Director of Public Prosecutions v Prigg

[2023] VCC 1605

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00473

DIRECTOR OF PUBLIC PROSECUTIONS

V

GREGORY PRIGG

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2023
DATE OF SENTENCE:	5 September 2023
CASE MAY BE CITED AS:	DPP v PRIGG
MEDIUM NEUTRAL CITATION:	[2023] VCC 1605

REASONS FOR SENTENCE
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Subject:Obtain financial advantage by deception

Catchwords:          Convicted after trial – deception of employer – freight forwarding – raising false invoices to obtain $681,481 – no record for dishonesty – excellent work history and community service – 12 charges – continuing course of conduct – aggregate sentence

Legislation Cited:

Cases Cited:DPP (Vic) v Bulfin (1998) 4 VR 114, 131-32; Coral Dyason v The Queen [2015] VSCA 120

Ruling:  Sentence of three years imprisonment; minimum non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Wilson at trial Ms C Duckett on plea	Office of the Director of Public Prosecutions
For the Accused	Mr C Thomson	Giorgianni and Liang Lawyers

HIS HONOUR:

1On 4 August 23, after a trial, a jury found you guilty of 12 charges of obtaining a financial advantage by deception

Circumstances of offending

2Your offending occurred, between 17 April 2013 and 7 April 2017, when you were employed as an operations manager at Coastal Bridge, which was a division of AAW global logistics Pty Ltd (AAW), a freight forwarding company, at Southbank.

3Coastal Bridge engaged transport contractors to move freight for it.

4Your duties included submitting contractors’ invoices to AAW accounts for payment.

5During the offending period you submitted 390 false invoices, in the names of transport companies, which had not provided services, to AAW accounts department

6The false invoices nominated bank accounts owned or controlled by you (“your bank accounts”) for payment.

7AAW made 257 payments totalling $681,481.21 (“AAW funds”), into your bank accounts.

8At your trial, you did not dispute your conduct.

9You accepted that you had obtained a financial advantage, that is, deposits of the AAW funds, into your bank accounts.

10You disputed you had deceived AAW. And you disputed you acted dishonestly.

11You testified AAW had authorised the scheme to enable you to pay kickbacks, in cash and in-kind, to customers to win business for Coastal Bridge.

12You said a member of AAW’s senior management team told you how to do it and one of the company directors had approved it.

13You had told essentially the same story to police when they interviewed you, in 2018, during the course of their investigations.

14By their guilty verdicts, the jury did not accept your explanation.

15A forensic accountant examined your bank accounts.

16You had directed the AAW funds substantially to 2 bank accounts in your name. And you transferred monies from these accounts to your personal account.

17The accountant’s analysis showed you paid:

(a)   $354,907.65 to contractors known to AAW; and

(b)   $28,730.98 to contractors not known to AAW.

18The prosecution accepted you paid these amounts, totalling $383,638, to contractors for legitimate services.

19Because you used the details of legitimate contractors’ invoices to generate inflated false invoices, it was necessary for you to pay the legitimate invoices to conceal your deception.

20The surplus of funds was $297,849.58.

21During the offending period AAW paid you wages of $263,397 and expense reimbursements of $2082 into your personal account.

22During the same period, you paid rent, totalling $80,056, and spent $249,472 on items which the analyst categorised as “living and lifestyle”.

23You also made cash withdrawals totalling $206,160 and untraced withdrawals, totalling $29,700, from your personal account.

24While it is impossible to determine how much of AAW funds you used for your personal benefit, it is clear your spending exceeded your wages by nearly $300,000.

25in his evidence, your direct manager agreed your role included business development. He agreed you entertained clients and did win some business.

26Your role in business development was secondary to his. And your involvement was not large-scale.

27I cannot exclude the possibility you used some modest sum of the AAW funds to entertain clients.

28While your position enabled you to successfully disguise your conduct for several years, I accept loose accounting practices, at that time, made it easier for you to perpetrate your deceptions.

29Overall, I assess the objective gravity of your offending to be mid-range.

30When AAW learned of your wrongdoing you were sacked.

31Although you disputed it, I accept the evidence of the Chief Financial Officer, at the termination meeting, held on 13 April 2017,

(a)   when confronted with a false invoice, you admitted you had submitted false invoices for payment; and

(b)   you said:

(i)you did it because a promised wage increase had not been paid and

(ii)you got about $30,000 out of it

(c)   you said nothing about an arrangement to pay kickbacks to customers to win business for the company

32You subsequently gave the “kickbacks” version to police, at interview, and then to a jury.

33At trial, you shifted blame to a former director. He denied any knowledge of your wrongdoing. As the jury did, I accept his evidence.

Interview, charge and remand

34Police interviewed you on 19 April 2018 and again on 8 August 2018.

Criminal record

35You have admitted a criminal record of summary family violence and violent offences.

36You have no history of dishonesty.

Personal circumstances[1]

[1] Your personal circumstances are set out in a chronology, Exhibit 2

37You were born in April 1973.

38You are one of four children.

39You went to Glengala Primary School, Sunshine Technical School and then, when your family moved to Mildura, Irymple Technical School.

