Director of Public Prosecutions v Carey

[2018] VCC 166

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

CR-17-01265

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKAS CAREY

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v Carey
MEDIUM NEUTRAL CITATION:	[2018] VCC 166

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – obtaining financial advantage by deception (4 charges) – attempted obtaining financial advantage by deception (1 charge) – secret commission (receipt by an agent) (3 charges)
Legislation Cited:	Sentencing Act 2009 (Vic)
Cases Cited:	R v Verdins (2007) 16 VR 269
Sentence:	Convicted and sentenced to a total effective sentence of 3 years’ imprisonment with a non-parole period of 1 year imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitors for the Office of Public Prosecutions
For the Accused	Mr R. Willcox	Peter Baker & Associates

Pages 1 - 13

 

 

HIS HONOUR: 

1In this plea of Mr and Mrs Carey which was heard here on Tuesday 20 February, Mr Pickering appeared on behalf of the Director, Mr Willcox on behalf of
Mr Carey and Mr Kelly on behalf of Mrs Carey, Ms Keighran appearing today.  Insofar as the pleas were concerned, Mr Carey pleaded guilty to four counts of obtain financial advantage by deception.  They are Charges 1, 5, 7 and 9 on the indictment.

2The first charge involved a four-month period in 2015 when the sum of $55,885 was paid by way of financial advantage to Cross Court Leisure Planning run by his wife who was inappropriately dealing with the company.  Making up that $55,885, was 11 separate transactions. 

3In regard to Count 5 which involved Mr Ladson, as a consultant to the Ballarat Council, there were ten transactions over a period of one year and nine months, involving the total sum of $42,345 to Ladson Building Services.

4In regard to Charge 7, those transactions - again, obtaining financial advantage by deception, were six transactions that took place over one year and seven months involving $26,100 paid to to Mr McCaig. 

5And finally, Charge 9 involving the longest period in regard to these crimes, a period of two years, involving nine transactions with payments in the sum of $59,893 made to Mr Clarke.

6In addition, Mr Carey pleaded guilty to one count of attempt to obtain a financial advantage.  This again took place over a period of three months in 2015 and involved three invoices in the sum of $6,380 which were not paid, again to the company, of which the proprietor was his wife. 

7In each of the appropriate periods relevant to the dealings of Mr Ladson, McCaig and Clarke with the Ballarat Council, orchestrated by Mr Carey, Mr Carey sought and obtained secret commissions as a result of those transactions.  Those secret commissions make up Counts 6, 8 and 10.  In regard to Mr Ladson, they involved as I said six transactions making up a total secret commission paid to Mr Carey of $5000.  In regard to Mr McCaig, four transactions involving $7700, and in regard to Mr Clark, again four transactions involving $18,500. 

8That does not quite match - my maths, Mr Prosecutor.  There was supposed to be in regard to Count 9 over a period of two years, a sum of $59,893.  Have I got that wrong?  Were there only four transactions where secret commissions were obtained?

9MR PICKERING:  This is for Count 9.  That is Mr ‑ ‑ ‑ 

10HIS HONOUR:  Yes.  Count 10.

11MR PICKERING:  Sorry, Count 10?  There was a secret commission - I am looking at the table underneath paragraph 69.  That would be one, two, three, four.

12HIS HONOUR:  I was right.

13MR PICKERING:  Yes.

14HIS HONOUR:  Somehow there were nine payments made, however, only four extractions - whether they were combined sums or what, one does not know but there is the sum of $18,500.

15MR PICKERING:  Correct, Your Honour. 

16HIS HONOUR:  Yes.  All right.  In addition, Mrs Carey has pleaded guilty to Count 2, a charge also of obtaining financial advantage by deception, being the sum of $55,885 which I have already explained, and the attempt to commit such crime being Count 4 in the sum of $6380, which I have also explained. 

17The precise details making up these crimes are detailed in the lengthy prosecution summary which was tendered as Exhibit A.  Each counsel has accepted that Exhibit A represents the facts upon which I am to sentence both of their clients. 

