The Queen v Gould

The Queen v Gould - [2020] NSWDC 831 - NSWDC 2020 case summary — Zoe

[3]

The Particulars Of The Offence

The Crown case put to the jury relied upon the following particulars: 1. the Offender encouraged Peter Borgas to assert, or confirm, in his testimony that he made decisions for Chemical Trustee Ltd ("Chemical Trustee"), Derrin Brothers Properties Ltd ("Derrin Brothers"), and Bywater Investment Ltd ("Bywater"), on the advice of the Offender, and not at the Offender's direction ("Particular 1"); 2. the Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he was the beneficial owner of Chemical Trustee, Derrin Brothers and Bywater ("Particular 2"); 3. the Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he was the beneficial owner of JA Investments Ltd and MH Investments Ltd ("Particular 3"); 4. the Offender encouraged Mr Borgas to assert, or confirm, in his testimony that Mr Borgas, and not the Offender, controlled and managed the affairs of Chemical Trustee, Derrin Brothers and Bywater ("Particular 4"); and 5. the Offender offered Mr Borgas an unspecified inducement to give evidence ("Particular 5").
The jury was directed that they must be satisfied beyond a reasonable doubt of only one of the particulars raised by the Crown in order to find the Offender guilty.
That fact has given rise to contention between the parties as to the approach to sentencing the Offender. Notwithstanding the failure by the legal representatives for the Offender to request a special verdict, by which the jury would have nominated which Particular or Particulars they found proved, it was submitted that the Offender must be sentenced on a factual basis consistent with evidence supporting the least serious of the Particulars, and not on the facts that relate to any other or more of the 4 primary Particulars. Reliance was placed upon the High Court's decision Chiro v The Queen [2017] 260 CLR 425.
Leaving that issue to one side, the starting point is to make findings of fact, based on the evidence, relevant to sentencing. In doing so, the Court may not take into account facts in a way that is adverse to the interest of the Offender unless those facts have been established beyond a reasonable doubt. Conversely, if there are matters which the Offender relies upon in mitigation, then it is sufficient that those facts be proved on the balance of probabilities (The Queen v Olbrich [1999] HCA 54).

[5]

Findings of Fact

The Offender is an Australian resident and citizen. From 1969 he worked as a chartered accountant and in 1976 founded Gould Ralph Pty Ltd (Gould Ralph), a chartered accounting firm which operated out of Suncorp Place in George Street, Sydney. He retired as a partner of Gould Ralph in 1996.
The Crown case against the Offender arose from civil proceedings conducted in the Federal Court of Australia between 2010 and 2013 (Federal Court Proceedings). The Federal Court Proceedings involved tax assessment objections for income years 2001-2007 and freezing order proceedings relating to five companies: Chemical Trustee; Derrin Brothers Properties; Bywater Investments; Hua Wang Bank Berhad and Southgate Investment Funds Ltd.
The Crown case involved the conduct of the Federal Court Proceedings in respect of the following companies: 1. Chemical Trustee; 2. Derrin Brothers; and 3. Bywater Investments; 4. (together, the Taxpayers).
The Taxpayers were all incorporated in foreign jurisdictions. A pivotal issue in the Federal Court proceedings was, notwithstanding that fact, whether central management and control of the Taxpayers was located in Australia.
Peter Martin Borgas (Mr Borgas), the principal prosecution witness, lives in Neuchatel, Switzerland, and is a citizen of Belgium. He is an English qualified solicitor through the University of London, who is qualified to practice.
Mr Borgas arrived in Neuchatel in 1985 and was the managing director of FM Trust SA (FM Trust), a corporate services provider.
In early 1989, Mr Borgas together with his wife, Winny Borgas, established an entity named Anglore SARL (Anglore). Anglore, like FM Trust, was a corporate services company based in Neuchatel, Switzerland. It provided services including the provision of nominee directors, shareholders and other corporate officers.
Mr Borgas was the director of Anglore until October 2013 at, which time Winny Borgas became the director.
Anglore's services included providing nominee directors for Chemical Trustee, Derrin Brothers and Bywater Investments.
The Taxpayers utilised the accounting services of Lubbock Fine, chartered accountants in London. The principal point of contact at Lubbock Fine was Mr Hasmukh Vara (Vara).
Lubbock Fine administered two UK companies, Guardheath Securities Limited (Guardheath) and Lordhall Securities Limited (Lordhall). Guardheath and Lordhall were used as nominee shareholders for various companies associated with the Offender.
Debbie Anne Gould was the wife of the Offender at all relevant times.
John Scott Leaver (Mr Leaver) is an Australian resident and has a history as a stockbroker. Mr Leaver and the Offender were long term business associates.
Mrs Borgas is the wife of Peter Borgas.
The corporate structure of the Taxpayers is reflected in a diagram, which I have included in the written version of my remarks.
The diagram demonstrates the relationship between JA Investments and MH Investments and the Taxpayers: 1. JA and MH were both incorporated in the Cayman Islands; and 2. through Gardheath, Lordhall and Anglore (the nominee shareholders and service entities), JA and MH held shares in the Taxpayer companies Chemical Trustee, Derrin Brothers and Bywater.
At all relevant times, Peter and Winny Borgas were directors of the Taxpayers.
JA Investments Ltd (JA Investments) and MH Investments Ltd (MH Investments) were also the parent companies of other companies associated with the Offender. These companies were known as "Group companies".
In 2009, the Australian Taxation Office (ATO) commenced an audit project concerning taxation arrangements entered into with offshore entities by the Offender, clients of Gould Ralph, and associated entities.
As a result of the audit project, in August 2010 the ATO issued tax assessments to the Taxpayers, as well as two other companies associated with the Offender, Southgate Investment Funds Limited (Southgate) and Hua Wang Bank Berhand (Hua Wang Bank). The five companies were assessed as being taxable in Australia on profits or gains derived from the sale of shares in Australia.
On 12 August 2010, the Deputy Commission of Taxation (the Commissioner) commenced ex parte proceedings in the Federal Court against the five companies seeking orders freezing their assets.
The Commissioner ultimately secured court orders freezing the five companies' Australian assets.
The Taxpayers commenced civil proceedings in the Federal Court challenging the ATO's assessments. These cases were conducted as joint proceedings commencing 16 May 2011.
The Federal Court proceedings were heard in the Federal Court by Justice Perram between 16 September 2013 and 20 November 2013, but not on consecutive days.
The five taxpayers, the relevant income years in dispute and the combined amount of tax in dispute in the Federal Court were as follows: Taxpayer Financial Year Amount Chemical Trustee Ltd 2001, 2003-2004, 2006-2007 $1,750,439.82 Derrin Brothers Properties Ltd 2003-2005 $3,500,294.10 Bywater Investments Ltd 2002-2007 $5,239,294.00 Total (the Taxpayers) $10,490,027.92 Hua Wang Bank Berhad 2004, 2006-2007 $2,629,907.92 Southgate Investment Funds Ltd 2000-2002, 2006-2007 $1,144,982.69 Total (all 5 companies) $14,264,918.53

[6]

