Wells v The Queen [2018] VSCA 79

2 On 25 September 2017, he was sentenced by the Supreme Court as follows:

15 years' imprisonment (Crimes Act s 320)

Receiving a secret commission (Crimes Act s 176(1))

Receiving a secret commission (Crimes Act s 176(1))

Receiving a secret commission (Crimes Act s 176(1))

11 years and 6 months' imprisonment with a non-parole period of 8 years and 6 months.

A pecuniary penalty order of $1,375,153.91, made by consent.

3 The applicant has applied for leave to appeal on the ground that the sentence imposed in respect of charge 1, the conspiracy charge, is manifestly excessive. The application for leave was heard at the same time as the appeal against sentence brought by the applicant's co-accused, Albert Hoe Ooi ('Ooi').[1]

4 For the reasons that follow, we would grant leave but we would dismiss the appeal.

The circumstances of the offending[2]

5 The applicant was employed by the Victorian Department of Infrastructure ('DOI') from 13 April 2006, and then by the Department of Transport ('DOT') from April 2008. In April 2012, he transferred to Public Transport Victoria ('PTV'). Throughout this time, the applicant was a manager of bus and regional infrastructure, and undertook project management of civil works and infrastructure projects.

6 Sometime in 2007, the applicant suggested to Ooi that he could source and supply the government with bus shelters for public transport infrastructure projects. Over the period between 2007 and 2014, the applicant and Ooi masterminded a fraudulent scheme whereby transport works were awarded to various businesses covertly controlled by them ('managed entities'), with the assistance of compliant family members or business associates. The managed entities mostly subcontracted the work to other companies managed by the applicant and Ooi and other associates.

7 The applicant had authority to approve contracts under $20,000. Contracts of greater value, but under a threshold - $100,000, later $150,000 - required either a quotation or tender process, depending on the value of the contract. The applicant was able to determine which contractors would be invited to quote and to exploit the requirement that quotations be provided from contractors acting independently of each other. When contracts exceeded the threshold, tenders were publicly advertised, seeking expressions of interest. The tender process required the preparation of an assessment report. The applicant prepared assessment reports with his recommendations and forwarded them for authorisation. The assessment reports typically required that any conflicts of interest be disclosed. The applicant dishonestly did not declare any conflicts of interest.

8 The tender applicants were interviewed and, typically, the applicant and Ooi comprised the interview panel, along with one or more other public servants. When an outside consultant was engaged in the tender review process, the applicant arranged for the engagement of a managed entity that he and Ooi had set up for that purpose, permitting them to maintain control of the review process.

9 The applicant used two computerised management systems. The 'Contract Management System' was used to track project funding and project management. The 'Oracle' system was used to record financial documentation and money transfers associated with works contracts.

10 The managed entities were mostly incapable of carrying out the works contracts awarded to them, and would subcontract the works to other companies managed by the applicant, Ooi and other associates, including Darrel Salter, Andrew Hayes and Graham Davis. The related subcontractors were Consalter Pty Ltd ('Consalter'), Grand Earthwork Pty Ltd ('GE') and Global Works Civil Pty Ltd ('GWC'). The applicant and Ooi also corruptly arranged for contracts to be awarded directly to these companies. Other subcontractor businesses that performed works awarded to the managed entities included Tactile Australia Pty Ltd and Country Works Pty Ltd, which were operated by another associate, Greg Morrissey. The applicant received corrupt payments and free services provided by Mr Salter, Mr Hayes and Mr Davis in return for the awarded works. The receipt of these benefits was the subject of charges 2, 3 and 4 on the indictment.

11 The total value of contracts awarded to the managed entities and related subcontractors over the period of the conspiracy was $17,170,898.85.[3] The applicant received profits from these contracts of not less than $1,375,153.91. The judge noted that the applicant conceded that he and Ooi intended to share the profits of the fraudulent scheme equally but observed that the joint intention may not have been implemented given the forensic analysis of Ooi's receipts. Ooi may have received $1 million more than the applicant.[4]

12 It is convenient to identify the managed entities and their involvement in the conspiracy chronologically. In order to explain our conclusions on the appeal, it is not necessary to recite the details in respect of each entity. As will appear, there was a repeated, sophisticated and corrupt pattern of behaviour that made up the conspiracy.

