Director of Public Prosecutions v De La Torre

[2016] VCC 1896

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

AT MELBOURNE
 CRIMINAL JURISDICTION

CR 16-01497

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
MICHAEL DE LA TORRE	Defendant

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2016
DATE OF SENTENCE:	24 November 2016
CASE MAY BE CITED AS:	DPP v De La Torre
MEDIUM NEUTRAL CITATION:	[2016] VCC 1896

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – 11 charges of obtaining financial advantage by deception – awarding government contracts to company with conflict of interest – low-range offending – undertaking to give evidence against co-offenders – guilty plea – prospects of rehabilitation – continuous criminal enterprise offending – mitigating circumstances – whether a community corrections order an appropriate disposition

Legislation Cited:  Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:3 year Community Corrections Order with 300 hours of community work; 2 year Community Corrections Order to be served concurrently

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K Armstrong with Mr A Sharp	Office of Public Prosecutions
For the Accused	Mr T Kassimatis SC with Mr R Lawrence	Pica Criminal Lawyers

HIS HONOUR:

1Michael De La Torre, you have pleaded guilty to 11 charges of obtaining a financial advantage by deception contrary to section 82(1) of the Crimes Act 1958 (Vic).

Circumstances of the Offending

2The circumstances of the offending were set out in the prosecution plea opening,[1] which I incorporate by reference and direct that it remain on the file.

[1] Exhibit A in the Plea Hearing.

3In outline, the period of your offending spans from 18 February 2008 to 23 December 2009.  The charges against you are that you dishonestly obtained for a company, Global Works Management Pty Ltd, a financial advantage by falsely representing to the relevant government agency, the Department of Infrastructure and its successor, the Department of Transport, that Barry Wells and Albert Ooi had no interest in the company.

4Barry Wells and Albert Ooi were senior executives in the relevant government agency.  Over the charge period, you were a nominal or shadow director of Global Works Management Pty Ltd, which was seeking to obtain civil works contracts for infrastructure from the Victorian government.

5The true position was that Barry Wells and Albert Ooi had an interest in Global Works Management Pty Ltd and were using you as a director and manager of the company to procure valuable government contracts.  The other director and manager was Mr Wells' son, Justin Wells.

6Each of the charges relates to groups of, or particular, contracts.  The deceptions were perpetrated against the Department of Infrastructure and its successor, the Department of Transport.  Charges 1 to 5 relate to the Department of Infrastructure and Charges 6 to 11, to the Department of Transport.

7Charge 1 relates to the period of 18 February 2008 to 1 June 2008 and relates to a series of five contracts to the value of $353,310.00.

8Charge 2 arises from a single contract on 1 March 2008 to the value of $285,950.00.

9Charge 3 arises from a single contract on 1 April 2008 to the value of $495,121.00.

10Charge 4 relates to the period 18 April 2008 to 1 October 2008 and relates to a series of six contracts for a total sum of $88,295.00.

11Charge 5 arises from a single contract on 1 June 2008 to the value of $769,890.00.

12Charge 6 arises from a single contract on 20 January 2009 to the Department of Transport in the sum of $291,655.00.

13Charge 7 relates to the period between 1 March 2009 and 11 June 2009 for a total of seven contracts in the sum of $488,678.00.

14Charge 8 relates to the period of 1 March 2009 to 23 December 2009, being six contracts, to the value of $92,493.50.

15Charge 9 arises from a single contract on 20 August 2009 to the value of $106,700.00.

16Charge 10 arises from a single contract on 20 August 2009 to the value of $129,800.00.

17Charge 11 arises from a single contract on 20 August 2009 to the value of $831,808.00.

18Over the period of your offending, 31 contracts in a total amount of $3,933,770.50 were awarded as a result of the deceptions that you perpetrated.

19Charges 1, 6, 7 and 8 are rolled up charges as they relate to more than one contract.

20All charges, save for Charges 4 and 8, are to be treated as continuing criminal enterprise provisions or offences. This is because they relate to deceptions involving more than $50,000. By reason of the provisions of Part 2 of the Sentencing Act,[2] because you have been convicted of three or more deception offences involving a value of more than $50,000, then what would otherwise be a maximum penalty of 10 years' imprisonment becomes a maximum penalty of 20 years' imprisonment.

