Director of Public Prosecutions v Oxley

[2020] VCC 1242

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01945

DIRECTOR OF PUBLIC PROSECUTIONS

v

KORY OXLEY

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2020
DATE OF SENTENCE:	13 August 2020
CASE MAY BE CITED AS:	DPP v Oxley
MEDIUM NEUTRAL CITATION:	[2020] VCC 1242

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, obtaining financial advantage by deception, dealing with property suspected of being proceeds of crime, specific deterrence, risk of deportation, combination sentence, COVID-19

Legislation Cited: s.6AAA of the Sentencing Act; Commonwealth Migration Act;

Cases Cited:

Sentence:Imprisonment for a period of 9 months and a community corrections order for a period of 15 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecution
For the Offender	Mr D. Carolan	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

1Kory Oxley, you have pleaded guilty to two charges of obtaining financial advantage by deception, for which the maximum penalty is 10 years' imprisonment, and a summary charge of dealing with property suspected to be the proceeds of crime, for which the maximum penalty is two years' imprisonment.

2At the time of the offending you were aged 35 and you were living at 16 Howell Drive in Berwick.

3The facts in this matter are set out in the prosecution summary tendered during the plea and marked as Exhibit P1, and I will summarise the facts as briefly as I can.

Background

4In order to upgrade Victoria’s rail system, the Victorian Government created 'The Level Crossing Removal Authority' to oversee the work.

5One of the sub areas of the project is 'The Caulfield to Dandenong Project', which involves the removal of level crossings between Caulfield to Dandenong on the Cranbourne-Pakenham Line.

6The Level Crossing Removal Authority appointed the Caulfield to Dandenong Alliance ('the CTD Alliance') to undertake and execute the work on this area of the project.  Indicated in the prosecution opening is that the CTD Alliance is the effective end victim in these matters.

7That alliance is an unincorporated company made up of five publicly listed companies which includes Lend Lease Engineering, for whom you were working at the time of the offences.

8The superintendent of the Signalling Team on the Caulfield to Dandenong project is a Mr Steven Winter.  He was employed by CPB Contractors, one of the other companies involved.  He is your co-offender and the beneficiary of the financial advantage in relation to charge 1.

9Lend Lease was one of the contractor companies undertaking the works in the Caulfield to Dandenong area of the project.  Lend Lease employs labour through numerous recruitment companies including Category 5 Labour Management.  Category 5 Labour Management started in Western Australia and it is owned by Samuel Sycamore.

10You, Mr Winter and Mr Sycamore all knew each other from working together or working relationships in Western Australia.  Mr Winter had commenced employment at The Level Crossing Removal Project after finishing his work in Western Australia.  Soon after that he helped you to get a job on this project with Lend Lease.

11You started at Lend Lease on 26 September 2017 with a salary of $185,000 per annum and a vehicle for work purposes.  You were a foreman in the signalling division of the Level Crossing Removal Project.  You reported to
Mr Winter.

12You and Mr Winter recommended Category 5 Labour Management to provide labourers to Lend Lease for the purpose of completing the works.  Category 5 increased its staff in Victoria because of this project.  You requested labourers you had either previously worked with or who had been recommended to you.  Mr Sycamore employed those personnel on your advice.  He gave you the right to approve and reject timesheets for each of the Category 5 labourers.

13You approved or rejected the workers timesheets, which were generated by a mobile phone app.  Lend Lease was invoiced for the labour provided.

14I turn to charge 1, which relates to non-authorised work at Mr Winter's house.

15Mr Winter, in his role as the Signalling Construction Manager and Superintendent for CPB Contractors, managed approximately 80 employees, which included you.

16In your role as the supervisor/foreman for Lend Lease you were entrusted to have works carried out for The Level Crossing Removal Project.  You used Category 5 employees to carry out this work and you dealt directly with another co-offender named Perry Diaz.

17Mr Diaz was the Field Supervisor for Category 5 and he managed a team of approximately 25 employees.