40When your parents separated you returned to Melbourne with your mother and completed year 10 at Niddrie Technical College.

41You were a good AFL footballer. You played football for Footscray under 19’s and then played a paid season for Thorpdale in a Gippsland league.

42You worked for transport and logistics companies for several years until you joined Coastal Bridge in 2009.

43You have an adult son who lives with his mother in Queensland. You had partnered with his mother in 1998 and separated in 2005.

44It was an acrimonious breakup. Your partner was using drugs. There were arguments about access and intervention orders followed.

45I was told, when you offended, you were under some financial pressure to pay legal fees.

46You admit you felt a grievance your employer was not paying you promised entitlements.

47You have a reputation of being a well-liked employee.

48Your Coastal Bridge manager said you were popular in the workplace. He described you as a “likeable rogue”.

49A former employer and three loyal friends gave impressive evidence for you.

50From 2020 until 2023 you worked as a warehouse manager for a plaster manufacturer. You were an industrious and valued employee. You were retrenched, through no fault of your own, in July 2023.

51In 2022 you told your employer about the pending criminal charges. You said you were innocent and gave a story about shenanigans within the company which employed you.

52You know your friends through sporting interests. You have been an active member, as a player and committee member, at your local Cricket and Bowls clubs.

53One said you are the first to help out. Another described you as an enthusiastic sportsman and excellent mentor, especially to juniors.

54The third friend, who met you through cricket, is an accountant. With your help, he set up a transport logistics company, based in Shepparton. You worked there on weekends, monitoring work rosters, until your trial.

55All regard you very highly. And have never had reason to question your honesty.

Defence submissions

56Your Counsel, Mr Thomson, who put your defence, fully and forcefully, at trial contended, in comprehensive submissions, considering:

(a)   you have no history of dishonesty;

(b)   you have an excellent work history;

(c)   you have given excellent service to your community; and

(d)   the delay in prosecution

a sentence of imprisonment combined with a CCO could meet sentencing purposes in your case.

57Whilst I do not accept Mr Thomson’s submission as to disposition, I have taken into account the factors he identified to moderate the sentence I will impose.

Prosecution submissions

58Ms Duckett, who appeared for the prosecution, submitted, considering you engaged in a systematic course of conduct which involved you breaching your employer’s trust over a four-year period to submit 390 false invoices for which you dishonestly obtained $681,481, a composite sentence, with its necessarily limited prison component, is not within range.

59I accept this submission.

60Ms Duckett helpfully referred me to a number of intermediate appellate decisions concerning sentences for crimes of deception.

61While current sentencing practices are but one relevant consideration, I have used the cases to identify relevant sentencing principles and, making appropriate adjustments, to measure the sentence I will impose on you.

Consideration

62The maximum penalty of 10 years imprisonment, demonstrates the seriousness of the crime of obtaining a financial advantage by deception.

63The principles for sentencing white-collar offenders are well-established.[2]

[2] DPP (Vic) v Bulfin (1998) 4 VR 114, 131-32; Coral Dyason v The Queen [2015] VSCA 120

64General deterrence is an important sentencing factor. So, too, is denunciation of your breach of your employer’s trust.

65Over a four-year period, you abused the trust of your employer, to obtain 257 payments totalling $681,481.

66It was a carefully calculated course of conduct over a lengthy period, which involved repeated deliberate acts of dishonesty and the loss of substantial funds to AAW.[3]

[3] The company declined to make a victim impact statement

67I am satisfied, over the four-year period, you used a considerable proportion of the surplus of funds you received, after payment of legitimate contractors’ invoices, for your personal benefit.

68I accept, while your deceptions enabled you to live more comfortably, you were not living extravagantly.

69You had a grievance against your employer. You may also have been under some perceived financial pressure.

70Neither motive justifies your prolonged misconduct.

71You pleaded not guilty to the charges before the court.

72Without justification, you shifted the blame to others; namely, an AAW Manager, who had nothing to do with Coastal Bridge, and was not called trial; and a company director, who was required to give evidence to rebut your untrue assertion he had approved your so-called “kickbacks” scheme.

73You have no remorse. Without it, I must be cautious about your prospects of rehabilitation.

74Nevertheless, you have some protective factors.

75You have no record of prior dishonesty. You have an excellent work history and are well-liked and highly regarded at work and in the community.

76Each of the 12 charges constitute part of a continuing course of conduct when you obtained 257 individual payments for transport costs purportedly invoiced by three companies over a four-year period.

77The charges separated your multiple acts of deception between the three companies and four time periods.

78Because they form part of a series of offences of the same character, I will impose an aggregate sentence upon you.

79And, because you are to be sentence for a number of charges, I will apply the totality principle to ensure your aggregate sentence is an appropriate measure of your overall criminality.

Sentence

80By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

81Considering the circumstances of your offending, your personal circumstances and  antecedents  and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the 12 charges of obtaining a financial advantage by deception I impose an aggregate sentence of three years imprisonment.

82I direct you serve 2 years of your sentence before you are eligible for parole.

83I declare you have served 32 days of your sentence by way of presentence detention.