13 In 2006, Ooi's stepson, Michael De La Torre, started a cleaning and maintenance business through a company called Property Services Network ('PSN'). At Ooi's request, Mr De La Torre made PSN available to Ooi and the applicant for the purpose of contracting with government. Ooi was given control of the PSN bank account. On behalf of PSN, Mr De La Torre also entered into a partnership agreement with HGO Management Services Pty Ltd ('HGO'), a company controlled by Ooi. This agreement enabled PSN to provide services in infrastructure construction works, including bus stops and bus shelters. Ownership of PSN was at this time split, with 90 per cent to HGO and 10 per cent to Mr De La Torre. Money derived from the contracts was channelled through HGO for the benefit of Ooi. A proportion of this money was paid by Ooi to the applicant.

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

15 Between 1 January 2007 and 10 August 2009, PSN was awarded a total of 32 DOI and DOT civil works contracts, totalling $1,175,053.50. PSN subcontracted the bulk of the work to Mr Morrissey's businesses. From payments received by PSN under these contracts, approximately $600,000 was paid to bank accounts in the name of, or controlled by, the applicant and Ooi.

16 De La Torre Consultancy Group Pty Ltd ('DLTCG') was another business started by Mr De La Torre. It was an event management business in 2006, but subsequently came under the control of the applicant and Ooi and was deployed in the conspiracy.

17 On 24 April 2007, DLTCG was awarded a DOI project management contract worth $97,788.90. The contract was managed by the applicant, and he recommended to his superiors that DLTCG's quote be accepted. Of the contract amount, $59,187.90 was paid into a bank account in Ooi's name.

18 The principal entity in the conspiracy was Global Works Management Pty Ltd ('GWM'). It was registered on 21 January 2008 and had family members and associates of the applicant and Ooi as its directors and shareholders to disguise the connection with them while the applicant worked for the DOI, DOT and subsequently PTV. In each case, the directors appointed, including Mr De La Torre and the applicant's stepson Justin Wells, were shadow directors who had no actual control over the business. GWM had capacity to carry out some, but not all, parts of the works contracts awarded to it.

19 The judge gave the following example as to how the conspiracy operated. In late 2010, Mr Salter's company Consalter, in partnership with GWM, tendered for, and won, a $2.3 million contract for the design and construction of 430 bus stops in Melbourne. The applicant worked closely with Mr Salter in developing the tender response for that contract, as well as developing other engineering design services, tenders and quotes. The nominated representative for GWM on the joint tender was Mr Hayes, who owned GE. GE subcontracted to GWM the civil construction works in that project. With Ooi, the applicant participated in the assessment and recommendation of the tender submitted by the Consalter/GWM partnership, including formally interviewing Mr Salter during the tender evaluation in the apparent performance of his functions as an assessing public servant. None of these relationships and interests were declared.

20 Between 21 January 2008 and 9 January 2013, GWM was awarded more than 70 DOI, DOT and PTV civil works contracts totalling $8,538,993.22, including the $2.3 million contract awarded in 2010 for the design and construction of the bus stops.[5] In addition to the more than $8.5 million paid by the government departments, GWM received a further $1,019,929.74 from associated businesses that had been awarded departmental contracts by the applicant and had subcontracted works to GWM.

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

22 Financial forensic analysis identified, from 70 contracts awarded to GWM and additional work subcontracted to it:

(a) five payments, totalling $78,885, paid to accounts related to the applicant, including $19,000 to his home loan account and $49,885 to his family superannuation account;

(b) 41 payments, totalling $528,270.67, into accounts in the name of Ooi;

(c) payments totalling $771,821 into accounts in the name of GWM Management Services Pty Ltd; and

(d) 22 payments, totalling $524,125, into accounts in the name of HGO.

23 GWM made payments totalling $550,077.57 to third parties for the applicant's benefit, including eight withdrawals totalling $472,908, which were deposited into a bank account in the name of the builder of the applicant's house.