In the Federal Court proceedings, the Commissioner alleged that during the period from 1 July 2001 to 30 June 2007, each of the Taxpayers derived income from share investment activities conducted in Australia and had not declared any income derived from those activities, thereby avoiding their tax obligations in Australia.
A central issue for determination in the Federal Court proceedings was whether the Taxpayers should be considered Australian residents for taxation purposes pursuant to s 6 of the Income Tax Administration Act 1936 (Cth). This raised questions about the way in which, and from where, the Taxpayers were controlled or managed.
In the Federal Court, the Commissioner contended that each of the Taxpayers had its place of central management and control in Australia, where he alleged that they were controlled by the Offender. Each of the Taxpayers contended that its place of central management and control was in various overseas locations because, in summary, that was where their directors met and, on the Taxpayers' case, that was where actual decisions about the companies were made.
The Taxpayers submitted that Mr Borgas, as director, turned an independent mind to the decisions he made on behalf of the companies, including giving instructions to brokers about share transactions, and that he held the meetings of directors from his place of residence in Neuchatel, Switzerland. As a result, they submitted, their place of central management and control was in Neuchatel.
The Taxpayers maintained that the Offender provided advice and recommendations to the relevant directors, including Mr Borgas, but denied that the Offender exercised control over the Taxpayers.
The Offender was appointed as litigation agent on behalf of Chemical Trustee, Derrin Brothers and Bywater to manage the litigation in the Federal Court proceedings. The Offender was the primary point of contact for the solicitors and barristers representing the Taxpayers and gave instructions to the legal representatives representing the Taxpayers.
Mr Borgas was called as a witness for the Taxpayers between 10 and 15 October 2013, and gave evidence about decisions made by him in his capacity as a director of Chemical Trustee, Derrin Brothers and Bywater Investments. He testified that he had little or no involvement in the other two taxpayers (Southgate and Hua Wang Bank Berhad).
On 26 September 2012, the Federal Court proceedings were listed for hearing, to commence on 16 September 2013.
At some time between September 2012 and April 2013, a decision was made on behalf of the Taxpayers that Mr Borgas would give evidence in the Federal Court Proceedings. Mr Borgas was told that he would receive a question and answer document that set out the evidence that he should give in the Federal Court Proceedings (the Question and Answer Document). It was intended that Mr Borgas would give evidence in accordance with the Question and Answer document in support of the Taxpayer's case against the ATO.
The Offender was involved in drafting subsequent versions of the Question and Answer Document, which he updated between April and September 2013 and sent to Mr Borgas by mail.
Mr Borgas was sent an initial version of the Question and Answer Document in about April 2013. It was the first of approximately six versions of that document. All of the Question and Answer Documents had a similar format and style.
The Question and Answer Documents included information that Mr Borgas did not otherwise know and that was false or misleading. The Offender's purpose in sending Mr Borgas the Question and Answer Documents was to instruct Mr Borgas in respect of the evidence that he was to give in the Federal Court proceedings and to encourage Mr Borgas to learn the answers contained in the Question and Answer Document. The Offender referred at times to Mr Borgas' evidence as "the exam" and the Question and Answer Document as Mr Borgas' "crib notes".
To assist Mr Borgas in learning the answers contained in the Question and Answer Documents in preparation for giving evidence, the Offender also organised and conducted direct instruction sessions with Mr Borgas on Skype with the intent to ensure Mr Borgas had sufficiently absorbed the answers set out in the most recent version of the Question and Answer Document and that Mr Borgas was adequately rehearsed in articulating and explaining those answers. The Offender was aware that it was essential to the Taxpayers' success in the Federal Court proceedings that the testimony of Mr Borgas be accepted. That is, that Mr Borgas, and not the Offender, controlled Chemical Trustee, Derrin Brothers and Bywater Investments.
During the Skype sessions, the Offender would read the questions contained in the Question and Answer Document and Mr Borgas would read the reply. They would discuss the content of the Question and Answer documents. If Mr Borgas did not understand the information contained in the Question and Answer Document or had questions about it, the Offender would provide clarification. For example, in a Skype session on 8 August 2013, the following exchange occurred (referring to the Question 2 of the Question and Answer Document): Gould: Tell us the name of the companies that you personally own. Borgas: Well, I mean, I have a - I have a list and now, but my question to you is to - to interject there is --- Gould: [indistinct] Borgas: Do I have to learn these - these companies by heart so that I can recite them by heart Gould: No, no, no. Look at A. So basically you personally own. Now listen to the question. Most of the companies you don't personally own.
Further, in the same Skype session, when discussing the evidence Mr Borgas was to give about the structuring of various investments held by the Group companies, the Offender explained to Mr Borgas: Good. So - so what we're getting at there is that, for instance CVC shares … (indistinct) … Sunland shares might have been held by Derrin Brothers and also by Chemical Trustee. […] So basically by spreading the parcels around it, sort of, it actually doesn't' distort the market. That's actually the big advantage. It just sort of minimizes market distortion. Whereas if you had everything in one parcel, the moment you start to sell, if you're a big shareholder, everyone knows and wonder what on earth's going on.
Mr Borgas then repeated back this explanation: Yep. Okay. So small parcels do not have a distorting effect.
The Offender also instructed Mr Borgas not to disclose the extent of his involvement in preparing Mr Borgas' evidence. One question and answer on the Question and Answer Document read: 24 Has Mr Gould discussed with you the evidence that you are going to give in these proceedings? Did he suggest what answers you should give? Yes, in general terms as he did not know what questions you had in mind.

[7]

This answer concealed the true extent to which the Offender coached Mr Borgas and prepared the evidence he was to give.
The Offender also discussed with Mr Borgas how he should answer questions in the Federal Court in telephone calls, in correspondence and in person.
The Offender provided Mr Borgas with general instructions as to how to respond to questions asked of him in the Federal Court. For example, on 6 June 2013, the Offender had a telephone conversation with Mr Borgas in which he stated: remember the rules your best answers yes or no or I just have no present recollection or along so a bit longer answer which says well look .. I the notes that you now which we all do like you have little hand written notes about things .. when you when you clean up your desk you chuck them away … they're the sort of comments you can make and say well I might have you know if I had all my notes I could answer you but I haven't got them all…
I observe that in the excerpt to which I have just referred it is in some respects difficult to discern, however it is apparent that Mr Gould was indeed coaching Mr Borgas on how to answer questions.
Further, on 9 July 2013, the Offender sent Mr Borgas a list of further possible questions. The cover letter that accompanied the questions stated: The critical thing to see is that your best answer will usually be "Yes" or "No". The more elaboration opens the door for more questions. In fact, it is better to say "I don't know" or "I don't recall" than to open the door. You are not required to guess. Sometimes you could say "I don't know - I would only be guessing"! Please understand that the ATO wants to believe you are just a puppet for me. They are frustrated by the lack of documents to prove their case and they will lean on you. Keep saying "You have everything! Both Hasmukh and I have provided everything." This is true and ultimately the Judge will get fed up with them lecturing you. In fact the ATO has many boxes of correspondence so it is all there, but the fact you were so involved as the correspondence shows destroys their puppet theory.
Mr Borgas arrived in Sydney to give evidence in the Federal Court proceedings on 4 October 2013. While he was in Sydney, Mr Borgas met with the barristers for the Taxpayers. Following meetings with the barristers, he would meet with the Offender to discuss his sessions with the barristers and his evidence.
During the period in which Mr Borgas was in Sydney, he was instructed by his barristers not to talk to the Offender. The Offender was aware that this direction had been given to Mr Borgas but nonetheless met with and spoke to Mr Borgas about his evidence in the Federal Court. The Offender also spoke to Mr Borgas, both in person and on the phone, while Mr Borgas was in cross-examination and after Mr Borgas had been directed not to discuss his evidence with anyone.

[9]

Particular 1: The Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he made decisions for Chemical Trustee, Derrin Brothers and Bywater on the advice of the Offender and not at the Offender's direction

The Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he made decisions for the Taxpayers on the advice of the Offender and not at the Offender's direction. This was intended to create the impression that Mr Borgas, from Switzerland, turned an independent mind to decisions made on behalf of the Taxpayers and did not merely implement the Offender's directions, and accordingly, the place of central management and control was in Switzerland, not Australia.
The Question and Answer Document included the following questions and answers: 27 Please describe the extent to which you uncritically implement the recommendations of Vanda Gould? I note in his evidence Mr Borgas stated that this answer provided in the Question and Answer Document to this question was not true in that he always implemented the recommendations of the Offender. 29 Let us explore what you mean when you say that you generally follow Mr Gould's advice. Does he ever provide the text for a letter, or a buy-and-sell order, for your signature? Would you read such a letter before signing it? He may suggest wording, but I have never signed a letter he has prepared. I exercise my own independent judgment and my legal training in all matters. 30 How many investments would you say Chemical, Derrin Brothers, and Bywater have made without you first discussing these investments with Mr Gould? How can I say, especially over a 30 year period? But there have been many investments made in which Vanda has had no involvement in the investment decision. Jamie Saba's advice has been critical. Vanda would have no knowledge of many of the investments my companies have made. Fundamentally he is a professional chartered accountant. I note in his evidence Mr Borgas said that every part of this answer was false. 41(b) Isn't it the case Mr Borgas that each and every one of these instructions was dictated to you directly but Vanda Gould and the only independent consideration you gave to any of these transactions was finding out the fax number of the relevant stockbroker and sending it to him? No 66 Did you purchase any shares without first getting instructions from Vanda Gould? Yes. No one dictated to me. I made decisions on what was in the best interest of each company. I note in his evidence Mr Borgas said that this was a lie. 67 Did you purchase any shares without getting instructions from Vanda Gould or John Lever? Yes, brokers also made recommendations which I followed if I thought they were in the best interest of the company. 70 What authority did Vanda have? He had an authority which comes with his professional expertise rather than any formal legal position in any of the companies. 71 Did he ever direct you to do something? No 89(c) What would you call the matters communicated to you by Vanda Gould? Advice and recommendations 109 Isn't it the fact that you conduct every aspect of Chemical Trustee's operation in accordance with the directions of Vanda Gould and that the only benefit you have ever received from this company is from acting as a nominee director of the company? No. I have been pleased to make the charitable donations and Mr. Gould has only ever received minor benefits from his involvement as my professional advisor in the form of commercial loans and professional fees. I am Vanda Gould's client.

[10]