18Between Monday 20 August 2018 and Wednesday 22 August 2018, Mr Winter spoke to you and Mr Diaz in relation to the fact that he was going overseas on Friday 31 August 2018, and he had a lot of outstanding work to do at his premises at 3 Green Street in Selby.

19You organised for the Category 5 Labour Management Signalling Team to attend at his address on the coming weekend and to carry out the work that he needed.

20On Friday 24 August 2018, at a work prestart meeting, you informed the Category 5 Labour Management Signalling Team that they would be working at Mr Winter's premises on the weekend.

21You instructed them to meet at 16 Howell Drive, Berwick, on Saturday
25 August 2018 for breakfast before travelling to Winter's premises.

22At about 9 am you and Mr Diaz, along with 26 team members, went to
Mr Winter's residence in Selby.

23The team members then commenced to build a large fence, move a large pile of wood and paint an outside building and other works.  They left at 6 pm that day and then on the following day, 26 August 2018, you returned with the team of 25 labourers to Mr Winter's premises and continued to carry out works until 6 pm.

24During the day Mr Winter told the team members that they would all be paid for the work that they were doing.

25On Friday 31 August 2018 Mr Winter went overseas with his family.

26The prosecution case on this charge is that you arranged for the work to be conducted at Mr Winter's residence.  You then authorised the payments for the Category 5 workers on this project.  These payments gave benefits to the individual workers, but the financial advantage was to Mr Winter for the value of the work on the property.  I will return to the way that charge is put.

27I move now to charge 2, which relates to non-authorised wage payments which have been described as 'cheese days'.

28On Wednesday 17 November 2018, following the arrest of ex-Category 5 employee Mr Hayden Tarawa, investigators attended at his residence and obtained a diary and two exercise books.  Within one of these exercise books was a reference to 'cheese'.  Police obtained information from Mr Tarawa and his partner that this related to a process whereby you, Mr Oxley, would allow your workers to take days off, and be paid for those days, as long as you received a payment back from the worker. These days were called 'cheese days'.

29The police investigated this aspect of your conduct.  They obtained evidence that a number of staff managed by you would be allowed to take these non-entitled days off work, but they would be paid.  The worker would then pay you up to 50 per cent of the money paid to him for that day's work after tax.  You authorised payment to the worker for the days they claimed.  The majority of the 'Cheese Day' money was paid to you in cash.  On some occasions an amount was transferred to your partner, Janelle Green's, Commonwealth Bank account by some of the employees involved.

30On Friday 2 November 2018, police executed a search warrant at your address in Berwick.  They found two work diaries.  Analysis of the diaries revealed references to 'cheese' and the names of Category 5 and Switch (which is another labour hire company) employees with numerical references and, occasionally, dollar amounts.

31Police approached many of your crew of employees and many gave statements to the police confirming your scheme.  Some of the crew members stated that the system was good for both parties.  Other crew members stated that they felt pressured to join in on the 'cheese' rort, and one of them indicated you had said, "You're either gonna be part of the ship or you're gonna be thrown off".  Some crew members stated that they were approached by you to participate in these 'Cheese Days' but they had declined.

32From the diary notations, and from Ms Green's bank deposits, police have calculated – and this is the way the prosecution put the case - that the 'cheese' payments totalled $90,328.45.  These payments are listed in Schedule B to the indictment in this matter.  Charge 2 represented that you obtained a financial advantage for $90,328.45; being the payments to staff members for days paid for the work that they did not do.  The financial benefit which you accrued was approximately 50 per cent of that amount.

33The relevant summary offence to which you pleaded relates to purchases of a caravan and a boat from the money you obtained through the 'cheese' scheme.

34On Friday 2 November 2018, when police executed the search warrant at your place in Berwick, they found the following items in the driveway of the premises:

·An Avante 556 caravan that you had purchased on 5 April 2018, paying $24,000 in cash, and;

·A Lancer 530 boat, and boat trailer, which you purchased on 25 October 2018 for $11,500.

35As I said, the money used to buy the caravan and the boat was the proceeds of charge 2.