24 The benefits that were derived from the profits of GWM also included a loan from GWM to GWM Management Services Pty Ltd for $750,000 on which no repayments were made; building works and improvements at the applicant's and Ooi's properties; fuel cards and vehicles funded by GWM (including a Mercedes Benz valued at $82,500 for the applicant's use); and, with the use of false invoices, payment for items including a $3,300 deposit on jet skis; a $15,600 piano; and a $24,585 payment and lease vehicle for the applicant's use.

25 Red Consultancy Group ('RCG') was registered as a business name on 3 August 2008 to Ooi's son, Andrew Ooi. Shortly after the formation of GWM, RCG was set up as an intermediary in the tender process. The applicant awarded directly to RCG six contracts, totalling $20,350, for the review of tenders. GWM received DOT civil works contracts valued at $2,070,842.80 on the recommendation of RCG. RCG was also awarded four design and construction contracts worth $183,518.50, which were subcontracted to GWM.

26 The interposition of RCG enabled the applicant and Ooi to have effective control of tender allocation and facilitated the awarding of contracts to managed entities. Andrew Ooi used the alias 'Andrew Yi' for the purposes of disguising the family connection. When the applicant's superiors became aware in mid-2010 that 'Yi' was Ooi's son, the applicant falsely reported that he was unaware of the relationship and that Ooi had no involvement in the contracts assessed by 'Yi'.

27 To avoid the appearance that GWM was being provided with an inordinate amount of work, the applicant and Ooi registered PWIC Pty Ltd ('PWIC'). An associate, Gerry O'Neill, was installed as the director and secretary, with the company shareholding equally split between a company in his control and GWM. PWIC had no employees and no capacity to complete the works contracts awarded to it, instead subcontracting all works to other entities with which the applicant and Ooi had business relationships. Ooi retained control of the company finances and project management.

28 Between 17 June 2009 and 2 December 2009, PWIC was awarded four DOT civil works contracts with a total value of $1,153,845.20. Each of these contracts was valued at over $200,000 and, as such, selection of the contractor required a tender or an expression of interest. RCG provided consultancy services for two of the contracts, relating to the construction of bus bays in Myrtleford and Beechworth. The applicant, Ooi, and his son Andrew made up three quarters of the panel of tender assessors.

29 Following the familiar path, GE and GWC were set up with two associates, Mr Hayes and Mr Davis, as directors and shareholders.[6] GE and GWC were related subcontractors that were awarded various government contracts in their own right as well as subcontract work from managed entities. Together with Ooi, the applicant assisted Mr Hayes and Mr Davis in establishing these entities in order to award DOT and PTV civil works contracts to them, and create the appearance of fair competition with other managed entities.

30 Between 23 June 2011 and 9 January 2014, GE was awarded a total of 26 DOT and PTV civil works contracts from which it received $2,428,633.60.[7] Between 2 August 2012 and 9 January 2014, GWC was awarded a total of 10 PTV civil works contracts to the value of $1,135,790.15.[8] The profits made from contracts that the applicant awarded to GE and GWC allowed Mr Davis and Mr Hayes to finance the purchase of GWM for $107,062.30 in August 2012.

31 Redback Civil Pty Ltd ('Redback'), was registered in the name of Mr Davis, but Ooi retained control of it. Redback was incorporated to take fraudulent activities away from GWM, which was eventually sold to Mr Davis and Mr Hayes, and to give the impression of fair competition between companies tendering for government work. Ooi managed and administered the business of Redback, while the applicant awarded it DOT and PTV contracts and assisted with project management. Between 20 October 2011 and 9 January 2014, Redback was awarded a total of 36 DOT and PTV contracts worth $949,750.46.