[2] 1991 (Vic).

21Essentially, you were a key figure at the bottom of a sophisticated insider trading conspiracy designed to deceive the two government agencies to grant contracts to a company that the government employees issuing the contracts had an interest in.  Those at the top of the conspiracy were Mr Barry Wells and Mr Albert Ooi.

22The original arrangement involved the establishment of a company called Global Works Management Pty Ltd.  The original shareholding involved a unit trust with the shares held by the family of Mr Wells, your stepfather Mr Ooi and a third party.  You and Mr Wells Jr ultimately became the shareholders and directors of that company.

23Subsequently, another company was established, GWM Management Services Pty Ltd.  The latter company provided services to the former company.  The management services company was used to divert money that had been paid to Global Works Management Pty Ltd for the contracts to the individual beneficiaries, being Mr Wells and Mr Ooi.

24Your role was to act as a shadow director of the first company.  In the course of that role over the period of the offending between 18 February 2008 and 23 December 2009, you were a director, shareholder and a manager of the company.  In that capacity you effectively represented the company to the relevant government agencies in order to obtain the contracts that were being issued by Mr Wells and your stepfather, Mr Ooi.

25You attended meetings, were provided with discussion points for an interview with the relevant panel issuing contracts and were the signatory on documents including quotes, invoices and expressions of interest which contained a declaration that there was no conflict of interest with the Department in the relevant expression of interest.

26After the contracts had been awarded, the company, Global Works Management Pty Ltd, then arranged to subcontract the work to be done.  There was no dispute that the various contracts for infrastructure, including performing work on bus shelters, that were corruptly issued by Mr Wells and Mr Ooi to the company that you were the nominal director of, and that they were effectively owners of, were performed and that the prices paid were market prices.

27Other suppliers in the infrastructure field lost out because the bidding process administered by Mr Wells and Mr Ooi was corrupted.

28It is axiomatic that Mr Wells and Mr Ooi would not have been entitled to issue agency contracts to a company in which they had a pecuniary interest.  Your role as a front director of the company allowed the contracts to proceed as if they were legitimately issued to an arm's length contractor.

29Over the whole period of the fraud perpetrated by Mr Wells and Mr Ooi, 92 contracts were awarded to Global Works Management Pty Ltd from the relevant government agencies.  Substantial payments were then made by Global Works Management Pty Ltd to Mr Wells, totalling $78,885.00, and including $19,000.00 to a home loan account and $49,885.00 to a superannuation account held by the Wells family.  In addition, 41 payments totalling $528,270.67 were paid to Mr Ooi's various accounts.  Payments totalling $771,821.00 were paid to GWM Management Services.  A further 22 payments, totalling $524,125.00, were paid to HGO Management Services, a management company controlled by your stepfather, Mr Ooi.  Payments totalling $550,077.57 were paid for the benefit of Mr Wells, including $472,908.00 to the builder of his family home.

30The fraud perpetrated by Global Works Management Pty Ltd spanned the period 21 January 2008 to 9 January 2013 for 92 contracts.  Your offending, as I have indicated, covered 31 contracts to a total value of $3,933,770.50.

31The overall total of the contracts issued to Global Works Management over that period came to a figure of $8,538,993.22.

32The period of time over which this offending occurred is an important factor in consideration of its seriousness.  You were involved for a period of 22 months in the issuing of the contracts.  You became involved as a director of the company shortly before the first contracts were issued.  At the time you were employed as a Corporate Functions Coordinator at Telstra Dome and you resigned from that employment by a letter dated 31 March 2008 to assume a full time role with Global Works Management Pty Ltd.

33Further, in considering the seriousness of the offending, the quantum of the financial advantage accruing to the principals of the company is also very significant.  Over the period of the offending, the company was able to obtain nearly $4m in contracts that, due to the conflict of interest that was being concealed, it would not have been in a position to obtain.

34The benefit you obtained however, from your position, was that you were a full time employee with a notional salary of $55,000 per annum according to the employment contract that you signed.  Over the period of your involvement you received a net salary of $83,663.90 and reimbursement of $5234.44 for training courses and a further unidentified payment of $2100.00.

