Director of Public Prosecutions v Clark
[2024] VCC 1901
•29 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01824
CR-21-01822
CR-22-01422
CR-22-01579
CR-22-00973
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFFREY WAYNE CLARK JEREMY WAYNE CLARK |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 November 2024 | |
CASE MAY BE CITED AS: | DPP v Clark & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1901 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Geoffrey Clark – Multiple offences of dishonest dealings in funds belonging to the Framlingham Aboriginal Trust and related entities; Perjury and giving false evidence offences directed to concealing offending; Sentence in respect of verdicts delivered in three trials on three different indictments;
Jeremy Clark - Multiple offences arising out of joint criminal enterprise with first accused; Sentence in respect of verdicts delivered in one separate trial; Plea of guilty on separate indictment relating to obtaining a gain from the Commonwealth.
Legislation Cited: Aboriginal Lands Act 1970 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic);
Cases Cited:DPP v Bulfin [1998] 4 VR 114; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21;
Sentence: Total effective sentence of 6 years and 2 months’ imprisonment with non-parole period of 3 years and 9 months (Geoffrey Wayne CLARK)
Total effective sentence of 2 years and 2 months’ imprisonment wholly suspended for 2 years and 2 months (Jeremy Wayne CLARK)
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APPEARANCES: | Counsel | Solicitors | |||
| For the DPP | Mr J. Lewis SC Ms V. Jones Ms E. Addams | Director of Public Prosecutions | |||
| For the Accused G Clark | Mr S. Kenny Ms S. Buckley | Stary Norton Halphen | |||
| For the Accused J Clark | Mr J. Moore Mr A. Pyne | Furstenberg Law | |||
HIS HONOUR:
Introduction
1Aboriginal and Torres Strait Islander people should be aware that these reasons for sentence refer to the names of people now deceased.
2Geoffrey Wayne Clark, over a series of three trials involving three separate sets of allegations, you were convicted of 17 charges of theft, four charges of obtaining a financial advantage by deception, one charge of knowingly dealing in the proceeds of crime, two charges of perjury and one charge of giving false evidence. The total amount of funds you dealt with dishonestly amounted to at least $922,215.
3Jeremy Wayne Clark, you were tried separately in respect of one set of allegations from which you were convicted of six charges of theft and one charge of false accounting. In addition, you have pleaded guilty to one charge of dishonestly obtaining a gain. The total amount of funds you dealt with dishonestly amounted to at least $231,969.
4You must each now be sentenced for that offending.
Preliminary remarks - Geoffery Wayne Clark
5Geoffrey Wayne Clark, each of the three juries that convicted you of these offences comprised 12 men and women who had been randomly selected from the community.
6Before those jurors were selected, they were told that approximately 20 years ago you had been a well-known activist in Aboriginal affairs and for a time occupied the position of Chair of the then Aboriginal and Torres Strait Islander Commission, known as ATSIC.
7They were told that it is a fundamental tenet of our criminal justice system that jurors bring a fair and impartial mind to the issues to be decided in the trial.
8They were told that because of what they knew about you or because they disagreed with a view they believed you may have expressed and they could not bring an impartial mind to the trial then they were required to excuse themselves.
9They were told if they felt that they were unable to put aside any personal feelings or any bias or sympathy that might arise from what they knew about you then they were required to excuse themselves.
10They were told that it was critical that you only be judged, by the jury on the basis of the charges brought against you and the evidence presented in the trial, not on any information obtained outside the courtroom.
11They were told under no circumstances would any juror be permitted during the course of the trial to use the internet or any other means to conduct research about you or any matter connected with the trial.
12They were told that like every other citizen in this state you were entitled to a fair trial according to law and to an impartial jury assessing only the evidence presented in the courtroom.
13The juries that tried you and delivered the verdicts which I will set out below, could have been in no doubt as to their obligations to faithfully and impartially decide the issues according to the evidence before them.
14Now in sentencing you, I must take a like approach.
15You must be sentenced in accordance with the rule of law, independently of any outside influences, only on the evidence before me and without fear or favour. Whilst you must be punished for your offending, like everyone else in our community who falls to be sentenced, you are entitled to a measured, reasoned and proportionate response to the wrongs you have committed.
Preliminary Remarks - Jeremy Wayne Clark
16Jeremy Wayne Clark, as was the case in respect of your father, the jury that separately tried and convicted you, comprised 12 men and women randomly selected from the community.
17Before those jurors were selected they were told that you were the eldest son of Geoffrey Wayne Clark and that although Geoffrey Clark was not on trial in that proceeding, his statements and actions would figure prominently in the evidence to be given at trial because it was to be alleged that he together with you engaged in a joint criminal enterprise to steal the funds that were the subject of the charges.
18Just as in your father’s trials the jurors were told that they were required to excuse themselves if they felt they could not put aside any bias or sympathy or bring an impartial mind to the trial.
19Your jury could have been in no doubt as to their obligations to faithfully and impartially decide the issues according to the evidence before them.
20In sentencing you, I must take a like approach. You are entitled to the same measured, reasoned and proportionate response to your offending.
The charges and verdicts
21Before I summarise the factual basis for sentence, I should set out the specifics of the charges and the jury verdicts. I will then attempt to provide some context by describing the setting in which the offending occurs.
| The First Trial: Geoffrey Clark – Legal fees | |||||
| Charge | Description of Offending | Quantum | Verdict on 1 December 2023 | ||
| Indictment: C1812137.A1 | |||||
| 1 | Theft 19 September 2002 from KWCI | $10,000 | Acquitted by jury (unanimous) | ||
| 2 | Theft 3 October 2002 from KWCI | $2,000 | Acquitted by jury (unanimous) | ||
| 3 | Theft 10 October 2002 from KWCI | $10,000 | Acquitted by jury (unanimous) | ||
| 4 | Theft 17 February 2003 from KWCI | $50,000 | Convicted by jury (unanimous) | ||
| 5 | Theft 17 February 2003 from MLC | $100,000 | Convicted by jury (unanimous) | ||
| 6 | Theft 8 April 2003 from KWCI | $40,000 | Acquitted by jury (unanimous) | ||
| 7 | False accounting 10 June 2003 of KWCI | N/A | Acquitted by jury (unanimous) | ||
| 8 | False accounting 30 June 2003 of KWCI | N/A | Acquitted by jury (unanimous) | ||
| 9 | Theft 22 October 2003 from MLC | $50,000 | Convicted by jury (unanimous) | ||
| 10 | Theft 7 April 2004 from KWCI | $1,969 | Convicted by jury (unanimous) | ||
| 11 | Theft 13 April 2004 from KWCI | $20,000 | Convicted by jury (unanimous) | ||
| 12 | Theft 21 April 2004 from KWCI | $2,575 | Convicted by jury (unanimous) | ||
| 13 | Theft 6 September 2004 from KWCI | $45,000 | Convicted by jury (unanimous) | ||
| 14 | Theft 20 December 2004 from KWCI | $15,000 | Convicted by jury (unanimous) | ||
| 15 | Theft 7 February 2005 from KWCI | $4,800 | Acquitted by jury (unanimous) | ||
| 16 | Theft 9 May 2005 from KWCI | $4,800 | Convicted by jury (unanimous) | ||
| 17 | Theft 4 August 2005 from KWCI | $15,000 | Convicted by jury (unanimous) | ||
| 18 | False accounting on or about 29 September 2005 of Gariwerd Enterprises $30,000 transfer for ‘Chair services’ | N/A | Acquitted by jury (unanimous) | ||
| 19 | Theft 8 March 2006 from KWCI | $30,000 | Convicted by jury (unanimous) | ||
| 20 | Theft 27 October 2006 from KWCI | $30,000 | Convicted by jury (unanimous) | ||
| 21 | Theft 12 January 2007 from FAT | $20,000 | Convicted by jury (unanimous) | ||
| 22 | Theft 14 February 2007 from FAT | $5,000 | Convicted by jury (unanimous) | ||
| 23 | Theft 25 May 2007 from KWCI | $15,000 | Convicted by jury (unanimous) | ||
| 24 | OFABD (course of conduct) between 13 September 2005 and 3 June 2015 from KWCI and FAT | $27,354.45 | Convicted by jury (unanimous) | ||
| 25 | OFABD (course of conduct) between 27 February 2006 and 23 September 2011 from KWCI and FAT | $3,056.61 | Convicted by jury (unanimous) | ||
| 26 | OFABD (course of conduct) between 27 February 2006 and 10 April 2018 from KWCI and FAT | $25,609.96 | Convicted by jury (unanimous) | ||
| 27 | Statutory perjury 16 January 2007 | N/A | Convicted by jury (unanimous) | ||
| 28 | Giving false testimony in a Commonwealth proceeding 30 July 2013 (allegedly false evidence in the Federal Court that a property at 81 Scott Road, Halls Gap was owned by Framlingham Aboriginal Trust) | N/A | Acquitted by jury (unanimous) | ||
| Total quantum of charges proven | $460,365.02 | ||||
| The Third Trial: Geoffrey Clark – Rental monies and eels | |||||
| Charge | Description of Offending | Quantum | Verdict on 2 May 2024 | ||
| Indictment: C1812137.2A | |||||
| 1 | Theft (course of conduct) between 13 April 2009 and 9 May 2011 from KWCI | $14,850 | Convicted by jury (unanimous) | ||
| 2 | Theft on or about 16 June 2009 from FAT (alleged theft of EA8 eel licence) | Not known | Acquitted by jury (majority) | ||
| 3 | Knowingly dealing with proceeds of crime between 19 December 2013 and 24 July 2015 from Framlingham Aboriginal Trust | “Money” | Convicted by jury (unanimous) | ||
| 4 | Theft between 1 December 2009 and 1 April 2010 from KWCI (alleged theft of Cooper Street shed rental money) | $4,939.10 | Acquitted by jury (unanimous) | ||
| Total quantum of charges proven | $14,850 (not including unascertained amount derived from Charge 3) | ||||
| The Fourth Trial: Geoffrey Clark – Shares and windfarm money | |||||
| Charge | Description of Offending | Quantum | Verdict on Varying Dates | ||
| Indictment: C1812137.3A | |||||
