Director of Public Prosecutions v Pedersen, Dale Leigh
[2012] VCC 1112
•27 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00063
CR-10-01659
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE LEIGH PEDERSEN |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 1-2-12 - 3-3-12, Plea 25-5-12 | |
DATE OF SENTENCE: | 27 July 2012 | |
CASE MAY BE CITED AS: | DPP v Pedersen, Dale Leigh | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1112 | |
REASONS FOR SENTENCE
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Catchwords: Multiple deception, continuing criminal enterprise offender
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S Devlin Mr B Kissane | |
| For the Accused | Mr M Pena-Rees |
HIS HONOUR:
1 Dale Leigh Pedersen, after a trial covering some 36 days a jury found you guilty of twenty five (25) dishonesty offences contained in indictment Y02940235A (which I shall hereafter refer to as “the trial indictment’). Your offending in the trial indictment occurred between May 2004 and February 2005.
2 After the trial concluded you pleaded guilty to a further charge of obtaining property by deception contrary to section 81(1) of the Crimes Act 1958 contained in indictment Y0294235B.1 (which I shall hereafter refer to as “the plea indictment’). The offending covered by that further charge in the plea indictment occurred in August 2008.
3 The offences of which you were convicted by the jury on the trial indictment were twelve (12) charges of furnishing false information contrary to section 83(1)(b) of the Crimes Act (charges 1, 5, 7, 10, 12, 13, 15, 17,18, 28, 29 & 30) and four (4) charges of making false documents contrary to section 83A(1) of the Crimes Act 1958 (charges 2, 3, 21 & 24) and five (5) charges of obtaining financial advantage by deception contrary to section 82(1) of the Crimes Act (charges 4, 8, 9, 14 & 16) and four (4) charges of obtaining property by deception contrary to section 81(1) of the Crimes Act (charges 6, 11, 20 & 27).
4 At the conclusion of the prosecution case I discharged the jury from returning a verdict and directed a verdict of not guilty be entered in respect of five charges of furnishing false information. They were charges 19, 22, 23, 25 & 26. That was done pursuant to the power contained in section 241(2)(b) of the Criminal Procedure Act 2009.
5 In passing sentence upon you for your offending I must have regard to the maximum penalties for the offences that you have committed. Usually, the maximum penalty for each of the offences that you committed is level five imprisonment which provides for a maximum term of imprisonment of 10 years. However, where an offender commits a “continuing criminal enterprise” offence within the meaning of that expression as found in section 6H of the Sentencing Act 1991 different maximum penalties apply.
6 Schedule 1A (1)(f) of the Sentencing Act 1991 provides that the offence of furnishing false information contrary to section 83(1)(b) of the Crimes Act is a continuing criminal enterprise offence where the potential for gain or loss is $50,000.00 or more. Also, the same schedule in 1A(d) provides that the offence of obtaining property by deception contrary to section 81(1) of the Crimes Act is a continuing criminal enterprise offence where the value of the property obtained is $50,000.00 or more. Further, the same schedule in 1A(e) provides that the offence of obtaining financial advantage by deception contrary to section 82(1) of the Crimes Act is a continuing criminal enterprise offence where the value of the financial advantage obtained is $50,000.00 or more.
7 Section 6H of the Sentencing Act 1991 also defines the expression "continuing criminal enterprise offender". Relevantly, it includes an offender who is found guilty of (c) “3 or more continuing criminal enterprise offences’.
8 Section 6I of the Sentencing Act 1991 provides that where a continuing criminal enterprise offender is liable for a continuing criminal enterprise offence the maximum term of imprisonment is 2 times or double the maximum term prescribed for the offence or 25 years imprisonment whichever is the lesser. In this case if you fall to be sentenced as a continuing criminal enterprise offender for a continuing criminal enterprise offence the maximum penalty increases from 10 years imprisonment to 20 years imprisonment.
9 In addition, if you are sentenced as a continuing criminal enterprise offender for a continuing criminal enterprise offence I am required by section 6J of the Sentencing Act to have entered in the records of the court the fact that I have sentenced you as a continuing criminal enterprise offender for a continuing criminal enterprise offence.
10 The prosecution submits that the effect of these provisions is that charges 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 27, 28, 29, 30 on the trial indictment are continuing criminal enterprise offences and you therefore fall to be sentenced as a continuing criminal enterprise offender.
11 In addition it submits that because you have been found guilty at trial of 18 continuing criminal enterprise offences when it comes to sentencing you on the charge in the plea indictment the offence there is also a continuing criminal enterprise offence and by operation of section 6H(a) you are also to be regarded as a continuing criminal enterprise offender for the purposes of sentencing on that charge.
12 Mr Pena-Rees who appeared as counsel on your behalf conceded I think that there was difficulty arguing with the prosecution submissions that on charges 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 27, 28, 29, 30 on the trial indictment and the charge in the plea indictment you should not be sentenced as a continuing criminal enterprise offender. However, he contended there was disparity between the final figures on some of the charges and the court he submitted would have to have regard to what (if any) money was repaid.
13 I reject his submissions that in determining whether an offence is a continuing criminal enterprise offence it is necessary to have regard to what sum (if any) has been repaid. Schedule 1A of the Sentencing Act 1991 in 1(d) prescribes a continuing enterprise offence where “the value of the property obtained is $50,000 or more”. The section places emphasis on what is obtained by the deception not upon what the net affect might be after repayment. So too in 1(e) which is in like terms. Section 1(f) prescribes a continuing enterprise offence where “the potential for gain or loss is $50,000 or more”. The court is not to concern itself with what the net affect might be after repayment.
14 However, for reasons which will soon become apparent I do not accept that all of the charges which the prosecution submits are continuing enterprise offences in the circumstances of your offending should be regarded as such.
15 In sentencing you on charges 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18 and 27 on the trial indictment and on the charge in the plea indictment I will sentence you as a continuing criminal enterprise offender and regard those offences as continuing enterprise offences. That means on each of those charges the maximum penalty which I must have regard to will be twenty (20) years imprisonment for each charge. For reasons which I shall soon explain I have rejected the prosecution submissions that you should be sentenced as a continuing criminal enterprise offender on some of the charges.
Circumstances of offending on charges in the trial indictment
16 The background to your offending in the trial indictment is important in understanding how it all came about. Much of the background was not in dispute.
17 Independent Truck Bodies Pty Ltd (“the company”) was a truck body building company that specialised in truck fit outs including fire trucks and other emergency vehicles. The company was incorporated in 1994 and traded under the business name “Vic Truck Bodies” and later as “VTB Coachworks”.
18 You commenced employment with the company in late 1997 as the State Sales manager. On 16 September 2000 you were appointed as a director. Other directors were Robert Spicer, the founder of the business, Anthony Robinson and Andrew Osborne. You remained a director at all relevant times. Through a trust arrangement you owned shares in the company. Eventually you would come to own 50% of the company shares. A trust controlled by Mr Spicer owned the other 50%.
19 In 1999 Maureen Newbound was employed by the company as an administration clerk responsible for general office administration, accounts payable and receivable and wages. She was a central figure in the trial. She gave evidence against you as an indemnified witness. You attempted to blame her for all of your offending. The jury clearly accepted her evidence which in summary was that everything that she did was at your behest.
20 In 1996 the company obtained a small overdraft facility from the National Australia Bank (“NAB”). The amount of the overdraft facility increased over time.
21 In March 1999 the company obtained a different finance facility from the NAB which replaced the overdraft facility. The new facility was a NAB Debtor Finance Facility in the amount of $400,000 (“the NDF”). It was operated through an account at the NAB designated for that purpose known as the NDF account.
22 As its name suggests the NDF was a debt factoring facility which provided for the company to factor its invoices to the NAB which would pay to the company on presentation 80% of the face value of an invoice up to a maximum of the facility, namely $400,000. There were a number of terms and conditions to this arrangement which were recorded in writing. Usually the amount advanced was on the basis that the invoice would be paid by the customer within 90 days. If the invoice had not been repaid within that time the NAB could require the company to repay to it any amount previously advanced on an unpaid invoice. It was essential to the operation of the NDF facility that the invoice sent to the NAB for factoring was a valid and genuine invoice to a customer. That is, that when sent to a customer that customer then had a legal obligation to pay to the company the face value of the invoice concerned.
23 From time to time the limit of the NDF facility available to the company increased. In November 2000 the limit of the facility increased from $400,000 to $800,000 and in September 2002 the limit was increased to $1,500,000 and finally in April 2004 it increased to $1,600,000.00. The NDF facility was secured in part by a mortgage debenture over the assets of the company and in part by personal guarantees from the directors from time to time which were in turn secured by mortgages over the homes of the directors. This included yourself.
24 The terms of the various arrangements between the company and the NAB for the NDF facility and the security documents involved in the arrangement went into evidence at trial book 1 at the general tab.
25 The NAB security documentation relevant to the offending for which I sentence you is found at the general tab pages 1533 to 1566. You signed as a director for the company at 1556 and as a personal guarantor at 1562. Clause 3 of the facility agreement at 1536 sets out the mechanics of how the NDF facility was to work. Clause 12 at 1541 of the trial book sets out warranties which the company made to the NAB about the debts that it factored to the NAB under the facility. Clause 12.1 (a) required the debt factored to be a “bona fide debt due and owing by the customer and shall be valid, enforceable and subsisting for the face invoice value”. Clauses 12.1(b) and (c) provided for the debt not to be voidable and that the company has good and valid title to the debt. These are at trial book 1541 and 1542 respectively.