Your Overall Role in the Offending

35An important submission on the plea is that you were effectively acting at the direction of both your stepfather, Mr Ooi, and Mr Wells.  You are aged about 21 years younger than your stepfather and around six years younger than Mr Wells.  I am satisfied that your stepfather had a significant influence over you and that that influence was exercised to have you join this conspiracy and act as the dummy director.  You told Mr Cummins, forensic psychologist, that you felt obligated to your stepfather and accepted the position without negotiating the terms or conditions or the pay rate.  You signed documents at his request and were told in effect that the documents you signed were just paperwork.

36The directing role of Mr Wells emerges from the contents of your statement and also from documents that are annexed to your statement.  He was the directing mind of the whole conspiracy and giving detailed orders to you and his son, Justin, as to how the whole scheme was to be executed.

Your Cooperation with the Authorities

37The prosecution accepted that you had cooperated with the authorities in relation to this investigation.  You were the subject of a private hearing before the Independent Broad-Based Anti-Corruption Committee (“IBAC”), and subsequently gave evidence at a public hearing.

38You gave evidence on the plea before me and confirmed the truth of a 20 page statement that you had provided to the authorities.  You also have agreed to give evidence against others involved in the fraud.  The prosecution did not dispute that your assistance is of high value and you are entitled to a substantial discount on your sentence.

39Although the prosecution has evidence available to it from Justin Wells to prosecute offenders higher up in the hierarchy who are likely to be presented in the Supreme Court and, in particular, Mr Wells and your stepfather, Mr Ooi, your evidence will be, I am satisfied, significant given that you were closely involved for a period of nearly two years when the conspiracy was established and perpetrated.

40Further, you are in a position to explain much of the documentary evidence, to corroborate the evidence of Mr Justin Wells and to explain the role of your stepfather and Mr Wells.  The prosecution also accepts that you are in a position to provide evidence against Mr Salter who was also involved in the conspiracy, and it is likely to make it clear that Mr Salter was involved in the conspiracy for a longer period than emerges from the written documentation in the hands of the prosecution.

41Your counsel submitted that your willingness to give evidence against others involved is an important consideration in sentencing you.  I accept that submission which was endorsed by the learned Crown prosecutor.

Matters in Mitigation

42I turn now to matters put in mitigation in a comprehensive plea by your counsel.

Your Personal Circumstances

43Your personal circumstances were set out in the plea and also set out in a report of Mr Cummins, forensic psychologist.[3]  You are now aged 45 and were born in the 1971 in the Philippines.  You did not meet your natural father except for a single meeting, when you were in your early twenties and you were brought up for significant periods by your grandparents and aunty.

[3] Exhibit 2 on the plea.

44You accompanied your half-sister to Melbourne at age 13 in 1984.  At that stage your mother had married Mr Ooi, who is of Malaysian extraction.  Your mother and Mr Ooi permanently located to Australia in 1980 or 1981.  You have two half-brothers who are aged in their thirties.  One is Andrew Ooi who has also been charged in relation to these matters.

45You were educated to age 13 in the Philippines and when you arrived in Melbourne you went to Bulleen Primary School, then Banyule High School until Year 10.  Your academic progress indicates that you were only an average student. You also went to Eltham High School but did not complete Year 11 there.  You repeated Year 11 and finally passed Year 12 at Diamond Valley Secondary College.  On the plea your counsel indicated you were probably in your late teens when you finally finished school.

46You were unemployed for a period and then worked in a Malaysian restaurant operated by your parents in Camberwell in the kitchen.  At the time you undertook a Banking and Finance diploma at Swinburne TAFE but did not complete it.  You tried a similar business accounting course at NMIT but did not complete this.

47You then worked in a clerical capacity for a Philippines newspaper company in Footscray for three years.  You then obtained a position at the Melbourne Exhibition Centre as a waiter and subsequently worked at that location for nine years rising to the position as events manager.  You left that employment to establish your own cleaning company operation, however, this was unsuccessful.

48You then returned to work in the hospitality industry and were working at the Melbourne Exhibition Centre and Telstra Dome.  You held that position when you were offered the opportunity by Mr Ooi and Mr Wells to work for Global Works Management Pty Ltd.  You resigned from the positions at the Melbourne Exhibition Centre and Telstra Dome in April 2008 to take up a full-time position with Global Works Management Pty Ltd.