32 In September 2009, Mr Salter registered Consalter, which provided engineering services to the DOT and PTV directly, as well as to the managed entities and subcontractors GWM, Redback, GE and GWC. Financial forensic analysis showed that the applicant awarded Consalter DOT and PTV contracts totalling $1,356,429.80. Consalter was also the recipient of the $2.3 million DOT tender partnership paid to GWM and then to Consalter. In addition, the DOT and PTV paid Consalter amounts totalling $1,308,844.70.[9]

33 Charge 2 charged that, between 20 January 2011 and 31 July 2011, the applicant corruptly received a secret commission from Mr Hayes and Mr Davis of GE while an agent for the DOT, being goods and services valued at $56,010.03. The charge covered a number of transactions relating to work done at the applicant's home. Two pergolas attached to the house were paid for by GE, as were tiling around the pool at the applicant's house and general landscaping supplies.

34 Charge 3, which also covered multiple transactions, alleged that, between 29 April 2011 and 6 August 2012, the applicant corruptly received a secret commission from Mr Salter of Consalter while an agent for the DOT, being five cheques totalling $74,632. The evidence established that Mr Salter arranged for Tactile Australia Pty Ltd to pay invoices relating to work or services at the applicant's home.

35 Charge 4 charged that, between 19 November 2013 and 9 January 2014, the applicant corruptly received a secret commission from Mr Salter of Consalter while an agent for the DOT, being monies in the sum of $6,000. The applicant received $6000 paid by Mr Salter in return for showing favour to Consalter and Tactile Australia Pty Ltd in the procurement process. In an intercepted telephone conversation on 19 November 2013 regarding PTV contracts in Portland and Point Cook, the applicant discussed with Mr Salter receiving cash payments. A search under warrant on 9 January 2014 uncovered a cash bundle secured by a rubber band hidden in the applicant's fridge. Part of that cash bundle was the subject of charge 4.

36 The sentencing judge set out in some detail the circumstances of the offending. The judge concluded that the applicant had controlled the process of quotation and tendering, as well as the process of evaluation and recommendation.[10] The judge observed that the offending took place over seven years and involved a sophisticated conspiracy controlled by the applicant and Ooi, who took advantage of their senior positions of trust and influence within the public service to defraud the State.[11]

37 The judge observed that charges 2, 3 and 4 were serious examples of the crime of receiving a secret commission, and that the corrupt payments were an important part of the conspiratorial strategy adopted by the applicant and Ooi because those from whom the secret commissions were obtained played a key role in the implementation of the conspiracy.[12]

38 The judge considered the relative roles played by the applicant and Ooi in the conspiracy. The applicant's position within the public service placed him in a position of control over the awarding of lucrative contracts.[13] Ooi was involved in the design and implementation of the corporate structures, paperwork and organisation, which was critical to the success of the illicit venture and the ability to keep the conspiracy hidden and operational over many years.[14]

39 Having regard to the relative roles played by the applicant and Ooi, the judge was persuaded that the distinction between their respective moral culpability was slight and did not warrant, on that basis alone, the imposition of a higher sentence on the applicant. His Honour observed that each of their roles was instrumental to the organisation and execution of the conspiracy.[15] Further, and importantly in the view of the judge, the applicant exerted considerable influence over the other co-conspirators, including his stepson, Justin Wells.[16]

40 The judge regarded the principal sentencing objectives to be those of general deterrence, punishment and denunciation, largely because of the nature of the offences, being white collar crimes committed for greed.[17] The judge noted that such cases are often committed by a person of otherwise blameless character but usually involve a breach of trust and the person succumbing to temptation, considerations which call for a high emphasis on general deterrence.[18]

41 The judge noted that four particular matters warranted mitigation of the sentence that he might otherwise have imposed. These matters were:

(a) first, the applicant's plea of guilty and his remorse for the offending;

(b) second, his undertaking to give evidence against other co-accused at their trials and his cooperation with prosecuting authorities;

(d) fourth, the punitive impact of delay between the revelation of his offending and sentencing.[19]

42 We note that, in written submissions on the plea, dated 22 August 2017, the applicant conceded that his offending was a serious example of the charged offending, being a sophisticated, sustained scheme that involved a breach of trust and responsibility and was motivated solely by personal gain. It was further conceded that, given the nature of the offending, the applicant's prior good character and prospects of rehabilitation were of less significance, and that a shorter than normal non-parole period should not be imposed.

