Director of Public Prosecutions v Smith
[2013] VCC 110
•8 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL PETER SMITH |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2013 | |
DATE OF SENTENCE: | 8 February 2013 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 110 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Conspiracy to defraud – pleas of guilty after re-trial granted by Court of Appeal
Legislation Cited: Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Elston SC | Mr. C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Tehan SC | Patrick Dwyer Solicitor |
HER HONOUR:
1 Just remain seated for the time being, Mr Smith, I'll ask you to stand up in due course.
2 Michael Peter Smith, you have pleaded guilty to three charges of conspiracy to defraud the Victoria University of Technology, which I will refer to from time to time as “the University”. The maximum penalty for the offence is 15 years' imprisonment.
3 In respect of Charge 1, you have pleaded guilty to defrauding the University by processing false claims for maintenance work over a period of four years from March 1996. The false claims are detailed in Schedule A which accompanied the prosecution opening.
4 The basis for Charge 2 is that you conspired to defraud the University by processing false claims for back flow plumbing works over a period of about two years from September 1998. The details of these claims were listed in Schedule B. The basis for Charge 3 is a conspiracy to defraud the University by processing false claims for thermal imaging and electrical works, again for a period of about two years from December 1998. The details of these false claims were set out in Schedules C and D.
5 You have pleaded guilty to the charges, after contesting the charges initially at trial and having been found guilty of these. However, the Court of Appeal set aside the convictions and you were to face a retrial in this Court, which was to commence at the beginning of this year. However, following extensive discussions with the Crown toward the end of last year, the matter resolved into a plea of guilty in respect of each of the charges that you were to face at retrial.
6 An extensive prosecution opening was tendered by the learned Crown prosecutor, Mr Elston of Senior Counsel. Mr Elston referred to various parts of the prosecution opening but relied on the entirety of the document as the basis for the charges to which you have now pleaded guilty. In the circumstances, I do not propose to recite in lengthy detail all of the matters which were opened by the learned Crown prosecutor, but I incorporate the detailed prosecution opening into my sentencing remarks.
7 As at July 1998, you held the most responsible position of Executive General Manager of Resources in respect of the University. You personally supervised all major contracts and were required to authorise significant payments within your delegation range. You used your senior position of responsibility within the administrative hierarchy of the University, to manipulate and abuse internal checks and balances which were in place for financial control. You had primary management control over 12 campuses, all of which needed to be maintained, serviced and improved from time to time.
8 Peter Charles Tierney, one of your co-offenders, was Director of Facilities and directly answerable to you. You were friends and you were also his immediate superior. Between you and Tierney and with the help of others employed at the University, you were well placed to defraud the University of significantly large sums of money. Each of you had easy access to processes of generating payment on invoices received by the University and you could also effectively control and manipulate tendering processes in respect of certain works which came within your portfolio.
9 Another co-offender by the name of Cappellin, was a builder and contractor who shared your abiding interest in race horses. He formed a number of companies in 1998 under the banner of Facilities Management Group Victoria, referred to as “FMG”, with the intention of tendering for inner city campus maintenance contracts offered by the University. He arranged for a David Dench, yet another co-offender, to be the front man for the group and manage FMG.
10 In relation to Charge 1, the agreement entered into by you, Cappellin and Tierney was for Cappellin to provide quotes, and in due course, invoices, which were false. The invoices which related to maintenance works, were either entirely or partly fictitious, whereby payment was sought for services partly provided or not provided at all. You and Tierney ensured that the University’s maintenance works were awarded to Cappellin’s business, after quotes were provided and you also saw to it that payment was made expeditiously by manipulating the administrative process in this regard.
11 In relation to Charges 2 and 3, in respect of later timeframes and with particular activities concerned, you and the other co-offenders just referred to entered into further conspiracies to defraud the University, engaging the help of others as required, by the same processing of false claims for backflow plumbing works which is the basis of Charge 2 and thermal imaging and electrical works which is the basis of Charge 3. These were areas of activity within the University which you and your cohorts identified as essentially being "ripe for the picking”.
12 Again, you and Tierney were able to exploit your positions to ensure expeditious payment of false claims. Consequently, the University was defrauded on a large number of occasions and the money generated by this enabled you, as well as others apparently, but, specifically in relation to you, to indulge your passion for breeding and owning thoroughbred race horses.
