Director of Public Prosecutions v Annesley
[2022] VCC 1272
•14 June 2022 9 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL ANNESLEY |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF SENTENCE: DATE OF REASONS: | 14 June 2022 9 August 2022 | |
CASE MAY BE CITED AS: | DPP v Annesley | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1272 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr R Barry | Mr S Bruckard, Commonwealth Solicitor of Public Prosecutions |
| For the Accused | In person |
HIS HONOUR:
1Paul Annesley, you have pleaded guilty to one charge of without reasonable excuse you did refuse or fail to answer a question that the Court has directed to be answered contrary to sections 597(7)(b) and 1311(1) of the Corporations Act 2001 (Cth) (‘the Act’).
2The maximum penalty for this offence is 100 penalty units and/or 2 years’ imprisonment.
The Facts
3The Commonwealth Director of Public Prosecutions (CDPP) tendered a Prosecution Opening for Trial dated 9 September 2020.[1] I accept these facts for the purposes of sentencing you.
[1] Exhibit P9.
Background to the offending
4On 29 September 2014, Jason Stone and Glen Franklin of PKF Chartered Accountants (‘PKF’) were appointed joint and several liquidators of the company Fleurie Pty Ltd (‘the company’). As part of the investigation into the company, PFK sought to undertake public examinations of key parties in accordance with Part 5.9 of the Act. Rothwell Lawyers was appointed to represent PFK in the legal proceedings.
5On 24 March 2016, a Summons for Examination pursuant to section 596B of the Act was issued by the Supreme Court of Victoria (Commercial Court) (‘the summons’) with respect to you, as a discretionary examinee, in relation to the company. The summons required you to attend the Supreme Court for a public examination on 21 April 2016.
6You were not successfully served with the summons prior to 21 April 2016.
7On 13 May 2016, an order for substituted service was made by Judicial Registrar (‘JR’) Hetyey and the examination was adjourned to 15 June 2016.
8On 16 May 2016, you were served with the summons by email, ordinary post and SMS.
9On 15 June 2016, you failed to attend the Supreme Court in compliance with the summons. Accordingly, JR Hetyey made an order compelling you to attend at the Supreme Court on 23 June 2016.
10You failed to attend on 23 June 2016. Accordingly, JR Hetyey made a further order that you attend the Supreme Court on 30 June 2016.
11On 30 June 2016, you failed to attend the Supreme Court.
12There are no charges before me for any failure by you to attend the Supreme Court and you will not be punished for any failure to do so. This evidence was led a part of the context to the offence before me and its relevance to Renzella time[2] applicable to you in relation to the present offending.
[2] R v Renzella [1996] 2 VR 88.
13On 22 July 2016, an interlocutory application dated 19 July 2016 was filed by Rothwell Lawyers with the Supreme Court seeking a warrant for your arrest, which was issued on 28 July 2016.
14You were arrested on 13 October 2016 and brought before the Supreme Court on 14 October 2016. You were in custody overnight. The public examination commenced on 14 October 2016 and on that date was adjourned to 21 November 2016 and 22 November 2016.
15On 18 November 2016, owing to counsel’s unavailability, the 21 and 22 November 2016 dates were vacated and the examination was relisted by JR Hetyey for 13 and 14 December 2016.
16On 13 December 2016 you attended the Supreme Court for the examination but informed the Court you were unwell. The matter was adjourned until 14 December 2016.
17On 14 December 2016, you failed to attend at the Supreme Court. Following Rothwell Lawyers’ receipt of a text message from you attaching a medical certificate, the matter was adjourned by Judd J to 16 December 2016.
18On 16 December 2016, his Honour made orders, including allowing you to file and serve any affidavit attesting to your medical condition by 10 February 2017. An order was made that the matter be relisted on 17 February 2017. Following an administrative error, the public examination was further adjourned to 24 February 2017.
19You swore an affidavit on 16 December 2016 in which you explained why you failed to appear at the Supreme Court on 13 and 14 December 2016.
The examination
20On 24 February 2017, you appeared in the Supreme Court of Victoria before JR Hetyey for the purpose of an examination. You were sworn and the public examination process was explained to you by the Judicial Registrar, as were your rights and obligations. JR Hetyey explained you were obliged to answer all of the questions put to you unless he ruled otherwise. You indicated you did not have any questions regarding the process.