43 In relation to the sentence to be imposed in respect of charge 1, the applicant conceded that there was some basis for disparity with the sentence imposed on Ooi given Ooi's earlier guilty plea and psychological distress, which would make custody more burdensome. It was submitted that there were nevertheless a number of countervailing considerations in favour of the applicant receiving a lesser sentence than Ooi. These considerations were first, that the applicant received less profits from the conspiracy; second, that he was more forthcoming in relation to the involvement of Ooi's son, Andrew Ooi; and third, that he was subject to more public opprobrium than Ooi. On balance, it was submitted that the applicant should receive a sentence commensurate with that imposed on Ooi, being a sentence of seven years and six months' imprisonment. This submission was made before Ooi was granted leave to appeal against his sentence on the ground of manifest excess.[20]

44 In his reasons for sentence, the judge accepted that the applicant had a degree of remorse and clearly favourable prosects of rehabilitation.[21] The plea of guilty was regarded by the judge as being a very important matter in sentencing the applicant.[22]

45 The judge was somewhat equivocal about the exact value of the applicant's assistance to authorities, observing that it might not be substantial. The judge recorded that the applicant had made a substantial statement to investigators but, given that only two accused remained facing trial, the value of the statement was necessarily limited because of its timing.[23] However, the judge accepted that the applicant had made full and frank disclosure of the matters that were within his knowledge.[24] The judge said that he proposed to discount the sentence 'to some extent' on account of the applicant's assistance to authorities.[25]

46 Finally, in relation to parity with the sentence imposed on Ooi, the judge found that there was a basis for some disparity but that strong grounds existed for substantial parity. His Honour noted that the applicant had pleaded guilty to three charges of receiving secret commissions, whereas Ooi had pleaded guilty to one such charge. Those three charges involved additional participants and a greater value of benefits. Further, Ooi had pleaded guilty at an earlier time and his offer of assistance to the prosecution was of greater value at the time that it was made. Finally, the judge noted that Ooi suffered greater psychological distress following the discovery of the conspiracy and that the principles in R v Verdins[26] had some application in respect of the assessment of the onerous effect of a term of imprisonment on him, which was not the case with the applicant.[27]

47 The judge balanced these considerations against his finding that the two principals were equally responsible and indispensable to the conspiracy, a key indicator of moral turpitude. His Honour also had regard to the fact that Ooi had helped himself to almost double what forensic investigators identified as being received by the applicant. Further, the judge noted that the prosecution had accepted that the applicant's co-operation with them, although it came at a later time, might be of greater value in the prosecution of Ooi's son, Andrew Ooi. Finally, to the extent that denunciation is advanced by pre-charge investigative interrogation and accompanying public shaming, the applicant appeared to have borne the brunt of more extensive public opprobrium.[28]

48 The single ground raised on the application for leave to appeal is that the sentence of seven years and six months for the conspiracy charge is manifestly excessive. The constellation of factors relied on by the applicant to make out the ground are:

(a) that the applicant was, this offending aside, a man of good character with no prior convictions;

(c) that the applicant made a substantial statement to investigators, accompanied by an undertaking to the Court to give evidence against his co-offenders;

(d) the public shaming to which he was subjected following admissions made at a public examination;

(e) that the quantum of loss could not be established by the prosecution;

(g) the delay of over three years between the revelation of the offending and sentencing; and

(h) current sentencing practices, as illuminated by R v Walsh,[29] R v Nair[30] and R v Powles.[31]

49 In oral submissions, the applicant adopted the submissions advanced on behalf of Ooi on his appeal and focused in particular on two factors, the plea of guilty and the assistance provided to authorities.

50 As we noted above at [42] and [43], the applicant submitted on his plea that he should receive a sentence on charge 1 commensurate with that imposed upon Ooi. That submission was made after Ooi had been sentenced and reasons for sentence published. The applicant's submission correctly recognised that a significant term of imprisonment was required on charge 1. The applicant now submits that a sentence of seven years and six months for charge 1 is manifestly excessive.