26 Clause 13.1 at page 1542 of the trial book provided for full disclosure of the financial position of the company to the NAB from time to time. Relevantly it provided, inter alia, “The vendor and the guarantor warrant to the bank that….(a) full and true disclosure has been made to the bank of the vendor’s and the guarantor’s business, assets, and financial affairs and that all financial statements and information of the vendor and the guarantor given at any time to the bank will present fairly and accurately the financial position of the vendor”. Relevantly, the vendor referred to is the company. You with Spicer were the guarantors jointly and severally liable in the event the company defaulted.
27 It was not in contention at the trial that the NDF facility generally worked in the following way. The company would present an invoice to one of its customers to the NAB. The NAB would purchase the invoice at 100% and the NAB would then make 80% of the face value of an invoice available to the company up to the fund limit of the NDF account. The debit balance of the company’s NDF account would fluctuate from time to time increasing when the company used the account to pay expenses or the like and decreasing as the company factored further invoices to the NAB. Customers or debtors to whom the company’s invoices were directed were then to pay 100% of the invoice face value into the NDF account as a credit which served to reduce any outstanding debit balance. The additional 20% of the face value of the invoice was held by the NAB as security and referred to as the retention. Once payment of the invoice was received from the debtor into the NDF account the 20% retention held by the NAB was recalculated and released to the company at the end of each month. The NAB charged a fee.
28 The initial NDF facilities provided for a period of 90 days during which the company was responsible for ensuring that any invoice factored through the NDF facility was paid by the customer into the NDF account. If the invoice still had not been paid within the 90 day period the NAB claimed back from the company the amount it had initially funded on the outstanding invoice thereby reducing the limit of the amount available to the company through the NDF facility.
29 In January and February 2004 you sought and obtained from the NAB a variation of the terms of the NAB facility so that the period during which the invoices factored through the NAB were to be repaid was increased from 90 days to 120 days.
30 Mrs Newbound under your direction was responsible for supplying to the NAB the details of the debtor invoices. Mrs Newbound would provide to the NAB a certificate of Debtors and an Accounts Receivable Ageing Summary on a monthly basis. At first such documents were produced as spreadsheets from the Quickbooks Accounting Software program used by the company. Later, Mrs Newbound prepared the Ageing summaries separately on an Excel spreadsheet and not through the Quickbooks program so that the information was not linked into the computerised books of account of the company. The purpose of supplying such documents to the NAB was so that the company would certify to the NAB the exact position of the company’s debtors, that is, who were the debtors, how old they were, what debts had been paid over the course of the month and what debts remained owing to the company.
31 Over time and as a result of your offending Mrs Newbound began to maintain three separate but different spreadsheets in relation to the debtors of the company. One spreadsheet recorded the actual true position with debtors. Another recorded all debtors that were actually factored through the NDF facility. This was necessary because not all invoices were factored especially those where the company felt it would be paid on a COD basis. The third spreadsheet recorded the debts that had been removed from the NDF but had not been paid by the customer.
32 As well as the NDF account and other accounts with the NAB the company operated another account initially opened with the Bank of Melbourne in 1999 and which after a bank merger became the Westpac account. Debtors whose invoices had not been factored through the NDF account were advised by the company to pay into this account and not the NDF.
33 Around mid 2004 the company was having problems with reduced cash flow and the NDF facility was reaching its limit. You became aware that the company had a large liability for unpaid tax. Andrew Osborne, who was an accountant and a director of the company and shareholder of the company at that time, was dismissed and a new external accountant Michael Williams was retained to give advice to the company and to negotiate repaying the tax debt by instalments.
34 It was in the context of the company facing a very tight liquidity situation that your offending occurred.
35 The prosecution case which must be taken as having been accepted by the jury was that in all of the offending, the customer concerned was a customer of the company for which you were primarily responsible. Even though Spicer was a director of the company he had little to do on a day to day basis with your customers.
36 Further, the prosecution case was that in respect of charges 3, 6, 11, 20, 21, 24 and 27 on the trial indictment you acted alone. By its verdicts the jury must be taken as having accepted that was the position.
37 The prosecution case was that in charges 1, 2, 4, 5, 7, 8, 9, 10, 12, 15 and 16 you acted by using Maureen Newbound effectively as an innocent agent or dupe and without her having knowledge that anything that she did in assisting in the commission of those charges was wrong.
38 After a period of time Mrs Newbound came to a realisation that you were misleading the NAB and that she was assisting you in doing so. The prosecution case which must be taken as having been accepted by the jury was that the offences in charges 13, 14, 17, 18 and 28 to 30 you committed those offences whilst engaged in a joint criminal enterprise with Mrs Newbound.
39 It is with that background to your offending that I come to describe the actual offences of which you have been convicted from the trial indictment.
40 Your offending in charges 1 to 4 may be conveniently summarised together. The factual scenario involves the ACT Department of Justice and Community Safety although the ultimate victim of your offending was the NAB.
41 In about April/May 2003 the company had made some vehicles for the ACT Department of Justice and Community Safety. In the course of that delivery a representative of that organisation made a general inquiry of you to quote for the supply of a Mercedes Benz sprinter vehicle equipped to be used as a radio relay/forward command vehicle. The witness Willimott gave evidence a quote was provided by you in the form of that found in the trial book at pages tab 1/2227 to 2230 save that the last two lines were missing. He said that no purchase order was ever made for the supply of this van to the company or to you by the ACT Department of Justice and Community Safety.
42 Notwithstanding that there was no order by the ACT Department of Justice and Community Safety for the Mercedes sprinter van on or about 5th May 2004 you instructed Mrs Newbound to prepare invoices D3205 and D3206 respectively. Those invoices are found at trial book 1/2225-6. Invoice D3205 is for the supply of the van in the sum of $63,482.65 and invoice D3206 is for the cost of fit out of the van in the sum of $64,968.20. Both documents were false and were prepared for the purpose of having the NAB release funding through the NDF facility. (Charge 2 make false documents)
43 Also on the 5th May 2004 on your instructions, Mrs Newbound sent an invoice statement to the NAB NDF facility attaching the two invoices D3205 and D3206. The invoice statement is at trial book 1/2221 to 2230 inclusive. It attaches the two invoices concerned as well as the quotation dated November 2003 which I have already referred to. That was done to give explanation to the invoices. The prosecution case which must be taken to have been accepted by the jury was that you added two lines to the bottom of the second page of the quotation before it was sent and forged the signature of Mr Hewitt of the ACT Department of Justice and Community Safety to the document. Those lines read “We authorise the commencement of the works and the supply of products. Signed J Hewitt for and on behalf of ACT Emergency Services”. Mr Hewitt gave evidence there was never any agreement for the supply of the Mercedes vehicle and he did not sign the document. (Charge 3 make a false document)
44 In sending the invoice statement together with the copy invoices and copy quotation as altered by you Mrs Newbound acted entirely upon your instruction not knowing the documents were false. The invoice statement contained the words “I M T Newbound on behalf of the vendor hereby certify that the goods shown on the attached invoices have been delivered and accepted by and that the services shown on the attached invoices have been performed to the satisfaction of the customer shown therein.” The wording of the certification was the same in respect of all invoice statements sent by Mrs Newbound on behalf of the company to the NAB. The effect of it was that the NAB was told in writing that the company had performed the work described in the invoices when you had full knowledge that was not the fact. The invoice statement and the documents attached to it were supplied to the NAB for accounting purposes. (Charge 1 furnish false information) Mrs Harrington gave evidence at transcript 1525 to 1527 that the NAB accepted the invoice statement and attached material as legitimate and increased the funding available to the company by $110,375.53. (Charge 4 Obtain a financial advantage by deception)
45 The potential for loss or gain caused by your offending in charge 1 was thus more than $50,000 and the actual financial advantage to the company resulting from charge 4 was more than $50,000 in the result that in the circumstances each of the offences in charges 1 and 4 is a continuing criminal enterprise offence.
46 You gave sworn evidence. You agreed that you may have forwarded the quotation document without the endorsement authorising commencement of works seen on page 1/2230 and you agreed that you possibly authorised the invoices to be factored. But you denied that you forged Mr Hewitt’s signature on the document so it could be used as supporting documentation given to the NDF. You gave evidence there was a handshake agreement between yourself on behalf of the company and representatives of the ACT Department of Justice and Community Safety that the company would supply a Mercedes sprinter van.
47 You denied that the invoices were false and claimed that the company had acquired and fitted out the Mercedes sprinter van. The jury rightly in my view rejected your evidence which could easily be seen as a tissue of lies.
48 Charges 2 and 3 in my view are straight forward cases of falsifying documents. At the time the false documents were prepared the company was faced with tight liquidity and needed cash to pay expenses including taxation and to keep trading. Had the company failed financially at that point you were faced with financial ruin because you had personally guaranteed monies borrowed by it from the bank. The overall effect of the offending in charges 1 and 4 is that the company gained a financial advantage in excess of $110,000. Your offending in charge 1 of furnishing false information and in charge 4 of obtaining a financial advantage by deception are in my view serious examples of what the courts regard as serious offences. Because your offending in charges 1 to 4 arises out of the same circumstances I am of the view it is appropriate to give full concurrency to the sentences imposed by me on those charges and this will be reflected in my sentence.
49 Charge 5 is another charge of furnishing false information required by the NAB for an accounting purpose. On 28th May 2004 Mrs Newbound forwarded to the NAB an Accounts Receivable Ageing Summary for the company as at that date which disclosed that $162,215.35 was due and owing by the ACT Department of Justice and Community Safety. That figure was false because it had been inflated in consequence of the false invoices factored as a result of your offending in charges 1 to 4. The document concerned is found at trial book 1/1187 to 1188.
