Director of Public Prosecutions v Waij
[2017] VCC 812
•16 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTIONCR -16-01595
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW WAIJ |
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 16 June 2017 |
| CASE MAY BE CITED AS: | DPP v Waij |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 812 |
EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr R. Timms |
HIS HONOUR:
1Matthew Johannes Waij, you have pleaded guilty to four charges of theft, being Charges 1, 2, 3 and 4 and four charges of obtaining property by deception, being Charges 5, 6, 7 and 8. In the ordinary course the maximum penalties for each of those charges would have been ten years' imprisonment. However by dint of the operation of s.6I of the Sentencing Act 1991 the maximum penalty is increased where the amount stolen or the amount of the property obtained by deception exceeds $50,000. Thus on Charges 2-8 inclusive the maximum penalty is not ten years' imprisonment but 20 years' imprisonment.
2Mr Devlin, on behalf of the Director Public Prosecutions, has submitted however, that in relation to Charges 2, 3 and 4, where there are multiple transactions resulting in the theft, each of those charges of amounts in excess of $50,000, because they are rolled up charges the penalty that I should proceed upon is that of ten years' imprisonment. The reason being that the purpose of a rolled up charge is to provide a benefit to an accused and simplify the sentencing process. Thus, in fairness to an accused who is supposed to receive a benefit by dint of a rolled up charge ought not then face the burden of the charge attracting twice the penalty that would otherwise be appropriate as the maximum penalty.
3I intend to adopt the approach that Mr Devlin has suggested. Whilst Charges 2, 3 and 4 would ordinarily attract the maximum penalty of 20 years' imprisonment I approach the task of sentencing in relation to those three charges on the basis that though technically the maximum penalty is 20 years the actual maximum penalty that I must consider is ten years' imprisonment. Thus, for sentencing purposes all four charges of theft are being dealt with by me on the basis that the maximum penalty is ten years imprisonment.
4However, in relation to the four charges of obtaining property by deception,
section 6I of the Sentencing Act does operate to double the maximum penalty. This is consistent with the reasoning of the majority of the court of five in R v Roussety [2008] VSCA 259 and the leading judgment of Nettle JA, as he then was, as the qualifying offences each attract the maximum penalty of 20 years' imprisonment. See particularly his Honour's reasoning at paragraphs 30-33 of his Honour's judgment.5In the ordinary course of sentencing I would commence by outlining the circumstances of the offending that were subject of the charges on indictment. However in this case I will begin by briefly outlining your criminal history.
6You have been before Magistrates' Courts on two separate occasions, when you were 23 years of age and when you were 26 years of age, where you were charged with offences of dishonesty.
7On 21 October 2005 you were before the Magistrates' Court at Melbourne charged with handling stolen goods, use of an unregistered motor vehicle on a highway and fraudulently using a registration label or plates as well as one charge of theft from a shop. In relation to the latter charge of theft you were dealt with by way of an adjourned undertaking without conviction but on the other three charges you were sentenced to pay an aggregate fine, with conviction, of $650.
8However, that prior conviction is of little moment, particularly having regard to your second court appearance at the Shepparton Magistrates' Court on
18 August 2008 where you pleaded guilty to five charges of obtaining property by deception, six charges of making a false document to the prejudice of another and a further six charges of using a false document to prejudice another. You were sentenced to be imprisoned for an aggregate period of nine months which was wholly suspended for an operational period of two years.9Tendered as Exhibit 3 were the summary of charges used at that hearing in August 2008. Whilst it is a lengthy exercise I intend to quote the whole of that summary, which reads:
"At the time of these offences the accused was employed as an administrative assistant/trainee advisor to ABN AMRO Morgans Office in Berwick, Victoria. He commenced employment there on 22 March 2006. It was alleged that during his time in this position he inappropriately dealt with clients' funds to benefit his own personal finances without relevant permission from the business or clients. The manner in which he did this varied and on occasions to enable transfers he forged clients' signatures and doctored internal business documents fraudulently. The individual nature of the deceptions is as follows:
“Counts 1-5 (Inclusive) - Client’s D. and A. BROWN.
“These clients held surplus funds in the Macquarie Cash Management fund linked to a trade account with ABN AMRO Morgan’s Ltd. It is alleged that the accused on or about the 2nd day of October, 2006, fraudulently signed a change of address notification form in both clients' names suggesting that their new address was PO Box 449, Berwick, which was not the case. He submitted this document to his company's headquarters and then sent a verification e-mail to the accounts department to enable this change.
He then on the 10th of October, 2006, forged a written transfer instruction again in both clients' names and forwarded this to the accounts department. This document allegedly authorised and requested for the entire proceeds from sale of 165 CSL shares (monetary value $8992.39) on the 6th day of October, 2006, to be transferred into an account belonging to himself and JE WAY(Accused mother) for which he was a co-signatory. This was subsequently actioned by the accounts department without knowledge or permission by either of the clients (BROWN). It is alleged that the accused then obtained these funds from the account via the internet as he held the password access to the account. He used this money for personal gain in particular for funding a drug addiction.