18Mr Carey comes before the Court with no criminal offences at all. He has an excellent work and sporting background and an excellent education, all the requirements for success in life. He was employed, during the period of this criminality, as the manager of the sporting section of the Council, and no doubt had the potential of further promotions within the particular bureaucracy. 

19In trying to explain to the Court the reasons why a person, with such background, would be involved in such criminality, Mr Willcox proffered the issues of insecurity of Mr Carey brought about by the fact that his wife who had previously been earning income as a branch manager with the Commonwealth Bank, taking off time from work and thereby putting financial strain on the family.  No doubt initially she was, given her position, subject to maternity leave but ultimately decided - apparently because of issues with the newly born child, to extend that leave.

20This explanation goes back - and I will refer to it in due course when I talk about the psychological evidence - to Mr Carey's own life experience of impoverishment and difficulty as a young person. The proffered explanation was that he indulged in this two-year spate of criminality so that his own children did not experience the same fate.  I thought at the time when it was put, such proposition that had little going for it, and I am still of that view.  It seemed to me the real explanation for these crimes is the greed of Mr Carey. 

21Mr Carey was the mastermind of all of these crimes, he recruited each of the participants, including his wife who set up a company, so that they could both profit by inappropriately contracting with his employer for jobs.   In addition, he recruited three others, to whom he provided and quoted on work, in order that they give him secret commissions.  As I say, at the time he was earning $133,000 in income. 

22His wife was the manager of the Eaglehawk branch of the Commonwealth Bank.  Why she did not halt this scheme, when it was first put, and why she succumbed to being part of it is a matter that is beyond me, and no doubt may be beyond her.  The results of course for the family proved to be disastrous.  They have, as expressed to the Court, been shunned in the community not only by their friends, but their broader sporting community of which they both had excellent standing.  They lost two properties in Bendigo, which no doubt had been acquired over time, both of which, pursuant to the confiscation legislation, were confiscated by the State in order to supplement the repayment of funds lost to the Council. They have suffered extreme, I would imagine, family upset and the issues of relocation and the loss of their homes, and finally the indignity of being brought before this Court. 

23Neither counsel put parity as an issue in this case, albeit that I was given the sentences handed out to Mr McCaig and Mr Ladson, who pleaded guilty to rolled up charges relating to the secret commissions and financial advantage.  I am not fully aware of the matters put below.  Fines were imposed in both cases.  No doubt issues of cooperation were utilised.  I am not sure, but certainly, I do not see any basis for parity, nor is any such issue put. 

24As I said, clearly Mr Carey was the originator, the planner and the instigator of all of these crimes.  This criminality of which he was involved in took place over two years and two months.  He had the position to effect this criminality being the manager of the sports and recreation division of the Ballarat Council.  He was able to influence, by that position, the granting of contracts.  He was able, by his position, and by way of subterfuge, cover his tracks and connections to the contractors.  He was able to manipulate the contract prices which the council entered into, and as a result of those manipulations, in regard to three of the persons he recruited to the scheme, able to receive illegal commissions, for such activity. 

25The precise details in regard to the manner in which these crimes were organised is set out in the prosecution summary at [40] to [51].  The particular acts of dishonesty and deception carried out by Mr Carey, by way of subterfuge and in order to cover the tracks of all of the participants, is more particularly detailed at [52] to [58]. 

26I can summarise this criminality by reading one paragraph only.  It is [60] and it reads as follows: 

"It is alleged that on each occasion where they were engaged by Carey to perform work for the City of Ballarat, Carey autonomously generated the work, devised the scope of the works, selected the contractor, allocated the contractor, reviewed the work, received the invoices, authorised payment of invoices.  The City of Ballarat then made payment upon the authorisation of Carey."

27It seems to me that no better summary could be provided of the criminality in the matter.

28It was indeed just that ability to control and protect which makes such crimes difficult for organisations, such as councils and public entities, to detect within their communities.  Indeed, it is why this State has instituted the body that investigated the criminality of Mr Carey, IBAC.  And albeit that Mr Carey resigned, knowing that this matter was about to befall him, there was in fact a protected complaint apparently made to IBAC, which brought all of these crimes to the fore.