The information contained in the Question and Answer Document falsely gave the impression that Mr Borgas made decisions independently, on the advice of the Offender (and others), but not at his direction. In reality, although Mr Borgas was named as a director of the Taxpayers, he acted at the direction of the Offender in respect of the transactions undertaken by the Taxpayers. Mr Borgas would not have issued instructions on behalf of the Taxpayers to enter into transactions without the prior consent of the Offender. The Offender was intimately involved in the management of the companies. Mr Borgas did not enter into a transaction on behalf of the Taxpayers without the Offender knowing of the transaction and giving a direction for it to occur.
Although Mr Borgas described himself as acting on the recommendation and the advice of the Offender, it was clear that he would not enter into a transaction for the Taxpayers unless he had such recommendation or advice. In all but possibly very rare instances, he followed the Offender's recommendation without recourse to further information.
That Mr Borgas acted on the Offender's direction was established by the objective, documentary evidence in this matter.
It was submitted for the Crown that the relevant question is not Mr Borgas' understanding of the veracity of the evidence he was told to give, but the understanding of the Offender. Therefore, the Offender's submissions addressing how Mr Borgas described his relationship with the Offender or how he considered his fiduciary duties to the companies (OS 1 Annexure 1 [5]-[6]) are only reflective of his intention and understanding, not that of the Offender. To establish the understanding of the Offender, it was submitted, and I accept, the Court should turn to the documentary evidence.
Further, it was submitted by the Crown that the following evidence established the Offender's extensive involvement in the Taxpayers and that the Offender made decisions on behalf of the Taxpayers, rather than merely providing advice to Mr Borgas, who in turn made his own independent decisions on behalf of the Taxpayers. The Crown referred to the following evidence: 1. Mr Borgas gave evidence as to how transactions generally occurred on behalf of the Taxpayers: 1. Mr Borgas would receive what he described as "a recommendation, a suggestion, call it what you will" from the Offender saying that the relevant company should purchase shares in a particular company at a particular price; 2. when asked what he meant by those words, Mr Borgas said: "It meant that when I received a letter like that from Mr Gould I took that as an instruction to carry out what was requested in the letter. To carry out as a director of Chemical Trustee what was set out in the letter"; 3. once he had received a communication from the Offender, Mr Borgas would get in touch with the relevant broker and, in his capacity as a director, he would give instructions to the broker to purchase particular shares. The instructions that he gave the broker came from the Offender. At times, Mr Borgas would receive advice directly from brokers as to which shares to purchase. Even then, he would not act on that advice or those recommendations unless he had the approval of the Offender to go ahead and buy the shares; 4. Mr Borgas never made a decision relating to the financial affairs of the Taxpayers without the recommendation or instruction of the Offender (including the purchasing or selling of shares or entering into loans) and he did not make a decision about the financial affairs of the Taxpayers on the instruction of anyone other than the Offender. 1. where Mr Borgas had a memory of transactions documented in Exhibit C, his evidence was that he entered into the transactions as a result of what he was told by the Offender and that it was the Offender's decision to make payments on behalf of the Taxpayers; 2. the documentary evidence was consistent with Mr Borgas' evidence. For example: 1. on 25 June 2002, the Offender wrote to Mr Vara stating that "You will shortly be receiving instructions from Peter Borgas in relation to Chemical Trustee Limited's application for [shares] in the Eco Fund Limited. Pursuant to our mutual client's instructions, would you please arrange for the sum of A$500,000 to be telegraphically transferred". This was followed by an instruction from Mr Borgas to the same effect. It is clear from this exchange of letters that the Offender was aware of the share purchase in advance. It could reasonably be inferred that he gave instruction to Mr Borgas to purchase the shares; 2. on a fax from the Offender to Daud Yunus in relation to a transaction on behalf of Chemical Trustee, the Offender noted "Peter will instruct you to buy 500,000 Asia Trust Development Bank at PHP 6.20". This is again consistent with the Offender giving instructions on behalf of the Taxpayers and Mr Borgas merely providing an official 'sign off' in his capacity as nominee director; 3. on 10 September 2013, Mr Borgas wrote to the Offender, seeking instructions on selling shares in Vita Life Sciences, a company of which the Offender was also a director. Mr Borgas' evidence was that it was not his decision, as a director of Derrin Brothers, to sell the shares; 4. Mr Borgas sought the Offender's advice regarding selling shares on behalf of Derrin Brothers. 1. the transactional documentation also contains specific examples of Mr Borgas or Mr Vara turning to the Offender when decisions needed to be made on behalf of the Taxpayers, or the Offender issuing direct instructions on behalf of the Taxpayers. For example: 1. on 25 June 2001, Mr Borgas arranged for $257,647 to be transferred to Normandy Finance from Chemical Trustee as commission payable on the monies received from the successful sale of shares in the US in relation to the companies Altec and Ambient. Mr Borgas had a specific recollection of Altec Irrigation. He gave evidence that in June 2001, he was not aware of the sale of Altec/Ambient shares. He arranged the transaction because of a "recommendation" that had come through from the Offender. A letter from Mr Borgas that accompanied the transaction bore Mr Vara's handwriting and the notation "Also confirmed by client", establishing that the Offender, not Mr Borgas, was the client and made decisions on behalf of Chemical Trustee. Mr Borgas had also advised Mr Vara that he had to refer to the Offender to obtain information in relation to this transaction; 2. in relation to this same transaction, when writing to Mr Vara about the Altec Irrigation transaction, Mr Borgas stated "I am not completely clear on all points", and later noted "I have to admit that I have rather 'lost the plot' in relation to this matter"; 3. Mr Vara directed financial inquiries on behalf of the Taxpayers to the Offender. Similarly, the Offender sent instructions directly to Mr Vara, including for the payment of invoices on behalf of the Taxpayers and the financial management of the Taxpayers, and communicated directly with brokers. It was submitted by the Crown that there is no reason why he would do so if he was merely the companies' advisor. I accept that submission. Mr Borgas sent the Offender copies of transactional documents that he would not have required if his role was limited to advising on share purchase or Australian accounting matters. Instead, it was submitted, this is consistent with Mr Borgas keeping the Offender up to date on the management of the companies, as the Offender was the true beneficial owner, controlled and managed the Taxpayers and made the decisions on behalf of the companies. I accept those submissions; 4. the Offender was involved in even mundane details about the Taxpayers, such as consolidation of shareholdings and changes in address on company registers; 1. Mr Borgas reported back to the Offender in relation to transactions entered into on behalf of the Taxpayers. There would be no reason for him to do so if he was merely implementing the Offender's recommendations; 2. similarly, on occasions, the communications on behalf of the Taxpayers about transactions on their behalf occurred directly between the brokers and the Offender, instead of with Mr Borgas, including in relation to overseas transactions. This is inconsistent with Mr Borgas being the individual who made decisions on behalf of the Taxpayers and the Offender merely providing services in respect of the Australian stock market; 3. the minutes of meeting prepared for Chemical Trustee and Derrin Brothers are notable in what is absent. The minutes are in template form and generally record the same topics of discussion at each meeting. There are no discussions that take place about transactions on behalf of the companies, their investment or commercial activities, or the financial affairs of the companies, other than in very basic terms. Consistent with this, Mr Borgas gave evidence that he did not receive copies of the bank statements of any of the three companies and any arrangements for payments on behalf of the companies went through Lubbock Fine; 4. in contrast, the Offender was intimately involved in the management of the companies. The audited accounts of Chemical Trustee and Derrin Brothers were sent to the Offender and were not finalized until the Offender gave his approval; 5. many of Mr Borgas' documents in relation to the Taxpayers bore the footer "Van.doc" or "v.doc". Mr Borgas stated that this was because those documents related to the Offender's group companies; 6. the Offender and Mr Borgas referred to the Offender in correspondence at times as "the mutual client" in order to deflect the Offender's involvement in the companies. Mr Borgas referred in documents to "our mutual client's instructions", an indication that Mr Borgas acted on the Offender's instructions, not his advice or recommendations; 7. some of the intercepted telephone communications also record the Offender giving directions to Mr Borgas about the Taxpayers. For example, on 16 August 2013, the Offender rang Mr Borgas and gave him instructions about a transaction involving Derrin Brothers and Yardley. The tone of the conversation suggested that the Offender was giving directions and Mr Borgas was repeating them back to make sure he gets them right.
The Crown submitted that it was not the case that Mr Borgas acted on the Offender's recommendation merely because he had great trust in the Offender (cf OS 1 Annexure 1 [8]). Nor is it correct to say that there is no evidence that Mr Borgas would not have acted upon the directions of the Offender had he considered them to be inconsistent with his fiduciary obligations as a director (cf OS 1 Annexure 1 [6]). In addition to the evidence set out above, Mr Borgas' evidence was: 1. on many occasions, Mr Borgas stated that he did not give consideration to whether particular transactions were in the best interests of the company. This included transactions of some millions of dollars from Chemical Trustee to Normandy Finance and Lloyds & Cassanove, companies of which the Offender was the beneficial owner; 2. although for most transactions, Mr Borgas did not recall the details, several transactions stand in contrast to his general evidence as he had specific recollections of the companies involved. For those transactions, it was clear that Mr Borgas did not turn his mind to whether entering into the transaction was in accordance with his fiduciary duties when he chose to follow the Offender's directions; nor could it be said that he followed the Offender's directions merely because of his faith in the Offender as opposed to doing his bidding. For example, on 28 July 2010, Chemical Trustee transferred $1 million to JA, which in turn transferred $1 million to Melbourne Insurance. Mr Borgas did not know why Chemical Trustee entered into this transaction. Mr Borgas also did not know why JA - the company of which he was the sole director at this time - was transferring $1 million to Melbourne Insurance. He stated that in 2010, he did not know of the connection between Melbourne Insurance and the Offender, but only became aware of the connection in October 2013. At this time, his evidence was that he remembered arriving in Sydney for the Federal Court proceedings, going to a hotel and checking in with the assistance of Christine Shean, the Offender's PA. He recalled that Ms Shean had a credit card issued in the name of Melbourne Insurance. Before then, he had not heard of the company; and 3. the documentary evidence established that Mr Borgas did not have knowledge of some of the transactions he entered into. For example, the Altec Irrigation transaction referred to above.
I accept the Crown's submissions and find: 1. the Offender was extensively and intimately involved with the affairs of the Taxpayers; 2. he made decisions on behalf of the Taxpayers; 3. he gave instructions to Mr Borgas as to what transactions were to be entered into by the Taxpayers; 4. Mr Borgas acted on those instructions; 5. Mr Borgas would report back to the Offender when the instructions had been acted upon; and 6. Mr Borgas would not turn an independent mind as to whether the transactions were in the interest of the Taxpayers.
I am satisfied, beyond reasonable doubt, that Particular 1 has been established on the evidence.