| 1 | OFABD 7 December 2009 from the estate of the late Raymond Clarke | $19,000 approx. | Directed acquittal - 21 May 2024 | ||
| 2 | OFABD 9 November 2001 from the estate of the late Robert Clark | $47,000 approx. | Convicted by jury (unanimous) - 28 May 2024 | ||
| 3 | Theft 2 May 2011 from FAT | $400,000 | Convicted by jury (unanimous) - 28 May 2024 | ||
| 4 | Statutory perjury on 21 November 2012 | N/A | Convicted by jury (unanimous) - 28 May 2024 | ||
| 5 | Giving false testimony in a Commonwealth judicial proceeding 30 July 2013 | N/A | Convicted by jury (unanimous) - 28 May 2024 | ||
| Total quantum of charges proven | $447,000 approx. | ||||
| The Second Trial: Jeremy Clark – Legal fees | |||||
| Charge | Description of Offending | Quantum | Verdict on Varying Dates | ||
| Indictment: C1812137.B2 | |||||
| 1 | Theft 19 September 2002 from KWCI | $10,000 | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 2 | Theft 3 October 2002 from KWCI | $2,000 | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 3 | Theft 17 February 2003 from KWCI | $50,000 | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 4 | Theft 17 February 2003 from MLC | $100,000 | Convicted by jury (unanimous) - 7 March 2024 | ||
| 5 | False accounting 10 June 2003 of KWCI | N/A | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 6 | False accounting 30 June 2003 of KWCI | N/A | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 7 | Theft 22 October 2003 from MLC | $50,000 | Convicted by jury (unanimous) - 7 March 2024 | ||
| 8 | Theft 7 April 2004 from KWCI | $1,969 | Convicted by jury (majority) - 7 March 2024 | ||
| 9 | Theft 13 April 2004 from KWCI | $20,000 | Convicted by jury (majority) - 7 March 2024 | ||
| 10 | Theft 21 April 2004 from KWCI | $2,575 | Acquitted by jury (unanimous) - 7 March 2024 | ||
| 11 | Theft 6 September 2004 from KWCI | $45,000 | Convicted by jury (majority) - 7 March 2024 | ||
| 12 | Theft 20 December 2004 from KWCI | $15,000 | Convicted by jury (majority) - 7 March 2024 | ||
| 13 | Theft 9 May 2005 from KWCI | $4,800 | Directed acquittal - 23 February 2023 | ||
| 14 | Theft 4 August 2005 from KWCI | $15,000 | Directed acquittal - 23 February 2023 | ||
| 15 | False accounting 29 September 2005 of Gariwerd | N/A | Convicted by jury (majority) - 7 March 2024 | ||
| 16 | Theft 8 March 2006 from KWCI | $30,000 | Directed acquittal - 23 February 2023 | ||
| 17 | Theft 27 October 2006 from KWCI | $30,000 | Directed acquittal - 23 February 2023 | ||
| 18 | Theft 12 January 2007 from FAT | $20,000 | Directed acquittal - 23 February 2023 | ||
| 19 | Theft 14 February 2007 from FAT | $5,000 | Directed acquittal - 23 February 2023 | ||
| 20 | Theft 25 May 2007 from KWCI | $15,000 | Directed acquittal - 23 February 2023 | ||
| Total quantum of charges proven | $231,969 | ||||
| Plea Indictment: Jeremy Clark - FaHCSIA | |||||
| Charge | Description of Offending | Quantum | Verdict | ||
| Indictment: C1812137.1C | |||||
| 1 | Do anything with the intention of dishonestly obtaining a gain between 22 July 2009 and 1 October 2009 from FaHCSIA (rolled up charge) | $10,780 | Plea of guilty - 2 September 2024 | ||
| Total quantum | $10,780 | ||||
The setting in which the offending occurred
22Geoffrey Clark, you were born in August 1952 and are now 72 years of age. You are a Tjap Whurrong man from Western Victoria. You were raised in a community of Kirrae Whurrong people living on their traditional lands at Framlingham, the site of a former Aboriginal mission located about 20 kilometres northeast of Warrnambool.
23The Framlingham community comprises 17 houses occupied by about 65 residents who were, in the main, descendants of the Clark, Clarke, Chatfield and Harradine families.
24The Aboriginal Lands Act 1970 (Vic) established the Framlingham Aboriginal Trust (the Trust). The Act conferred the land at Framlingham to the Trust and allocated shares amongst its original residents. 1000 shares were given to the adults and 500 to their children. You, Geoffrey Clark, received 500 trust shares in the original distribution.
25The Trust was governed by a committee of management. You were the Chief Executive Officer of the Trust. You were also elected a Commissioner of ATSIC in 1996 and later appointed its National Chair. At all relevant times you exercised a significant leadership role in the community and wielded considerable power and control over the community’s expenditure and activities.
26You, Jeremy Clark, are a Peek Whurrong and Tjap Whurrong man who was born in June 1973. You are the eldest of the three children of your parents, Geoff and Trudy. From the age of four or so you lived at Framlingham. You took over your father's role as CEO of the Framlingham Aboriginal Trust in the years 2000 to 2004 whilst your father was Chair of ATSIC.
27The Trust is one of the main entities from which money was stolen. There were three other associated entities from which funds were dishonestly appropriated. They were the Kirrae Whurrong Community Incorporated (KWCI), the Maar Land Council (MLC) and Gariwerd Enterprises Ltd (Gariwerd).
28KWCI was established as the commercial arm of the Framlingham community. Whilst the Trust received an allocation of government funds (in the order of $150,000 per year) overseen by Aboriginal Affairs Victoria,[1] the KWCI was independent of government. KWCI generated its own funds from a number of economic initiatives. It was also overseen by a committee of management the composition of which virtually mirrored the Trust’s committee of management. It included both of you.
[1] The adequacy of Aboriginal Affairs Victoria’s oversight of the Trust was the subject of some evidence during the trials and is addressed later in these reasons.
29The MLC was an association formed to assist Aboriginal people make native title claims and claims for compensation for acts affecting native title.
30In 2001, you Jeremy Clark, negotiated the terms of an Indigenous Land Use Agreement (ILUA) in respect of the Birregurra Paaratte Pipeline on behalf of the MLC. You reported these matters to the Trust and to the KWCI committees of management on which Geoffrey Clark sat. You informed those bodies that sums paid under the ILUA were held by the MLC on trust, pending identification of the traditional owners entitled to the money. The ILUA generated $150,000 which was paid in three equal instalments on 2 July 1999, 9 August 1999 and 20 June 2002.
31Gariwerd is the Aboriginal name for the Grampians. Gariwerd Enterprises Ltd is the entity that sits behind Brambuk Incorporated and the Brambuk Living Cultural Centre Cooperative at Halls Gap. You, Geoffrey Clark, were the Chair of the Brambuk Board. You, Jeremy Clark, throughout the 2000’s, except for the period 2000 to 2004 when you were working at Framlingham for the Trust, were the CEO/Manager of Brambuk. You returned to your role at Brambuk in 2005 after ATSIC was disbanded and your father returned to the position of CEO of the Trust.
32It is perhaps easier to understand how these offences came to be committed by describing them chronologically rather than summarising each set of allegations from the separate trials.
The acquisition of Framlingham Aboriginal Trust shares
33The Aboriginal Lands Act 1970 (Vic) mandated a process whereby trust shares could be transferred and sold between community members and their descendants. All sales of trust shares had to be made at a price fixed by an independent auditor. The prosecution alleged that you, Geoffrey Clark, knew of this requirement. That was so because you were CEO of the trust in 1998 when there had been an earlier share re-distribution known as the ‘Kikkabush split’ for which an independent audit had been obtained. The shares were then valued at between $52.01 to $63.31 each. The manner in which those figures were calculated was set out in an auditor’s report provided by Wilson Sinclair to the Trust.
34At trial, the prosecution alleged that you had determined to acquire a strong shareholding in the Trust so as to enable you to exert considerable influence over community decision making.
35Robert Percival Clark, one of the original residents of Framlingham at the time share ownership was declared under the Act, owned 1000 shares. He passed away on 5 December 1997. His sister, Jessie Edith McDowell, was the sole beneficiary of his estate. You, Geoffrey Clark, were the executor of the estate.
36Ms McDowell engaged solicitors to assist her. They corresponded with you to enable them to correctly value the shares and in so doing referenced the Wilson Sinclair valuation report. You told the solicitors the 1000 shares were valued at $5000, that is at $5 a share. You subsequently filed legal documents as executor of the estate confirming that the shares were valued at $5 each.
37In the early 2000s Ms McDowell decided to sell her shares and liaised specifically with you, Jeremy Clark, in your capacity as CEO of the Framlingham Aboriginal Trust. On 9 November 2001 she signed a formal instrument transferring her 1000 shares over to you, Geoffrey Clark. You, Jeremy Clark personally presented Ms McDowell with a cheque for $5000.
38A formal instrument of transfer was signed by you, Geoffrey Clark, on 12 April 2002. As a result, you acquired 1000 shares at a significantly undervalued sum which at a minimum was $47,010 less than their true value. In consequence Ms McDowell was significantly financially disadvantaged.
39That conduct makes out the offence of obtaining financial advantage by deception - Charge 2, Fourth Trial.
The theft of monies to pay Geoffrey Clark’s personal legal fees
40In the early 2000’s you, Geoffrey Clark, became involved in a number of complex legal proceedings. Those proceedings variously related to:
(a) Criminal prosecutions concerning an allegation of rape said to have occurred in 1981;
(b) An obstructing police charge arising from an incident at the Criterion Hotel in Warrnambool on 2 May 2002;
(c) Civil actions in respect of two sets of historical rape allegations arising in 1971 and 1981; and,
(d) Unfair dismissal proceedings brought by you against the Commonwealth government in respect of your dismissal from ATSIC.
41You engaged Coadys Solicitors to represent you in these matters.
42These proceedings, which included multiple appeals, generated legal bills that exceeded $900,000. You, Geoffrey Clark, paid a portion of those bills, something in the order of $400,000, with your own money. You were also able to apply some funds obtained from the sale of cattle you had owned. There was however a considerable shortfall.