49You are married and have four children including twins aged 10 months.  You have been renting a home in Point Cook from your stepfather.

50Your work history indicates that you have a good work ethic and have strong family support.  Allegiance to your family got you into this offending, however, as Mr Cummins opines in his report, you are a follower rather than a leader and most likely have an IQ in the bottom 20 per cent of the population.

51Having regard to your family support and your good work ethic and lack of any prior convictions, I would regard your prospects of rehabilitation as very good.

52After you left employment with Global Works Management Pty Ltd after reaching the suspicion that something was going wrong in your role, you worked at an Aldi Supermarket in the western suburbs and then worked as a bus driver for four years.  You resigned from that position and have recently re-established a cleaning business.

53Your counsel accepted that this offending was serious and that by virtue of the continuing criminal enterprise provisions, 9 of the 11 charges carry a 20 year maximum penalty.

54Your counsel emphasised that your involvement in the offending was, however, at the bottom of the totem pole.  In particular, it was broadly comparable to that of Mr Justin Wells who was also a director of the company and the son of Mr Barry Wells.  Mr Justin Wells had gone to the authorities in about 2012 about the matter and has been provided with an indemnity by the authorities and will not be prosecuted.  That fact is relevant in placing your conduct in the hierarchy and in confirming the significance of your undertaking to give evidence.

55You were interviewed by IBAC and made admissions as to your offending.  After the charges were laid you agreed to plead guilty and undertook to give evidence against those involved.  There is high public utility in both your early plea and your willingness to give evidence.  Further, your plea is evidence of remorse and it is obviated what would be a significant criminal trial.

56I am satisfied, as submitted by your counsel, that your cooperation with the authorities is a very important matter in relation to an appropriate sentence in this matter.

Purposes of Sentencing

57The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

Sentencing Considerations

58Fraud against public authorities must always be treated seriously.  Here, you received a relatively low personal benefit for your involvement.  In addition, the most salient consideration in sentencing you is your willingness to give evidence against those further up the hierarchy.  This applies particularly against Mr Wells and Mr Ooi.  You have given an extensive statement and an undertaking to give evidence.  Your ability to give evidence as to the involvement of Mr Salter and his company is accepted as important.

59There are many statements of high authority regarding the social utility in rewarding those who cooperate and adopt what is commonly referred to as the role of "informer".  The cases recognise the need to encourage others to assist the authorities in the investigation and prosecution of criminal behaviour and to do justice to the individual informer, having regard to the particular circumstances of the case.

60I am of the view that you are entitled to a substantial discount in the sentences which I would otherwise have imposed but for your willingness to give evidence against the others involved.  I am reducing the sentence which I would otherwise imposed accordingly.  I direct that it be noted in the Records of the Court of the fact of your undertaking and its details.

61The learned Crown prosecutor has accepted that a community corrections order is an appropriate sentencing disposition in this matter given the level of your involvement, your lack of prior convictions, your early plea of guilty, and your undertaking to give evidence against the others in the conspiracy.  Your counsel also argued to me that a non-custodial disposition was within range.

62Your counsel also emphasised the issue of delay given that you had originally given a statement to IBAC in February 2014 with later public evidence in July 2014, yet the charges were not laid until June 2015.  There was a filing hearing in July 2015 and a committal mention in February 2016 when discussions regarding resolution commenced in the matter and it was finally resolved at a committal hearing on 29 August of this year when you pleaded guilty before evidence commenced. I accept that there has been some delay which is to be taken into account.

63In sentencing you I accept that the sentencing considerations of general deterrence, specific deterrence, denunciation and rehabilitation can be achieved by a community corrections order, particularly in circumstances where you have undertaken to provide assistance to the prosecution in the trials of the offenders above you in the hierarchy.

64Your conduct is to be utterly condemned.  In your favour, however, is that you did cease the conduct before it came to light and it was only when you were brought before IBAC that you admitted your involvement.

65I have had you assessed for a community corrections order and you have indicated you will consent to being placed on that order.  I intend to place you on such an order that you undertake community work but no other conditions.