21Having established your name, address and occupation, counsel for PKF, Mr Moore, handed you a map and proceeded to question you as follows:
Question:
Counsel: Mr Annesley, you'll see the map here concerns properties in Pioneer Road and Westernport Road, do you see that?
Answer:
Mr Annesley: Privilege. Mr Moore, I do not understand why I am here and I am not a party to any of these dealings or businesses or companies.
Counsel: No, I haven't asked you that question?
Mr Annesley: But that's what I'm telling you.
Judicial Registrar: Mr Annesley, that answer or that statement is not responsive to the question that Mr Moore has put.
Mr Annesley: I repeat, privilege. I do not understand why I am here. I am not a party to any of these dealings or businesses or companies.
Question:
Judicial Registrar: Now, I don't know what you mean by that statement whether you're resisting answering a question or whether you're challenging the validity of the process but would suggest to you that you think very carefully about that. I did point out to you at the start of the examination that I have the power to direct you to answer a question and failing to do so can result in various penalties and processes being brought to bear upon you as a consequence of resisting. So what's the position from your perspective, Mr Annesley?
Answer:
Mr Annesley: I do not understand why I am here. I am not a party to any of these dealings or businesses or companies.
Judicial Registrar: It's a repetitive answer. Are you telling the court that you're not going to answer questions today?
Mr Annesley: I do not understand why I'm here. I am not a party to any of these dealings or businesses or companies Mr Moore.
Counsel: Well, I don't know where we go from here. I'll try again.
Judicial Registrar: I think you should ask the question again.
Counsel: Mr Annesley, the map in front of you refers to properties at 325 Westernport Road, 345 Westernport Road, 65 Pioneer Road, 46 Pioneer Road and the Alpha 2 land or the Corman land. You're familiar with those properties, aren't you?
Mr Annesley: Mr Moore, I repeat, I do not understand why I am here. I am not a party to any of these dealings or businesses or companies.
Particulars of charge
22You continued to refuse to answer questions. JR Hetyey then directed you to answer the question. Following that direction, you continued to refuse to answer questions as follows:
Question
Judicial Registrar: Mr Annesley, I’m not sure what I can do other than to direct you to answer Mr Moore’s question and I will now direct you to answer it. Your previous comments have been non-responsive to that question.
Counsel: I will ask you the question again, Mr Annesley, in a way that you can answer yes or no. Are you familiar, that is, do you know of the land that’s referred on the map, which is 325 Westernport Road, 345 Westernport Road, 65 Pioneer Road, 46 Pioneer Road and land which is referred to as the Alpha 2 land or land owned by the Cormans?
Answer
Mr Annesley: Privilege. I do not understand why I'm here. I am not a party to any of these dealings or businesses or companies.
Judicial Registrar: Well, why don't you answer that question, Mr Annesley? You're looking at a survey map or, sorry, a picture from Google Earth identifying various parcels of land. Whether or not you're a party to transactions or, as you say, a party to this proceeding, you have been summoned here today. Can you give a truthful answer about whether you have any familiarity with these parcels of land as depicted on that document? What is your knowledge of those parcels of land? Mr Annesley, I direct you to answer that question.---(No audible response.) I take that as being non-responsive. Mr Moore, in terms of further steps I think it has to be referred to a judge of the Commercial Court.
23You were directed to answer the question by JR Hetyey on the basis that your previous comments were non-responsive. You continued to respond to the question by stating, ‘I do not understand why I am here. I am not a party to any of these dealings or businesses or companies.’
24The question was put to you directly by the judicial registrar and he directed you to respond. On this occasion you remained silent said nothing in response.
25The matter was stood down for a short time. Upon reconvening, JR Hetyey advised you of the potential consequences should you continue to refuse to answer questions without a reasonable excuse, including ‘significant ramifications under criminal law’.
26A question was then put to you by counsel for PFK. You responded you were ‘under ongoing psychological care for [your] mental health issues’. You then continued to maintain you did not understand why you were there, that you were not a party and that you knew nothing about the matter. You maintained that you were being unfairly pursued by Victoria Police, the Supreme Court of Victoria and the ‘Justice Department’ and that this was, in part, the reason you were ‘currently under a mental health plan’.
27Following some further discussion between you and JR Hetyey, the judicial registrar ordered the matter be referred to Judd J of the Supreme Court of Victoria (Commercial Division) for consideration as to whether you were in breach of section 597(7)(b) of the Act.