43To assist you meet these personal legal fees a ‘Fighting Fund’ was established. Aboriginal and Torres Strait Islander organisations were asked to make contributions to that fund. Brambuk contributed $30,000, Budja Budja contributed $5000 and Mildura Aboriginal Co-Operative contributed $5000. That $40,000 was the extent of contributions made under the Fighting Fund. A significant deficit remained.
44At regular intervals, your solicitors required additional funds to be paid into their trust account to fund the ongoing legal proceedings. In the first and second trials, the prosecution alleged that it was in that setting you both engaged in a joint criminal enterprise to use your influence over the entities in which you held positions to illegally divert funds to pay Geoffrey Clark's personal legal fees.
45At first, the payments to Coadys, at least ostensibly, were properly accounted for as loans. However, over time the payments were deliberately and falsely mischaracterised as legitimate expenses. Payments were subsequently described as ‘Legal Fees – Expense’ and ‘Comm Activities – Expense’ despite the fact that they were not expenses of the relevant entity but rather payments for the personal legal fees of Geoffrey Clark. Other payments were simply concealed as “Stock Sales- Income”.
46These payments were made by the bookkeepers of the Trust, KWCI and Gariwerd/Brambuk at the direction of you, Geoffrey Clark, or you, Jeremy Clark. To that end, accounting records were kept deliberately vague so as to hide the nature and extent of the sums being advanced.
47The following payments were made dishonestly to pay for Geoffrey Clark’s legal fees.
48On 17 February 2003, $50,000 was transferred from KWCI to Coadys. The payment was recorded in KWCI's Ledger as “Legal Fees- Expense”. (Geoffrey Clark – First Trial, Charge 4 Theft)
49Also on 17 February 2003, $100,000 was transferred from the MLC to Coadys. The payment was recorded in the MLC's Ledger as “Legal Fees- Expense” (Geoffrey Clark - First Trial, Charge 5 Theft; Jeremy Clark - Second Trial, Charge 4 Theft).
50On 22 October 2003, $50,000 was transferred from the MLC to Coadys. The payment was recorded in the MLC's ledger as “Legal Fees – Expense”. (Geoffrey Clark - First Trial, Charge 9 Theft; Jeremy Clark - Second Trial, Charge 7 Theft).[2]
[2] Aside from the two transfers from MLC there was little activity in its account in the period 1 July 1999 to 1 May 2012. There was no record of any money being paid out to traditional owners in this period.
51On 7 April 2004, $1,969 was transferred to Coadys from KWCI. The payment was recorded in KWCI’s Ledger as “Stock Sales- Income”. (Geoffrey Clark - First Trial, Charge 10 Theft; Jeremy Clark - Second Trial, Charge 8 Theft).
52On 13 April 2004, $20,000 was transferred from KWCI to Coadys. The payment was recorded in KWCI Ledger as “Stock Sales Income”. (Geoffrey Clark - First Trial, Charge 11 Theft; Jeremy Clark - Second Trial, Charge 9 Theft).
53On 21 April 2004, $2,575 was transferred from KWCI to Coadys. The payment was recorded in the General Ledger as “Stock Sales Income”. (Geoffrey Clark - First Trial, Charge 12 Theft).
54On 6 September 2004, $45,000 was transferred from KWCI to Coadys. That transaction was recorded in KWCI’s Ledger as “Comm Activities- Expense”. (Geoffrey Clark - First Trial, Charge 13 Theft; Jeremy Clark - Second Trial, Charge 11 Theft).
55On 20 December 2004, $15,000 was transferred from KWCI to Coadys. That transaction was recorded in KWCI’s Ledger as “Legal Fees - Expense”. (Geoffrey Clark - First Trial, Charge 14 Theft; Jeremy Clark - Second Trial, Charge 12 Theft).
56On 9 May 2005, $4,800 was transferred from KWCI to Coadys. The payment was recorded in the General Ledger as “Comm Activities - Expense”. (Geoffrey Clark - First Trial, Charge 16 Theft).
57On 4 August 2005, $15,000 was transferred from KWCI to Coadys. The payment was recorded in KWCI’s General Ledger as “Com Activities- Expense”. (Geoffrey Clark - First Trial, Charge 17 Theft).
58On 29 September 2005, you Jeremy Clark directed that the financial records of Brambuk/Gariwerd be altered so that $30,000, which had been transferred to Geoffrey Clark's Fighting Fund, be described as “Chair’s Services”. This was a false description because no services were ever rendered by the Chair, Geoffrey Clark. (Jeremy Clark - Second Trial, Charge 15 False Accounting).
59On 8 March 2006, $30,000 was transferred from KWCI to Coadys. This transaction was recorded in KWCI’s Ledger as “Com Activities- Expense”. (Geoffrey Clark - First Trial, Charge 19 Theft).
60On 27 October 2006, $30,000 was transferred from KWCI to Coadys. That transaction was recorded in the Ledger of KWCI as “Com Activities- Expense”. (Geoffrey Clark - First Trial, Charge 20 Theft).
61On 12 January 2007, $20,000 was transferred from the Framlingham Aboriginal Trust to Coadys. That transaction was recorded in the Trust’s General Ledger as “legal costs- expense”. (Geoffrey Clark - First Trial, Charge 21 Theft).
62On 14 February 2007, $5,000 was transferred from the Framlingham Aboriginal Trust to Coadys. The transaction was recorded in the Trust’s Ledger as “legal costs- expense”. (Geoffrey Clark - First Trial, Charge 22 Theft).
63On 25 May 2007, $15,000 was transferred from KWCI to Coadys. That transaction was recorded in KWCI General Ledger as “Cattle Expenses- Expense”. (Geoffrey Clark - First Trial, Charge 23 Theft).
64None of these payments were authorised by the Committee of Management of the Framlingham Aboriginal Trust or KWCI. The community at Framlingham were not aware that these funds were being diverted to pay for Geoffrey Clark’s personal legal fees.
65In total you Geoffrey Clark stole $404,344, $229,344 of which was stolen from KWCI, $150,000 of which was stolen from the MLC and $25,000 of which was stolen from the Framlingham Aboriginal Trust.
66In total you, Jeremy Clark, were complicit in the theft of $231,969, $150,000 of which was stolen from the MLC and $81,969 of which was stolen from KWCI.
The fraud involving real property – Geoffrey Clark
67On 1 February 2007, you, Geoffrey Clark, were ordered to pay a considerable sum in respect of one of the two civil proceedings that were then extant. By early 2009, lawyers acting for the successful party were demanding payment and threatening further legal proceedings. On 28 May 2009, you applied for bankruptcy.
68During the period of the offending, you owned four properties registered in your name and managed by you personally:
(a) 519 O’Sullivans Rd, Wangoom;
(b) 81 Scott Rd, Halls Gap;
(c) 1865 Hopkins Highway, Purnim; and,
(d) 1867 Hopkins Highway, Purnim.
69Investigators located a folder in your home marked “Geoff’s house/land info Purnim/Halls Gap/Hopkins land”. In it they found you kept records of loan repayments and expenses such as rates, utilities and insurance on these properties over many years. You declared the rental from these properties on your personal tax return.
70You notionally divested yourself of these properties and claimed they were assets of the Framlingham Aboriginal Trust. In doing so you manipulated the accounts of KWCI and the Trust to outsource the costs of maintaining the properties. The community was unaware that its funds were being spent on your personal assets.
71Between 13 September 2005 and 3 June 2015, you dishonestly caused KWCI and the Framlingham Aboriginal Trust to pay expenses such as rates, electricity and water bills on your property at 81 Scott Road, Halls Gap to the value of $27,354.45. (Geoffrey Clark - First Trial, Charge 24 Obtaining financial advantage by deception as a course of conduct.)
72Between 27 February 2006 and 23 September 2011, you dishonestly caused KWCI and the Framlingham Aboriginal Trust to pay rates on your property at 519 O’Sullivans Rd, Wangoom to the value of $3056.61. (Geoffrey Clark - First Trial, Charge 25 Obtaining financial advantage by deception as a course of conduct.)
73Between 27 February 2006 and 10 April 2018, you dishonestly caused KWCI and the Framlingham Aboriginal Trust to pay expenses on the two neighbouring properties at 1865 and 1867 Hopkins Highway, Purnim to a combined value of $25,609.96. (Geoffrey Clark - First Trial, Charge 26 Obtaining financial advantage by deception as a course of conduct.)
74By outsourcing the payment of these expenses to the Trust and KWCI you dishonestly obtained a total of $56,020.92.
Perjury – Geoffrey Clark
75On 16 January 2007 you, Geoffrey Clark, committed perjury by swearing an affidavit in which you stated that you “[did] not own any real estate property”. You claimed that the properties at Wangoom, Halls Gap and Purnim were not yours but rather had always been owned by the Framlingham Aboriginal Trust. You made this claim in anticipation of your bankruptcy in order to protect your properties from the pool of assets to be liquidated in payment of creditors. (Geoffrey Clark - First Trial, Charge 27 Statutory Perjury.)
Personally profiting from Framlingham community assets – Part 1, Geoffrey Clark
76On 13 April 2009, Rhiannon Mortimer commenced renting a property owned by KWCI known as ‘Toorum Stones’. You, Geoffrey Clark, entered into the lease agreement with Ms Mortimer on behalf of KWCI. Over the next two years, Ms Mortimer paid $16,800 in rent however only $1950 of that amount was deposited into KWCI’s bank account. In pocketing the balance, you stole a total of $14,850 from KWCI in 28 separate instances. (Geoffrey Clark - Third Trial, Charge 1 Theft as a course of conduct.)
The fraud on the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) – Jeremy Clark
77On 22 July 2009 and 1 October 2009, you, Jeremy Clark, submitted a quote and an invoice respectively to FaHCSIA with the intention of obtaining $10,780 dollars from that Commonwealth entity. That conduct was dishonest because you represented to the Department that the money was to be spent on repairing and maintaining houses at Brambuk, Halls Gap in accordance with a government grant directed to improving houses in Aboriginal communities. The $10,780 was paid to Brambuk as part of a larger grant of $120,780 for repairs and maintenance to 10 designated properties at Brambuk.