50 Mrs Newbound gave evidence that she prepared the document as part of her duties, the document being required for the NDF at transcript 1839. Your defence to this charge was similar to that in relation to charges 1 to 4, namely you did not falsify any documents and the invoices were legitimate because the Mercedes van was ordered and fitted by the company and was ready for delivery. Accordingly you argued the Accounts Receivable document prepared by Mrs Newbound dated 28 May 2004 was not false. The jury correctly in my view rejected your evidence and accepted the prosecution case.
51 Mrs Harrington gave evidence. She was from the NAB. She gave evidence that as a result of receiving the Accounts Receivable Statement dated 28th May 2004 the funding limit available to the company in the NDF facility increased by $39,114.29 at transcript 1535. The prosecution submitted you fall to be sentenced as a continuing criminal enterprise offender in respect of charge 5. Because the potential gain or loss caused by the furnishing of false information was less than $50,000 in this instance I reject the prosecution submission which is not established on the evidence.
52 Charge 6 is a charge of obtaining property by deception. The victim was the Victorian State Emergency Service. The prosecution case was that you falsely represented to the SES that the company had received fourteen (14) Hino cab chassis and paid for them by bank guarantee. The false representations were made by you in emails exchanged between yourself and the witness Warren after you had sent three invoices for Hino cab chassis to the SES in April and May 2004. The invoices are numbered D3187, N2873 and N2874 respectively. They are found in the trial book at tab 6/1084 to 6/1088. The total of the three invoices is $268,500.00. The Victorian State Emergency Service acted on the basis that the representations you made to it in your emails were true, not false, as was the fact. On 17 June 2004 the Victorian State Emergency Service paid the sum of $268,500 to the company. (Charge 6 Obtaining Property by Deception). The sum of $268,500 was paid into the Westpac account because those invoices were not factored and used by the company to keep its creditors at bay.
53 The false representations made by you are found in two emails commencing on 11 May 2004 from you to the witness Warren at tab 6/1045, a response from Warren to you at tab 6/1046 and your response to that email at tab 6/1048. The representations were false. The prosecution relied upon the evidence of Greg Williams who gave evidence that 14 Hino cab chassis had not been delivered to the company at that time and that no vehicles were ever paid for by the company either by bank guarantee or by any other means. There was never a bank guarantee obtained or provided to CMI Hino.
54 You gave evidence you had given a bank guarantee being the guarantee of the NDF facility. The prosecution argued, correctly in my view, your evidence on this issue was a lie. The jury was right to reject your evidence which in my view was a deliberate lie. In your evidence you denied that what you said to the SES officers in any emails was false or was in any way intended to mislead or deceive. You gave evidence that in your past dealings either with the SES or with the Defence Department you had never been asked before to provide any documentation guaranteeing that title to the trucks concerned would pass upon payment. This evidence in my view was calculated by you to mislead the jury and distract them from what you actually said to Mr Warren and Mr Weibusch in your emails. The jury was right to reject your evidence.
55 What you said to the Victorian State Emergency Service was all false and intended by you to deceive that body into paying the sum of $268,500 to the company when it had absolutely no entitlement to that money. Your deception induced the Victorian State Emergency Service into the belief that the payment of $268,500 was secure because it would receive ownership of three Hino Cab chassis upon payment. It was a true deception and in my view a serious example of this kind of offending.
56 The amount of property obtained because of your deception being more than $50,000 charge 6 is a continuing criminal enterprise offence.
57 Your offending in Charge 7 is based on the same facts as charge 5 except the offence is alleged to have occurred one month later on 2nd July 2004 when the Mrs Newbound furnished the end of month Certificate of Debtors for June 2004 at trial book 7/1157 which attached the end of month Accounts Receivable Ageing Summary as of June 2004 found at tab 7/1162. That document showed the sum of $162,215.35 as owing by the ACT Department of Justice as a debtor. $128,450.85 of that sum was recorded as being outstanding in the 31-60 day category. That was a false entry. (Charge 7 Furnish False Information)
58 Mrs Harrington gave evidence at transcript 1537 that as a result of receiving the end of month certificate of debtors and the attached Accounts Receivable Ageing Summary as of June 2004 the NAB increased the amount of funds available to the company by $138,118.44.
59 The potential for loss or gain caused by your offending in charge 7 was thus more than $50,000 and the actual financial advantage to the company resulting from charge 7 was more than $50,000 in the result that in the circumstances charge 7 is a continuing criminal enterprise offence.
60 Charge 8 is a charge of obtaining a financial advantage by deception. Your deception was of the NAB when Mrs Newbound again factored false invoices issued by the company and directed to the Victorian State Emergency Service. The invoices concerned were factored by Mrs Newbound to the NAB acting on your instructions to her that the invoices were legitimate. As a result of receiving the invoice statement, increased funding was made available to the company by the NAB through the NDF. The invoices concerned are numbered D3306 and D3307, both dated 8/7/2004 and each in the amount of $65,869.48. Those invoices in fact were not sent by the company to the Victorian State Emergency Service at the time they were issued and factored to the NAB and you knew that they would not be paid by the Victorian State Emergency Service.
61 In this charge the invoices were attached by Mrs Newbound to an invoice statement forwarded by her to the NAB at trial book 6/1715 and specifically at 6/1723 and 6/1724 respectively. The statement verified the invoices as being true and valid invoices. There was no issue at trial that as a result of Mrs Newbound sending the invoice statement on 8 July 2004 which attached copies of the false invoices that the company received a financial advantage. Mrs Harrington in evidence at transcript 1541 said that as a result of receiving the invoice statement the company received an increase in funding of $372,290.36 only part of which can be attributed to the false invoices D3306 and D3307. (Charge 8 Obtaining a Financial Advantage by Deception)
62 However, I am satisfied the evidence in relation to charge 8 clearly establishes that your offending caused the NAB a loss of more than $50,000. in the result that in the circumstances charge 8 is a continuing criminal enterprise offence.
63 Your defence to charge 8 was that you did not authorise Mrs Newbound to do what she did and that she effectively acted on a frolic of her own. The jury was right to reject your explanation. This is yet another serious example of this kind of offending.
64 Your offending in charge 9 was similar to that in charge 8. It is another charge of obtaining a financial advantage by deception. In this charge you again knowingly had Mrs Newbound prepare false invoices each of which was addressed to the Victorian State Emergency Service. The invoices concerned were factored by Mrs Newbound to the NAB acting on your instructions to her that the invoices were legitimate invoices. As a result of lodging the invoice statement with the false invoices attached increased funding was made available to the company by the NAB through the NDF. The invoices concerned are numbered D4000 and D4001, dated 28/7/2004 in the amounts of $32,934, and $65,868.00 respectively Those invoices in fact were not sent by the company to the Victorian State Emergency Service at the time they were issued and factored to the NAB and you knew that they would not be paid by the Victorian State Emergency Service.
65 In charge 9 the invoices were attached to an invoice statement at tab 6/1748 and specifically at 6/1749 to 6/1750 respectively. The statement verified the invoices as being true and valid invoices. There was no issue at trial that as a result of Mrs Newbound sending the invoice statement on 27 July 2004 which attached copies of the false invoices that the company received a financial advantage. Mrs Harrington in evidence at transcript 1544 said that as a result of receiving the invoice statement the company received an increase in the funding limit of the NDF facility. (Charge 9 Obtaining a Financial Advantage by Deception)
66 However, I am satisfied the evidence in relation to charge 9 clearly establishes that your offending caused the NAB a loss of more than $50,000 in the result that in the circumstances charge 9 is a continuing criminal enterprise offence.
67 As with Charge 8, your defence to charge 9 was that you did not authorise Mrs Newbound to do what she did and that she effectively acted on a frolic of her own. The jury was right to reject your explanation. This is yet another serious example of this kind of offending.
68 Your offending in charge 10 involved another example of furnishing false information to the NAB in the form of an end of the month statement of debtors with an attached statement of accounts receivable which was false to your knowledge.
69 The document furnished for the purposes of charge 10 is the end of month Certificate of Debtors for July 2004 found at trial book 7/1765 which attached the end of month Accounts Receivable Ageing Summary as of July 2004 found at 10/1770. That document was false in at least two respects. Firstly it continued to show the sum of $162,215.35 as still owing as a 30 day debtor by the ACT Department of Justice when in fact $128,450.85 of that amount related to earlier false invoices. Secondly, the document also introduces an amount owing by the SES of $429,335.25. That figure is in part false because it incorporates the false invoices created on your instructions which were the subject of your offending in charges 8 and 9, namely invoices D3306 and D3307 (charge 8) and D4000 and D4001 (charge 9).
70 Mrs Newbound said she prepared the end of month debtors statement document in the course of her duties as book keeper dealing with the NDF at T1863-4. The document was clearly false to your knowledge.
71 In your defence your denied any knowledge of the two sets of false invoices the subject of offending in charges 8 and 9 which I have already noted you claimed were created by Mrs Newbound acting alone and without any involvement from you. You also denied any knowledge of the falsity of the end of month debtors statement. The jury was right to reject your evidence as it obviously did.
72 Mrs Harrington in evidence at transcript 1548-9 said that as a result of receiving the end of month statement of debtors the company received an increase in the funding limit of the NDF facility. (Charge 10 Furnishing False Information)
73 I am satisfied the evidence in relation to charge 10 clearly establishes that the potential for loss or gain caused by your offending in charge 10 was more than $50,000 and the actual financial advantage to the company resulting from charge 10 was more than $50,000 in the result that in the circumstances charge 10 is a continuing criminal enterprise offence.