29In such circumstances, his prior good character of course loses some of its impact.  The fact is that without the high standing that Mr Carey had before he took this position of management, he would not have been able to effect these crimes, nor would he have been able to have the ability to protect the crimes from detection, without such totality of control.

30We have therefore serious and sustained criminality by Mr Carey, as I say, over a period in excess of two years.  That criminality comprises a gross breach of trust, not only of the obligations of his employment contract but to the wider people of Ballarat, by whom he was employed.  He has committed crimes which are notoriously hard to detect, and which require extensive investigation when detected, as demonstrated by the enquiries made by IBAC. They are crimes which warrant by their nature a sentence which effects punishment, general deterrence and denunciation, to be prime in the factors relevant to sentencing.  Obviously, the other factors, of which this Court must consider are set out in s.5 and 6 of the Sentencing Act 2009, are each of individual relevance, but of course must be balanced with the matters put by Mr Wilcox. 

31The matters stressed by Mr Willcox, in particular in his written submission and spoken to by him - the written submission being tendered as Exhibit L1 – were:  That Mr Carey come before the court a man of excellent character with no priors whatsoever.  That as an expression of his remorse, he has undertaken to repay the sought compensation by the Council which is the total sum of the secret commissions amounting, I think, Mr Prosecutor, 31,000, was it not?

32MR PICKERING:  Thirty-one thousand, two hundred.  Yes, Your Honour.

33HIS HONOUR:  Mr Carey has an excellent education, and achievements in both education, sporting awards and corporately.  He comes before the Court with excellent character evidence, and I was impressed by the substance of those character witnesses, being Exhibit L3.  I was in particular impressed by the character reference of Mr Buxton, his current employer.  It is a rare person who, knowing that a person is to face a court for dishonesty offences, undertakes to provide them employment in such circumstances.  He is to be complimented.

34Mr Willcox stressed that the plea of guilty as being equally an indication of remorse and of utilitarian benefit.  Not only to the furtherance of justice, but to the saving of the prosecution of bringing at least - I think as identified in the indictment - some 40 witnesses.  In addition, it was pointed out to me his achievements, and in particular how he has worked for those who are less privileged which came about from his own experience of under-privilege as a young boy, and the steps that he took both as a teacher and a basketball coach to provide for the underprivileged.  I take all of those matters into account. 

35In addition, it was put to me the suffering Mr Carey has endured as a result of these crimes coming to light.  I have mentioned the public deprecation that the family have suffered, the change of location and distress.  I also take into account the depression and anxiety that he has suffered as set out in the report, Exhibit L2, from the psychologist, Masiboy. 

36There is reference as some explanation of what might be seen as inexplicable in the circumstances of this criminality and that is the diagnosed ongoing borderline personality disorder which Mr Willcox pointed to as the reason for why he so acted.  That is that - and I have already indicated, that I was all that impressed with the proposition, but some underlying concern about insecurity.  But as I say, Mr Willcox put the matter as by way of explanation, and certainly not on a Verdins basis.

37Mr Carey has shown a desire for rehabilitation, he has attended the psychologist on some 22 occasions while in Victoria, and has continued phone consultations since that time.  Mr Willcox also submitted to the Court that
Mr Carey must be seen as a person who has good prospects for rehabilitation and I accept that given his background and education. 

38In submission as to sentencing, Mr Willcox conceded that within range was an immediate prison sentence, given the seriousness of these matters.  He asked, however, for the Court to consider the imposition of a community corrections order either alone, or by way of combination with a period of imprisonment.  Insofar as that proposition was concerned, the learned prosecutor submitted that, I think I am right here, Mr Prosecutor.  I do not want to misrepresent you, given the limited period that could be imposed with a combined order, now prescribed by Government of one year, that it was the Crown view that that was not within range.

39MR PICKERING:  Yes, that is correct, Your Honour.

40HIS HONOUR:  Yes.  As I say, that proposition was opposed by the Crown on the basis that the criminality was of such seriousness and of such note that such a sentence would be inappropriate. 