78You authorised the expenditure of $10,000 on the conversion of a garage to a home office in Ballarat. That office was constructed for the benefit of your younger brother, Aaron Clark in October 2009. The Ballarat property was not one of the 10 designated properties subject to the grant[3] (Jeremy Clark – Plea Indictment, Charge 1 Do anything with the intention of dishonestly obtaining a gain from a Commonwealth entity - a rolled-up charge comprising two acts.)[4]
[3] The context in which this offence was committed is more fully explored in these reasons when reciting the defence submissions relevant to Jeremy Clark.
[4] I was informed that Aaron Clark has repaid this amount to the Commonwealth.
The unauthorised transfer of $400,000 – Geoffrey Clark
79Leading up to May of 2011, a number of complaints had been received by Aboriginal Affairs Victoria in respect of you, Geoffrey Clark, relating to your management of the Framlingham Aboriginal Trust. In consequence, an independent audit had been commissioned and a new administrator foreshadowed. Perceiving that your grip on the Trust was very much at risk you instructed the Trust bookkeeper to transfer $400,000 to KWCI without the authority of the Trust committee of management. Indeed, you failed to mention the transfer of this money at a meeting of the Trust committee of management held shortly afterwards on 6 May 2011. At the time of the transfer, you still retained your power and influence at KWCI.
80The Framlingham Aboriginal Trust incurred a loss of $400,000. Ultimately, the money was returned after civil proceedings were issued by the Trust. (Geoffrey Clark - Fourth Trial, Charge 3 Theft.)
Perjury and false evidence in respect of examinations of Geoffrey Clark’s assets
81Sometime before November 2012, the Framlingham Aboriginal Trust issued proceedings against you, Geoffrey Clark, seeking to resolve a dispute in respect of its shareholding. On 21 November 2012 you swore an affidavit in that proceeding in which you lied about the extent of your trust shareholdings. You did so by asserting that you held only 100 shares in the trust and that you had transferred 1900 shares to your son, Jeremy Clark, which had been approved by the Committee of Management at a meeting held on 1 May 2002.
82Those assertions were false. You in fact owned 2000 shares and held an equitable interest in a further 800 shares that had been gifted to you by your grandmother, but which had not been formally transferred. Moreover, there was no legitimate transfer of 1900 shares to your son. 1 May 2002 was a significant day in the life of the Framlingham community - the Warrnambool Race Day. At trial the jury was satisfied beyond reasonable doubt that there had not been a Trust committee of management meeting held that day. (Geoffrey Clark Fourth Trial, Charge 4 Statutory Perjury.)
83On 30 July 2013 you gave false evidence about the extent of your Framlingham Aboriginal Trust shareholding in the Federal Court of Australia. At that time, you were examined on oath as to your assets in the context of your application to be declared bankrupt. You repeated the same false assertions I have set out above. It will set out precisely what you were asked and how you answered.
Question: ‘Now, I think you mentioned before that the – there were share issues in the trust?’
Answer, ‘Yes.’
Question: ‘And you also said that you held, as at the date of your bankruptcy, 100 shares?’
Answer, ‘That’s correct…’[5]
[5] Redacted transcript of Federal Court Bankruptcy hearing (as at 20 May 2024) (Geoffrey Clark - Fourth Trial, Charge 5 Giving False Testimony),p 9, line 115-116.
Question: ‘Now, this is a document headed, “Instrument of transfer – ordinary shares”?’
Answer, ‘Okay.’
Question: ‘Do you see that?’
Answer, ‘Yes.’
Question: ‘Of 1900 shares?’
Answer, ‘That’s correct.’
Question: ‘And was the case that you previously held 2000 shares?
Answer, ‘Yes.’
Question: ‘Now, there is a date there of 1 May 2002; do you see that?’
Answer, ‘Yes.’
Question: ‘And a signature besides it?’
Answer, ’That’s my…’
Question: ‘Is that your signature?’
Answer, ‘Yes.’[6]
[6] Redacted transcript of Federal Court Bankruptcy hearing (as at 20 May 2024) (Geoffrey Clark - Fourth Trial, Charge 5 Giving False Testimony), p 9, line 129.
Question: ‘And then below that another date: 1 May 2002. The common seal of the trust, and a signature?’
Answer, ‘Yes, yes.’
Question: ‘Do you recognise that as Jeremy’s signature?’
Answer, ‘Jeremy’s signature, yes.’
Question: ‘Was your signature – did you sign this document on 1 May 2002?’
Answer, ‘Possibly, yes.’
Question: ‘You are unsure about that?’
Answer, ‘Well, whenever it was – the instrument was- whether it was done on the day or the day after, I can’t be sure, but certainly near that – near that date.’
Question: ‘Is it possible it was prepared and signed much later than 1 May 2002?’
Answer, ‘No.’[7]
[7] Redacted transcript of Federal Court Bankruptcy hearing (as at 20 May 2024) (Geoffrey Clark - Fourth Trial, Charge 5 Giving False Testimony), p 10, line 130.
Personally profiting from Framlingham community assets – Part 2, Geoffrey Clark
84In April 2009, the Framlingham Aboriginal Trust purchased an eel fishing licence known as EA8. In June 2009, ownership of the licence was transferred to a private family company known as Maar Natural Products Pty Ltd (MNP). The only directors of that company were you, Geoffrey Clark, your wife, and two of your sons. Thereafter you, dealt with Fisheries Victoria in respect of that licence on behalf of MNP.
85The Trust also owned a second eel fishing licence known as EA9. Both EA8 and EA9 were fished by the same fisherman in the period December 2013 to July 2015. You collected regular cash payments from those fishermen in respect of both licences. At trial, the prosecution could not establish with precision what sum of money you dealt with as the proceeds of crime in respect of the EA8 licence. However, the fishermen estimated approximately $105,000 was paid in total and that about a quarter of this (about $26,000) was paid in respect of the EA8 licence. (Geoffrey Clark - Third Trial, Charge 3 Knowingly Dealing with the Proceeds of Crime.)
Total quantum of offending
86The total value of the frauds committed by you, Geoffrey Clark, amount to $922,215.02. That figure does not include the offence of knowingly dealing with the proceeds of crime where the quantum dealt with could not be ascertained with any precision.
87The total value of the frauds in which you, Jeremy Clark, were complicit amount to $231,969. That calculation does not include the offence of false accounting (Second Trial, Charge 15) and the offence of dishonestly obtaining a gain from a Commonwealth entity (Plea of Guilty, Charge 1).
Victim Impact
88Victim impact statements were provided by Geoff ‘Possum’ Clark-Ugle (redacted), Billy Joe McGuiness (redacted) and Edward ‘Ted’ Laxton.[8]
[8] Mr Laxton’s statement was not relevant to, and was not taken into account, in respect of Jeremy Clark.
89For Mr Clark-Ugle, this offending has undermined his trust and faith in the governance of his community. That community remains ‘fractured’ and is still yet to recover. The share register fraud distorted voting entitlements in the Trust and caused he and his family significant detriment. The theft of monies for Geoffrey Clark’s personal gain, had not just deeply impacted him personally but also the wider community which would have otherwise benefited greatly from the use of those funds.
90Mr McGuiness felt strongly about the impact of these frauds. In his view, they had engendered a great deal of resentment and division within the community. He said that you, Geoffrey Clark, had “…not just spiritually hurt our people but financially raped us…”.[9]
[9] Exhibit C on the plea – Redacted victim impact statement 10 September 2024.
91Edward Laxton explained that he is now aware that his mother was deceived as to the price of the shares you, Geoffrey Clark, purchased. He says that if she had been paid their real worth his mother would have had a much better and more comfortable senior life. He very much regrets that she was deprived of that opportunity.
92You should both understand that the impact this offending has had on these victims and the wider Framlingham community is an important consideration in formulating the sentence to be imposed.
93Having summarised the offending and the victim impact statements I will now turn to your personal circumstances and the submissions as to the appropriate sentences to be imposed.
Geoffrey Clark - personal circumstances
94You were born in Melbourne in 1952. Your mother, who was Aboriginal, was from the Framlingham area whereas your father had a Scottish background and worked as a painter and docker in Melbourne. Although you had some contact with your father into your teens, he did not play a meaningful part in your life.
95Your mother worked in various factories in inner Melbourne. She sent you back to Framlingham to be cared for by your grandparents when you were between three and six months of age. Your counsel explained that it was common practice to send children, particularly those of fair complexion, back to places like Framlingham to be raised in the bush by extended family as a way of avoiding government policies in place at the time that forced the removal of Aboriginal children from their families.
96You were brought up by your grandmother, Alice. During the years you were raised at Framlingham conditions were very basic. You lived in a small timber house built in the 1930s with no water, no sewerage and no electricity. You have two older sisters who were also raised at Framlingham. They went on to live successful lives in the region and raise strong families. You keep in regular contact with them.
97In 1970, your mother returned to Framlingham after she had formed a relationship with a Brian Davis. She remained at Framlingham until her death in 2020. Mr Davis provided a personal reference in support of your plea in which he described arriving at Framlingham to find the community in what he said was “…abject poverty and in total decline”.
98He and your mother started the first health service which later became the Kirrae Health Service. He says that as administrator of the trust, you were instrumental in introducing and improving infrastructure such as sewerage, water, waste removal, housing and land management.
99As a child growing up at Framlingham, you were taught to hunt and fish using traditional methods and absorbed Aboriginal culture under the guidance of community Elders. There was a school at the Framlingham Aboriginal Community where you completed your primary schooling. You then went to secondary school in Warrnambool where you completed Year 11.
100You found the transition to schooling in Warrnambool challenging. Racism was the norm and you were regularly taunted and bullied about your Aboriginal identity. It was often suggested that you were too white to be Aboriginal. I was told that was a theme of abuse that continued to be levelled at you throughout your adult life.
101Although, the prejudice and racism you experienced as a child and into your early adult years was traumatising, I was told that you now feel it also had the effect of strengthening your sense of identity and pride as an Aboriginal man. It motivated you to become politically active.
102You excelled at sport, particularly football. Your talent enabled you to gain acceptance amongst your peers and the wider community. You played in Aboriginal representative teams at both state and national level and you were named five times in the All-Australian Aboriginal Football Team, once as captain coach.