74 Your offending in charge 11 was similar to that in charge 6. In my view it represented the most serious example of your fraudulent conduct. For this reason the sentence I impose on this charge will be my base sentence. You offending in charge 11 occurred in the following way. You falsely represented to the Victorian State Emergency Service that:
75 (a) Independent Truck Bodies Proprietary Limited had received fourteen (14) Hino cab chassis;
76 (b) Independent Truck Bodies Proprietary Limited had paid for the fourteen (14) Hino cab chassis by bank guarantee;
77 (c) Upon payment of invoices N2875, N2876, N2877, N2878 and N2879 ownership and title of the chassis would transfer to the Victoria State Emergency Service.
78 These false representations were made by you in emails exchanged between you and the witness Wiebusch and in other correspondence after five invoices for cab chassis had been sent to the Victorian State Emergency Service by Mrs Newbound acting on your instructions on or about 23 May 2004. Those invoices are numbered N2875, N2876, N2877, N2878 and N2879 respectively. They are found in the trial book at 6/1090 to 6/1098.
79 Relying on the truth of your representations the Victorian State Emergency Service paid the invoices totalling $447,500 into the company’s Westpac account on 1 September 2004. Each invoice has particulars as to payment by the Victorian State Emergency Service on 1 September 2004 endorsed on the back of it. The total of the five invoices is $447,500.00. The company’s Westpac Bank Statement at 13/1966 reflects the credit or receipt of the sum of $447,500.00 from the Department of Justice on 1 September 2004.
80 The false representations made by you were made in two emails sent by you to Victorian State Emergency Service commencing on 6 August 2004 at 6/1050 and on 13 August 2004 at 6/1054 and in the fax letter dated 13 August 2004 at 6/1058. As with charge 6 your representations were knowingly false. Greg Williams from CMI Hino gave evidence that 14 Hino cab chassis had not been delivered to the company and at that time the emails were written by you and, no vehicles were ever paid for either by bank guarantee or by any other means at that time. Further, ownership and title to the cab chassis could not pass from the company to the Victorian State Emergency Service until CMI Hino had been paid for the Cab chassis by the company. Mr Greg Williams gave evidence that his agreement with you was that the cab chassis would be paid for when the body work had been completed and the vehicles delivered by the company to the Victorian State Emergency Service. He said at that time property in the trucks would pass and not before. Mr Spicer gave evidence that there was never a bank guarantee obtained or provided by the company to CMI Hino.
81 As with charge 6, your explanation given in sworn evidence was that the personal guarantee that you and Spicer had given to the NAB in respect of the NDF facility was the guarantee you were referring to in the emails. The jury was right to reject your evidence. The guarantee of the NDF had nothing whatsoever to do with what you had represented to the Victorian State Emergency Service in your emails. The SES witnesses Maggs, Warren and Wiebusch gave evidence that the Victorian State Emergency Service would never have paid the sum of $447,500 to the company on the 1st of September 2004 had they known that what you had represented in your emails was untrue.
82 Again, in your defence and in sworn evidence you denied that what you said in any of your emails was false or was in any way intended to mislead or deceive anyone. You gave evidence that in your past dealings either with the SES or with the Defence Department you had never before been asked to provide any documentation guaranteeing that title to the trucks would pass. You gave evidence that prior to the emails in question the company had supplied 35 trucks to the SES being the F450s and F350s. All that might have been true but it did not address the false representations that you in fact made to the Victorian State Emergency Service in your emails. As I said earlier in relation to charge 6, this evidence was nothing more than a distraction to take the jury from the central point. In my view it might better be described as obfuscation. The jury was right to reject your evidence which did not and could not address what in my view was an overwhelming prosecution case.
83 Your deceptions in committing charge 11 in my view make it a very serious example of this kind of offending. The Victorian State Emergency Service being a public body means the victim of your frauds on it is the Victorian taxpayer. The value of the property obtained from the Victorian State Emergency Service because of your deception being more than $50,000 charge 6 is a continuing criminal enterprise offence.
84 Your offending in charge 12 again involved furnishing false information to the NAB. The document furnished in this charge was a certificate of debtors dated 31 August 2004 at 12/844 and an end of month Accounts Receivable Ageing Summary as of 31 August 2004 found at 12/1141. That document continued to show the sum of $162,215.35 as owing as a debtor by the ACT Department of Justice which includes the amount of $128,450.85 still recorded as owing which derived from your offending in charges 2 and 4. The deception you orchestrated in those charges in May 2004 was still being carried forward in the accounts in August. The Accounts Receivable Ageing Summary as of 31 August 2004 also shows an amount owing by the Victoria State Emergency Service of $981,113.70. The previous month that body was recorded as owing $429,335.25. That figure has increased over the previous monthly balance recorded because the August figure included invoices for five cab chassis which you falsely factored to the NAB in August. The amounts shown as owing by the ACT Department of Justice and the Victoria State Emergency Service in August 2004 were false to your knowledge because they each include amounts for false invoices the subject of other earlier charges.
85 Mrs Newbound gave evidence about many of the documents found in tab 12 between pages T1864 to 1872 of the transcript in which she identified her writing on many of the documents found in Tab 12 of the folder. The effect of her evidence was that she did what she did with your full knowledge and on your instructions. You denied ever having anything to do with the running of the NDF facility or of having instructed Maureen Newbound to falsify any documents furnished to it. The jury not unexpectedly rejected your evidence.
86 Mrs Harrington in evidence at transcript 1565 that as a result of receiving the end of month statement of debtors dated the 1st of September 2004, the company received an increase in the funding limit of the NDF facility of $53,882.47. (Charge 12 Furnishing False Information)
87 I am satisfied the evidence in relation to charge 12 establishes that the potential for loss or gain caused by your offending in charge 12 was more than $50,000 and the actual financial advantage to the company resulting from charge 12 was more than $50,000 in the result that in the circumstances charge 12 is a continuing criminal enterprise offence.
88 Charge 13 is a charge of furnishing false information required for an accounting purpose by the National Bank. The information was furnished by Mrs Newbound acting on your instructions. The information furnished was an Accounts Receivable Ageing Summary dated 3 September 2004 that showed payments had actually been received by the company from 120 day debtors reducing the debtor accounts of Nationwide Towing in the amount of $53,064.00; RAAF in the amount of $40,546.52; ACT Department of Justice in the amount of $33,764.50; SES in the amount of $46,234.19 and Collex in the amount of $20,856.00. The document in question is at trial book 13/1277-1278. The information supplied was false to your knowledge.
89 In fact those debtors had not paid their respective accounts at all. Instead, you instructed Mrs Newbound to use some of the money that had been obtained by deception from the Victoria State Emergency Service on the 1st of September 2004 of $447,500.00 and paid into the company’s Westpac account on 1st September 2004 (the subject of charge 11) by drawing four separate cheques totalling $194,465.21 on the Westpac account and paying those cheques back into the company’s NDF account. This movement of money from one company account to another together with the falsification of the debtors ageing summary had the result of falsely representing to the NAB that the debtors referred to in the charge had actually paid the recorded debts when in fact they had not done so. The four cheques in question are recorded on the company’s bank statement at trial book 13/1966 and the copy cheque butts completed by Mrs Newbound are at trial book 13/1280-1286.
90 It is clear that when Mrs Newbound sent the end of month return on the NDF to the NAB on 3 September 2004 the company was then at the limit of funds that could be made available through the NDF facility and, if the 120 day debtors had not been recorded as having been paid, then the NAB would have taken action to close or limit the NDF facility. In her fax to the NAB, Mrs Newbound stated in a fax to the NAB, inter alia, “As you can see all our 120 days accounts were paid on 2/09/04 which were promised by EOM. I was wondering if you would release retention on the invoices you hold”. See trial book 13/1276.
91 You denied having anything to do with the operation of the NDF facility. Your defence was this deception of the NAB and the falsification of documents was all the doing of Mrs Newbound who you said was acting alone and not on your instructions as she claimed. The jury was right to reject your evidence.
92 Mrs Harrington gave evidence that as a result of this information being furnished there was an increase in the available limit to the company in the NDF which she said was the early release by the NAB of $148,231 at transcript 1576 to 1577.
93 I am satisfied the evidence in relation to charge 13 clearly establishes that the potential for loss or gain caused by your offending was more than $50,000 in the result that in the circumstances charge 13 is a continuing criminal enterprise offence. I note that the Prosecution submissions do not seek to have you sentenced on this offence as a continuing criminal enterprise offender. In sentencing you on charge 13 I regard that as being the most serious of the charges of furnishing false information. That is because the document furnished to the NAB being the Aged Debtors Listing in this instance was no mere monthly flow on. In this instance the debtors figures had been deliberately manipulated by you using money derived from the commission of charge 11 in order to avoid having the NAB requiring the company to repay to it for debtors outstanding balances more than 120 days old. Had that occurred the company would have been unable to repay the NAB and more than likely your personal guarantee would have been called upon.
94 Charge 14 is a charge of obtaining a financial advantage for the company by deception of the NAB on 7 September 2004. It is largely based on the same facts as charge 13 save that it focuses on the financial advantage actually obtained by the company which was increased funding availability in the NDF facility. The NAB had pointed out to Mrs Newbound an inaccuracy in the end of month statement provided by her on 3 September 2004 at trial book 13/1276. On 7 September 2004 she forwarded a further listing of aged debtors as at 6 September 2004 at trial book 13/2102 especially at 13/2106. That listing was similar in form to the one sent a few days earlier save that it also referred to payment of 90 day debtors and listed the total of 120 day and 90 day debtors received as $229,913.47. In her fax to the bank Mrs Newbound said, inter alia, “if I can early on 120 days – today & 90 days tomorrow that would be good”. In her evidence she made it clear she was looking for early release of retention held by the bank.