28The matter was adjourned to 2 March 2017 before Judd J. PFK was ordered to file and serve any affidavit upon which they intended to rely by Monday 27 February 2017. You were ordered to file and serve any affidavit in response by 1 March 2017. This was to include the basis of any reasonable excuse for failing to answer a question you were directed to answer.
29On 1 March 2017, two affidavits were filed on your behalf:
(a) David Tatana swore an affidavit on 1 March 2017, in which he set out his observations of the 24 February 2017 hearing and his views in relation to your mental health.
(b) Savvas Kanakaridis swore an affidavit on 1 March 2017, in which he set out his observations of the 24 February 2017 hearing and his views in relation to your mental health.
30On 2 March 2017, Judd J made orders the matter be referred to the Commonwealth Director of Public Prosecutions to consider whether a prosecution under section 1311(1)(b) of the Act should be commenced.
31The matter was subsequently referred to the Australian Securities and Investments Commission (‘ASIC’) for investigation. The informant, an ASIC officer, filed a charge sheet dated 27 March 2018 in the Magistrates’ Court of Victoria at Broadmeadows on 11 April 2018.
32You did not consent to summary jurisdiction, as is your right, and you were committed for trial in this Court on 11 September 2019.
33You have represented yourself throughout the proceedings in the Magistrates’ Court and in this Court.
Offence Seriousness
34This may be the first prosecution for an offence under s 597(7)(b) of the Corporations Act 2001 (Cth).
35At the sentence indication hearing, counsel for the prosecution submitted your offending is serious as it involved a deliberate and repeated refusal to answer a question as directed by the Court. The prosecution also submitted that your offending conduct is akin to contempt of court.
36I agree with the prosecutions submission, like contempt of court, your offending conduct poses a risk to the proper administration of justice. You were warned a number of times by JR Hetyey that you were required to answer the question put to you by counsel for the liquidator yet you repeatedly refused to comply.
37Clearly, denunciation and general deterrence are important sentencing principles in this case.
Personal Circumstances
38You are currently aged 58 and at the time of offending you were 53 years of age.
39At the sentence indication hearing, you submitted you were suffering from severe stress and anxiety throughout the period of your offending as a result of your involvement in numerous court proceedings.
40A psychological report from New View Psychology dated 18 May 2022 was tendered by you at the sentence indication hearing.[3] In his report, psychologist Craig Sanderson confirmed you had attended three sessions at New View Psychology and during those sessions you had disclosed experiencing ongoing anxiety as a result of being harassed by Victoria Police and the ANZ Bank. Mr Sanderson reported you had been administered the Kessler Psychological Distress Scale test by your referring doctor which indicated you were suffering significant distress and low mood.
[3] Exhibit A15.
Mitigating Circumstances
41On 14 June 2022, you pleaded guilty to the present charge following the sentence indication hearing. Your plea of guilty was entered one day before a trial was due to commence.
42Under s16A(2)(g) of the Crimes Act 1914 (Cth) (‘the Crimes Act’), the Court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence.
43Your plea was not entered at an early stage. However, your plea still has a significant utilitarian benefit. It indicates an acceptance by you of responsibility for your offending conduct. Your plea also indicates a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
44You are 58 years of age and have no prior criminal history. Accordingly, I accept your offending conduct is an aberration of otherwise good character and I take this into account in your favour.
45The effect of delay is a mitigating circumstance in your case. You were charged with the offence on 27 March 2018. It is now over 4 years and 2 months since you were initially charged.
46As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[4]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[5]
[4] (2013) 40 VR 436.
[5] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
47There is no evidence before me regarding what efforts have been made towards your rehabilitation during this period of delay by seeking treatment for the underlying causes of your offending conduct. However, I accept that during the period of delay you have not reoffended.
48So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Application of Sentencing Principles
49I must sentence you in accordance with the relevant provisions of Part 1B of the Crimes Act and, in particular, the provisions of s 16A.
50Pursuant to s 16A(1) of the Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence, I must have regard to the non-exhaustive list of matters set out in s 16A(2) of the Crimes Act, and any other matters, insofar as they are relevant and known to me.
51The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it and your personal circumstances. Denunciation and general deterrence are significant in sentencing you for this offence. I consider no weight needs be given to specific deterrence or protection of the community, given your lack of any prior criminal history and subsequent offending. I assess your prospects for rehabilitation as being excellent.