13 The conduct in which you engaged involved a good degree of sophistication and was an immense breach of trust which the University had placed in you. Further, you were involved in a conspiracy which involved recruiting others to provide false documentation which assisted the fraudulent claims that were made. You played a significant role in the numerous deceptions in which you conspired with others to commit and which appears to have funded your interest in race horses and lavish meals at fine dining venues in Melbourne.
14 From 1996 to 2001, 23 thoroughbred race horses were purchased or leased for a sum totalling well over $1.5 million. These were held in varying shares or owned outright, some being registered to Cappellin, but being held on your behalf alone or on your behalf together with that of Cappellin. I was told that the cost of the upkeep of the horses reached at least $2 million. Your fraudulent conduct endured relentlessly over lengthy periods of time. The activities associated with the conspiracies in which you engaged were brazen and showed a complete disregard for the University. You, an apparently esteemed educator, showed a contemptuous disregard for a place of learning for others.
15 Your conduct is deserving of strong punishment and I regard your moral culpability as high. I accept that you are of otherwise good character and that you have good family support and that you have suffered an immense fall from grace notwithstanding that your offending was the cause of this.
16 As a result of being convicted at trial before being released on appeal, you served 1,143 days in custody in relation to the sentence imposed by his Honour Judge Wood.
17 It is accepted by the Crown that your plea of guilty to these charges has significantly facilitated justice as the retrial would have occupied some time and would have involved a good deal of complexity. Therefore, you have saved the witnesses the time and trouble of giving evidence and you have also saved the community the significant time and expense which would have been involved in the trial. In the circumstances, I allow for a not insubstantial discount in the sentence you would have otherwise received because of the utilitarian value of your pleas of guilty. Further, you have served a significant period in gaol which has served to deter you from future offending, no doubt, and I am satisfied that your prospects of rehabilitation are good in light of this and in light of your strong family support and lack of prior convictions. I must give significant weight to general deterrence and denounce your conduct, however.
18 But in light of your pleas of guilty, which were entered after a successful appeal against conviction, and in light of your age, your lack of prior convictions and the Crown’s attitude towards sentence, as well as your good prospects of rehabilitation, I am of the view that all sentencing considerations can be accommodated by imposing the period of imprisonment which you have already served.
19 In circumstances where it is conceded by the Crown that time served is an appropriate disposition, and given the lengthy gaol term that you have already served, there is no utility, in my view, in imposing a head sentence and non-parole period as would normally be the case in such situations. I intend to sentence you to time served without imposing a head sentence and non-parole period as such. In doing so, I have considered s.11(1)(b) of the Sentencing Act 1991, as well as your history of having already served a gaol term for these offences, and in light of the Crown's attitude towards sentencing, this makes the fixing of a non-parole period inappropriate in this particular case.
20 Would you please stand up, Mr Smith.
21 In relation to each of the charges, you are convicted and in relation to each charge you are sentenced to 1,143 days’ imprisonment. Each of the sentences which I have imposed are to be served totally concurrently with each other, and I declare that the time already served in relation to this sentence is 1,143 days. For the reasons previously given, I do not propose to impose a head sentence and non-parole period, with the result that you may be released immediately as you have already served the sentence which I have imposed. If not for your pleas of guilty I would have sentenced you to 6 and a half years imprisonment with a non-parole period of 4 years 4 months' imprisonment.
22 On the last occasion, I made a compensation order in the sum of $70,000 made payable to Victoria University of Technology, which sum I note has already been paid by you. Take a seat, Mr Smith.
23 Are there any matters arising from that?
24 MR ELSTON: No, Your Honour.
25 HER HONOUR: Thank you. I made some inquiries in relation to the mechanics, Mr Tehan, and I understand that notwithstanding there's to be an immediate release there still has to be processing that's attended to downstairs before Mr Smith is released.
26 MR TEHAN: Yes. I'm a bit surprised at that, but I mean, I suppose if that has to happen, it has to happen.
27 HER HONOUR: I understand it will only be 15 minutes or so.
28 MR TEHAN: Yes, all right. I appreciate Your Honour telling us that, and we have relayed that to our client too, Your Honour.
29 HER HONOUR: All right, thank you.
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