilitation prospects are clearly favourable and the rehabilitative effect of a prison sentence will doubtless be very substantial. It is likely that you will have neither the desire nor the opportunity to offend again so the rehabilitation purpose is not so prominent. For the same reasons, future protection of the community does not rank as highly as a sentencing objective as it does for other crimes.

42 In my view, the principal sentencing objectives in your case are those of general deterrence, punishment and denunciation.

43 As reflected by the maximum penalties available for them, the crimes of which you have been convicted are very serious crimes. The Crown submits that your conduct was a serious example of such offending. I will now tell you why I agree with that submission. Your offending was over a period of some seven years, an important factor in consideration of its seriousness.

44 Your crimes were committed with a sophisticated degree of orchestration and planning that involved you taking advantage of your senior position of trust and your influence within the public service to defraud large sums of money from the State of Victoria. You did not act alone. Your crimes involved others cooperating together, and you were one of the central figures, a leader in the criminal operation. I am satisfied beyond reasonable doubt that you were one of two directing minds of the conspiracy and you directed others down the line as to how the scheme was to be executed.

45 The quantum of the financial advantage you dishonestly accrued is also very significant. The sums of money that passed through your hands as a result of your offending were in the millions of dollars, with the total value of contracts awarded pursuant to the fraudulent design totalling over $15 million. You have agreed to a pecuniary penalty order in the sum of $2,342,614.06. Given that you and Wells shared equally in the spoils, your corrupt scheme must have netted at least $4.6 million.

46 This leads me to consider your motive for this offending because it was not characterised by impulsive acts nor brought about by pressing need. The benefits that you obtained were very significant. I am satisfied the path of dishonesty you chose was motivated by personal greed. No alternative motive for your conduct was proffered.

47 The position that you found yourself in was not unique. Those who sit in control of expenditure, procurement and tender processes in government departments and corporations are trusted to exercise that power in an honest and independent manner. The temptations for personal enrichment by dishonest means are well recognised and arise not infrequently. Particularly in circumstances where your offending was motivated by pursuit of personal gain, the need to impose a sentence that has a significant general deterrent effect on others facing similar temptations is very strong.

48 Your counsel rightly acknowledged that given the seriousness of your offending it is appropriate that a term of imprisonment be imposed. As I have already explained to you, I consider that a very substantial term of imprisonment before eligibility for parole is warranted. However, on your behalf your counsel has pressed four particular matters that I accept warrant significant mitigation of the sentence that I might otherwise have imposed. These matters are first, your plea of guilty and your remorse for your offending. Second, your undertaking to give evidence against other co-accused at their trial. Third, the hardship you will experience in custody given your age, personality and physical health and your undertaking to assist the prosecution. Fourth, the punitive impact of delay between the discovery of your offending and receiving your sentence.

49 I now turn to these matters put eloquently by your Counsel in mitigation.

50 Your solicitor indicated from very early in the process that you intended to plead guilty. When you were committed for trial by a magistrate you stated your intention to enter into plea negotiations. The matter did not then resolve quickly because of illness in your legal team, but the written offer to plead guilty that you made, via your solicitors, was substantially accepted by the Crown and you pleaded guilty on first arraignment.

51 The discount for a plea of guilty is a very important matter. In your case your early plea does not evidence advanced prospects of rehabilitation, but I am satisfied that it demonstrates genuine remorse. The law recognises that a guilty plea that evidences genuine remorse and is entered at the earliest practical opportunity so as to save the State the expense of a trial and the witnesses both trauma and inconvenience normally justifies a high, or considerable, discount. I take into account in your favour recognition of the credit you ought to receive for pleading guilty. Our system of criminal justice relies upon a large proportion of accused persons pleading guilty, and the benefits to you of doing so will not be illusory and will be reflected in the actual sentence I impose.