95 You denied having anything to do with the operation of the NDF facility. Your defence was this deception of the NAB and the falsification of documents was all the doing of Mrs Newbound who you said was acting alone and not on your instructions as she claimed. The jury was right to reject your evidence.
96 Mrs Harrington gave evidence that as a result of your offending in charge 14 the NAB released more funding to the company but she did not give any clear evidence as to the amount released or made available because of the offending in this charge so that the evidence does not make clear the amount of the financial advantage obtained by the company in relation to this charge. I am not prepared to find that this charge represents a continuing criminal enterprise offence. I note that the prosecution does not seek to have you sentenced as a continuing criminal enterprise offender for this offence.
97 Charge 15 is another charge of furnishing false information. The offending dealt with by this charge arises out of your ultimate deception of the Department of Defence which is the subject of a separate charge, charge 27. The offending occurred on 28 September 2008 when Mrs Newbound, acting on your instructions, forwarded to the NAB an invoice statement which attached a false invoice numbered D4132 dated 28 September 2004 made out to the RAAF (Department of Defence) for an amount of $280,498.70. That invoice was false to your knowledge. The invoice statement included the usual certification by Mrs Newbound that I set out when dealing with charge 1 and I will not repeat it here.
98 Mrs Newbound gave evidence she was instructed by you to prepare the invoice and factor it with the NDF at transcript 1922. This meant the invoice statement must be lodged with the NDF. Later when dealing with charge 27, I will summarise your offending in relation to the Department of Defence. Suffice to say at this time that there is ample evidence to show that you were behind the falsification and factoring of this invoice and the jury would have had little difficulty in convicting you of this charge which is another serious example of this kind of offending.
99 You denied any wrong doing and gave evidence to that effect. The affect of your evidence was that if the invoice which is the subject of this charge was false it was prepared by Mrs Newbound who was acting alone. You denied ever instructing Mrs Newbound to prepare any false invoices. You gave evidence you did not know this invoice had been prepared by Mrs Newbound and factored to the NDF. In my view the jury was right to reject your evidence which was easily demonstrated to be a tissue of lies.
100 I am satisfied the evidence in relation to charge 15 clearly establishes that the potential for loss or gain caused by your offending was more than $50,000 in the result that in the circumstances charge 15 is a continuing criminal enterprise offence.
101 Charge 16 is based on the same facts that relate to charge 15. It is a charge of obtaining a financial advantage by deception. The deception was the factoring of invoice D4132 dated 28 September 2004 for the sum of $280,498.70 with the NDF knowing the invoice to be false. For the reasons I have expressed in relation to charge 15 the jury was right to reject your evidence in relation to this charge.
102 Mrs Harrington gave evidence that as a result of receiving the invoice statement at trial book 1854 and the attached false invoice D4132 the NAB made the sum of $226,396.05 in funding available to the company through the NDF facility. I therefore find that the actual financial advantage to the company resulting from charge 16 was more than $50,000 in the result that in the circumstances charge 16 is a continuing criminal enterprise offence.
103 Charge 17 was another charge of furnishing false information which occurred on 6th October 2004. The document was furnished by Mrs Newbound to the NAB and was the certificate of debtors for the month of September found at tab 17/1870. That document attached a Debtors Ageing Summary as at 30 September 2004 at 17/1874. That document was false because it included as debtors the ACT Department of Justice for $128,450.85 which arises from the evidence in charges 1 to 4, the SES for $935,110.96 notwithstanding that it had paid $447,500.00 on the 1st of September and it also recorded a debt owing by the RAAF for the fire truck of $280,498.70. which reflected the factoring of the false invoice the subject of charge 16.
104 As with the other charges of furnishing similar false information to the NAB Mrs Newbound gave evidence she acted on your instructions and you gave evidence denying any wrong doing and that Mrs Newbound acted alone. In my view the jury was right to reject your evidence.
105 Mrs Harrington gave evidence at transcript 1586 that as a result of receiving the Certificate of debtors for the month of September 2004 the funding limit was recalculated by the NDF on 11 October and the funding limit was increased by $29,153.15. Accordingly I am not satisfied that your offending in charge 17 had potential to cause loss to the NAB of more than $50,000 and I will not sentence you on this charge on the basis that it is a continuing criminal enterprise offence.
106 Charge 18 was another charge of furnishing false information which occurred on 6th November 2004. The document furnished by Mrs Newbound on your instructions was a Certificate of debtors at 18/1877 and an Aged Debtors Summary headed October EOM at 18/1878. Those documents are false for the same reasons alleged in charge 17. The same debtors namely ACT Department of Justice, the SES and the RAAF were still listed as owing money but this document introduced a new debtor that had not previously been listed, namely, Barwon Water for $62,666.00. Barwon Water had previously purchased trucks from the company and paid for them.
107 You knew that where the aged debtors summary listed Barwon Water as a debtor of the company for $62,666.00 it was false. Mr McTaggart from Barwon Water gave evidence that in 2003 Barwon Water had ordered 6 maintenance bodies for its service trucks from the company. By September 2004 four had been completed and paid for. By October 2004 the last two trucks were just being completed. He said that the copy invoices at 18/1480 (D3311) and 18/1484 (D3312) were the invoices from the company for the last two trucks. He said he dealt with you in the arrangements for delivery of the trucks. Both invoices are endorsed with the words “Hold cheque for Brett McTaggart to hand deliver to VTB upon sign off of truck bodies”. That endorsement was made by Gary Peel who also gave evidence he took the cheques with him to collect the vehicles and gave them to you. It must be assumed the jury accepted this evidence.
108 Despite this clear and overwhelming evidence you denied playing any part in the falsifying of the certificate of debtors or the debtors aged listing and you blamed all of this on Mrs Newbound. In respect of Barwon Water being listed as a debtor you said you gave the cheques received to Mrs Newbound and told her to bank them thereby blaming her again for the false entry in the books of the company. In my view the jury was correct to reject your evidence.
109 Mrs Harrington gave evidence at transcript 1588 that as a result of receiving the Certificate of debtors at 18/1877 and an Aged Debtors Summary headed October EOM at 18/1878 the NDF increased funding to the company in the amount of $110,700.19. Accordingly I am satisfied that as a result of your offending in charge 18 there was a potential for loss to the NAB of more than $50,000.00 and that your offending in charge 18 is a continuing criminal enterprise offence.
110 I directed the entry of an acquittal on charge 19.
111 Charge 20 was a charge of obtaining by deception in relation to the false invoice sent to the Victoria State Emergency for the supply of 14 bull bars for its vehicles in the sum of $43,890.00. You falsely represented to the SES that on payment of invoice N221 dated 29/10/04 ownership and title of 14 bull bars would pass to the Victoria State Emergency Service. This may thus be referred to as the bull bars charge. On or about 29 October 2004 the company issued invoice number N221 and sent it to the SES on or about 18 November 2004. The invoice was for the sum of $43,890.00 and purported to be the cost of 14 bull bars. The invoice is at 6/1075 and the fax cover sheet sending it is at 6/1074. On 22 November 2004 you wrote to Wiebusch at the SES and told him that “upon receipt of payment for invoice number N221 ownership and title to the bull bars shall pass to the SES’. That letter is at 6/1080. The following day the SES paid for the bull bars by electronic transfer into the Westpac account 6/1078. What you wrote in your correspondence to Mr Wiebusch was false and you well knew it to be so.
112 In your evidence you insisted that there were bull bars at the factory when the company went into liquidation that belonged to the SES. You said the evidence of Mr Ditchburn from the company that actually manufactured the bull bars that when your company had not paid for the bull bars he had repossessed them, you said that evidence was wrong.
113 Charge 20 was another case of a straight forward deception by you of the SES but it served to highlight that you disagreed with the evidence of just about every witness in this trial. You put the prosecution to its proof on just about every point as you are entitled to do. Through your counsel you cross examined every witness putting matters to them that were either irrelevant, misleading or were at least quite contrary to the full force of the evidence. The result was that a lengthy and costly trial was held where in my view the evidence in the prosecution case lead against you was overwhelming. In the face of this you unashamedly got into the witness box and lied on your oath. You showed no remorse and that continues to be the case.
114 Charge 20 is not a continuing criminal enterprise offence.
115 Charge 21 is a charge of making false documents. It relates to the Department of Defence. Your offending in charge 21 involved you falsifying invoices from another company Australian Tipping Systems which was a supplier of parts and equipment to the company. The two Australian Tipping Systems invoices that you falsified are found in the jury book at 21/684 and 685. You included those documents with others in a letter you wrote to Lt Col Cleasby Jones on 19 November 2004 in order to induce the Department of Defence to pay $420,420 to the company which payment is the subject of charge 27. Your intent here was to use the false invoices to evidence that the company had paid for components for the fire trucks it was making for the Department of Defence when in fact it had not done so.
116 You admitted in evidence that you sent the letter but denied that you had fabricated the two invoices from Australian Tipping Systems. You said the documents you sent with the letter were not the documents which the prosecution alleged were false and which had been made by you. Once again the jury was right to reject your evidence.