51 On a ground of appeal alleging manifest excess, the applicant must satisfy the Court that, having regard to all the material, the sentence imposed fell wholly outside the range of available sentences.[32]

52 For the reasons that we have given in respect of Ooi's appeal, we were not satisfied that the sentence of seven years and six months' imprisonment imposed on Ooi for the conspiracy charge was wholly outside the range of available sentences. In reaching that conclusion, we had regard, among other things, to the seriousness of the offending, which involved a very high level of criminality and a significant breach of trust.[33]

53 In sentencing the applicant, the judge concluded that his crimes were 'very serious, complex, and sophisticated, encompassing multiple co-offenders and businesses.'[34] They involved a very serious breach of trust.[35] Those matters were clearly beyond argument. As the judge correctly observed, the applicant's offending called for a sentence that adequately reflected the principles of general deterrence, punishment and denunciation.

54 There is no doubt that general deterrence was an extremely important consideration in sentencing the applicant. Where offending is deliberate, organised and highly structured, offenders have the opportunity to reflect on the criminality involved and its consequences before and, in many cases during, the commission of the offence. The spectre of a substantial term of imprisonment must hang over those who may be tempted to breach their positions of trust so as to bring home the seriousness with which the law must regard this type of offending.

55 In DPP v Bulfin, Charles JA gave an explanation of why general deterrence can be a very important factor in sentencing in respect of white collar crime in terms that are apposite.[36] His Honour said:

The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. ... The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.[37]

56 We have dealt with the significance of the finding of the judge that the loss occasioned by the conspiracy was indeterminate in our reasons on Ooi's appeal and it is unnecessary to repeat those matters.[38] It is enough to note our conclusion that the corruption of the procurement process meant that there was patronage on a shocking scale to the enrichment of the conspirators. Self-evidently, honest persons will have missed out on obtaining relevant government contracts and may have been dissuaded from tendering.

57 As his Honour found, the offending resulted in arrangements that were clearly contrary to government procurement processes and rules regarding conflicts of interest. The judge found that the criminal conspiracy effectively undermined the public service procurement policies that are designed to protect the revenue and ensure that government contracting works are delivered at the most competitive available price. As such, the conspiracy involved corruption of the trust that citizens of this State place in public servants that taxpayer funds will be honestly expended and accounted for in the public interest. His Honour concluded on this aspect by saying that '[c]orruption of this kind strikes at the heart of our civilised democracy.'[39] It is also highly relevant to note the substantial benefits that accrued to the applicant and Ooi. It will be recalled that the judge found that the applicant had received profits of not less than $1,375,153.91 out of the contracts that had been entered into between the State and the managed entities.[40]

58 Within this context, the applicant's cooperation and assistance and his plea of guilty were both powerful moderating factors in sentence. Of course, a person may plead guilty but not provide assistance to authorities. Such a course is commonplace. On the other hand, a person who undertakes to give evidence against a co-offender will almost certainly have pleaded guilty and is entitled to the benefit of both his or her plea of guilty and his or her assistance. However, it would be artificial to treat them as entirely independent and cumulative.

59 In the context of white collar crime, offences are often difficult to detect and to prove. Assistance in such cases will often be of great value and may result in a prosecution that would otherwise not be brought or which might founder for want of proof.

60 In the present case, the assistance provided by the applicant occurred relatively late in the prosecution of the other participants in the conspiracy. Before the applicant provided his assistance to authorities, the corruption had already been identified and investigated and the principal co-accused, Ooi, had agreed to cooperate with the authorities. Nevertheless, the prosecution accepted that there was some value in the applicant's assistance in relation to the prosecution of the two remaining co-accused, particularly Ooi's son, Andrew Ooi. That was of benefit and was required to be taken into account in sentence.

61 The applicant's plea of guilty and his assistance to authorities provided powerful factors in moderation of sentence. Without those aspects, an even greater emphasis would need to have been given to general deterrence and denunciation.

62 The last matter relied on by the applicant was a contention that current sentencing practices, as evidenced by the decisions of the Court in R v Walsh,[41] R v Nair[42] and R v Powles,[43] are relevant to the sentence imposed in this case and supported the applicant's argument that the sentence on charge 1 was excessive.