52 I accept that you are genuinely remorseful for your conduct, and your remorse is not simply evidenced by your plea of guilty of itself. There are also your actions in making an extensive statement about your conduct and the operation of the conspiracy and undertaking to provide assistance to the authorities, to which I will return in a moment. There is also evidence of what you have said to others regarding your offending. I have read the character references provided by your children, Mark Ooi and Kristen Walker, your daughter in law, Andrea Ooi and long-time family friend Dr Hilde Lovegrove, each of whom attests to your sincere shame and remorse for the behaviour which culminated in this trial. Your treating psychiatrist and psychologist have also remarked that you have exhibited genuine shame and remorse.

53 Because you admitted your wrongdoing, accepted responsibility and displayed genuine remorse I will give you a significant discount for your guilty plea.

54 You entered the witness box and gave me an undertaking to assist in the prosecution of your co-offenders by giving evidence against them, including most significantly, Mr Wells as and when required. In support of your undertaking you have made a substantial statement to investigators.

55 The law recognises the need to encourage others to assist the authorities in the investigation and prosecution of criminal behaviour and the need to do justice having regard to the particular circumstances of the case, including by way of a sentence discount, to an individual who has done so.[6] Such assistance by the provision of significant and reliable evidence has been described as a powerful consideration favouring exceptional leniency in the sentence imposed particularly in areas of organised crime and the exposure and prosecution of corrupt officials, hidden organisers and financiers.

56 A sentencing discount must be given to an accused who gives information or evidence to assist in the prosecution of others.[7] The discount is to be applied even if other offenders subsequently plead guilty, and I am not required to enter into a detailed examination to ascertain objectively the extent to which information provided was effective.[8]

57 Your counsel submitted that your statement and your evidence will permit the prosecution to prove documents and to present in a compelling and comprehensible manner what would otherwise be a largely circumstantial case, and ought earn you a significant discount. The prosecutor disagreed that your evidence was strictly necessary in order to prove documents without which there would be no case, but did not dispute the extent of your cooperation and the very detailed nature of the statement that you have provided. The prosecutor accepted that you had cooperated.

58 I propose to grant you a substantial discount in the sentence that I would have otherwise imposed but for your willingness to give evidence against your co-offenders. I am not required to identify precisely the extent of that discount. I direct that your undertaking to give this evidence be noted in the court records.

59 Turning now to your background and personal circumstances, you were born in Malaysia on 8 November 1950 and are presently 66 years of age. You emigrated to Australia alone as a teenager and matriculated from Camberwell High School in 1969. Your father passed away one year later. Your mother emigrated to Australia in 1987, and passed away in 1992. You have five siblings, one of whom passed away in 1996, another of whom is retired and living in Malaysia, and three who reside and work in Victoria.

60 After school, you completed a Bachelor of Engineering at the University of Melbourne. From 1974 to 1993, you were employed in the public transport sector initially in a graduate position with the Melbourne and Metropolitan Tramways Board. You tested engineering aspects of W Class trams and conducted emission testing of buses. From 1979 to 1982 you were a workshop engineer at a bus workshop in North Fitzroy, managing the maintenance and repair of buses, and the design and layout of bus workshop facilities.

61 Between 1983 and 1985 you were the Project Manager, Tram Contracts, responsible for overseeing the introduction of the new A Class trams and the first two articulated light rail vehicles in Victoria. Between 1986 and 1988, you were the Project Manager, Melbourne Transit Consulting Services (MCTS), involved in co-ordinating and monitoring the construction of a light rail transit system in Hong Kong, as part of a joint venture between the Victorian Government and Leighton Contractors. In 1989, you were promoted to project manager of marketing of MTCS, a role that you held for two years. Between 1991 and 1993 you assisted in the management of rail-related projects within the Department of Infrastructure.

62 In mid-1993 you were retrenched from the public service.

63 In May 1994, you were employed in the private sector where you worked until returning to the public sector in 2003. Initially you worked part-time with the Public Transport Corporation on bus-related projects. Between 2004 and 2006 you were a project manager on bus projects. Between 2006 and 2011, during which the offending conduct commenced and continued, you held the role of a project manager for Bus Infrastructure. During that time you reported to Mr Wells. Between 2011 and 2012 you were a project manager of the W Class Tram refurbishment. Although you acknowledged that your offending continued until 9 January 2014, you retired in January 2013 and have not worked since.