117 Charge 21 is not a continuing criminal enterprise offence.
118 I directed the entry of an acquittal on charge 22 and 23.
119 Charge 24 was also a charge of making false documents. Your offending on this charge was the same as in charge 21 save that the supplier to the company in this instance was known as Kempe Tri Valve another supplier of parts and equipment to the company. The false invoice that relates to this charge is at 21/683. Again, you included these documents with others in a letter you wrote to Lt Col Cleasby Jones on 19 November 2004 in order to induce the Department of Defence to pay $420,420 to the company which payment is the subject of charge 27. Your intent here was to use the false invoices to evidence that the company had paid for components for the fire trucks it was making for the Department of Defence when in fact it had not done so.
120 You denied any part in this offending. You denied making the document and said you did not know who did. Once again the jury was right to reject your evidence.
121 Charge 24 is not a continuing criminal enterprise offence.
122 Charge 27 is a charge of obtaining property by deception from the Department of Defence. The amount of money which you obtained by your deception in this instance was $420,420.00. As the face of the charge shows the prosecution case alleged against you was that on 3 December 2004 you made a number of false representations to officers of the Commonwealth Department of Defence in seeking payment in advance for the production of two fire trucks which the company was contracted to produce. The prosecution called a number of witnesses to prove the falsity of what you represented. As with the other charges, the evidence against you in relation to charges concerning the Department of Defence was overwhelming.
123 A contract was entered into in writing between the company and the Department of Defence for the company to supply and fit two fire trucks. That contract is lengthy and is in evidence at 21/610 and following. It was signed on 20 July 2004 by you on behalf of the company. You were the person dealing with this contract on behalf of the company Nine days after the contract was signed and, before any trucks were delivered to the company or any work on them had commenced you had Mrs Newbound issue invoice N200 for a total sum of $429,000 for the cost of the two cab chassis and the two Darley pumps and Hatz engines. The invoice is at 21/837. The invoice was soon after rejected by the Department of Defence as the with compliments slip endorsed by the witness Lourey shows at 21/838. The with compliments slip also has written on it “Steve We have paid for these trucks & Dale said pay within seven days please”. Maureen Newbound said that was written by her on your specific instructions. The invoice was rejected because the contract did not provide for milestone payments.
124 Thereafter there were negotiations pressed by you on behalf of the company to have the Department of Defence agree to the payment of milestone payments notwithstanding what was provided for in the original contract. The prosecution called evidence in relation to this from Mr Dunne, Mr Lourey and Lt Col Cleasby-Jones. In November 2004 Cleasby Jones said he agreed to make milestone payments, that is, payments when the trucks had reached certain stages of completion and when various fittings had been supplied to the company. He confirmed this in an email at 21/698 dated 22 November 2004. Having secured from the Department of Defence agreement for milestone payments you agreed to a reduction in the amount of your original invoice which you agreed to reduced for early payment and an amended invoice also numbered N200 was issued by the company but dated 18 November 2004. That invoice is found at 15/689. It referred to a reduction in the amount charged as “2% discount for early payment”. The evidence shows that on 25 November 2004 the Department of Defence transferred an agreed sum of $420,420 into the Westpac account. Mrs Newbound gave evidence she prepared the amended invoice N200 on your instructions. Payment of the amended invoice to the company was obtained by your deception by false representations you made in letters and correspondence and discussions with various persons from the Department of Defence. Your deception was similar to that which you had perpetrated on the Victoria State Emergency Service. You represented to the Department of Defence that the company had paid for two Hino Cab Chassis when it had not done so. You also represented that on payment of the amended invoice property to the cab chassis and various other parts and equipment to be fitted to them would pass to the Department of Defence. In this charge you even descended to making representations in a false statutory declaration which you swore as being true and correct and which you provided to the Department of Defence found at trial book 21/695.
125 In your evidence in relation to charge 27 you denied that anything you said or represented was false. You gave evidence before the jury that title to the trucks in question would have passed to the Department of Defence because it was never your intention not to complete and deliver the trucks. You gave evidence you knew nothing about any fabricated documents and the only invoices you sent to the Department of Defence were genuine. As to the statutory declaration your evidence was that what you said in it was what Lt Col Cleasby-Jones told you to put in it. You gave evidence that what you meant and intended by your statutory declaration and correspondence about ownership was that the Department of Defence would have ownership when the trucks were completed and delivered. That intention was not reflected by the words you used and the jury was right to reject your evidence as it did. Your clear intention was to get the money from the Department of Defence into the company as soon as possible.
126 Charge 27 is a serious example of what is a very serious offence. By your deception you managed to deceive a Commonwealth Government Department of $420,420.
127 The value of the loss being more than $50,000 charge 27 is a continuing criminal enterprise offence.
128 The remaining charges on the trial indictment being charges 28, 29 and 30 are each offences of furnishing false information. They can be conveniently dealt with together. They rely on the same factual evidence. Only the dates differ. Each charge relates to the furnishing to the NAB of an end of month certificate of debtors and an Accounts Receivable Ageing Summary. Charge 28 relates to the end of November summary lodged on the 7th December 2004 at 28/1886 and 28/1890-1. Charge 29 relates to the end of December summary lodged on the 23rd December 2004 found at 28/1895 and 28/1899. Charge 30 relates to the end of January summary lodged on the 1st February 2005 at 28/1901 and 28/1907.
129 Each of these documents referred to in charges 28 to 30 respectively was false because each aged debtors listing continued to carry forward as debtors ACT Department of Justice for $128,451.85, the RAAF Department of Defence for $280,498.70, SES for $935,110.96 and Barwon Water in the sum of $62,666.00 when in fact the debt recorded for each respective debtor was in fact based on a false invoice or the amount recorded as owing had in fact been paid and the cheque banked into the Bank of Melbourne account.
130 In your evidence you denied having played any part in these transactions. You denied any knowledge of receipt of the $447,500 from the SES on 1 September and denied ever instructing Mrs Newbound to use that money to pay off 120 day debtors. You denied the invoices factored in relation to the ACT debt were false and you said the debt recorded in the accounts from that body was legitimate. You denied any knowledge of the false invoice to the Department of Defence and denied having instructed Maureen Newbound to prepare it. You contended Mrs Newbound is a liar who was off on a frollick of her own making. The jury was right in my view in rejecting your evidence out of hand.
131 Mrs Harrington gave evidence at transcript 1590 that as a result of your offending in charge 28 and the receipt of the certificate of debtors dated 7th December 2004 at 28/1890-1892 and an error in it funding to the company decreased by $654,032.07. The potential for loss on account of this offending is therefore below $50,000.00 and charge 28 is not a continuing criminal enterprise offence.
132 In relation to your offending in charge 29 and the receipt of the certificate of debtors dated 23rd December 2004 at 28/1895-1900, Mrs Harrington gave evidence at 1592 that the funding was decreased in the amount of $334,438.41. The potential for loss on account of this offending is therefore below $50,000.00 and charge 28 is not a continuing criminal enterprise offence.
133 Mrs Harrington gave evidence at transcript 1592 that as a result of your offending in charge 30 and the receipt of the certificate of debtors dated 1st February 2005 at 28/1901 and an error in it funding to the company decreased by $236,289.45. The potential for loss on account of this offending is therefore below $50,000.00 and charge 30 is not a continuing criminal enterprise offence.
134 To summarise again and before proceeding, as a result of the verdicts of the jury on the trial indictment you have been convicted of 25 offences of dishonesty. Twelve (12) charges of furnishing false information contrary to section 83(1)(b) of the Crimes Act (charges 1,5,7,10,12, 13, 15, 17,18, 28, 29 & 30) and four (4) charges of making false documents contrary to section 83A(1) of the Crimes Act 1958 (charges 2,3,21 & 24) and five (5) charges of obtaining financial advantage by deception contrary to section 82(1) of the Crimes Act (charges 4,8,9,14 & 16) and four (4) charges of obtaining property by deception contrary to section 81(1) of the Crimes Act (charges 6, 11, 20 & 27). On 14 of the charges, namely 1, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18 and 27 you fall to be sentenced as a continuing criminal enterprise offender.
Circumstances of offending on the plea indictment
135 I now turn to summarise your offending on the plea indictment . You pleaded guilty to one charge of obtaining property by deception. This offending occurred about four years after your offending in the trial indictment and was very similar to your offending in the trial indictment. It concerned your work involving a different company, Suttee Global Pty Ltd (‘Suttee’).
136 Your offending in the plea indictment was summarised in submissions prepared by the prosecution and which I marked as exhibit A on the plea. The summary was accepted by your counsel Mr Pena-Rees as being accurate and as forming a proper basis upon which I can proceed to pass sentence. The summary was read in open court by Mr Devlin who appeared to prosecute and it is not necessary that I here repeat it here except in summary form.
137 You moved on after the collapse of the company in early 2005. On 8 August 2007 you incorporated Suttee and became the director and general manager. Suttee manufactured tilt trays for trucks.
138 In July 2008 Falconet Pty Ltd placed an order with Suttee for manufacture of two tilt trays to be fitted to chassis owned by that company. The costs of each tilt tray was $75,000 and a deposit of $37,950 was paid. Suttee commenced the manufacture but was delayed. Before the trucks were complete you instructed an employee, Joiner to tell the customer the trucks were complete and to request payment. Invoices were issued and you contacted the customer and represented the trucks were complete and would be released upon payment. Payment was made by the customer of $130,603.00 to Suttee which was soon after placed into administration before the trucks were completed. The customer would not have paid over $130,603.00 were it not for your deception that the trucks were in fact complete.