[11]

Particular 2: The Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he was the beneficial owner of Chemical Trustee, Derrin Brothers and Bywater

The Offender encouraged Mr Borgas to assert, or confirm, in his testimony that he was the beneficial owner of the Taxpayers. This was relevant to the Federal Court proceedings because if Mr Borgas was the beneficial owner of the Taxpayers, it was more likely that he, and not the Offender, controlled and managed the affairs of the companies from Switzerland. If this was accepted then the tax would not be repayable.
One means by which the Offender encouraged Mr Borgas to give this testimony in the Federal Court was through the Question and Answer Document which included the following questions and answers: 7(a) [Q 7(a) discusses the use of bank accounts operated by Lubbock Fine] Isn't it your money? It is my companies' money 8(a) Can you tell us why the court should accept that you run 140 entities (including 50 with Lubbock Fine) for other people, but these particular entities (Chemical, Derrin and Bywater) are run for your own benefit? I have my own separate interests and manage investments for other parties. The fact that I am involved as a corporate services provider has been essential to my making the contacts to facilitate investment activity. 8(b) How can you prove the difference? Do we have anything other than your word for this? I usually sign the cheques for my companies such as Bywater, Chemical and Derrin. 30 How many investments would you say Chemical, Derrin Brothers, and Bywater have made without you first discussing these investments with Mr Gould? How can I say, especially over a 30 year period? But there have been many investments made in which Vanda has had no involvement in the investment decision. Jamie Saba's advice has been critical. Vanda would have no knowledge of many of the investments my companies have made. Fundamentally he is a professional chartered accountant. 40(b) Isn't it true that Vanda Gould then told you to follow the advice of the stockbrokers, because they were stockbrokers who found Vanda Gould thought would be able to effectively look after Vanda Gould's money? The money referred to was not Mr. Gould's money. It belongs to my companies. 84 What will happen to the shares in Chemical Trustee, Derrin Brothers and Bywater when you die? These will form part of my estate through my shares in JA Investments and MH Investments.

[12]

The Question and Answer Document also provided Mr Borgas with information about the investments and assets of the Taxpayers in order to create the impression that Mr Borgas had a detailed knowledge of the Taxpayers. It was obvious from his evidence that he did not.
The evidence in support of this Particular includes the evidence in support of Particular 1 above. That the Offender made decisions on behalf of the Taxpayers, rather than Mr Borgas, is reflective of his beneficial ownership of the companies. In addition, the Crown identifies the following evidence in support of Particular 2: 1. the transactional evidence established a large number of transactions carried out by the Taxpayers that benefited the Offender, his family or companies associated with him; 2. the transactional evidence also established that Chemical Trustee made substantial donations to Christian charitable organisations which directly benefited the Offender or his wife and which were at the direction of the Offender; 3. although Mr Borgas conducted business on behalf of the companies, including by communicating with brokers, issuing instructions to brokers and to Lubbock Fine, and organizing payments to charities, he did this at the instruction of the Offender, in carrying out professional services on behalf of Anglore. He received a financial reward for this work. The nature of Mr Borgas' business was to provide these services to companies on behalf of other individuals. The provision of these services is entirely consistent with another person (in this case the Offender) beneficially owning the companies; 4. specifically, in respect of Bywater, the document at Ex C p 387 establishes that the Offender utilized the services of Mr Borgas to manage Bywater on his behalf. The document was kept on Anglore's files in accordance with Swiss anti-money laundering legislation. It notes that Anglore provided "general administrative services; provision of directors/officers; bank account signatory". The document as a whole establishes that Anglore provided those services to the Offender. Further, Mr Borgas' evidence was that he never received a share of the profits of Bywater; 5. Mr Borgas felt the need to apologise to the Offender when he made errors in carrying out transactions on behalf of the Taxpayers. On 19 October 2004, Mr Borgas "sincerely" apologized to the Offender for having sent an instruction to a broker on Derrin Brothers letter head instead of the letterhead of Chemical Trustee. While this is not overly significant in itself, it is but a piece of the puzzle of the overall matters to which I refer; 6. Mr Borgas had to seek advice from the Offender about who should be listed as the "controller" of Chemical Trustee on a share application form. Mr Borgas subsequently listed himself as the controller and reported back to the Offender about the transaction. Again, it does not stand to reason that Mr Borgas was the beneficial owner of Chemical Trustee in circumstances where he did not even know that he was considered its controller; 7. Mr Borgas only learnt of the tax assessments and freezing orders through the Offender. The Offender said words to Mr Borgas to the effect that "the assessments were all wrong and that they would be - they would be resisted, they would be fought". Mr Borgas stated that it was the Offender's decision to lodge the appeal against the assessment on behalf of the three companies. Again, this is consistent with the Offender being the beneficial owner of the Taxpayers and not Mr Borgas; 8. this is also consistent with Mr Borgas' evidence about what occurred once he arrived in Sydney to give evidence in the Federal Court proceedings: the Offender paid for his flight, his hotel, his expenses in Sydney and his meals. After Mr Borgas' arrest, once he was released on bail, the Offender paid for the majority of his accommodation expenses in Sydney. If Mr Borgas was the beneficial owner of the Taxpayers, and was coming to Sydney to give evidence in relation to his own companies, there is no reason why this would occur; 9. the evidence also established that Mr Borgas sought advice about matters relating to the Taxpayers that he would know were he the beneficial owner of those companies. For example, on 20 September 2000, Mr Borgas wrote to Mr Vara asking him to confirm who the authorised signatories were on Bywater's accounts, and stating "I assume that the bank account statements for Bywater are sent to your office and maintained in your office. Please confirm." On 21 September 2000, Mr Vara responded to Mr Borgas' letter, indicating that Mr Borgas himself was a signatory on Bywater's accounts. It is completely inconsistent with Mr Borgas being the beneficial owner of Bywater for him (1) not to know that he was a signatory on its account, and (2) not to know where the bank account statements for the company were sent; 10. the Offender directed Mr Borgas to resign as the director of the Taxpayers and other Group companies on 1 October 2013, in anticipation of the Federal Court proceedings; 11. the Offender dictated how Mr Borgas should communicate with Lubbock Fine regarding the payment of invoices for fees related to the Federal Court proceedings; and 12. the Offender used ownership language when referring to the Taxpayers in telephone intercepts.
Mr Borgas ultimately gave evidence in the Federal Court that he was the beneficial owner of Chemical Trustee, Derrin Brothers and Bywater. This evidence was given at the encouragement of the Offender and was not true. The evidence set out above establishes that the Offender, and not Mr Borgas, was the beneficial owner of the Taxpayers. The Offender directly and indirectly benefited from transactions undertaken on behalf of the Taxpayers and, as above, directed how the funds of the companies were to be used. The Offender was the beneficial owner of JA Investments and MH Investments, the parent companies of the Taxpayers. Through his beneficial ownership of JA Investments and MH Investments, the Offender also beneficially owned the Taxpayers.
I find that Particular 2 has been established on the evidence beyond a reasonable doubt.

[14]