64 In 1981 you married your wife, Norma Ooi. You have four children together, two of whom are your wife's children from a previous relationship, who you regard as your own. As I have already observed, two of your children, being your natural son Andrew Ooi and stepson Michael De La Torre were involved in your offending.

65 You are close to your family and your children, three of whom attended your plea hearing, and remain supportive of you. Your wife has been spending substantial amounts of time in the Philippines since your arrest, apparently attempting to decrease the stress she is experiencing as a result of your conduct.

66 You have no recorded prior charges or convictions and your good character is attested to by others as I have noted, but prior good character bears less weight in sentencing for white collar crimes. Nevertheless it is not irrelevant, and I accept that your prior good character informs aspects of personal deterrence, rehabilitation, adequateness of punishment and the genuineness of your asserted contrition.[9]

67 You suffer from a mood disorder and anxiety and since your arrest you have been diagnosed as suffering a major depressive episode attributable, almost entirely it would seem, to the increase in psychological stressors since the exposure of your crimes. That is not an uncommon reaction to the shame of being exposed as a criminal. Letters from Dr Ranjit Menon, your current treating psychiatrist since March 2016, Ms Laura Humphreys, your treating clinical psychologist since April 2016, and Associate Professor Garun Hamilton, a sleep disorder and respiratory physician at the Epworth Sleep Centre were relied on by your counsel in mitigation of sentence.

68 You currently take anti-depressants to assist with your mood and anxiety and each of Dr Menon and Ms Humphreys expressed concerns about the impact that incarceration will have on your mental health.

[Mr Ooi's] Major Depressive Episode could indeed worsen in a custodial setting due to ongoing ruminative concerns about the welfare of his family, some of who are facing charges linked to his current legal matters. In addition to this I am advised that he could be in protective custody due to concerns for his safety which is also likely to cause further psychological stress for him and complicate his mood disorder.

[Mr Ooi] has previously noted an increase in fear and worry when he is not busy, and this is likely to be more apparent in a custodial setting, especially if he needs protective custody. He has also reported a longstanding tendency to be uncomfortable in groups of people, which is likely to impact him during a custodial sentence. Mr Ooi impresses me as someone who is naïve to violent offenders and I suspect this may make him vulnerable in custody.

71 This evidence enlivens principles 5 and 6 stated by the Court of Appeal in R v Verdins:[10]

1. The existence of [a] condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
2. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

72 Physically, you suffer from hypertension, thyroid problems, and moderately severe obstructive sleep apnoea. You require a range of medications to control the first two of those conditions and are required to undergo specialised CPAP therapy every night for the sleep apnoea. CPAP therapy involves a machine and mask interface to provide air pressure when you are sleeping. Associate Professor Hamilton stressed that this treatment will need to be maintained wherever you may be, including in jail, although I see no reason, and none was suggested, why the Office of Corrections could not accommodate that therapy.

73 I accept that your age, your mental and physical health, and your personality will all render custody more onerous on you than on other offenders without such disabilities and those factors deserve some weight in your favour in sentencing. I also accept your counsel's submission that you may need to serve your sentence in protective custody, as a consequence of giving evidence against other accused persons, which will increase the hardship you will experience. As this is not a case in which you will be in protective custody as a result of your own behaviour whilst in custody, the hardship associated with that factor is a matter to which I will give some weight in your favour in sentencing.[11]

74 Just over three years have passed since your offending first came to light.[12] The relevance of that delay is that it may, of itself, have a punitive aspect that does not depend on whether there is a satisfactory explanation for it.[13] There is natural anxiety occasioned to a person suspected of, or charged with, the commission of an offence carrying a considerable risk of imprisonment until the matter is finally disposed of and the medical evidence makes it plain that you have suffered in this way. That is a form of unfairness, effectively additional punishment, that also requires some degree of compensation in the sentencing process.[14]

75 The prosecution disagreed that there has been an undue delay in the circumstances, pointing to the complexity of the investigation and submitted that the case has proceeded at a normal pace which cannot be characterised as being an undue delay in the relevant sense. I agree with the prosecution that, given the sophisticated nature of the offending involved, the case has progressed at a normal rate. While I might wish for greater expedition, resources are not unlimited.