41Mr Carey, I have given your sentence a considerable amount of consideration.  A person who comes before the Court with your attributes and skills, and has no priors, at the age of 40, is a person who is entitled to seek mercy from the Court. I have taken all those matters into account.  I have also taken into account the matters put strongly on your behalf by Mr Willcox. 

42Balanced against that must be the serious nature of these crimes and their difficulty of detection.  Unfortunately for you, having balanced all factors as best as I can, I have determined that a combined goal and community corrections order would be inappropriate, certainly a community corrections order alone would be inappropriate. 

43In the end, doing as best I can to balance all matters, and taking into account your background as best I can, and being as merciful as I can, I have decided there is no alternative, given the serious nature of these crimes, but for a period of immediate imprisonment.  The terms of imprisonment and the minimum term that you will serve, will indicate the manner in which I have taken into account the factors put on your behalf.  If you would stand please.

44Mr Carey, for the four counts of receiving a financial advantage by way of deception and the crime of such being the Counts 1, 5, 7 and 9, you will be sentenced on each count to imprisonment of one and a half years.

45On the attempt count of obtain financial advantage by deception - that is Count 3, a period of imprisonment of nine months.

46Insofar as the receipt of the secret commissions, that is to seek or receive, which you did both, you will be sentenced on each count, being Count 6, 8 and 10, to two years.  Using Count 10 as the base sentence, I will cumulate a period of two months of each of the sentences in Charge 6 and 8 upon the head sentence in Count 10, meaning a period of cumulation of four months on top of two years. 

47In addition to that, I will cumulate two months of each of Counts 1, 5, 7 and 9 - that is the four counts of obtain financial advantage by deception - upon Counts 10, 6 and 8, making a period of cumulated - four by two is eight months, making a total effective sentence - that is two years four months on the Counts 6 and 8 and eight months on Counts 1, 5, 7 and 9.  Making a total effective sentence of three years. 

48The period that I will order that you must serve before being eligible for parole is a period of one year. 

49I indicate to you now, as I am required by Parliament, it is a very difficult indication because it requires me to indicate to you what would be the consequence of just taking into account one matter only, and that is if you had not pleaded guilty.  But doing as best I can to comply with the requirements of Parliament, can I indicate to you that had you not pleaded guilty, the sentence that you would be getting today is not three years with the minimum of one year but five years with a minimum of three years.  I hope that that indicates to you how the Court has taken into account the matters put on your behalf by
Mr Willcox.

50I have signed the compensation order insofar as
Mr Carey is concerned.  Is there anything else I need to do, Mr Prosecutor?

51MR PICKERING:  Your Honour was going to make a decision about the 464 forensic sample orders.

52HIS HONOUR:  Yes.  Yes, despite the seriousness of these crimes, I have got total confidence that after Mr Carey serves his period of gaol, we will not have to worry about him being recidivist.

53MR PICKERING:  As Your Honour pleases.

54HIS HONOUR:  I do not intend to sign that.  You can take a seat, Mr Carey, just for the moment while I deal with your wife.

55Ms Keighran, you would have seen in the report from Community Corrections the difficulties involved in the proposition put insofar as your client's concerned.  It seemed to me that given the dispensation to Mr Carey, it may well be that
Mr Kelly or yourself may well now want to put further matters of a family nature to the court.  So that it seemed to me that I should not proceed any further with Ms Carey's sentence except to adjourn it to Melbourne.  I will not require her to come to Melbourne.  It can be done - well, as long as the prosecution is happy with this - by video from West Australia.

56MR PICKERING:  No, there is no objection to that, Your Honour, if it can be organised.

57HIS HONOUR:  Yes.  And that plea can be further effected then and - because I just do not know what this means to her family-wise with Mr Carey going to gaol for such a time and her obligations given that their properties have been effectively - or the proceeds of their properties are now gone and - anyway, I do not know the totality of the whole disaster of this.  So all I am really saying is perhaps you need some time to consider the position before we complete Mrs Carey's sentence.