103Not long after finishing school, you met your future wife Trudy around 1971 and travelled with her to Perth where you played football for about three years at a high level in the Western Australian Football League. You played with Claremont and then Subiaco. You then spent a further year playing in Adelaide for Norwood before returning to Framlingham at the age of 26.
104Your first son, Jeremy, had been born in 1973 as you were making your way to Perth. Your second son was born back at Framlingham in 1981 and the third in 1987. At the time of your return, living conditions at Framlingham remained significantly disadvantaged. Few in the community had jobs, there was little money and infrastructure, there were chronic health problems and significant drug and alcohol abuse.
105In 1979, you first took on the formal role of administrator at Framlingham, replacing your cousin Lenny Clark. At that time your only real-life experience had been as a footballer and you had nothing in the way of skills or training to equip you to perform that sort of managerial role. Nevertheless, you threw yourself into the work.
106As Mr Davis explained in his reference, you were instrumental in bringing families back to Framlingham and reconnecting them with their country. Through your hard work and advocacy I was told that you achieved enormous improvements in the community’s infrastructure such as sewerage, waste removal, water and housing. You were also instrumental in establishing a self-sustaining economic base for the community through the acquisition of things such as stock and farm assets and the like.
107As part of your work, you started to connect with other Aboriginal organisations for example, you would attend Land Council meetings at the state and then national level. Your interests quickly grew to encompass Aboriginal advancement and self-determination more broadly. During the 1980s you became particularly active on issues such as native title and the over representation of Aboriginal people in the criminal justice system and prisons.
108In 1985 you attended the United Nations in Geneva with the Federation of Land Councils. You were involved in developing and drafting the articles of the United Nations Declaration of the Rights of Indigenous People. I was told that by 2007 that declaration had been ratified by 184 nations.
109You attended the first meeting of the National Aboriginal Health Organisation in 1985 and became a founding member of the National Coalition of Aboriginal Organisations. Among the many causes you advocated, you were particularly active in campaigning for a treaty, for native title and in establishing the Brambuk Living Cultural Centre at Halls Gap.
110The Aboriginal and Torres Strait Islander Commission was established in the early 1990s. You were elected to the board of ATSIC in December 1996 for a three-year term as the Victorian Commissioner and native title spokesperson. In December 1999, you became Australia’s first and only national chairperson of ATSIC.
111Your counsel took me to a speech you had made on the steps of the Sydney Opera House at an event known as Corrobboree 2000, which was described as a ceremonial gathering of Indigenous and non-Indigenous Australians to exchange commitments in the lead up to the centenary of federation in 2001. The speech called for reconciliation but on just terms for First Nations Peoples. The following day there was a walk for reconciliation across the Sydney Harbour Bridge attended by as many as 250,000 people. You were one of the leaders of that march.
112During your time as Chair of ATSIC, you functioned at a very high political level on the national and sometimes international stage. That came to an end in 2004 or so in the wake of your conviction for obstructing police arising out of the Criterion Hotel incident. ATSIC was soon afterwards abolished.
113You returned to Framlingham to resume your role as administrator of the Trust. You also worked as Chair of the Indigenous Land Corporation securing a number of properties for the Trust and some of the family groups associated with Framlingham. You continue to be active in Aboriginal affairs, for example you are a signatory to the Uluru Statement from the Heart. You are a senior cultural knowledge holder and maintain significant cultural responsibilities and obligations within your community.
114I was told you are proud of your three sons. The eldest, Jeremy, was the first person from Framlingham to finish Year 12. Your middle son is now an adjunct professor at the Australian Graduate School of Management at UNSW and your youngest son is a practising lawyer. You are a grandfather to nine grandchildren and now have a great granddaughter.
Character evidence – Geoffrey Clark
115Whilst you do have a previous criminal history it essentially comprises street offending when you were much younger. There are no prior matters involving dishonesty. I do not regard those matters as relevant to formulating sentence.
116There were 27 personal references tendered in support of your plea. They speak of a side to your character that was not particularly apparent during the trials. Many of the authors of those references shared with you the struggle in advocating for Indigenous rights throughout the 1980’s, 1990’s and into the 2000’s.
117Almost universally those references laud the commitment and strength of leadership you showed through those years, often in a hostile environment. Clearly, you have given much and earned the respect of many. Those close to you perceive that you have been judged too harshly by the outside world and your achievements overlooked.
118Your years in the public glare have taken their toll on you and your family. Your health is not good. According to your treating general practitioner, you suffer from an array of chronic conditions such as diabetes, glaucoma, hypertension, truncal obesity, osteoarthritis and gastro-oesophageal reflux disease. You require multiple medications to manage these conditions, and I accept that imprisonment is likely to be more burdensome for you.
119You remain actively involved in managing community land and assets. You volunteer more than full time hours each week to the management of land and farm properties owned by KWCI and Brambuk. As I have indicated you also have significant cultural responsibilities attached to managing that land. For example, you are a senior knowledge holder for the native title Eastern Maar community and you remain involved in active native title claims.
Defence submissions - Geoffrey Clark
120In submissions on your behalf Mr Kenny, who appeared with Ms Buckley, acknowledged that the jury verdicts meant that you had offended over a long period of time, that you had engaged in multiple acts of criminality, that you had obtained a substantial sum of money and in so doing breached the trust of your community. It was accepted that general deterrence and denunciation must therefore play an important role in the sentencing process.
121Mr Kenny pointed out however that the quantum in respect of Charge 3 on Indictment C1812137.3A (theft of $400,000) had been recovered by the Trust. It was also submitted that Charge 2 on the same Indictment, relating to the obtaining of undervalued shares, involved an amount of money that was essentially a creation of statute which was not realistically capable of being realised.
122Although previous good character and prospects for rehabilitation play a lesser role in formulating sentence in white collar matters, they are still very important. Given your otherwise good character, particularly your history of work and contributions to the community, it was submitted that your prospects for rehabilitation should be assessed as being excellent. Your prior convictions were old and of limited relevance.
123The fact that you pleaded not guilty cannot be an aggravating circumstance. The sentencing principle of totality requires careful application in your case. It was also put that the offences of perjury and giving false evidence, whilst serious, “were not directed towards a false conviction or acquittal in a criminal case”.[10]
[10] Outline of Plea Submissions, Geoffrey Clark, 10 September 2024, [39].
124It was submitted that you are of advanced years and in poor health and that any period of imprisonment will represent a significant part of the period of life you have left. Moreover, imprisonment is likely to be much more onerous for you, than for a younger healthier person.
125It was also noted that there had been a significant delay of about six years since the time you were first charged in respect of these matters. You have not reoffended, and you have lived with the uncertainty of these matters hanging over your head throughout that time.
126Counsel argued that in addition you have also been subject to significant adverse publicity, a good deal of which was said to be unfair or unwarranted.
127It was submitted, given your age and ill health, your immense contributions to the community, the delay in the resolution of these proceedings and the public opprobrium to which you have been subjected, that the appropriate penalty should include a lengthy period of supervision in the community.
128Counsel put that “[w]hilst it is acknowledged that the court may determine that Mr Clark must be imprisoned, it is submitted that the period of supervision could be facilitated by a Community Correction Order.”[11] I took that submission to suggest that any sentence of imprisonment imposed could be combined with a community correction order in which case the imprisonment component could be no longer than 12 months.[12]
[11] Ibid, [57].
[12] Sentencing Act 1991 (Vic) s 44(1).
Prosecution submissions – Geoffrey Clark
129Mr Lewis SC, who appeared with Ms Jones and Ms Addams, submitted that your offending, represented a significant abuse of your position as leader of the Framlingham Aboriginal community. It was submitted that your moral culpability should be assessed in light of the following:
(a) You obtained a significant amount of money, $922,215.02 overall, and committed multiple offences over a period in the order of 17 years (2001 – 2018);
(b) You offended for your own personal benefit - $404,344 to pay for your personal legal fees, $14,850 in stolen rent and a sum in the vicinity of $26,000 from the proceeds of the EA8 eel licence;
(c) Some of the offending involved profiting from unfair transactions with other community members in particular approximately $47,000 in undervalued trust shares;
(d) Part of the motivation for these thefts was to maintain your power and influence over the community for example, you stole $400,000 from the Trust transferring it to KWCI at a time when you faced imminent removal from the Trust;
(e) You deliberately misled the community as to its ownership of its assets. You manipulated its accounts so as to have your liabilities on your houses paid by the community. You also told lies in legal proceedings in respect of the ownership of your houses and trust shareholdings; and
(f) You also exploited weak systems of governance to extract gain for yourself and in so doing further weakened those systems. It was put that you treated the funds of these entities as an extension of your own personal bank account to dip in and out of as it suited you.
130It was argued that your offending was all the more “morally reprehensible” having regard to the significant historical disadvantage experienced by First Nations People. Moreover, the money stolen represented money gained from limited government funding and a number of significant economic initiatives undertaken by the community such as the ILUA. The fact was that money was to be spent, as was made clear in KWCI’s statement of purposes, “to relieve the poverty, sickness, destitution, suffering, misfortune and helplessness of the Aboriginal inhabitants of the area.”[13]
[13] Outline of Prosecution Sentencing Submissions, 11 September 2024, [5].
131It was submitted that in some senses you had led a double life where on one hand you had “done good works” but in parallel had offended over many years. It was said that you developed a sense of entitlement which illuminated the nature of your offending.
132The argument that the share price set under the Aboriginal Lands Act 1970 (Vic) was unrealistic was to be rejected. It was submitted that if anyone had the capacity to pay the price set under the Act, it was you.
133It was submitted that general deterrence and denunciation should carry particular weight in this sentencing exercise having regard to the well-recognised principles associated with sentencing white-collar crime, which it was submitted applied in these circumstances. The following often cited passage from the judgment of Charles JA in Bulfin[14] was cited in support:
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 the 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 the requirement for strong denunciation by the sentencing court.
[14] DPP v Bulfin [1998] 4 VR 114, [131]-[132].
134Typically, white-collar offenders present as unlikely to offend again because their exposure means they will be deprived of the opportunity to do so. In your case however it was submitted that specific deterrence should be emphasised due to the persistent nature of this offending and your continuing involvement in the Trust.
135Ultimately, it was contended that only a custodial term of imprisonment involving the imposition of a head sentence together with a non-parole would be within the range of available sentences.