In accordance with the Question and Answer Document, Mr Borgas gave evidence in the Federal Court that he was the beneficial owner of JA Investments and MH Investments.
This evidence was given at the encouragement of the Offender and was not true. Although Mr Borgas was the sole shareholder of JA and MH at the relevant times, the Offender, and not Mr Borgas, was the beneficial owner of JA Investments and MH Investments at all relevant times. The Crown submitted, and I accept, that this is established by the following evidence: 1. the Offender was the Appointor of JA and MH; 2. Article 3 of JA and MH's Articles of Association describe a person known as "the Appointor" and provide: 1. the Offender was the Appointor of JA and MH; 2. Article 3 of JA and MH's Articles of Association describe a person known as "the Appointor" and provide: The subscribers to the Memorandum of Association and such other persons as are admitted to membership in accordance with these Regulations shall be the members of the Company. No person shall be admitted as a member of the Company unless he is nominated in writing by the Appointor or after the death of the Appointor, his legal personal representatives (and the survivors and survivor of them) at the date of his death but the Appointor shall not be entitled to nominate himself. Every person who wishes to become a member of the company shall deliver to the Company an application for membership in such form as the Directors may require signed by the applicant and accompanied by the requisite nomination, and on receipt of same by the Company the applicant shall be admitted to membership; 1. Article 1(b) defined 'the Appointor' to be "the person or persons nominated as such by instrument in writing signed by the members and deposited at the Registered Office of the Company"; 2. the effect of Article 3 was to allow the "Appointor" to control the shareholders of JA. Article 43 provides that members can remove any director and Article 24 makes clear that members can appoint directors. The structure of the Articles of Association is, therefore, such that the Appointor has complete control of JA; 3. consistent with the Articles, the Offender appointed Offshore Nominees as a member of JA on 14 April 2013. Offshore Nominees was also a member of MH from 27 March 2002. Offshore Nominees held its shares in JA and MH as nominee for the Offender; 4. Article 71 of the Articles provides "The profits of the Company shall not be distributed in any way among the members of the Company but shall be accumulated as an accretion to the reserves of the Company". Consistently with Article 71, Mr Borgas stated that he received no dividends as the shareholder of JA and MH, nor any other benefits other than the fee Anglore received for its professional services; 5. in contrast, the Appointor had complete control over the assets of the company on winding up. Article 81 of the JA Articles and Article 80 of the MH Articles provide that: On a winding-up of the Company, after payment of [expenses and creditors] the surplus assets of the Company (including any accumulated profits of the Company) shall be applied in paying to each of the members the sum of USD100 (or so much thereof as the surplus assets aforesaid allow) equally among them but the members shall have no further right to participate in the surplus assets aforesaid which shall be disposed of by the liquidator to such person or persons (other than the Appointor) in such amounts and in such manner as the Appointor … shall appoint … 1. accordingly, Mr Borgas was entitled to no more than $US100 on winding up of JA and MH, but the Offender, as Appointor, had absolute control of how the assets were to be distributed.
I accept the Crown's submission that the only consistent and rational reading of the Articles of Association is that the Offender, and not Mr Borgas, was the beneficial owner of JA and MH.
The Articles of Association of JA and MH are sufficient on their own to establish this Particular, however, the Crown also pointed to the following additional evidence, which I accept also supports that finding. The Offender treated the funds in JA and MH as his own. This submission is established by the following evidence: 1. between 2005 and 2012, the Offender was party to a nominee agreement with the sole shareholder of MH Investments pursuant to which the shareholder (Offshore Nominee Ltd) agreed to "vote the said shares as directed by" the Offender. Accordingly, Offshore Nominee was the nominee of the Offender, not of Mr Borgas, and by encouraging Mr Borgas to answer in accordance with Question 163 above, the Offender encouraged Mr Borgas to give the impression that he, not the Offender, was the beneficial owner of MH Investments; 2. the Offender also entered into a nominee agreement with Offshore Nominees in respect of the shares in JA. There is nothing that would suggest that the Offender did not understand those agreements. The Offender is an experienced qualified accountant of many years standing. I accept that in entering into the nominee agreements, the Offender did so on the basis that he understood that he, and no-one else, was the beneficial owner of JA and MH; 3. the evidence establishes that the Offender used the funds from JA as his own. In particular, the evidence shows that: 1. JA Investments paid for legal fees in relation to the drafting of the Offender's will and the will of the Offender's parents; 2. Mr Borgas was cross-examined about legal advice received from Mr Edmonds SC on behalf of JA and MH. He accepted that the Offender spoke to him about implementing the advice that Mr Edmonds SC had given. I accept that it is clear from this line of cross-examination that it was the Offender, and not Mr Borgas, who obtained advice on behalf of those companies, consistent with the Offender being the beneficial owner of those companies; 3. JA made donations to religious organisations on behalf of the Offender. One example is that on 22 January 2006, JA transferred $100,000 to Mary Andrews College Management. A receipt for this donation was issued in the names of Vanda & Debbie Gould. At the time of this donation, Mrs Debbie Gould was on the board of management of Mary Andrews College and she graduated from the College in 2004. The evidence of Mr Kenneth Breakspear of Mary Andrews College was that he had never heard of Mr Borgas.
The Offender encouraged Mr Borgas to mislead the Federal Court about the role of the Appointor in JA Investments and MH Investments. Contrary to the true position set out above, the Offender encouraged Mr Borgas to give the following evidence in the Federal Court as set out in the Question and Answer Document: 187 What do you know about the Appointor's powers? It only becomes relevant in the event of my death as he potentially would be able to protect the interests of people who have loaned money to JA Investments and the companies it controls. 188 Has Vanda Gould ever used his Power of Appointment? To my knowledge never. But Vanda has discussed FCM issues with me from time to time.

[16]

On 10 October 2013, the Offender met with Mr Borgas during his cross-examination, and after he had been asked questions about the role of the Appointor, to discuss the evidence he should give about this topic. This is established by the following: 1. on 10 October 2013 at 16:32, the Offender rang Mr Borgas. The call established that Mr Borgas was part-way through cross-examination. Mr Borgas tells the Offender that he has been asked questions about the Appointor in relation to JA and MH and "we really need to sit together and discuss". The Offender arranged to meet Mr Borgas at his hotel room; 2. at 17:38 the same day, Mr Vara rang the Offender. The Offender states "I'm just, just with, um, the young man in question", that is, Mr Borgas; 3. at 18:35, the Offender rang Mr Leaver. He states "one issue with his I've just worked through with him, what to say and how to handle it, which he'll be ready for tomorrow a bit like you and you're problem overnight". While the precise meaning of what was being said by Mr Leave is confusing, it is clear that he was communicating that he had met with Mr Borgas, and had worked through what Mr Borgas was to say in Court the next day; 4. when Court resumed on 11 October, Mr Borgas had looked at the Articles of Association. He gave evidence in the Federal Court that the purpose of the Appointor was to deal with "the reimbursement of people to whom group companies owed moneys in the event of my death".
After meeting with the Offender overnight to discuss the questions raised about the Appointor of JA and MH, Mr Borgas gave evidence in the Federal Court in accordance with the Q&A Document. I infer that the Offender instructed Mr Borgas as to how to answer questions asked of him in cross-examination in order to mislead the Court about the Offender's role in JA and MH.
For these reasons, I find beyond a reasonable doubt that the Offender encouraged Mr Borgas to assert, or confirm, in his evidence that he and not the Offender was the beneficial owner of JA and MH.

[18]

As with Particular 1, although Mr Borgas was named as a director of the Taxpayers, it was the Offender, and not Mr Borgas, who controlled the Taxpayers. Mr Borgas' role was to administer the Taxpayers on behalf of the Offender in his capacity as nominee director. It is clear that the Offender directed the commercial affairs of the Taxpayers and Mr Borgas followed his instructions and directions.
In addition to the evidence set out under Particulars 1 and 2, this Particular is also established by the Offender's involvement in the Taxpayers' accounting and management practices. Specifically, the Offender approved the financial statements for the Taxpayers. For example: 1. on 30 July 1999, Mr Borgas sent Mr Vara the financial statements for Derrin Brothers and noted that he was sending the documents to Mr Vara "on the strict understanding that they have been seen and approved by the Accounting Consultant", that is, the Offender; and 2. on 25 July 2002, Mr Borgas sent Mr Vara the draft accounts for Chemical Trustee and Derrin Brothers, noting that a copy of each had been sent to "Vanda" who "will let you know very shortly whether he has any comments".
These documents are inconsistent, with the Offender being a mere "advisor" to the Taxpayers and also demonstrate that he controlled and managed the affairs of those companies.
The Offender submitted that the Offender held a "genuine belief" that the structure and operations of the taxpayer companies were such that they would be successful in establishing that their control and management was located outside Australia and with Mr Borgas (OS Annexure 1 at [22]-[23]). I reject this submission. The evidence does not support this contention. Regardless of the Offender's knowledge or belief about Esquire Nominees, and how he thought it applied to his position, the evidence establishes that the Offender encouraged Mr Borgas to give false evidence about how the Taxpayers were controlled and managed, and their beneficial ownership. The only available inference is that the Offender did this in order to manufacture a situation whereby the Taxpayers may fit within the strictures of Esquire Nominees. The Crown submitted that, if the Offender held a genuine belief of the applicability of Esquire Nominees, there would be no reason to go to such lengths to coach Mr Borgas to give false evidence. I have no hesitation in accepting that submission.
I find proved, beyond reasonable doubt, that the Offender encouraged Mr Borgas to assert, or confirm, in his evidence that Mr Borgas and not the Offender controlled and managed the affairs of Chemical Trustee, Derrin Brothers and Bywater.

[19]

Particular 5: The Offender gave Mr Borgas an unspecified inducement to give evidence

The Crown accepts that this Particular rests entirely on the Court accepting Mr Borgas' evidence. That evidence was: 1. in about April 2013, the Offender told Mr Borgas he had to come to Australia to give evidence in the Federal Court proceedings. During this or another conversation at about that time, the Offender said to Mr Borgas "You say what we want you to say and you will be taken care of"; and 2. after Mr Borgas gave evidence in the Federal Court proceedings, he had a conversation with the Offender on his way to the airport. The Offender said words to the effect "with regard to you being compensated John [Leaver] and I had a figure of a hundred thousand in mind."
Mr Borgas' evidence was consistent with the telephone intercept of 14 October 2013, which occurred during the Court lunch break. The Offender said to Mr Borgas "no no no in the end it'll be worth your while just trust me it will be worth your while but I mean I just the clear the crisper you are in answering like I don't know and all that sort of stuff well".
The Crown submitted that the Court would accept this evidence beyond reasonable doubt for the following reasons: 1. Mr Borgas provided services to the Offender in respect of the Taxpayers, including as a nominee director and shareholder. Mr Borgas was paid by the Offender for these services. It is submitted that it stands to reason that the Offender would also offer to pay Mr Borgas for his additional services in giving evidence on behalf of the companies; 2. it was submitted Mr Borgas had a motivation for giving false testimony in the Federal Court Proceedings. The Crown submits that that motivation was the promise of payment by the Offender; 3. by its verdict, the jury accepted at least one of the Particulars. This necessarily involves an acceptance of at least some of Mr Borgas' evidence. Although there were some inconsistencies, it was submitted that Mr Borgas' evidence was overall consistent with the documentary evidence. He did not resile from his evidence about the inducement at any stage.
Proof of Particular 5 beyond reasonable doubt requires an acceptance of the evidence of Mr Borgas. It is otherwise supported only by a statement made by the Offender to the effect that "in the end it will be worth your while". In my opinion, the statement by the Offender is too vague to provide the strong corroboration required of the evidence provided by Mr Borgas. Given the absence of documentary or other evidence supporting Particular 5, I find that it was not proved beyond reasonable doubt.
Rejection of Particular 5 is not in any way inconsistent with the jury's verdict given my acceptance of Particulars 1-4.