Record of Interview

36You were interviewed by appointment at the Moorabbin Police Station on
5 December 2018 and you largely gave a "no comment" interview.

Guilty Plea

37You pleaded guilty to these offences at the earliest possible opportunity, being the second committal mention.  The first committal mention had been adjourned to permit settlement discussions.  I give you credit for the very significant utilitarian benefit of your plea, saving the community the time and cost of what would have been a lengthy trial and sparing the witnesses from having to give evidence.  I accept your plea evidences some remorse and a willingness to facilitate the course of justice.

Gravity of the Offending

38Mr Oxley, your offending was serious dishonesty offending with several aggravating features.  You were in a position of trust.  You were a well-paid manager for Lend Lease.  You had the responsibility of authorising workers payments.  You breached this trust repeatedly and over an extended period.  Your offending in charge 2 took place over approximately 12 months and involved multiple separate acts of dishonesty.  The offending in charge 1 took place over two days.  The total amount of the money involved across the two offences is more than $160,000: a substantial sum.  You used the proceeds of the offending in charge 2 to buy yourself a caravan, a boat and a Land Rover, over which you were prosecuted in the Magistrates' Court and received a fine.

39I accept that you did not reap the benefit of the offending in charge 1, but you did abuse the power you had to authorise wages and this offence could not have taken place without your involvement.  Neither you, nor Mr Winter or
Mr Diaz, had any moral compass in place when you decided to offend in this way.

40One disturbing feature of your offending in charge 2 is that you involved other workers in your dishonest scheme.  You were managing these workers and you had power over them, and you roped them into your criminal conduct.  Some of those people were reluctant to become involved and were effectively bullied into participating.  You were spreading a culture of dishonesty within that workplace.  I do regard this as a serious aggravating feature of your offending.

41In relation to charge 1, I sentence you on the basis that you, Mr Diaz and
Mr Winter came up with this scheme together.  You authorised the payments, but Winter got the benefit.  I regard your culpability for this offending as slightly lower than Mr Winter but greater than Mr Diaz.  I note in this regard that I was advised by Mr Devlin that the charge to which Mr Winter pleaded guilty was for a greater amount and involved some additional work on other days.

42With respect to this charge, I do not accept that you were somehow prevailed upon to offend in this way by Mr Winter.  You were already authorising false wage claims in the 'cheese' scheme.  It is my view you were a willing participant and you felt you owed something to him.  Winter suggested this in his statement to the police.  Mr Winter pleaded guilty to a charge with a greater quantum, as I indicated.  He was dealt with in the Magistrates' Court.  If that was the only charge for which I was sentencing you I would feel constrained to impose a similar disposition to that which was imposed on Mr Winter, being a community correction order with no period of imprisonment.

43However, you are also to be sentenced for the dishonest conduct represented by charge 2, and in my view that offending eclipses your misconduct in charge 1.  The quantum involved was larger, it involved multiple acts of dishonesty over an extended period and you were the architect of the offending and involved others in the fraudulent scheme.  These 'cheese days' were designed for your benefit.

44At the time of the offending you were on a community correction order for an assault on your son.  Of course, that was a very different type of misconduct and the previous behaviour is not of great significance, or any, to my sentencing task for this dishonesty.  However, the fact you were on a court order at the time is an aggravating feature of your offending here.  Your offending here was a contravention of that order.  The community correction order had a condition designed to assist you with drug use, however the psychological material tendered on your behalf establishes that you were using methamphetamine during 2018, whilst you were on that order.  Indeed, your use of drugs is said to be part of the reason why you committed these offences.  You failed to take seriously the order, in my view, and take advantage of the services and the assistance for your problems as required by that order.  You offended during the currency of that order.

45In my view your offending whilst on the order is relevant to specific deterrence and cuts across the submission made on your behalf that I should impose a community correction order alone, without any period of imprisonment.  The community correction order assessment report I ordered, with a view to imposing a combination sentence of imprisonment and a community correction order, indicates your progress on the previous order was unsatisfactory.