Jeremy Clark - personal circumstances
136Your counsel, Mr Moore who appeared with Mr Pyne, submitted that understanding your personal history was central to understanding your offending and the important matters in mitigation in your case.
137You are a 51 year old man with no criminal history whatsoever.
138You were born in Mount Gambier at the time your mother and father were travelling to Western Australia where your father was to play football. You lived with your parents in Perth for three years and then a further year in South Australia before returning to Framlingham.
139As I described in setting out your father’s personal history, Framingham, at that time, was quite impoverished. There were no paved roads or services. Few people had jobs or vehicles and chronic health problems were rife. Your earliest memories are of living in an old bus without electricity or running water. Over time the situation improved somewhat. For example, you recall moving into a house with electricity and running water just before your younger brother was born in 1981.
140You attended the Purnim Primary School which consisted of a single room with one teacher and 22 children across all year levels. When you went to high school in Warrnambool, you struggled with your classwork and had to catch up by learning the things that you did not learn in primary school. Your mother arranged for you to receive some private tutoring to assist you.
141Not unlike the experience of your father, secondary schooling presented other challenges. You were looked down upon because you were from Framlingham. Racial abuse and bullying was still common. Fortunately, you were a talented footballer and through that avenue made friends. Over time you became more settled and your grades improved such that you were able to complete Year 12 in 1991.
142Although you were the first person to finish Year 12 from Framlingham, further education was not considered a realistic option. There were no teachers or mentors at school who encouraged you to go to university. It was expected that you would go straight into the workforce. For the next five years or so you worked in manual jobs such as farm labouring and helping to protect cultural heritage sites.
143In 1996, when you were about 23, you were appointed administrator of the Framlingham Aboriginal Trust. That was a challenging job for which you had no training. You suddenly became responsible for managing staff, maintaining housing and rental programs, water, rubbish collection, land management and employment programs.
144There were also cultural responsibilities which included protecting the cultural heritage of a significant coastal area of about 200 kilometres under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). In addition, there were enterprises set up by the community involving cattle, woodcutting, eel fishing and the like that required oversight.
145Whilst you were thrown in the deep end, counsel explained that you persisted and over time developed the experience and leadership skills that enabled you to go on and play a meaningful role in a number of important Aboriginal organisations.
146The period, mid 1990’s to the mid 2000’s were extremely challenging in so far as you were not only performing a difficult job but also dealing with the intense media attention directed towards your father.
147At the time you had a young family living in Warrnambool and worked in Framlingham. You were frequently the target of resentment essentially because you were Geoff Clark's son. As your father attracted controversy people you thought were friends avoided or disowned you and you became isolated and depressed.
148Eventually, you emerged from that period to become a well-respected leader and role model. You are currently employed as a manager at Barpa Pty Ltd, an Indigenous construction company that you had an important role in establishing. Beyond your paid work you have devoted your time to serving on numerous boards and committees in voluntary unpaid roles (15 since 1997).
149One of the most significant roles you undertook was as chair of the Eastern Maar Aboriginal Corporation (EMAC). During your time in that role, EMAC made a native title claim which resulted in two successful determinations in respect of traditional owners’ land rights in southwest Victoria. Other roles you have undertaken included Deputy Chair of the Federation of Victorian Traditional Owner Corporations, member of the Victorian Aboriginal Treaty Working Group and member of the Victorian Aboriginal Economic Board.
150You have been involved in three significant relationships. The first, was a short relationship from which you have a daughter who was born in 1993. The relationship ceased in 1994, but you co-parented your daughter throughout the 1990s. In 2000, you formed a new relationship and married in 2006. There are four children of that relationship born between 2003 and 2009.
151You separated in 2016 and divorced shortly after. Your children now live in regional Victoria and you maintain contact with them. You are presently in a relationship with Katie Phillis who provided a helpful reference for the purposes of your plea. She attended your trial and is well aware of the outcome. You have as she puts it “her full and enduring support”.
Character evidence - Jeremy Clark
152You were described by counsel as being ‘so much more’ than the offending of which you were convicted. At trial you were able to call what was submitted to be compelling good character evidence. In summary that evidence was as follows:
153Michael Read, who was effectively your boss, described how you and he built a joint venture construction firm from virtually nothing such that it now employs about 100 people. It is the largest Indigenous construction company in Australia, the majority shareholder being the Federation of Traditional Owner Corporations.
154Mr Read explained that starting a business from scratch presented a large number of challenges which you managed to overcome. He said you were integral to the growth of the business. It had won awards in respect of the culture it had developed and employed about 20 Indigenous staff for whom you were responsible.
155Doctor Matthew Storey, a solicitor and former Director of the Victorian Heritage Council, described your work with the Eastern Maar Aboriginal Corporation, its native title applications and your work in helping to establish a peak body for traditional owner corporations in Victoria. He said you were instrumental in those developments and that you were genuinely committed to advancing the interests of Aboriginal people.
156On a personal level, Chis Daley, who had known you for many years as a friend from school described you as kind, compassionate, honest and intellectually curious.
157Tanya Alveyn gave evidence that she had worked with you in the construction industry over a period of 15 years or so. She stated that you were well respected, well liked and had an excellent professional reputation.
158Mr Read, Ms Alveyn and Dr Storey provided supplementary written references in support of your plea. Their opinion of you had not altered in spite of the verdicts.
159Beyond that evidence and your partner’s reference, a further 19 written character references from respected Elders, former and present work colleagues, family, friends and others were relied upon on the plea. Each referee indicated their awareness of the jury’s findings.
160Overwhelmingly, those referees acknowledged your passion, commitment and dedication to advancing the interests of Aboriginal people. In the many years since the commission of these offences you have matured and developed a working style that emphasises consensus and respect and has achieved tangible benefits. You have taken on numerous leadership and mentoring roles and inspired many. You are indeed an emerging leader of your community. In essence, your counsel submitted you are a very different person to the person who committed these offences.
Defence submissions – Jeremy Clark
161Whilst counsel on your behalf accepted that the quantum of funds dealt with was significant, it was submitted there were a number of matters which mitigated your offending. They were:
(a) You did not receive any personal benefit whether direct or indirect;
(b) You were not the primary offender or the driving force behind the diversion of these funds;
(c) The nature of your participation in the joint criminal enterprise was not clear. It could for example have been no more than looking the other way when money was transferred;
(d) You did not know precisely which litigation was being funded. For example, the community had a legitimate interest in the funding of the Criterion Hotel incident. Much less so in defending the civil rape allegations; and
(e) You were at the time relatively inexperienced in your role as administrator and these funds were being diverted to assist your father, a prominent national Aboriginal leader. It was perhaps therefore easier to rationalise this expenditure as in the interests of the wider Aboriginal community.
162The charge of obtaining a gain to which you pleaded guilty is punishable by a lesser maximum term than the other offences (5 years’ imprisonment). You were entitled to a substantial reduction in the sentence for that offence than would otherwise be imposed by reason of your plea.
163It was submitted that the circumstances surrounding that offending provide an important context. The funds were directed to the installation of a home office at Aaron Clark's residence in Ballarat around October 2009. At that time Aaron Clark was employed by Brambuk in a marketing role while living in Ballarat with his partner and two children under five. Tragically his partner died suddenly, leaving Aaron Clark widowed in his 20s and having to care for two very young children on his own.
164He was no longer able to commute to Halls Gap to work at Brambuk and the home office was built to enable him to work remotely. Moreover, the funding arrangements with the Commonwealth made provision for over $6000 to be spent as the organisation saw fit and that money could have been legitimately directed for this purpose. Those matters, it was submitted, mitigated significantly.
165None of this offending, it was also submitted, was motivated by greed and the extent to which the prosecution rely on authorities such as Bulfin[15] relating to white collar criminality, in your case that reliance should be heavily qualified.
[15] Ibid.
166It was further submitted that both limbs of mitigation flowing from delay should be given full weight. The delay here has been extraordinary – 11 years from the last offence but in the order of 20 years in respect of the legal fees offending. There has been extra-curial punishment in the sense that you have had to leave all your leadership positions in the wake of these charges, and you have been forced to remain on the sidelines throughout important public debates involving the Aboriginal community.
167You were able to marshal some powerful evidence in support of your good character as described above. The submission being that any discussion as to prospects for rehabilitation was moot because you had already rehabilitated.
168It was submitted that the legal fees charges can and should be dealt with by the imposition of wholly suspended sentences of imprisonment which remain open due to the age of the offending. In respect of the FaHCSIA charge a s 19B bond without conviction was appropriate.
Prosecution submissions – Jeremy Clark
169The prosecution submitted that you had participated in the theft of a significant sum of $231,969 between February 2003 and December 2004. Throughout that period, you had the responsibility of overseeing the administration of the Trust and KWCI. You were complicit in a plan to steal such funds as could be gained from KWCI and MLC to fund your father's legal proceedings. In participating in that plan it was put that you prioritised your own family over the people to whom you owed a duty to serve.
170That said, it was acknowledged that you derived no personal benefit from your part in this offending. The overall quantum of monies stolen in respect of your father's personal legal fees was significantly less in your case ($231,960 as distinct from $404,344) and the role you played was significantly less. It was accepted that your father must have been the driving force behind the scheme to pay his own legal fees.
171In respect of the fraud committed on the Commonwealth, you again prioritised the interests of your own family, in that case your brother, over your duty as the manager at Brambuk, not to make false representations.
172It was however acknowledged that matter could have been readily dealt with summarily, that your plea of guilty entitles you to a substantial reduction in sentence and is indicative of remorse.
173It was accepted that some of the delay during the course of the investigation was undue. However, it should be understood that the investigation was inordinately complex and had generated a police brief in excess of 20,000 pages with allegations of 16 separate fraudulent schemes. The committal had commenced in 2020 but was interrupted by the tragic death of one of the barristers involved and was further delayed by the pandemic. Seen in that light the delay was more understandable and, it was submitted, not the fault of the prosecution.
174In your circumstances the prosecution accepted your counsel’s submission that suspended sentences would be within range for the State offences but submitted that a s 19B bond was not appropriate for the Commonwealth offence. That matter should be dealt with by way of a fine with conviction.