63 We have considered the three cases relied on by the applicant. They arose from a single conspiracy which involved the Nauru Phosphate Trust. The co-conspirators induced the Trust to put money into a supposed investment scheme, which was in fact a device by which part of the money could be directed for the co-conspirators' use and benefit.

64 We do not accept that these three cases, taken together, demonstrate relevant current sentencing practices within the meaning of s 5 of the Sentencing Act 1991. Even if they did, we would not regard them as of assistance in resolving the present application.

65 The three cases relied on by the applicant were decided more than 15 years ago. As mentioned, they arise out of a single conspiracy and do not reflect an illustrative range of sentences for the offence of conspiracy to defraud. The head sentences imposed on the three co-conspirators in respect of the conspiracy charge ranged from two years and six months for Mr Powles to seven years for Mr Walsh. The sentence of four years imposed on Mr Nair was in between these two sentences. Significantly, the conspiracy did not involve a breach of public trust by the co-conspirators, as occurred in the present case. The three cases are too disparate, both when compared with each other and when compared with the offending that we are concerned with here, to be of any real assistance.

66 In our view, the sentence imposed by the judge on charge 1 was very stern. However, we are not satisfied that it was wholly outside the range of sentences available to the judge in the proper exercise of the sentencing discretion.

67 We would grant leave to appeal but we would dismiss the appeal.

[1] Ooi v The Queen [2018] VSCA 78.

[2] This summary is largely drawn from the detailed Prosecution Opening on Plea which was tendered before the sentencing judge.

[3] On Ooi's plea, Ooi accepted that the total value of the contracts awarded to the managed entities and subcontractors was $15,392,850.68: Ooi v The Queen [2017] VSC 157 [29] ('Ooi'). He was sentenced on that basis. On the applicant's plea, the prosecution indicated that the figure of $15.3 million was incorrect and that the total value of the contracts awarded was in fact $17,170,898.85.

[4] R v Wells [2017] VSC 575 [50] ('Reasons').

[5] The judge noted at footnote 9 of his reasons that, when sentencing Ooi, he had been informed that GWM had been awarded a total of 92 government work contracts: Reasons [22]. See Ooi [2017] VSC 157 [12].

[6] The judge said in his reasons that Mr Hayes and Mr Davis were directors of GWC and GE and, in the case of GWC, shareholders as well: Reasons [37]. However, the Prosecution Opening on Plea indicates that Mr Hayes and Mr Davis were directors and shareholders of both GE and GWC. Nothing turns on this difference.

[7] This is the figure identified in the Prosecution Opening on Plea and differs slightly from that mentioned by the judge in his reasons: Reasons [38].

[8] On Ooi's plea, the judge accepted the prosecution's evidence that the total value of the 10 contracts was $1,004,446.78: Ooi [2017] VSC 157 [25].

[9] The judge said in his reasons that Consalter ultimately received $1,746,022: Reasons [42]. This amount comprised $1,308,844 in contractual payments from the DOT and PTV, and payments totalling $437,178 from the $2.3 million tender partnership and from managed entities and related subcontractors in respect of various works and services contracts. We note the Prosecution Opening on Plea indicates that these payments were in addition to the contracts awarded to Consalter (which were said to be worth $1,356,429.80). The discrepancy is not material.

[13] Ibid [54]-[55], [59], [61].

[20] Ooi v The Queen [2017] VSCA 221.

[26] [2007] VSCA 102; (2007) 16 VR 269.

[29] [2002] VSCA 98; (2002) 131 A Crim R 299.

[30] [1999] VSC 339.

[31] [1999] VSC 268.

[32] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605-6 [58] (Gaudron, Gummow and Hayne JJ); Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 70 [26] (French CJ, Hayne, Kiefel and Bell JJ).

[33] Ooi v The Queen [2018] VSCA 78 [57]-[66].

[36] DPP v Bulfin [1998] 4 VR 114.

[38] Ooi v The Queen [2018] VSCA 78 [59]-[66]

[41] [2002] VSCA 98; (2002) 131 A Crim R 299.

[42] [1999] VSC 339.

[43] [1999] VSC 268.