76 That said, I accept, relevantly, that you have seriously struggled mentally over the last three years and that this struggle has had a significant impact on you. As I understood the medical evidence, your mental condition is largely the result of your offending. I have taken this into consideration in your favour and given it some weigh to the extent that it is a kind of additional punishment.

77 Finally, the law recognises that justice should be even handed, so that the differences between sentences imposed upon co-offenders should not be such as to give rise to a justifiable sense of grievance on the part of the offender who receives the heavier sentence.[15] The law strives for an appropriate relativity of sentences between co-offenders, taking into account the differences between the offenders and their role in the offending.[16]

78 In this case, only one of the co-conspirators named in charge 1, your stepson Michael De La Torre, has been sentenced. He was sentenced to a three year community corrections order on 11 charges of obtaining financial advantage by deception between February 2008 and December 2009, relating to 31 contracts at a total value of close to $4 million. The sentencing judge described him as 'a key figure at the bottom of a sophisticated insider trading (sic) conspiracy', who had received a salary, but little other benefit.[17] Your stepson also undertook to assist the prosecution of co-offenders and give evidence and his evidence was considered of high value.[18]

79 There are clear and substantial differences in your role in this criminal conspiracy that require that you receive a far sterner sentence than did Mr De La Torre. Nevertheless, I have considered the relativity of that sentence, along with the sentences given to two other related offenders,[19] in coming to the appropriate disposition in your case.

80 As required by the Sentencing Act 1991,[20] I have had regard to current sentencing practices. Offending of the kind and complexity of your conduct is relatively rare. I have considered a number of cases on white collar crimes that included conspiracy to defraud, fraudulent book keeping, and other offences.[21] I have also considered the statistics compiled by the Sentencing Advisory Council for conspiracy to defraud contrary to common law.[22] According to the Council's statistics compiled from July 2010 to June 2015 the median period of imprisonment imposed was three years.[23]

81 As I have said, your crimes were very serious, complex, and sophisticated, encompassing multiple accused co-offenders and businesses. Your role was central and I consider that the objectives of general deterrence, punishment and denunciation must be given significant weight when imposing a sentence upon you. You have been responsible for fraud on a grand scale, deserving of a condign punishment. Only a significant sentence of imprisonment will suffice. The sentence I am about to pass is designed in part to punish your criminality, denounce your conduct and deter potentially like-minded others. Those contemplating fraud on this scale must understand that a long term of imprisonment awaits them.

82 Ultimately, I must fix a sentence which is just in all the circumstances of your case and is not more severe than is necessary to achieve those purposes.[24] In so doing, I carefully considered each of the matters to which I have referred. I have also carefully considered all that has been said on your behalf, particularly by your counsel in urging mitigation of penalty to the extent feasible in your case, even if I have not specifically referred to it.

84 On charge 1 - conspiracy to defraud contrary to Common Law - you are sentenced to 7 years and 6 months imprisonment. That is the base sentence. On charge 2 - receiving a secret commission contrary to s 176(1) of the Crimes Act 1958 - you are sentenced to 1 year imprisonment.

85 Considering the totality of your offending and bearing in mind the principle of parsimony, I will order some cumulation of the sentence on charge 2 with the base sentence. Charge 2 represents a different harm caused by offending of a different type to the first charge, although related to it and with overlapping features. I direct that six months of the sentence on charge 2 be served cumulatively upon the sentence on charge 1.