[20]

The Chiro Argument

The Offender disputes that the conventional approach to sentencing should be adopted and that, instead, the Offender ought to be sentenced on the basis that at least one of the 5 particulars alleged by the Crown had been proved, and that the sentence should relate to the least serious of those particulars.
The Crown does not agree with this submission.
The conventional approach was described by the High Court in Cheung v The Queen (2001) 209 CLR 1, where the Court cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact-finding following a jury verdict. The joint judgment summarised the law at [14]: In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows [(1997) 41 NSWLR 374 at 377-378 per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ] (omitting references to authority): "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury … 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings … 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury … 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt … 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …".
At [1-445] of the Bench Book, the learned authors specifically refer to Chiro in the following terms: In Chiro v The Queen [2017] HCA 37, the Court held that the approaches taken in Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 4 NSWLR 374 were not intended to govern sentencing for a persistent sexual offence charge.
In Chiro, the Court was considering s 50(1) of the Criminal Law Consolidation Act 1934 (SA) ('CLCA'), which created the offence of persistent sexual exploitation of a child. The offence arises where an adult, over a period of not less than 3 days, commits more than one act of sexual exploitation on a particular child under the prescribed age. The jury was required to be unanimous as to the same 2 or more acts of sexual exploitation. The exploitation in Chiro ranged from kissing in circumstances of indecency to inserting his finger into the complainant's vagina and inserting his penis into the complainant's mouth. The jury returned a general verdict of guilty (by majority). It was not known which alleged acts of sexual exploitation the jury had agreed had been proved by the prosecution.
The South Australian legislation required the Crown to state, with particularity, both the period over which the acts of exploitation allegedly occurred and the alleged conduct comprising the acts of sexual exploitation (s50(4)).
The High Court held that the trial judge was correct in not directing the jury to bring in a special verdict, however, considered that after the general verdict had been delivered, the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. Not having done that, the Court considered that the offender ought to be have been sentenced on the view of the facts most favourable to him, namely, kissing the complainant on more than one occasion, in circumstances of indecency.
In Chiro, unlike the present case, counsel for Mr Chiro asked for a special verdict. Her Honour declined.
I do not accept the submission advanced for the Offender that Chiro requires me to sentence the Offender on the version of the facts most favourable to him. It is apparent from the plurality judgment that its reasoning related only to an offence under s 50(1), or offences of that type. At [52] it was stated: Since Cheung, this Court has taken the view that, generally speaking, a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted. But in the case of an offender under s50(1) of the CLCA, the position is different. Where an accused stands trial before a jury for an offence of a continuing nature, such as, for example, trafficking a prohibited drug over a period of time, the jury need not be unanimous (or agreed by statutory majority) as to each of the particular acts which are alleged to have comprised the actus reus of the offence. But, as already stated, in the case of an offence under s50(1) of the CLCA, the underlying acts of sexual exploitation are the actus reus of the offence and it is for the jury to find the acts which comprise the actus reus. Otherwise it would not be a trial by jury. Of course, as has been observed, a jury cannot be compelled to explain the basis of its verdict. Consequently, where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender.
Bell J, in a separate judgment, touched upon the same issue at [70]: The principles stated in the joint reasons in Cheung were correctly identified by the Court of Criminal Appeal: it is the role of the judge to determine the facts relevant to sentencing, subject to the constraint that the determination must be consistent with the verdict. It is the content of the constraint that is in question here. Cheung is an illustration of a common category of cases in which the jury's verdict does not imply a finding on an issue which is nonetheless highly material in sentencing. As the joint reasons in Cheung explained, while the nature and extent of Cheung's knowing involvement in the importation of the commercial quantity of heroin may have been of significance to some, or all, of the jurors in the process of reasoning to guilt, these were not matters on which issue was joined. They were matters on which the verdict was silent. There was one importation of heroin and issue was joined on Cheung's knowing involvement in it.
The same can be said in the present case. The Offender was charged with a single offence of attempting to pervert the course of justice. Particulars 1-4 all relate to the same single offence and do not themselves give rise to separate charges, as could have been the case in Chiro. This interpretation is considered by Bell J at [73] where her Honour stated: In a case in which the complainant is able to differentiate the acts of sexual exploitation to which he or she claims to have been subject, prudence may favour charging those acts as sexual offences under other provisions of the CLCA.
In my opinion, the High Court did not intend the approach in Chiro to replace the conventional approach to fact finding referred to in Cheung and Isaacs, save for a case of an offence under s50(1) of the CLCA, or any like provision (such as s66EA of the Crimes Act 1900 (NSW): persistent sexual abuse of a child). The present matter can be distinguished from Chiro on at least the following grounds: 1. in Chiro, there were clear and distinct acts of offending, each giving rise to the potential for separate charges; 2. Chiro related to a course of conduct over a period of time with multiple acts of significantly varying severity; 3. the actus reus in respect of each of the matters relied upon in Chiro were different; and 4. in the present case, the actus reus in relation to particulars 1-4 are the same. That is that the Offender encouraged Mr Borgas to assert, or confirm, in his testimony facts which were false.
If I am mistaken as to my interpretation and application of Chiro, then I consider the objective seriousness of each of Particulars 1-4 to be so closely aligned as to not permit any rational distinction to be made between them. Unlike Chiro, there is no hierarchy of the seriousness of offending.
I shall sentence for the offence of attempting to pervert the course of justice, based upon the findings of fact which I have made.

[25]

S 16A(2)(a) The nature and circumstances of the offence

I accept the Crown's submission that the offending is objectively very serious (CS 1 [25]).
The Crown pointed to the following factors as informing the seriousness of the offending: 1. the offending took place over an extended period of time: 1. Mr Borgas was sent a version of the Q&A document and the Offender began coaching him via skype sessions in April 2013; 2. the Offender sent a number of revised versions of the Q&A document and continued to coach the witness to give false evidence until the time of and during his testimony in October 2013; 3. the audio recording of the Skype meeting between the Offender and Mr Borgas resembled a class between a tutor and his pupil; 4. the Offender instructed Mr Borgas not only what to say, but on how to give evidence, for example "your best answer is just to say no" (Trial Exhibit C, page 552). A puppet was exactly what Mr Borgas was to the Offender; 5. the Offender had perfect insight into what he was asking Mr Borgas to do. In a letter between them of 9 July 2013, sending a further version of the Q&A document, the Offender stated "please understand that the ATO wants to believe you are just a puppet for me" (Trial Exhibit C, page 604); 6. Mr Borgas arrived in Australia on 4 October 2013. Once Mr Borgas arrived, the Offender met with him on numerous occasions at the Offender's office, the hotel where Mr Borgas was staying, and at restaurants. The Offender arranged to meet with Mr Borgas to discuss his evidence, both before he was called to give evidence and whilst he was giving evidence; 7. the telephone calls tendered at trial established that the Offender also spoke to Mr Borgas after he arrived in Australia despite a direction from the legal representatives for the Taxpayers that he not do so; 1. the period of time over which the Offender coached Mr Borgas to give false evidence demonstrates the lengths to which the Offender went in his attempt to pervert the course of justice. He sought to control the testimony of Mr Borgas by a sustained period of coaching him to give evidence that suited the Offender's interests; 2. the offending was extremely sophisticated. The Offender encouraged Mr Borgas to lie to the Federal Court about his role in controlling and managing the Taxpayers, as well as JA and MH Investments. In order to maintain this lie, the Offender coached Mr Borgas to memorise extensive details about the companies and about transactions that the Offender arranged on behalf of the Taxpayers in order to give the impression that Mr Borgas, and not the Offender, controlled the companies and made decisions on their behalf. The Offender further provided Mr Borgas with general instructions on how to respond to questions asked of him in the Federal Court; 3. the Offender sought to avoid detection by directing Mr Borgas not to reveal the extent to which the Offender had discussed his evidence with him and proposed answers. He also warned Mr Borgas to be careful about what he told the Taxpayers' Senior Counsel, and encouraged him to maintain the answers that had been rehearsed in the Q&A document.
I accept the Crown's submissions above. It is often said that the offence of attempting to pervert the course of justice "strikes at the very heart of the administration of justice". This is a serious example of such a case. The Offender had no regard for the Court's process or the administration of justice.
It is apparent that the Offender's motivation for engaging in this conduct was to avoid the Taxpayers' from paying a large tax liability to the ATO. As the ultimate beneficial owner of those companies, the Offender personally stood to benefit from avoiding that tax. In view of the relationship found to exist between the Taxpayers and the Offender, I reject the Offender's submission that the reduction of tax liabilities for those companies does not permit a conclusion that the Offender would have benefited personally. To accept that submission would be to perpetuate the ruse that commenced in the Federal Court.
I find that the offending occurred over a lengthy period of time, involved a high degree of planning and sophistication, and was directed to obtaining a financial gain. Whilst the Offender may well have been overzealous, it was directed squarely at his fervent attempt to pervert the course of justice. His offending did not consist of a single act, but a determined course of conduct.
To the extent that it is necessary to make such a finding, I conclude that the objective seriousness of the offending was well above the mid-range for offending of this type, if not at the high range for offending of this type. The Offender demonstrated a shamefully blatant disregard for both the Court and, in doing so, the judicial power of the Commonwealth.