58MS KEIGHRAN:  Your Honour, if you would be minded to hear some submissions now ‑ ‑ ‑ 

59HIS HONOUR:  I do not think there is any point now.  In other words, I would have thought you would have to get some instructions as to who is going to look after the children, how the family is going to support itself.  Those matters which may amount.  Normally, they do not come into account but there are times when courts can make a decision that the impact on one member can be so exceptional that it may justify a sentence that would otherwise not be justified.  So it seems to me that you need to consider that matter before the next hearing.

60MS KEIGHRAN:  As Your Honour pleases.

61HIS HONOUR:  Have you got any suggestions as to an appropriate time? 
Mr Tipstaff, I think unless you have got a copy of it, I have taken my schedule inside, have I?  Anyway, Madam Associate will know.  What we might do is leave Ms Carey on the bail that she is on and adjourn the matter till 9 March.  Now, I will leave it to you.  If you are not ready to go then, you can advise the court but it seems to me there may be matters that you may wish to put to the court on Ms Carey's behalf that may or may not be ready by then.  If they are, we can proceed to hear it on that day and as long as the prosecution is happy, I am happy to have Ms Carey be part of that plea by video.

62MR PICKERING:  Your Honour, I certainly have no objection to any of that course.  Would it be possible to have it heard on the eighth rather than the ninth?  I only ask that because I am in a rather large plea on the ninth which I cannot give up.

63HIS HONOUR:  Yes.  Yes, we can do it on the eighth.

64MR PICKERING:  Yes, Your Honour.  Any time after 10 o'clock if that suits the court?

65HIS HONOUR:  As I say, I am not - I am just saying the eighth to give us a date.

66MR PICKERING:  Yes, Your Honour.

67HIS HONOUR:  If Ms Keighran is not ready by then, then it can be adjourned further.

68MR PICKERING:  Yes.  I suspect we ‑ ‑ ‑ 

69HIS HONOUR:  No doubt in conjunction with you to get the right date.

70MR PICKERING:  Yes, I suspect we will be all right for the eighth, Your Honour.  But perhaps if your associate can inform the County Court that they will need to organise a link.

71HIS HONOUR:  Yes.

72MR PICKERING:  And my Melbourne instructor as distinct from my one here ‑ ‑ ‑ 

73HIS HONOUR:  We will make a note now that there will need to be a link on that day.

74MR PICKERING:  Yes.

75HIS HONOUR:  Yes, I will extend Mrs Carey's bail till that time.

76MR PICKERING:  As Your Honour pleases.

77MS KEIGHRAN:  As Your Honour pleases.

78HIS HONOUR:  Yes, it gives me no pleasure to say this but take the prisoner away please.

79MS KEIGHRAN:  Your Honour, may I confirm that that would be held in Melbourne or would it be back here?

80HIS HONOUR:  No, it will not be here.  It will be in Melbourne.

81MS KEIGHRAN:  Yes, thank you, Your Honour. 

82HIS HONOUR:  And I presume your client will be in Western Australia.

83MS KEIGHRAN:  She will, Your Honour.  Yes.

84HIS HONOUR:  That was what I was contemplating.  As I say, I am not rigid about that date.  Whenever you are ready.  All right, thank you both.  Mr Willcox, is there some suggestion we might see you again?

85MR WILLCOX:  That is so, Your Honour, this is my swan song.

86HIS HONOUR:  This is the swan song?

87MR WILLCOX:  This is the swan song.

88HIS HONOUR:  Well, can I complement you on a great career.

89MR WILLCOX:  Thank you very much, Your Honour.

90HIS HONOUR:  Sorry not to have you - as you know, I have had my swan song and I am still continuing.

91MR WILLCOX:  I do, I do, I am well aware of that, Your Honour, and I was, if I may say, quite pleased that my last appearance is before Your Honour.

92HIS HONOUR:  Yes.  Well, I am sorry it is not the most successful one in your life but there we are, these happen.

93MR WILLCOX:  I thank you.

94HIS HONOUR:  Yes, thank you very much.

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