46I do not find the explanation that drug use, the stress of management and your ego led you to offend in this way a persuasive one.  This offending was not a one-off incident or a temporary lapse of judgement; it was a course of conduct which took place throughout 2018.  In my view it arose from a fundamental dishonesty.

47I regard your moral culpability as high and your involvement in the two offences places you in a different category to Mr Winter.

48Tendered on your behalf during the plea were a number of character references and a psychological report, which I will detail in a moment, but I will firstly turn to your personal circumstances.

Personal circumstances

49Mr Oxley, you were born and raised in Auckland, New Zealand.

50From an early age you were exposed to family violence, crime, drugs and alcohol.  Your parents separated around the time you were born.

51You had a good relationship with your grandparents, with whom you lived from time to time, but you were shuffled around from various relatives homes during your childhood.  For a time you lived with your mother and stepfather, and while you did not experience or observe family violence in that situation you were again exposed to drugs and alcohol.

52When you were aged 15 your then girlfriend fell pregnant and you later lived with her family.

53At the age of 17 the two of you moved together to Kalgoorlie.  You separated soon after and you have not seen your son from that relationship for nearly 13 years, though apparently you have always paid child support.

54At some point after this you returned to New Zealand and worked there for approximately three years.

55You were a talented rugby player and toured internationally with the New Zealand under-21s side.  You lost your place in that side after suffering a broken jaw.

56Whilst playing rugby you commenced a relationship with your then partner, Cecilia.  You had two children together, Java and Braydon, aged 15 and 12 respectively.  You are their primary carer.

Employment

57By way of employment you commenced work in various construction roles in Kalgoorlie, and then in Alice Springs, and then after that in New Zealand.  Your time playing rugby corresponded to a break in construction work.

58After the broken jaw you returned to the construction industry in Perth, and you have not left that industry since.  Around that time, you were using alcohol, cannabis and methamphetamine to cope with the pressure of your fly-in, fly-out work.  As a result, your relationship with your partner, Cecilia, broke down.

59You met your current partner, Janelle, during a period of stability.

60In 2017 you moved to Melbourne to work on the Level Crossing Removal Project.  You say you found your management role to be unfamiliar and stressful and this caused a relapse into illicit drug use.

61Your current situation is that you live in Berwick with your partner, Janelle Green, and your five children: Shaylee (16), Java (15), Kruz (13), Braydon (12) and Reef (6).

62You now have a job as a crane operator.  I am told you lost an earlier job because of publicity about this matter and I have had regard to that in formulating the sentence in this case.

Psychological

63A report from psychologist Ms Pamela Matthews was tendered on your behalf.  She noted the following matters in her report:

·You have a complex developmental history of exposure to family violence, drug use, criminal behaviour and being passed around the family, exposing you to multiple attachment losses;

·Despite elevated static risk levels related to childhood development and dynamic risk levels related to substance misuse she, Ms Matthews, considered you are someone who learns by your mistakes, and she considered your risk of re-offending is low providing you receive some support and treatment;

·You present, according to Ms Matthews, as uneducated, but not in any way cognitively limited.  She estimates you would function within the average range of ability;

·You presented with underlying anxiety which drives your commitment to long working hours, and to your family;

·She said you are likely to experience heightened levels of attachment anxiety should you be separated from your partner and children and that you will be vulnerable to psychological collapse in such circumstances.  Because of the developmental attachment foundation to your anxiety your mental state will be difficult to treat and any time in custody separated from your family is likely to be quite onerous.

64I take into account the matters raised by Ms Matthews, particularly – and this is a matter to which I will return – the weight of the period of imprisonment upon you. 

Prospects of rehabilitation

65You do not have a lengthy criminal history and you have no prior convictions of dishonesty offending.  As I said, Ms Matthews offers the view that your prospects of rehabilitation are good.  I am not so sure I can be quite as positive, given the nature of the offending in this case and because you have had a significant problem with methamphetamine for some time, and also your compliance with the community correction order that you were placed on in 2018 has been termed "unsatisfactory", as indicated in the community correction order assessment report.  In that report you have been rated as a high risk of re-offending according to the Level of Risk Assessment Tool that Corrections use, and this is a matter I have considered in the assessment of your prospects of rehabilitation.