[30]

S 16A(2)(j)/(ja) The deterrent effect that any sentence or order under consideration may have on the person or other persons

An essential purpose for sentencing is to deter both an offender and others from engaging in conduct designed to interfere with the proper administration of justice. This is particularly the case in instances of white collar crimes. I note the reference in the Crown's submissions to the decision of R v Gregory (1996) 86 A Crim R 521 at [53]-[54], where it was stated: Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit-seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration. In many if not most cases, imprisonment will be the only sentencing option for a serious fraud, in the absence of a powerful mitigating circumstance. A sophisticated degree of planning accompanied by a lack of contrition should ordinarily lead to a more sever sentence of imprisonment.
The Crown also referred to the decision of the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [63] (CS 1 [45]), where the Court stated: The applicant's offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this type is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As was pointed out in Ruha, the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognisance release orders that were made.
The present Offender did not engage in tax fraud, but the index offending was directed to avoiding the payment of a significant taxation debt. I accept the submission advanced by the Crown (CS 1 [46]) that the Offender's attempt to pervert the course of justice, if successful, would have affected the whole community on two levels: first, because of the implications for the administration of justice; and second, because of the avoidance of the payment of tax.
In his written submissions, the Offender addresses only the question of specific deterrence and it was put that, by reason of his loss of professional standing and age, it is unlikely that he would be placed in a position where criminal conduct of this type could be replicated. It was submitted that these factors served to mitigate the significance of personal deterrence in the case of this offender (OS 1 [75]-[76]).
I accept, in part, the submission put on behalf of the Offender. Whilst those factors may impact upon his ability to engage in like offending, attempts to pervert the course of justice can take many forms. Plainly, general deterrence is of paramount significance, but I also find that there is a need for the sentence to achieve personal deterrence, moderated to some degree by the Offender's changed circumstances.

[33]

Character

It was submitted for the Crown that, although the Offender was a person of previous good character, this mitigatory factor must be given less weight than the factor of general deterrence when passing sentence for white collar offences. Reference was made to a decision of DPP v Page & Ors [2006] VSCA 224 at [37] and R v Gregory (1996) 86 A Crim R 521.
The Crown further referred to a decision in R v El Rashid (Unreported) NSWCCA 7 April 1995, where Gleeson CJ stated at [3]: It may be observed that what is sometimes called white collar crime is rarely committed by people who have a criminal history. Such people do not usually find themselves with opportunity to commit offences of that character.
On behalf of the Offender, reference was made to the evidence of Mr Roots, Mr Barrett and Ms Ryan, attesting to the high regard in which the Offender was held by friends and colleagues. It was submitted that good character should be taken into account in arriving at an appropriate penalty (OS 1 [69] - [70]).
In its further written submissions, the Crown referenced the evidence from Mr Barrett, Ms Ryan and Mr Roots, and submitted that character evidence should be given very limited weight, on the basis that some of those witnesses had no experience of the Offender in a business setting, and that not all of the witnesses had an actual understanding of the case being put against the Offender (CS 2 [30]-[32]).
It was submitted that the witnesses' experiences of the Offender was in stark contrast to his conviction for this offence, and for that reason provide limited assistance to the Court. Reference was made to the comments of Adamson J in R v Agius and R v Castagna at [78], where her Honour stated: He had one standard of behaviour for those who knew and those who could benefit him, and another for the faceless Consolidated Revenue Fund which he was prepared to deprive of its due, to the detriment of the whole community.
In response, it was submitted on behalf of the Offender that he had established a lifetime of good character of the highest order which should be given full weight, and not moderated in any way as a mitigating factor (OS 2 [28]).
Reference was made to a decision of Hoeben CJ at CL in R v Elomar [2018] NSWCCA 224 at [116], where his Honour stated: There is, in my opinion, a significant distinction to be drawn between persons whose claim to good character is based upon them not having been engaged in any criminal activity and evidence of good character which goes not only to that subject, but which positively establishes that the particular person or persons under consideration have made a positive contribution to society and have demonstrated a consistent history of philanthropy directed to their fellow citizens. The Elomars well and truly met that criteria, and their previous good character was a significant mitigating factor.
In relation to good character, I accept the submissions on behalf of the Offender. Not only is he a person without a criminal record, but with a demonstrated habit of contributing profitably to the community. He is entitled a finding of prior good character and any leniency which may flow from that finding.

[34]

Antecedents

Submissions were advanced on behalf of the Offender by reference to the report by Dr Seidler (OS 1 [71]). The matters referred to relate to background material provided by the Offender to Dr Seidler for the preparation of his report. They included: 1. the fact that he came from a relatively humble background; 2. that family relationships had at times been strained; 3. that he isolated himself as an adolescent and young adult; 4. that he found a sense of belonging, acceptance and identity in the church; and 5. that his relationship with 3 of his 4 children is very strained.
The submission then picks up a conclusion drawn by Dr Seidler that "the aforementioned personality vulnerabilities likely played a role in creating a context in which Mr Gould may have been prone to poor decision making and poor boundaries professionally".
Caution must be adopted in the treatment of that evidence as it involves self-serving out of Court statements by the Offender to Dr Seidler. As the Offender did not give evidence on sentence, the validity of those statements could not be tested.
It was submitted by the Crown that little weight should be given to the conclusion drawn by Dr Seidler about poor decision-making (CS 2 [41]). The Crown submitted that it was no more than mere speculation.
The Crown sought to challenge a number of the factual matters referred to by Dr Seidler (CS 2 [44]). For example, the reference to the Offender's father and mother working as retailers in a shoe shop can be contrasted by information provided by a referee, Ms Ryan, who stated that she worked in a shoe store owned and run by his parents in Mosman.
Absent evidence from the Offender, I decline to find that he suffered personality vulnerabilities. I also decline to find that he was prone to poor decision making and poor boundaries professionally. The evidence establishes, with clarity, that the Offender enjoyed great professional success.
I do not accept that the factors or antecedents referred to on behalf of the Offender in any way mitigate sentence.

[36]

Physical Condition

The Offender submitted that the Court would have regard to Dr Seidler's observations in relation to the need for regular dental care and issues concerning his eye condition. In addition, it was submitted that the fact that the Offender takes medication for hypertension is a relevant consideration (OS 1 [74]).
In reply, the Crown referred to the evidence establishing that the Offender had previously undergone successful cataract surgery, and suffers a moderately severe dry eye syndrome. In the Offender's son's affidavit there were concerns raised in relation to the need for access to saline eye drops and medication for blood pressure (CS 2 [50]-[52]).
Further, the Crown referred to the fact that the Inmate Initial Classification notes that Correctives Services NSW is aware that the Offender suffers from blood pressure and glaucoma. The Crown referenced the remarks of Johnson J in R v Achurch [2011] NSWCCA 186, where at [125]-[126] his Honour referred to the function of Justice Health in taking necessary steps to provide health services to inmates whilst in custody. The Crown submitted that there was no basis for concluding that the Offender's relatively mild medical ailments cannot be managed by Justice Health (CS 2 [54]).
Recently, a report was obtained from Dr Louise Holliday, general practitioner, who has been treating the Offender since July 1997. The report was dated 9 November 2020. As at the date of the report, Dr Holliday noted that the Offender was currently attending a chiropractor for treatment of posture which causes chronic neck and upper back pain. Dr Holliday also referred to the fact that the Offender suffers sleep apnoea and relies upon a CPAP machine nightly. She further stated that the Offender was being treated for hypertension on a daily basis, which I assume is a reference to medication.
Without contradictory evidence, I see no reason not to proceed to sentence on the basis that any health concerns or conditions from which the Offender suffers can be managed by Justice Health. There is no evidence to suggest that they were not attended to in his prior time in custody.

[38]

Hardship of Custody

It was submitted for the Offender that the fact that the Offender was in a form of protective custody known as 'Special Management Area Placement' (SMAP) is a matter to be taken into account (OS 1 [78]).
The Correctives records indicate that the Offender was placed into SMAP at his own request, and not as a result of any risk identified by NSW Corrective Services. It was submitted that, in those circumstances, minimal weight should be given to that placement. Nevertheless, the Crown acknowledged that an inmate having to serve in SMAP is a factor which may be taken into account in the overall sentencing factors.
It is difficult to ascertain the effect of this fact upon sentence, and whether it does give rise to a hardship in custody. The reason that the Offender asked to be placed into SMAP is unclear, nor is there any certainty that he will be placed back into SMAP upon entering into custody for a second time, if that is to be the sentence outcome.
In the circumstances, I give some, but limited, weight to this fact.
It was then submitted for the Offender that the Court should have regard to the COVID-19 pandemic, and the fact that prison visits had been suspended (OS 1 [80]). Whilst that was the case at the time of the drafting of the original defence submissions, it is no longer the case. On 23 November 2020 face to face visits were reinstated by Corrective Services, albeit for limited periods.
In further submissions, it was put on behalf of the Offender that it was a vulnerability and risk to inmates posed by imprisonment as a result of the pandemic (OS 2 [33]).
I note that I have today received an affidavit from Jeremy Tucker dated 6 April 2020, who confirmed the conditions inside NSW prisons regarding COVID-19 considerations and the response of Corrective Services to the pandemic.
In its later submissions, the Crown put that as at 25 March 2020 there had been no confirmed cases of COVID-19 within NSW Correctional Centres (CS 2 [58]). I understand that there may have been one prisoner diagnosed with COVID at the end of July 2020, from which he has now recovered. Mr Tucker, in his affidavit of 6 April 2020, sets out the systems put in place for prisoners found to be positive to the pandemic virus, in order to protect other prisoners in custody.
At the time of the sentence hearing in March 2020, the circumstances regarding COVID-19 were uncertain and troubling. It was in fact for that reason that the Offender was shown some leniency and released on bail. Fortunately, since that time, conditions have improved with restrictions easing. Nevertheless, the risk of COVID-19, particularly to a person of the Offender's age, is a matter to which I have had regard in considering this sentence. The weight to be attributed to that fact is balanced against the known fact that the incidence of COVID-19 cases involving prisoners is extremely low. If the Offender is placed in SMAP upon return to prison he will be isolated from the general prison population, and at a further reduced risk of contracting the disease. Accordingly, it is a matter to which I give some, but minimal, weight.