139 As can be clearly seen, your offending in the charge on the plea indictment is very similar to your offending in the trial indictment. Your deception resulted in property being obtained from the customer that exceeded $50,000 in value. I accept the prosecution submissions that in respect of the charge on the plea indictment section 6H(1)(a) of the definition of continuing criminal enterprise offender applies. You have been found guilty of 14 relevant offences on the trial indictment and you also fall to be sentenced for the offending on the charge on the plea indictment on the basis that it is also a continuing criminal enterprise offence.
140 That means that the maximum penalty for the offence of obtaining property by deception in the plea indictment is 20 years imprisonment, that is, double the normal penalty.
Pleas of Not Guilty and Plea of Guilty
141 As to the offending in the trial indictment you pleaded not guilty to each charge as is your right. You cannot and will not be penalised in sentencing for having done so. However, had you pleaded guilty to the charges in the trial indictment you could have expected a reduction of sentence, you cannot expect that now to be the case having conducted a trial.
142 As to the offending in the plea indictment that charge was previously represented by two further charges on the trial indictment. The prosecution severed those charges and filed over a new indictment. You indicated an intention to plead guilty to those charges soon after the jury convicted you on the trial indictment charges. The plea indictment was then filed and you pleaded guilty to the charge in it. Whilst you did not plead guilty to that charge at the earliest possible opportunity you did none the less pleaded guilty soon after conviction on the other charges which needed to be first decided.
143 It is to your credit that you did in fact plead guilty to that one charge. Not only did you save a further trial which I estimate would have taken at least one more week of hearing but you also saved the costs of the trial and saved a number of witnesses from having to give evidence against you. I also regard your plea of guilty as an expression of genuine remorse on your part for your offending in the plea indictment.
144 In passing sentence upon you on the charge in the plea indictment I have taken your plea of guilty into account as I must and I have reduced the sentence I would have otherwise imposed and this is reflected in the sentence I will shortly pass on that charge.
Prior Convictions
145 You have admitted prior convictions. You were convicted in the Magistrates’ Court of offences for theft in 1977 and 1978 when aged 21 and 22 years respectively. I give those matters little regard in passing sentence. You were then very young.
146 However, in May 1994 you pleaded guilty when aged 37 before Judge Crossley in this court to three counts of obtaining property by deception and one count of falsifying books and records and one count of failing to act honestly as a director of a company. His Honour sentenced you to a term of imprisonment of two (2) years and directed that your serve a minimum term of one year. You served that sentenced and have not relevantly re-offended until the offending in the trial indictment.
147 I have read Judge Crossley’s sentencing remarks. The offending for which he sentenced you bears a striking resemblance to the offending for which I must sentence you. Those offences also involved your management of a company connected with motor vehicles. You inveigled employees to issue false invoices on behalf of your company which were presented to finance companies to pay on. You made fraudulent and false entries into the companies books and recorded false receipts just as you had Mrs Newbound do in much of the offending here. Large sums of money were involved and lost and there were a number of victims of your fraud. Judge Crossley described your offending in 1994 as being dishonest and as involving considerable breach of trust. Such a description can also be applied to your offending for which I sentence you. People accepted your word as the truth when in fact you were engaged in lies and deceit.
148 In 1994 Judge Crossley said he was ‘optimistic’ as to your future implying he thought you would not re-offend. He gave you a shorter than what he regarded as normal non parole period because he thought you would not re-offend. But re-offend you did during two further separate periods of offending between May 2004 and February 2005 the period covered by the trial indictment and in August 2008 being the offending in the plea indictment.
149 Your re-offending in the matters for which I sentence you also involves large sums of money. As a result of charges 1 to 4 the NAB paid out at least $101,000. As a result of charge 6 the Victoria State Emergency Service paid out $268,500. As a result of charges 8 and 9 the NAB paid out a further sum in excess of $170,000.00. As a result of charge 11 the Victoria State Emergency Service paid out a further sum of $447,500.00. As a result of charges 15 and 16 the NAB paid out a further sum in excess of $220,000.00. As a result of charges 19 and 20 the Victoria State Emergency Service paid out a further sum of $43,890.00. As a result of charge 27 the Defence Department paid out $420,420.00. The furnishing false information charges also resulted in large sums of money being advanced by the NAB to the company in the NDF.
150 These are just some of the offences. I draw attention to them because it seems that you were not deterred from re-offending by the sentence imposed on you by Judge Crossley. You re-offended in a similar manner but on a larger scale causing a great deal of loss. Although not relevant to the charges for which I sentence you, the NAB wrote off the sum of $2,633,309.51 arising from its dealings with the company on the NDF. That sum of course would include some interest and costs but a large part of that loss may be attributable to your offending covered by some of the charges in the trial indictment. It would appear the company was hopelessly insolvent well before an administrator was appointed. I was told and accept the NAB recovered some money from the sale of your house over which it held a mortgage.
151 In passing sentence on you for this offending I will have to have proper regard in your case to application of the principle of specific deterrence.
152 I will sentence you first on the charges on the trial indictment where you have been convicted by the jury.
Background
153 I turn to your background. You are 55 years of age and were born on 25th May 1957.
154 Mr Pena-Rees emphasised that you did not personally gain from your offending and you did not have a lavish lifestyle. That is true. However, by your offending you managed to keep what appears to have been a company with a good business product but which was hopelessly managed and lacking in equity capital solvent for longer than it should have. This was partially to your benefit because you continued to draw a good wage and whilst the company remained operating the appointment of a receiver and ultimately an administrator and a liquidator was forestalled and your personal guarantee was not called upon until the company collapsed.
155 The evidence was and I accept the company made a good product for which there seems to have been plenty of customers. That was in large part due to your ability to get work in. As Mr Pena-Rees put it, “you had the gift of the gab” but you were hopeless on the financial side of the business. That was probably the case but it does not excuse the lies and deceit that you subjected your customers and the bankers too. You were engaged in a business at a relatively high commercial level. Time and again you asked your customers to trust you as telling the truth. You unashamedly lied to them as you did to the bank. Both the customers and the NAB foolishly believed you. I make no criticism of them. The advantage of hindsight is almost always considerable.
156 Having watched you closely in giving your evidence I formed the view you would lie at any time it suited your purpose. In my view your evidence was just a litany of lies many of them made up in the witness box as you went.
157 Mr Pena-Rees submitted you came into the company as sales manager and took a slice of the action as he put it which included the existing creditors of the company. He also submitted the company was poorly managed and it was a combination of these problems which held the company back. The company had ongoing tax problems and employed a relatively large number of people. It required cash flow to keep operating in the absence of any equity by way of shareholders funds. It was a $2.00 company.
158 It was this need for cash flow that motivated your offending not a lavish lifestyle. I accept that as being the reason for your offending but as I said earlier, it is not an excuse.
159 You are a person with obvious persuasive qualities. You persuaded your customers to trust you and you knew that you could rely on Mrs Newbound to do what was necessary to effect the frauds you wanted carried out. The jury was right to accept the evidence of Mrs Newbound who was largely corroborated by the documents. She came across as being well meaning but naïve and gullible. A man with your persuasive qualities could in my view see her coming so to speak from a mile off. You preyed on her naivety and gullibility.
160 Mr Pena-Rees tendered in evidence and relied for much of your background evidence a report from psychologist Salli Trathen dated 13th April 2012. He saw you and your wife for relationship counselling in November 2011. You are married with two adult sons aged 26 and 24 both of whom are in long term relationships. Until about four years ago your marriage appears to have been strong. Sadly an extra marital affair that you engaged in but confessed to your wife brought the marriage to an end.
161 Since then you have had these charges pending for some time and you have had the financial aftermath of the collapse of the company. The NAB sold up your family home.
162 You are an only surviving child of a single mother. Your mother brought you from Brisbane to Melbourne at a young age in search of work and you were cared for by your aunt and grandmother in Castlemaine. You told Salli Trathen you were sexually abused at a Catholic primary school which impacted on your sense of self esteem and negatively impacting on your capacity to attend school and learn. You also told Trathen you are dyslexic.
163 You left school at 15 and worked as a panel beater completing an apprenticeship. Eventually after working for many companies you ended up at VTB. Then followed yet another company International Truck Bodies which you formed at about the time the company was placed into administration. You formed this company to take over where the company left off. It also foundered on the rock of no liquidity within a short time. Suttee was the next company which also failed and at which you also offended. At the time the trial commenced you apparently had another similar business Challenger Trailers which apparently has operated for the past three years. No evidence was lead relating to this business.
164 Salli Trathen opined “Dale impressed as hard working and responsible, operating for many years successfully, in the context of the manufacturing/transport industry where small businesses generally struggle to compete. He had high expectations of himself to be materially successful, stable and financially secure, to overcome and compensate for the early disadvantage in his own life.” I accept you are generally hard working but not responsible. I accept you were motivated to succeed. But insofar as your motivation lead to your offending it was misplaced.
165 As a result of the failure of the company you entered Part X bankruptcy. This lead to a very stressful time for you and your family. Sadly I note that throughout the trial and on the plea you appear to have been unsupported by members of your family. I accept that up until a few years ago you were a good family man who contributed to the community especially involving yourself in coaching your sons and other children in basketball at a high competition level. I accepted into evidence references from Joanne Cain and Mrs Kim Reed about these matters and I accept what is said in those references which is all to your credit. I accept that at times you have been prepared to help others when needed.
166 I accept the evidence from Salli Trathen that you accept you have made poor moral and ethical choices over some years and this has had a demoralising impact on you and your family. I take that as some evidence of remorse on your part for your offending even though by your evidence in the court room you appear defiant that you have done nothing wrong save for the offending in the plea indictment which you pleaded guilty to. As I said earlier, that is to your credit. However, I cannot say that the limited evidence of remorse enables me to say you are a good prospect for rehabilitation. The fact you have offended in a similar way and on three separate and discrete occasions means that the best that can be said is that your prospects for rehabilitation must remain guarded. Certainly if you were to be engaged in your own business again I would be very concerned that you would re-offend.