66In the end, my view is that because you do not have a lengthy criminal history, including nothing for dishonesty, if you can stop using methamphetamine your prospects of rehabilitation are reasonably good.  You should benefit from the supports which a community correction order can provide on your release from the period of imprisonment I intend to impose.  This is an order you will have to adhere to, Mr Oxley.

COVID-19

67I accept that the COVID-19 pandemic is relevant to sentencing.  It is likely that while the pandemic continues there will be substantial limitations placed on your ability to receive visits from your family.  Given the findings of Ms Matthews that you will be vulnerable to psychological collapse in custody as a result of being removed from your family this is a significant matter - particularly given this will be your first time in prison.  I accept that this sentence will weigh heavily on you, leaving your partner and family behind, and that the pandemic conditions will heighten your anxiety.

·I take into account general anxiety among the prison population at the prospect of an outbreak in custody;

·I take into account the broad use of lockdowns used to control and prevent the spread of the virus in custody, causing prison to become a harsher experience;

·I take into account that there are limited supports and courses available during the course of the pandemic and I accept that all of these matters will weigh heavily on you – particularly in circumstances where this is your first period of imprisonment.

Restitution

68When police arrived to arrest you, they located the caravan and the boat, which you bought with the proceeds of charge 2.  This property will be forfeited, so in that way at least the loss to revenue is minimised to some extent, and I have regard to that.

Risk of Deportation

69It was submitted on your behalf by Mr Carolan that I should take into account that you could be subject to deportation because you are not a citizen and your criminal record could lead to deportation under the Commonwealth Migration Act.  As will soon become apparent, I am not imposing a sentence that will trigger the automatic cancellation provisions of the Commonwealth Migration Act.  In my view, in those circumstances this is not a mitigating factor of great significance.  You may have a view that you are in some peril because of your offending – that you will ultimately fail the character test – but whether or not that is a genuine risk is speculative, to a degree, however I accept that this is your first sentence of imprisonment, which will weigh heavily on you for a number of reasons, and that an underlying fear of deportation could cause you additional anxiety in serving that sentence.  So, I take into account the risk of deportation in that way.

Sentencing Principles

70It is clear from the appellate authorities that considerations of general deterrence are of great importance for serious dishonesty offending such as yours, involving a significant breach of trust.  In my view the need for general deterrence is accentuated by the aggravating feature that you involved others, some unwillingly, in your dishonest conduct.  The court must also denounce behaviour such as yours.

71Specific deterrence is also a relevant consideration.

72I must, of course, have regard to your rehabilitation, and I will reflect this consideration in the sentence that I impose.

Submissions

73Mr Carolan submitted that a community correction order alone meets the purposes of sentence in this case.  In making this submission Mr Carolan relies on the parsimony principle that the sentence must be no more severe than is necessary to meet the purposes of sentencing.

74Mr Devlin submitted that having regard to the gravity of this offending, your moral culpability and the need for general deterrence and denunciation, some period of imprisonment must be imposed.  Mr Devlin submitted that a combination sentence was within the range of available sentences.

75In my view the prosecution submission is correct.  A proper application of general deterrence and denunciation to this serious offending dictates that a period of imprisonment is required.

76I will reflect considerations of rehabilitation by imposing a combination sentence of imprisonment and a community correction order.  The conditions I impose are imposed primarily to assist your rehabilitation, but I have taken the view that there should be some further punitive component to the sentence, and I will order some period of community work.

Sentence

77In respect of charges 1, 2 and the summary offence of dealing with suspected proceeds of crime, you are sentenced to an aggregate period of nine months' imprisonment.

78In addition to that I order a community correction order for a period of 15 months with the following conditions:

·Supervision;

·100 hours of unpaid community work;

·Conditions relating to your rehabilitation including your mental health and drugs and alcohol.

79Forty hours of your involvement in program conditions can be deducted from the community work component that I have imposed.