86 The result is a total effective sentence of 8 years imprisonment. I direct that you serve a minimum term of 6 years imprisonment before you are eligible for parole. As you have been on bail since your arrest, I declare that you have served no pre-sentence detention and accordingly each of those sentences commences today.

87 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty,[25] I would have imposed on you a sentence of 10 years and 6 months imprisonment with a minimum of 8 years to serve before being eligible for parole.

88 Finally, I have made a pecuniary penalty order as sought by the Director of Public Prosecutions, and not opposed by you, in the sum of $2,342,614.06. The penalty order was sought in respect of profits derived from the commission of your offences and consequently was not taken into account in my sentencing considerations.[26]

[1] Barry Wells, Michael De La Torre, Andrew Ooi, Darrel Salter, Andrew Hayes and Graham Davis; each of whom are subject to separate proceedings arising out of these events.

[2] Crimes Act 1958, s 320.

[3] Crimes Act 1958, s 176(2).

[4] DPP v De La Torre [2016] VCC 1896.

[5] DPP v Bulfin (1998) 4 VR 114; recently approved of in Dyason v The Queen [2015] VSCA 120.

[6] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 239.

[7] R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, [18] (Nettle JA). The discount can be in the order of 50% or as much as two thirds depending on the circumstances.

[8] Scerri v R (2010) 206 A Crim R 1, [35]-[36] (Maxwell P and Buchanan JA).

[9] R v Chan [2010] VSC 312, [19].

[10] [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[11] R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 101-102 (Charles JA); R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 149 [13]-[14] (Buchanan JA); R v Males [2007] VSCA 302, [5] (Whelan AJA), [36] (Kellam JA).

[12] Mr Ooi was first examined in relation to his conduct on 24 February 2014.

[13] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [34] (Maxwell P); Day v R [2011] VSCA 243, [17] (Nettle JA).

[14] Dragojlovic v R (2013) 40 VR 71, 131 [294] (Redlich and Weinberg JA, Bell AJA) (citations omitted).

[15] Lowe v R [1984] HCA 46; (1984) 154 CLR 606, 623.

[16] Kelly v R [2011] VSCA 10, [5] (Redlich and Weinberg JJA). This principle extends to cases in which offenders are party to a common criminal enterprise, but are not charged with the same offence: R v Farrugia [2011] VSCA 24; (2011) 32 VR 140, 146 [23].

[17] DPP v De La Torre [2016] VCC 1896, [21], [34].

[19] Two further offenders, Mr Furphy and Mr Huggard, have been sentenced in the Magistrates' Court for related offending, with Mr Furphy pleading guilty to making a false document and Mr Huggard pleading guilty to one charge of creating a false document and two charges of giving a secret commission. Both were fined $20,000 without conviction. One of the secret commission charges against Mr Huggard related to him giving Mr Ooi the secret commission that founds charge 2 on the present indictment.

[20] Sentencing Act 1991, s 5(2)(b).

[21] The Judicial College of Victoria Sentencing Manual at Chapter 32.14.6.3 summarises deception cases before the Victorian Supreme Court of Appeal from 2013 to present, current as at February 2017, only some of which are relevant. See specifically Aitchison v The Queen [2015] VSCA 348, Julie Lim v The Queen [2013] VSCA 148, Smith v The Queen [2012] VSCA 187, Day v The Queen [2011] VSCA 243, DPP v Page, DPP v Corker, DPP v Lynch [2006] VSCA 224. In the trial division, see The Queen v Johnson [2014] VSC 175, The Queen v Murray [2011] VSC 513 and R v Chan [2010] VSC 312.

[22] https://www.sentencingcouncil.vic.gov.au/sacstat/higher\_courts/HC\_LAW\_34.2.html.

[24] Sentencing Act 1991, s 5(3).

[25] Had Mr Ooi not pleaded guilty he would not have offered to assist in the investigation and prosecution of his co-offenders.

[26] Sentencing Act 1991, s 5(2A)(d).