167 Salli Trathen opined you see little future for yourself. She said you are a considerable risk of suicide. I was told you have adjusted reasonably well whilst on remand pending the plea at the Melbourne Assessment Prison where you are the head of the billet in charge of cleaning and washing and you are a peer group educator to people on remand who are illiterate teaching them to read and write. That is to your credit. It has not been suggested Verdins principles apply in this case.
Disposition and Sentencing Principles
168 Mr Pena-Rees accepted that you would receive a lengthy prison sentence as a result of your offending. But he asked me to show restraint and have proper regard to the principle of totality in sentencing given that the sheer number of charges that you fall to be sentenced for could result in a long total effective sentence.
169 Mr Pena-Rees emphasised your good work at a community level and the fact you have family including an elderly mother who is now mostly dependent on you for support and you can no longer see her. Mr Pena-Rees emphasised that you have suffered financially as a result of your failed business dealings and that this has in part also resulted in family breakup.
170 In passing sentence I have taken these matters into account.
171 Mr Pena-Rees emphasised your plea of guilty and remorse in respect of the plea indictment. As I have said I have taken the plea of guilty into account in respect of that offending. But in my view some of the sentence for that offending will have to cumulate upon the sentences imposed on the trial indictment charges.
172 Mr Pena-Rees submitted that in respect of the trial indictment there was a significant delay factor that needs to be taken into account. He submitted you have had the offences in the trial indictment hanging over your head for more than seven years and this has played on your mind.
173 The offending in the trial indictment occurred between May 2004 and August 2005. The offences in the plea indictment occurred in August 2008. An administrator was appointed to the company in about February 2005 and soon after a liquidator. I was told and accept that because of that there was delay and difficulty locating documents. You were not interviewed formally until 17 December 2008 and it was not until 1 October 2009 that charges were laid. There was then a three (3) day contested committal in September 2009 with a Basha hearing involving Mrs Newbound on 21 July 2011. The trial began in January this year with a jury empanelled on 1 February and a verdict on 27 March.
174 The prosecution concedes that some allowance must be made for delay in this case and in passing sentence I have done so. However, any allowance by way of reduction in sentence can only be minimal in my view. Any delay here was in part caused by the nature of your offending and the resources required to investigate it. Like so many other frauds, proper investigation required sourcing documents from a number of places and those documents spanned many months of the company’s business. Here documents had to be obtained from the NAB, the ACT Department of Justice, the Victoria State Emergency Service, the Department of Defence as well as various suppliers to the company and others. Once obtained the documents had to be analysed so that the proper picture of your extensive offending could be gleaned. The trial book alone shows that investigation of your crimes could be likened to a giant jigsaw puzzle. Crimes of this kind often result in delay before trial because of the nature of the investigation required.
175 Further, in this case the affect of any delay in my view is ameliorated to some extent because of the fact you re-offended during the course of the delay. It cannot be said you have not re-offended and the delay has prevented you from getting on with a normal life. You used the delay to re-offend and that in my view is a significant factor. So whilst I accept that it is proper for me to reduce the sentence I would impose because of delay, any reduction on that account should only be modest.
176 Mr Pena-Rees asked me to consider imposing a non parole period which would give you some chance of again re-entering the community and having some life enjoyment after jail. As he put it, the non parole period should be calculated so that the effective sentence is “not life extinguishing” and “you need to have some light at the end of the tunnel”. I accept that submission. I am cognizant of the fact that at the time of sentencing you are 55 years and 2 months of age.
177 In passing sentence I have taken all of these matters into account.
178 Any sentence I impose must express the court’s denunciation of the type of offending which you have engaged in. This kind of offending is very serious and the sentence I impose must reflect proper application of the principle of general deterrence. Others who would seek to offend as you have must be deterred from doing so. With so much money in these times exposed to the financial sector through superannuation funds and other forms of investment the temptation for people such as yourself to engage in fraud must be considerable. As this case shows, investigation of such crimes is both lengthy and costly as is the cost to the State of having to conduct trials of this kind. For these reasons any sentence imposed must adequately address proper application of the principle of general deterrence. The sentence I will impose seeks to achieve that end.
179 Also, in this case, as I have said previously, because of your prior offending in 1994 and your offending subsequent to the offending in the trial indictment, namely the offending in the plea indictment, the sentence I impose must give proper application of the principle of specific deterrence. The sentence impose must deter you, the individual from re-offending. Again, the sentence I will impose seeks to achieve that end.
180 Further, section 5(2)(b) of the Sentencing Act 1991 provides that I must in sentencing you have regard to current sentencing practices for this kind of offending. In arriving at the sentences I will impose and the total effective sentence and in fixing a non parole period I have had regard to various materials. In particular I have had regard to sentencing snapshots 18 and 19 published by the Sentencing Advisory Council dealing with sentencing trends for the offences of obtain financial advantage by deception and obtain property by deception respectively between 2001/2 and 2005/6. Of course these are bare statistics and don’t give any description of the circumstances of offending or the number of exact type of charges in total. As to obtaining a financial advantage by deception the median total effective sentence was three years. As to the offence of obtaining a financial advantage by deception the median total effective sentence was two years and six months. In each case half the sentences imposed were above the median and half were below it.
181 As part of the prosecution submissions I was also provided with a chart summarising “Fraud Sentences Involving $1M+”. This chart is helpful in understanding current sentencing practices for kinds of this kind because it at least gives some brief outline of the circumstances of offending although I expect that many of the 49 cases summarised therein deal with cases where sentences were imposed after pleas of guilty. In passing sentence upon you I have had full regard to current sentencing practices as I must.
182 Above all, the sentence I impose must be fair and just in all of the circumstances. Again, the sentences I have imposed, including the total effective sentence and the non parole period I have fixed, seek to achieve that end.
183 I sentence you first on the charges in the trial indictment.
184 On charge 1 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
185 On charge 2 make a false document you are convicted and sentenced to a term of imprisonment of 6 months.
186 On charge 3 make a false document you are convicted and sentenced to a term of imprisonment of 6 months.
187 On charge 4 obtaining property by deception you are convicted and sentenced to a term of imprisonment of 3 years.
188 On charge 5 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 1 year.
189 On charge 6 obtaining property by deception you are convicted and sentenced to a term of imprisonment of 4 years.
190 On charge 7 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
191 On charge 8 obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of 3 years.
192 On charge 9 obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of 3 years.
193 On charge 10 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
194 On charge 11 obtaining property by deception you are convicted and sentenced to a term of imprisonment of 5 years.
195 On charge 12 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
196 On charge 13 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 3 years.
197 On charge 14 obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of 2 years.
198 On charge 15 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
199 On charge 16 obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of 3 years.
200 On charge 17 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 1 year.
201 On charge 18 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 2 years.
202 On charge 20 obtaining property by deception you are convicted and sentenced to a term of imprisonment of 1 year.
203 On charge 21 make false documents you are convicted and sentenced to a term of imprisonment of 6 months.
204 On charge 24 make false document you are convicted and sentenced to a term of imprisonment of 6 months.
205 On charge 27 obtaining property by deception you are convicted and sentenced to a term of imprisonment of 4 years.
206 On charge 28 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 1 year.
207 On charge 29 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 1 year.
208 On charge 30 furnishing false information required for accounting purposes you are convicted and sentenced to a term of imprisonment of 1 year.
209 Finally, in respect of the charge in plea indictment Y02940235B.1 of obtaining property by deception you are convicted and sentenced to a term of imprisonment of 2 and a half years.
210 Pursuant to section 16 of the Sentencing Act 1991 I direct that one year of each of the sentences I have imposed on charges 4, 6, 9 and six months of each of the sentences I have imposed on charges 13 and 16 of the trial indictment and one year of the sentence I have imposed on the plea indictment cumulate upon the sentence I have imposed on charge 11 in the trial indictment and upon each other. This makes a total effective sentence of 10 years imprisonment.
211 Pursuant to section 11 of the Sentencing Act 1991 I direct that you serve a minimum term of seven years before being eligible for release on parole.
212 Pursuant to section 18 of the Sentencing Act 1991 I declare there has been 122 days pre-sentence detention and that 122 days be reckoned as having been already served of the sentences passed this day and entered into the records of the court.
213 Pursuant to section 6AAA of the Sentencing Act 1991 I state that I have imposed a sentence being a term of imprisonment on the charge in the plea indictment acting on your plea of guilty to that charge. Had it not been for your plea of guilty I would have imposed a term of imprisonment of three and a half years and I would have directed that 18 months of that term cumulate upon the base sentence on the charges in the trial indictment.
214 Pursuant to section 6J of the Sentencing Act 1991 I declare that I have sentenced you as a continuing criminal enterprise offender in respect of charges 1, 4, 6, 8, 9, 10, 11, 12, 13, 15, 16, 18 and 27 in the trial indictment and the charge in the plea indictment and I direct that my having so sentenced you be entered into the records of the court.
215 Are there any matters arising out of that Mr Kissane?
216 MR KISSANE: No, Your Honour.
217 HIS HONOUR: Mr Pena-Rees?
218 MR PENA-REES: No, Your Honour.
219 HIS HONOUR: Thank you. Can I once again thank all counsel for your assistance in this lengthy matter.
220 COUNSEL: Thank you, Your Honour.
221 HIS HONOUR: Can you remove Mr Pedersen please.
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