66The Sentencing Act requires me to state the sentence which I would have imposed on you but for your plea of guilty.[4]  In a case such as this, there is a degree of artificiality in singling out your conduct in pleading guilty when that conduct is linked with some expressions of remorse, your willingness to cooperate with authorities, your undertaking to give evidence against those higher up in the conspiracy, your rehabilitative prospects and other relevant matters.  These are all part of a complex of interrelated considerations and an attempt to single out one of those considerations is, to an extent, contrived.

[4]Sentencing Act 1991 (Vic), s. 6AAA.

67The sentence I intend to impose on you is a 3 year community corrections order on all counts save for the counts that are not continuing criminal offences[5] and on those two counts it will be a 2 year community corrections order.  Each of those community corrections order is to be concurrent with each other and on the first order there is an additional condition that you undertake 300 hours of community work.

[5] Charges 4 & 8.

68Doing the best I can, I declare that had you not pleaded guilty I would have imposed an aggregate 3 year sentence of imprisonment with a non-parole period of 2 years.

69I will now hand down the two community corrections orders, one covering 9 charges for 3 years and the other covering 2 charges for 2 years and I would ask that counsel peruse it and then discuss it with, and explain it to Mr De La Torre and have him sign it and then I will reconvene.  Are there any other matters, Mr Armstrong?

70MR ARMSTRONG: Your Honour, only that although you have made it clear that you are sentencing on - sorry, continuing criminal enterprise offences, s.6J requires you to formally record that.

71HIS HONOUR:  I will declare that in the record too, that you are being sentenced for continuing criminal enterprise charges for those 9 charges.[6]

[6] Charges 1, 2, 3, 5, 6, 7, 9, 10 & 11.

72MR ARMSTRONG:  Yes thank you, Your Honour.

73HIS HONOUR:  That will be in the formal order.

74MR ARMSTRONG:  Yes, Your Honour.

75HIS HONOUR:  Well, I will hand down these two and then I will reconvene in a few minutes when you have discussed it with your client, Mr Lawrence.

76MR LAWRENCE:  Yes, Your Honour.

77MR ARMSTRONG:  If Your Honour pleases.

78(Short adjournment.)

79HIS HONOUR:  Mr De La Torre, I am required to explain the sentence of the court to you.  On the continuing criminal enterprise charges which are all charges, save Charges 4 and 8, I am sentencing you to a 3 year community corrections order on each count and that is to be concurrent with each other.

80On the other two charges, which are Charges 4 and 8, I am sentencing you to a 2 year community corrections order which again is concurrent with the other 3 year community corrections orders and with itself so the total effective community corrections order is 3 years.

81The terms of the community corrections orders is that within two business days you have got to report to the Werribee office of the Community Corrections Centre.  The mandatory terms are that you are not to commit an offence carrying a term of imprisonment within the next three years.

82You have got to report to, and receive visits from, the delegate of the Office of Corrections for the next three years.  You have got to advise them of any change of addresses within two business days.  You are not to leave Victoria without permission to do so from them and you have got to obey all lawful directions from them.  In addition, for three years you are under their supervision so you have got to accept visits from them and directions from them.  In addition to that you are required over the three year period to undertake 300 hours of community work as directed by them.[7]

[7] This condition is attached to the CCO imposed in relation to charge 1 only.

83So, if you commit an offence carrying a term of imprisonment in the next three years, you breach the community corrections order. If you don't do the community work, if you don't turn up for supervision appointments, if you don't tell them you have changed your address, that all breaches the community corrections order and you will come back to me and you can be re-sentenced on the original offending.

84I have also declared in my sentence that I have sentenced you on all charges, other than Charges 4 and 8, as a continuing criminal enterprise offender.

85I have also declared that my sentence has taken into account that it has been reduced because you have undertaken to give evidence against the co-conspirators.  As was put to you in the cross-examination when you gave evidence, if you fail to give evidence consistent with your undertaking to do that, you can be re-sentenced by the Court of Appeal for these offences.

86I also have declared that had you not pleaded guilty I would have imposed a custodial sentence of 3 years with a minimum term of 2 years.

87Any other matters that I haven't covered, Mr Armstrong?

88MR ARMSTRONG:  I don't think so, Your Honour.

89HIS HONOUR:  All right.  I thank you for your assistance, Mr Armstrong and Mr Lawrence and Mr Kassimatis on the plea and I will just stand down temporarily.

90MR ARMSTRONG:  If Your Honour pleases.

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