80In relation to s.6AAA of the Sentencing Act I declare that but for your plea of guilty in this matter I would have imposed a sentence of three years with a minimum of two years.

81Now, I'll have that order printed out and I'll go through the mandatory core conditions with you, Mr Oxley.  Just give us a moment.  Mr Devlin, 40 hours is permissible, isn't it?  As program conditions that can be taken into account?

82MR DEVLIN:  Your Honour, up to 40 hours.  Your Honour's correct.

83HIS HONOUR: Yes. So that's a combination sentence, Mr Oxley, under s.44 of the Sentencing Act, involving imprisonment and a community correction order. That'll be printed out in a moment but I'll say this to you now. If you breach the community correction order - either by not complying with the conditions of the order or by re-offending – when you're charged with a breach one of the options is to cancel the community correction order, vacate the prison sentence and re-sentence you for all of this, do you understand? Which is a circumstance which could involve you going back to prison to serve more time.

84Now, every community correction order has mandatory conditions.  They are these.  You can't commit another offence for which you could be imprisoned during the period of the order; you have to comply with the sentencing regulations; you have to report to and receive visits from Corrections.  You have to report within two clear working days of the commencement of this order – so that's at the conclusion of the nine months.  You have to let Corrections know if you're changing your address or your job; you can't leave Victoria without permission and you have to obey all lawful instructions.

85The special conditions are 100 hours.  Forty hours of treatment and rehabilitation can be subtracted from the community work that I've ordered.  You have to be under the supervision of a Community Corrections officer for a period of 15 months; you'll have assessment and treatment for drug abuse and dependency, as directed, and mental health assessment as directed - and I'm fairly certain I ordered alcohol as well, as recommended.  I did.  All right.

86That order will be printed in a moment and I'll ask you to sign that order.  Do you consent to an order in those terms, Mr Oxley?  Do you consent to a community correction order in the terms that I've outlined?

87OFFENDER:  Yes.

88HIS HONOUR:  You do?  All right.  Now, were there ancillary orders, Mr Devlin?

89MR DEVLIN:  There was the order for compensation, Your Honour.  A draft order has been provided and I understand the defence position was that compensation was not opposed.

90HIS HONOUR:  Yes.  Was it for the $45,000, was it?  Or thereabouts?  I can't remember.  Have you got it in front of you?  Yes, okay.  I'll sign this now.

91MR DEVLIN:  And there was also a forfeiture order, Your Honour, just in relation to matters taken in possession of the police.

92HIS HONOUR:  Yes.

93MR DEVLIN:  And I think the order's been provided to – a draft order's been provided to Your Honour's associate.

94HIS HONOUR:  All right.

95MR CAROLAN:  Your Honour, I believe the sum – if I might be of assistance?

96HIS HONOUR:  Yes?

97MR CAROLAN:  I believe the sum is $41,980.

98HIS HONOUR:  All right.

99MR CAROLAN:  Happy to be corrected.

100HIS HONOUR:  Well, and there's no opposition, so I'll make the compensation order sought and I'll make the forfeiture order sought.  That's it?

101MR DEVLIN:  Thank you, Your Honour.

102HIS HONOUR:  That's it?

103MR DEVLIN:  Yes, Your Honour.

104HIS HONOUR:  And there's no pre-sentence detention in this matter?

105MR DEVLIN:  No, Your Honour.

106HIS HONOUR:  Yes.  Look, can I just add – this won't be part of the – well, it will be.  I meant to refer to the reference material that was tendered, which I've read and taken into account.  That's a reference of Brandon Groves, a reference from your partner, Janelle Green, and a reference from Rebecca White.  I've read all that material and have regard to it.

107MR CAROLAN:  Your Honour, might I approach the dock?

108HIS HONOUR:  Yes.  Thank you, Mr Carolan.  All right.  If there's nothing further I'll stand down till 11 o'clock.  Yes.

109MR DEVLIN:  As Your Honour pleases.

110MR CAROLAN:  Your Honour pleases.

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