175I will now turn to my assessment of these submissions and impose sentence. I will start with Geoffrey Clark.
Assessment of submissions – Geoffrey Clark
176Geoffrey Clark, it is, as all counsel recognised, difficult to reconcile the conflict between the good that you have done and the wrongs that you have committed. This is a particularly complex sentencing exercise.
177You did not have a privileged upbringing – far from it. I acknowledge that as a relatively young person you were thrust into the responsibility of administering the Framlingham community without the sort of training and support that was really required.
178The significance of that fact was underlined in the evidence given at each of your trials by Mr Ian Hamm.[16] Mr Hamm is a Yorta Yorta man with a distinguished career in Aboriginal affairs and a former executive director of Aboriginal Affairs Victoria (AAV) which was responsible for administering the Aboriginal Lands Act 1970 (Vic). It was to Mr Hamm that the complaints of your mismanagement of the Trust were directed when this offending first came to light.
[16] Ian Hamm gave evidence to similar effect in each of the three trials and in Jeremy Clark’s trial.
179In his evidence he explained that from the 1850’s onwards Aboriginal people were rounded up, taken from their land, often forcibly, and placed and kept on missions. The purpose of the Aboriginal Lands Act (Vic) was to confer collective community ownership of the lands on which there had been such missions to the local communities. Framlingham had been such a mission. The Framlingham Aboriginal Trust was established under the Act to manage the community.[17] AAV’s role was to support the Trust with basic funding, oversight and, I infer, guidance.
[17] Trial of Jeremy Clark, TT 663 – 666.
180Mr Hamm conceded that in respect of the Framlingham Aboriginal Trust, AAV had been “irregular in its responsibilities under the Aboriginal Lands Act (Vic)”[18] because AAV had been preoccupied with problems in other areas. It seems that over many years the Trust was not given the practical support as to governance and administration which should have been provided.
[18] Trial of Jeremy Clark, TT 661, lines 19-20.
181As I explain below, you exploited the resulting weak governance structures. Nevertheless, it is to be regretted that they were weak in the first place. Had the Framlingham community, including you, been provided with the guidance and support as the Act envisaged, things may have been different. None of that is to excuse your dishonesty, but it contextualises it somewhat.
182In spite of that lack of practical support and guidance you achieved much in putting in place the sort of infrastructure and economic initiatives that appear to have been steering the community towards self-determination. As Mr Hamm explained in this context “… the idea of Aboriginal economic independence is a key notion to self-determination”.[19] Unfortunately, the financial structures developed in tandem with that progress lacked adequate oversight and accountability.
[19] First trial of Geoffrey Clark, TT 746, lines 18 – 19.
183Your defence in the first trial was to the effect that either the community authorised the payment of your personal legal fees or that the prosecution could not prove beyond reasonable doubt that it did not. It was a defence that in many respects relied on the community’s weak governance to sow doubt. The jury rejected that defence. By its verdicts it found that you had engaged in a carefully calculated course of conduct over many years to divert community funds for your own personal purposes.
184I accept as the prosecution contended, that over time you did develop a sense of entitlement in which you came to treat the community’s financial resources as your own. In the various ways in which these frauds were perpetrated you contrived to conflate your own personal interests with the interests of the community. In so acting you emphatically betrayed its trust.
185The evidence adduced during the trials exposed your duplicity. To use but one example to illustrate that point. The minutes of the Framlingham Aboriginal Trust Annual General Meeting held on 22 November 2006 recorded the then Chair, Lionel Harradine, reporting that “these were difficult times for the Trust and the Community”[20] because the Commonwealth had advised that it would stop funding the core operations of the Trust at the end of June 2007. Mr Harradine noted that “[t]here is no way the community can pay for water, sewerage, rates, insurance etc…”[21]
[20] Exhibit BB – Doc ID 2520 – minutes of FAT AGM of 22 November 2006 (extract verbatim)
[21] Ibid.
186The minutes for that meeting also note that you presented the auditor’s report. The note is in the following terms:
Auditors Report: Geoff Clark presented the Auditors report.
Noted that the financial position was difficult and that staff would have to be put off at Christmas because could not afford to pay all termination pays. Shortfall of around $100,000. Also that the community will suffer because the level of service will have to be dramatically cease towards 2007.
187By the time you came to give that auditor’s report, you knew you had stolen hundreds of thousands of dollars from KWCI to pay your personal legal fees. You also knew that had it not been for your dishonesty the community’s financial position would not nearly have been as dire. Knowing all of that you would then go on to steal $25,000 from the Trust itself in January and February 2007.
188That example shows, starkly, how you abused your community’s trust.
189I accept the prosecution contention, consistent with the verdicts of each of the three juries, that in the various ways in which you manipulated the relevant entities accounts and actively concealed your dishonesty, you exploited the weak governance structures in place at the time.
190Part of concealing that offending involved lying on oath as to your non-ownership of your real estate as well as lying on oath on affidavit and in court as to your shareholding in the Trust. It needs to be well understood that lies told in that context are always viewed seriously by the courts because of their capacity to undermine the administration of justice.
191The Crown’s contentions as to your high moral culpability should be accepted. The total amount you stole approaches a million dollars. Although the Trust recovered the $400,000 you transferred to KWCI, the balance of what was stolen was money that your community sorely needed.
192You profited from unfair transactions with other community members. Whether or not the value of shares as calculated under the Act was a realistic value, you knew of the Act’s requirements and you failed to disclose them to Ms McDowell. Whatever their precise worth, you dishonestly obtained those shares for far less than their real value.
193In short, you stole on multiple occasions in a variety of ways to personally benefit and/or strengthen your power and influence in the community. That you did so, having otherwise achieved so much, is profoundly disappointing.
194What you did was aptly described as morally reprehensible. As one Framlingham elder who sat on the Trust’s committee of management, put it: “I have faith in people. I had faith in them. Trust”.[22]
[22] Committal evidence, Violet Mary Clark, 26 February 2020, p 236 lines 20 – 21.
195The maximum penalties for the offences for which you must now be sentenced were accurately set out in the Crown’s Amended Outline of Prosecution Opening for Plea and I need not set them out here. Suffice to make the point that whilst those maximum penalties, together with current sentencing practices, provide guideposts to the sentences to be imposed they cannot be determinative. They are but two of the many factors that Parliament has prescribed and to which I have had regard.
196The parties did not refer to or rely upon comparative cases that might show relevant similarities or instructive differences with this case. That is not a criticism at all. I infer there are no such authorities because of the unique complexities thrown up by this case.
197I have considered carefully whether the principles in sentencing white-collar offenders apply to you as the prosecution contended. I have concluded with one qualification that they do. It makes no difference that most of these offences were committed in a small office in Framlingham as distinct from a more conventional locus for corporate criminality. The effect is the same – abuse of authority with significant financial loss.
198The qualification arises out of your history of disadvantage and Mr Hamm’s concession to the effect that AAV support and guidance was lacking. As I have explained that contextualises your circumstances somewhat and is perhaps a point of distinction from more typical white-collar offenders.
199That qualification aside, the point made by Charles JA in the passage cited from Bulfin at paragraph [133] as to the difficulty of detection of this kind of offending is very much apposite here. It took a great deal to investigate and expose what you have done. It took a great deal to prosecute it. Those that did so should be acknowledged.
200As a matter of principle those difficulties as to detection and prosecution of the offending mean that general deterrence will carry particular significance and that must be so in your case. It follows that I cannot accede to your counsel’s submission that a sentence of 12 months or less could be imposed in combination with a community correction order. The need to demonstrate to others that dishonesty such as yours will be denounced and punished, will be the primary objective of the sentence imposed on you.
201Despite the emphasis I must give to those punitive sentencing objectives, I must still carefully weigh the matters personal to you.
202The delay attending these proceedings will mitigate. Through a lengthy investigation, through the pandemic and through a lengthy trial process this matter has been hanging over you for nearly six years. I accept that delay has been punitive. In addition, you have not reoffended whilst the matter has been pending.
203On the evidence before me in the form of the many testimonials, there can be little question, that as a leader of your people on the national stage you fearlessly advocated in their interests. In so doing you did much good. To paraphrase what Callinan J said in Ryan,[23] much of the shine of that good has been lost by the abuse of the trust placed in you by your community, but not all of it. Character is not a one-dimensional feature of any person.[24] You are as your counsel contended entitled to rely on your ‘otherwise’ good character and what I accept must be, at least, reasonable prospects of rehabilitation.
[23] Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.
[24] Ibid [178]; Melbourne v The Queen (1999) 198 CLR 1 at 16 [35] per McHugh J.
204Despite the suggestion that you remain, or wish to remain, involved in Trust affairs, I do not accept the prosecution contention that it is particularly necessary to emphasise specific deterrence. Your advanced age and serious chronic medical conditions weigh on you and will do so all the more in prison. The investigation has exposed your wrong-doing and attracted opprobrium. I do not expect that you are likely to be able to reoffend upon release.
205You are not to be punished for pleading not guilty to these offences although, by the same token, you are not entitled to the reduction in your sentence that would otherwise flow from a plea of guilty.
206There is no evidence of remorse.
207Your counsel referred to the need to apply the principle of totality carefully in your case and I agree. That principle requires me to ensure that the overall sentence imposed remains “just and appropriate” despite the number of offences committed. Whilst I must generally try to recognise the separate criminal acts represented by each charge, the orders for cumulation will be moderated to give effect to that principle.
208In a similar vein, giving due weight to the matters favourable to you such as delay, your ill health, your advanced age and your otherwise good character I will moderate the sentences I impose. In particular, the non-parole period will be shorter than might otherwise be so.
Sentence
209Taking all relevant matters into account you will be sentenced as follows:
First Trial Indictment C1812137.A1
210On Charge 4, Theft from KWCI, you will be convicted and sentenced to 15 months’ imprisonment.
211On Charge 5, Theft from MLC, you will be convicted and sentenced to 24 months’ imprisonment.
212On Charge 9, Theft from MLC, you will be convicted and sentenced to 15 months’ imprisonment
213On Charge 10, Theft from KWCI, you will be convicted and sentenced to 9 months’ imprisonment.
214On Charge 11, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
215On Charge 12, Theft from KWCI, you will be convicted and sentenced to 9 months’ imprisonment.