52I consider a s 19B bond, effectively a good behaviour bond without conviction, would be an appropriate disposition in this case. In determining whether to exercise the sentencing discretion under section 19B of the Crimes Act, I am required to undertake a two-stage process of reasoning:
(1) Where:
(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation.
53The first stage requires the Court to identify a factor or factors of the character in s 19B(1)(i), (ii) or (iii) of the Crimes Act (emphasis added). The second stage is the determination that, having regard to the factor or factors so identified, whether it is inexpedient to inflict any punishment other than a nominal punishment.
54Turning first to s 19B(1)(b)(ii), I do not consider the offence was of a trivial nature. The effect of the offence is to hinder the administration of justice and prevent liquidators from effectively examining the affairs of corporations under administration or winding-up proceedings. It is in the public interest that liquidators are able to effectively participate in such court-conducted examinations.
55I consider s 19B(1)(b)(i) is applicable in your case. In determining so, I have considered your lack of prior convictions, your age, and your mental condition. I accept you were suffering from stress and anxiety at the time of your offending. As outlined previously, you are 58 years of age and have no prior or subsequent criminal history.
56I am satisfied that s 19B(1)(b)(iii) also applies in your case. It has been held that extenuating circumstances are circumstances which ‘lessen or seem to lessen the seeming magnitude of (guilt or offence) by partial excuses’ or which ‘excuse, in any appreciable degree, the commission of the offence charged.’[6] Your offending conduct was committed during an extremely difficult period of your life. You were under a significant amount of pressure owing to numerous and contemporaneous court proceedings, in all of which you were representing yourself, and because of ongoing issues with Victoria Police. I accept there was a link between these extenuating circumstances and your offending conduct.
[6] Mansfield v Evans [2003] WASCA 193, [20].
57Turning to the second stage, I must consider whether it is inexpedient to inflict any punishment other than a nominal punishment upon you. An order under s 19B(1) is an order within the meaning of s 16A(1) of the Act, I therefore must have regard to the matters set out in s 16A(2).
58The value of your plea, the consequences of delay and the absence of any prior or subsequent criminal convictions are matters I have taken into account in considering whether it is inexpedient to inflict any punishment other than a nominal punishment upon you.
59Importantly, you have spent two days in custody as a result of the warrant issued for your arrest on 28 July 2016 for failure to attend the examination in which the present offence was eventually committed. I cannot declare this time in custody as pre-sentence detention. Nonetheless, while this is not strictly time spent in custody for the present offence, it is relevant in a general way as being punishment you have already undergone which is causally and temporally related to the present offending.
60This time spent in custody exceeds any punishment I would have imposed for the present offence. Accordingly, there are two days which cannot be reckoned as pre-sentence detention in respect of these matters and I take that ‘dead time’ into account in a general way as part of your background in accordance with the principles stated in R v Renzella.[7]
[7] [1997] 2 VR 88, 96. See also R v Stares (2002) 4 VR 314; R v Berry and Wenitong (2007) 17 VR 153, 187–8 [115]–[117] (Redlich JA, Buchanan and Kellam JJA agreeing).
61Accordingly, I am satisfied a s 19B bond is the appropriate disposition given the circumstances of this case and that such a sentence is of a severity appropriate in all the circumstances.
Stand up Mr Annesley
The Court discharges you under section 19B of the Crimes Act 1914 (Cth) without proceeding to conviction upon you giving security by recognizance of $500 to comply with the following conditions:
(a) that you are to be of good behaviour for six months.
I declare this order has been made because:
the accused, Paul Annesley, was charged with the following federal offence:
(i) Without reasonable excuse, refuse or fail to answer a question that the Court has directed to be answered contrary to sections 597(7)(b) and 1311(1) of the Corporations Act 2001 (Cth)
the Court is satisfied that the charge is proved, but is of the opinion, having regard to:
(a) the character, antecedents, age, health or mental condition of the person; and
(b) the extent to which the offence was committed under extenuating circumstances:
That it is inexpedient to inflict any punishment other than a nominal punishment.
Mr Annesley I must explain this order you.
The effect of this order is that you have got to be of good behaviour for six months. If you are not, you will come back before the Court to be dealt with for this offence.
I have ordered that you provide a recognisance in the sum of $500 without a surety. That means you don’t have to pay that money now, but if you breach the recognisance, you will be required to pay the $500.
0
4
0