[39]

Extra-Curial Punishment

This was raised by the Offender in his first outline of submissions (OS 1 [82]-[85]). Plainly, it is a matter which, if it exists, should be taken into account in mitigation of sentence. Referencing Einfeld v R [2010] NSWCCA 87, it was submitted that it was appropriate for the sentencing judge to take into account the public opprobrium he had suffered, and the public destruction of his reputation (at [98]).
The Offender referred to the affidavit of Mr Ord. It is submitted that the Offender has suffered extra-currial punishment "in the form of removal of professional status and loss of board positions and company directorships in addition to public opprobrium brought about by publicity associated with the Court proceedings" (OS 1 [85]).
The Crown deals with this topic in its reply submissions (CS 2 [68]-[85]). It was first submitted that there must be a direct link between the extra-curial punishment and the offence for which the Offender is being sentenced (CS 2 [69]). I accept that submission, which is relevant here given the attention the Offender has received in relation to other proceedings.
The Crown referred to the evidence comprising the affidavit of Mr Ord. The first thing to observe is that many of the media articles referred to related to the Federal Court or High Court proceedings, and not the proceedings before this Court. Just 2 articles related to the proceedings before this Court (at pages 21 and 31 of Exhibit MJO-1). It was submitted by the Crown that it was no more than reporting what had occurred in the public Court proceedings. It was submitted that there is no evidence that the media reporting had reached such proportion that it had some physical or psychological effect upon the Offender (see Kenny v R [2010] NSWCCA 6 at [49] per Howie J).
The Crown then referred to the decision of McHugh J (with Hayne J agreeing) in Ryan v R [2001] 206 CLR 267 at 53: Whether or not public opprobrium will attach to an offence and, if so, to what extent, will depend on the individual, his or her position and reputation in society, whether and when the offender will return to the community where the offence occurred and the nature of the publicity, if any, that the conviction receives.
The Crown submitted that the character references relied upon by the Offender are evidence of the fact that his reputation has not been affected in his community. I respectfully do not accept that submission. Even a person vilified in the community or by the press may still have a stable of close friends and supporters.
There is, however, no evidence before me as to the effect that the limited reporting of these proceedings has had upon the Offender. I nevertheless consider it reasonable to infer that it may have had some effect, but in in the context of the Federal Court and High Court proceedings and the reporting relating to those matters, it is difficult to discern if any additional punishment has been suffered. Nevertheless, I do accept that the media reporting would represent a form, albeit to a minimal degree, of extra-curial punishment.
Next, it was submitted that professional impact which the proceedings have had upon the Offender are matters to which the Court should have regard in considering extra-curial punishment. The Offender relied upon the affidavit of Mr Ord (paragraph 5) as establishing a clear link between the circumstances surrounding the offending and the Offender's loss of the chairmanship of various companies (OS 2 [36]). The Crown acknowledged that upon conviction for this offence, the Offender would be automatically disqualified from managing a corporation for a period of 5 years (CS 2 [78]). The Crown conceded that it is appropriate for the Court to take the issue of disqualification into account on sentence, but submitted that the disqualification was also designed to protect the public.
There have also been effects in terms of his eligibility to practice as a professional, with the Tax Practitioners Board terminating his registration in January 2019 based on the findings in the Federal Court, upheld by the Full Federal Court and the High Court (Exhibit C). It was submitted that the termination of registration was due to those other proceedings and not the present proceeding, and therefore ought not be taken into account as extra-curial punishment following from this conviction and sentence (CS 2 [83]). As the event occurred prior to conviction and sentence in relation to these proceedings there appears to be some merit in that submission.
In relation to this topic generally, it was submitted on behalf of the Offender that "as a matter of direct evidence, but also inference, it is to be expected that the Offender will have suffered significant damage to his reputation as an accountant, advisor and company chairman" (OS 2 [37]). It is difficult to dissect the various proceedings in the Federal Court, the Full Federal Court, the High Court, and now in this Court to determine the extent to which they have separately or together caused the Offender to suffer extra-curial punishment. I note that when interviewed for the first Sentencing Assessment Report (Exhibit B), the Offender said that his employees had continued to manage his businesses, and that upon his release he will recommence work as a financial adviser.
Nevertheless, I accept the general submission that, as a result of the factors identified on behalf of the Offender, there has been some additional punishment attributable to these proceedings, albeit minimal.

[40]

Delay

In his original written submission, the Offender put that delay is a mitigating factor on the basis that he is to be sentenced for conduct that occurred between 7 and 6 ½ years ago (OS 1 [59]). Annexure 3 to those submissions (separately marked for identification MFI 10) sets out a procedural chronology, the key aspects of which are: 1. a decision by prosecuting authorities to commence proceedings for different offences leading to the arrest of the Offender on 14 October 2013, followed by the withdrawal of those charges on 13 May 2014; 2. the commencement of the current prosecution on 15 September 2016 (that is almost 3 years after the end-point of the alleged offending); and 3. a delay of 6 months at the end of the first trial, when the jury was discharged as it could not agree upon a verdict, and a decision to proceed to retrial (OS 1 [60]).
It was conceded for the Offender that delay in itself is not a matter of mitigation, but it may in combination with other relevant sentencing factors be unfavourable to the defendant. Reference was made to a number of cases including the statement of Street CJ in R v Todd [1982] 2 NSWLR 517 at [519], where it was stated: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
The first thing to observe is that there is no evidence here as to rehabilitation during delay. Further, there is no evidence as to any state of uncertain suspense, although that might be inferred.
It was further submitted on behalf of the Offender that this is not a case where it can be said that the delay was caused by problems with detecting, investigating or proving the offence, where such delay is reasonable in the circumstances (OS 1 [63]).
The Offender's submission is that the delay in the commencement, and then the further delay in deciding to proceed to a retrial, are matters which mitigate the penalty that would otherwise be appropriate.
The Crown submitted that delay in the prosecution of white collar crime is not unusual, referencing R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR at 89, per Wood CJ at CL, with whom Meagher JA and Bell J agreed. Reference was also made to the decision of Giourtalis v R [2013] NSWCCA 216 per Bathurst CJ, with whom Hidden J and Button J agreed at [1791]. That case related to a complex fraud which required a lengthy investigation.
Whilst the Crown largely accepted the procedural chronology prepared on behalf of the Offender, it submitted that the Offender was charged with the current offence less than 5 months after Mr Borgas provided a statement in relation to the matter (CS 2 [22]). The Crown submitted that this was not a case of extensive delay given the complexity of the trial, and the need to rely upon an informer witness (CS 2 [23]).
Having regard to the circumstances referred to by the Crown (CS 2 [22]-[28]), and the submissions advanced on behalf of the Offender, I am satisfied that there was a period of delay between the offending in 2013 and the charge in 2016 which should be reflected by some, albeit slight, mitigation in sentence.

[41]

Commencement Date

The Offender's most recent submissions (OS 3) deal with a number of topics including the backdating of the commencement of sentence. Prior to the Offender being released from prison, primarily due to his heightened risk by reason of age to COVID-19, he spent 4 months and 15 days in custody. It is accepted that the sentence must at least be backdated by that period.
It is then submitted on behalf of the Offender that there should be further backdating on account of the fact that he has been the subject of conditional bail for a period of 8 months and 7 days (OS 3 [8]). The conditions of the bail are set out in the submissions (OS 3 [7]). It is submitted for the Offender that the period on bail should be taken into account to reduce any additional period of custody (OS 3 [10]). It was submitted that the bail conditions were analogous to home detention bail, which exists in other jurisdictions.
The delay in sentencing the Offender has been occasioned by a number of factors, including: 1. the fact that the Offender was released on bail in April 2020 due to the risk that he may be more vulnerable to contracting COVID-19 than other inmates at a time when fear and concern relating to COVID-19 was at its peak; 2. that upon being released on bail, the Offender could not be placed back into prison by reason of a directive from the Chief Judge of this Court, who temporarily suspended all sentence hearings for defendants then not in custody, as a result of the COVID-19 pandemic; 3. on 19 August 2020 the matter was mentioned before me with a view to setting a date for sentence shortly thereafter. Today's date was agreed upon to suit the convenience of counsel for the Offender. Although this is not mentioned as any criticism as counsel for the Offender, much earlier dates were available; 4. again on 12 October 2020, my Associate contacted the parties to offer dates in October or November for sentence, but again due to the unavailability of counsel for the Offender, today's date was maintained.
It cannot be said that any part of this delay in sentence has been occasioned by the conduct of the Crown, and much earlier dates than today were offered by the Court.
Nevertheless, I do acknowledge that the bail conditions were onerous, effectively requiring the Offender to remain at his residence, only to leave those premises to seek essential or urgent medical care, or to comply with reporting conditions. In recognition of the onerous conditions of bail, but noting the reasons for the delay in sentence, I will allow one third of the time spent on bail by backdating the commencement of the sentence. That is, 83 days (one third of 250 days), in addition to the 4 months and 15 days spent in custody.
Allowing for the time spent in custody and one third of the time on conditional bail, pursuant to s16E of the Crimes Act, the commencement of the sentence will be backdated to 11 May 2020.

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

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Legislation Cited (5)

Cases Cited (14)