216On Charge 13, Theft from KWCI, will be convicted and sentenced to 12 months’ imprisonment.
217On Charge 14, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
218On Charge 16, Theft from KWCI, you will be convicted and sentenced to 9 months’ imprisonment.
219On Charge 17, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
220On Charge 19, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
221On Charge 20, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
222On Charge 21, Theft from Framlingham Aboriginal Trust, you will be convicted and sentenced to 12 months’ imprisonment.
223On Charge 22, Theft from Framlingham Aboriginal Trust, you will be convicted and sentenced to 9 months’ imprisonment.
224On Charge 23, Theft from KWCI, you will be convicted and sentenced to 12 months’ imprisonment.
225On Charge 24, Obtaining a financial advantage by deception from KWCI and Framlingham Aboriginal Trust between 13 September 2005 and 3 June 2015, you will be convicted and sentenced to 15 months’ imprisonment.
226On Charge 25, Obtaining a financial advantage by deception from KWCI and Framlingham Aboriginal Trust between 27 February 2006 and 23 September 2011, you will be convicted and sentenced to 9 months’ imprisonment.
227On Charge 26, Obtaining a financial advantage by deception from KWCI and Framlingham Aboriginal Trust 27 between February 2006 and 10 April 2018, you will be convicted and sentenced to 15 months’ imprisonment
228On Charge 27, Statutory perjury, you will be convicted and sentenced to 15 months’ imprisonment.
229I will declare pursuant to s 6J of the Sentencing Act 1991 (Vic) that in respect of Charges 4, 5 and 9, being continuing criminal enterprise offences, you have been sentenced, on those charges, as a continuing criminal enterprise offender and I will cause that declaration to be noted in the records of the Court.
230I will order that 4 months of the sentence imposed on Charge 27 be served cumulatively upon the sentence imposed on Charge 5. I will order that 3 months of the sentences imposed on each of Charge 4, Charge 9, Charge 24 and Charge 26 be served cumulatively upon the sentence imposed on Charge 5. I will further order that 1 month of the sentences imposed on each of Charge 10, Charge 11, Charge 12, Charge 13, Charge 14, Charge 16, Charge 17, Charge 19, Charge 20, Charge 21, Charge 22, Charge 23 and Charge 25 be served cumulatively upon the sentence imposed on Charge 5, rendering a total effective sentence on this Indictment of 4 years and 5 months.
Third Trial Indictment C1812137.2A
231On Charge 1, Theft from KWCI between 13 April 2009 and 9 May 2011, you will be convicted and sentenced to 12 months’ imprisonment.
232On Charge 3, Knowingly deal with proceeds of crime from Framlingham Aboriginal Trust between 19 December 2013 and 24 July 2015, you will be convicted and sentenced to a term of imprisonment of 15 months.
233I will order that 3 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3 rendering a total effective sentence on this indictment of 18 months’ imprisonment.
Fourth Trial Indictment C1812137.3A
234On Charge 2, Obtaining a financial advantage by deception from the estate of Robert Clark, you will be convicted and sentenced to a term of imprisonment of 15 months.
235On Charge 3, Theft from Framlingham Aboriginal Trust, you will be convicted and sentenced to a term imprisonment of 21 months.
236On Charge 4, Statutory perjury, you will be convicted and sentenced to a term of imprisonment of 15 months.
237On Charge 5, Giving false evidence in a Commonwealth judicial proceeding, you will be convicted and sentenced to a term of imprisonment of 15 months.
238I will order that 4 months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3. I will order that 3 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 3, rendering a total effective sentence on the State charges of 28 months.
239I will further order that the Commonwealth sentence on Charge 5 commence 17 months from this day that is 29 April 2026, and otherwise run concurrently with the State sentences. I will decline to fix a non-parole period in respect of the Commonwealth sentence because an overall non-parole period will be set with respect to all sentences.
240The overall total effective sentence of imprisonment on this Indictment will therefore be 2 years and 8 months.
Overall total effective sentence
241I will further order that 6 months of the sentence imposed in respect of Indictment C1812137.2A and 15 months of the sentence imposed in respect of Indictment C1812137.3A be served cumulatively upon the total effective sentence imposed on Indictment C1812137.A1, rendering an overall total effective sentence of 6 years and 2 months. I will fix a non-parole period of 3 years and 9 months.
242I will declare pursuant to s 18 of the Sentencing Act 1991 (Vic) that you have already served 78 days of pre-sentence detention and I will cause that declaration to be noted in the records of the Court.
243Turning now to Jeremy Clark.
Assessment of submissions – Jeremy Clark
244Jeremy Clark, I accept that your role in this offending was very much at the behest of your father. He was the driving force and sole beneficiary of this offending – you did not receive any personal benefit.
245Both the prosecution and your counsel characterised your motivation as arising out of misplaced loyalty. I accept that was so. You were relatively inexperienced in carrying out the responsibilities of running the Trust and KWCI whilst your father was in Canberra. He was a prominent Aboriginal leader with a powerful personality. He would have been a hard man to say no to.
246That said your role was not entirely passive or morally blameless. For example, of the $231,969 which you assisted in stealing to pay for your father's personal legal fees $150,000 was taken from the Maar Land Council in two transactions in 2003 (Charges 4 & 7 Indictment C1812137.B2).
247On 2 October 2001, you wrote a letter to the legal officer of the Mirimbiak Nations Aboriginal Corporation, in your capacity as “MLC Regional Agreements facilitator”. In that letter you refer to the agreement struck after the Maar Land Council convened a number of meetings involving the Kirrae Whurrong Native Title Group. You state:
“Subsequent compensation benefits of $100,000 have been received by the Maar Land Council (the Trustee), and deposited into its bank account to be held in ‘trust’. This was done as per instructions at a Maar Land Council Meeting 04/09/1999.
The instruction was as follows:
‘All the monies from any agreements will be put into a trust account until genealogies have been done and there is agreement on who will benefit from these agreements’
A further $50,000 is to be paid upon registration of the ILUA. If/when this money is received, it will be deposited into the Maar Land Council account and held in trust until the proper processes are in place to disburse it.” [25]
[25] Exhibit V - Doc ID 2747 - Letter 2 October 2001 signed by Jeremy Clark to the Legal Officer, Mirimbiak Nations Aboriginal Corporation (extract verbatim) – Trial of Jeremy Clark.
248In the transactions the subject of those charges you must have appreciated that not only was this money being diverted for your father’s personal benefit but that it was at the cost of the rightful entitlement of native title holders. As that example demonstrates, whilst your role was subsidiary it was nevertheless knowing and culpable.
249That said, there is much that now mitigates.
250The delay since you committed these offences is extraordinary. It is in the order of 11 years from the FaHCSIA offending and 20 years from the legal fees offending. I accept your counsel’s contentions that since being charged you have had to step back and forgo the opportunity to contribute to First Nations affairs at a high level and that has been punitive.
251You appear to have moved on, and out, from what might be described as your father’s shadow. The quality of the character evidence establishes that you are well placed to continue to advance the interests of First Nations People both in the construction industry and, once these matters are finalised, in the wider community.
252I accept, as your counsel contended, that you are now a very different person to the person that committed these offences and that it is not just a case of having good prospects for rehabilitation, rather you are in fact rehabilitated.
253The sentencing regime applicable to offending at this time enabled the imposition of sentences of imprisonment to be wholly suspended if a court was satisfied that it was “desirable to do so”. I consider that in your circumstances it is desirable to do so. That course was not opposed by the Crown.
254I am satisfied that the sentencing purposes of general deterrence and denunciation can be adequately reflected in sentences of imprisonment that are wholly suspended. I consider that it is very much in the longer-term interests of the community that what you have now achieved not be jeopardised by placing you in prison.
255Given your sister in law’s tragic death and the vagaries of the relevant funding arrangements, I consider that the FaHCSIA offending encompasses a unique set of circumstances that merits leniency. In addition, you are entitled to a substantial reduction in sentence because of your plea of guilty.
256I cannot however accept that only nominal punishment is appropriate. Whilst I am prepared to deal with that matter by placing you on bond to be of good behaviour, I have determined that it is appropriate to record a conviction for that offending.
257Taking all relevant matters into account you will be sentenced as follows:
Second Trial Indictment C1812137.B2
258On Charge 4, Theft from MLC, you will be convicted and sentenced to a term of imprisonment of 18 months.
259On Charge 7, Theft from MLC, you will be convicted and sentenced to a term of imprisonment of 12 months.
260On Charge 8, Theft from KWCI, you will be convicted and sentenced to a term of imprisonment of 6 months.
261On Charge 9, Theft from KWC, you will be convicted and sentenced to a term imprisonment of 9 months.
262On Charge 11, Theft from KWCI, you will be convicted and sentenced to a term of imprisonment of 12 months.
263On Charge 12, Theft from KWCI, you will be convicted and sentenced to a term of imprisonment of 9 months.
264On Charge 15, False Accounting from Gariwerd, you will be convicted and sentenced to a term of imprisonment of 12 months.
265I will order that 2 months of the sentences imposed on Charge 7, Charge 11 and Charge 15 be served cumulatively upon sentence imposed on Charge 4. I will further order that 1 month of the sentences imposed on Charge 9 and Charge 12 be served cumulatively upon the sentence imposed on Charge 4. The sentence on Charge 8 will be wholly concurrent. That renders a total effective sentence of 2 years and 2 months’ imprisonment.
266I will further order that all sentences of imprisonment imposed on this day be wholly suspended for a period of 2 years and 2 months.
Plea Indictment C1812137.1C
267With respect to the rolled-up Commonwealth offence of dishonestly obtaining a gain, pursuant to s 20(1)(a)(i) of the Crimes Act 1914 (Cth), you will be convicted and ordered to be released upon you entering into a recognizance in the sum of $1000 to be of good behaviour for a period of 2 years.
268I am obliged to explain the effect of that last order will be should you commit an offence punishable by imprisonment over the next two years you will be brought back before me and liable to be resentenced for that offence.
269I will declare pursuant to s 6AAA of the Sentencing Act1991 (Vic) that, but for your plea of guilty with respect to the Commonwealth offence, you would have been sentenced to a term of imprisonment of 6 months.
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