“Counts 6-10 (Inclusive) – client BUCHANAN
“This client held a shareholding with the accused business. In a similar manner it is alleged that the accused on or about the 27th day of September, 2006, fraudulently signed a Change of Address notification form in the client's name suggesting that her new address was PO Box 449, Berwick, which was not the case. He submitted this document to the company's headquarters and then sent a verification e-mail to the accounts department to enable this change. He then on or about the 25th day of October, 2006, adopted and submitted to business headquarters two transfer forms for non market transactions in the name BUCHANAN. These documents allegedly authorised and requested for an off market transfer of 500 CML shares from the client to a Simon ANDREWS (accused flatmate) values at the time of $6,630.00 and also 600 ANZ shares valued at $17,052.00 to be transferred to ANDREWS shareholding account. This was subsequently actioned by the accounts department without knowledge or permission by either of the client (BUCHANAN). It is alleged that the accused then obtained these funds from ANDREWS shareholding account and utilised for personal purposes.
“Counts 11-16 (Inclusive) – Client HUGHES
“It is alleged the accused on this occasion on or about the 18th day of September, 2006, fraudulently forged a written transfer instruction in the client's name and forwarded this to the accounts department. This document allegedly authorised and requested for the sum of $2,500.00 to be transferred into the external account belonging to K YANN (Accused girlfriend at the time). This was subsequently actioned by the accounts department without knowledge or permission by the client (HUGHES). It is alleged that the accused then obtained these funds from the account YANN for his personal use.
“It is then alleged that the accused on or about the 3rd day of October, 2006, again fraudulently forged a written transfer instruction in the client's name and forwarded this to the accounts department. This document allegedly authorised and requested the remaining funds in the account ($201.53) to be transferred into an external account belonging to K. YANN. This was subsequently actioned by the accounts department without knowledge or permission by the client (HUGHES). It is alleged that the accused then obtained these funds from the account of YANN also for his personal use.
“Count 17 - Jason Todaro
“This client provided the accused with a $5,000.00 bank cheque during May, 2006. Half of these funds were to be invested in DEG and the other half left in the client's account until further instructions. It is alleged that the accused arranged via email the direct credit of this entire amount of $5,000.00 into the company's trust account on the 10th day of May, 2006. He then sent an internal banking instruction to the accounts department crediting all the funds into an external account belonging to K. Yann (Accused's girlfriend at the time). This was subsequently actioned by the accounts department on the 15th day of May, 2006, without knowledge or permission by the client (TODARO). It is alleged that the accused then obtained these funds from the account of YANN for his personal use.
“The accused employment with ABN AMRO Morgans on the 14th day of November, 2006, due to various internal procedural breaches. The company was alerted to the discrepancies in the clients' accounts after this time and notified police during February, 2007.
“The accused was located residing at a Shepparton address on 28th day of February, 2008. He was subsequently arrested and conveyed to the Shepparton CIU offices. He was extremely co-operative with police and indicated a desire to expedite these matters. He made full admissions to matters but to him. ABN AMRO Morgans have paid out each of the client's involved in these matters including the accumulated interest benefits. Restitution is requested for this business.
“The total amount being $40,375.92 (excluding interest calculations).”
10Thus in May and October 2006, whilst an employee and in a position of trust, you engaged in an elaborate fraud against clients of your employer. Your dishonest activities extended over a period of time of some six months. Your criminal conduct then involved manipulating the financial arrangements of the company that you were employed by and fraudulent use and creation of documents In order to obtain a not insignificant sum of money. You were indeed fortunate to receive the sentence of nine months' imprisonment and fortunate again that that nine months' imprisonment was wholly suspended.
11I wish to make it abundantly plain that you are not to be sentenced by me in any way for that previous offending and you have already received the sentences that I have adverted to. But it is against that background that I must consider the offending that is before me and upon which I must sentence you. I draw heavily, for that purpose, from the summary of prosecution opening upon plea, which became Exhibit 1.
12You were born on 24 April 1982 and established a business profile with the National Australia Bank on 11 December 2009. You held a number of business and personal accounts and you were also a signatory on a number of accounts held with that bank. The table at paragraph 3 of Exhibit 1 sets out the names of those accounts and your relationship to those accounts. They included your mother, an auntie, a business partner your wife, a friend in Hong Kong, business associate and others. The accounts were in varying names of individuals and companies.
13During August 2014 the National Australia Bank finance team identified that a number of accounts had been overdrawn without authority. The accounts were investigated. It was these accounts that you later admitted you had control. It was later revealed that the accounts were fraudulently overdrawn by you exploiting a vulnerability in the NAB banking system that had existed at the time but had since been rectified.
14The vulnerability in the system that you identified was that for a short period of time, approximately ten minutes, the bank's daily data strip file was taken offline and updated with other batches of data. The strip file was then uploaded with all bank transactional data for a given day. During this period of data processing the internet banking is offline and is replaced with a second strip file and during this small time window the second strip file may not reflect some previous transactions from the same day. The result is that a customer could do an EFTPOS transaction in the afternoon and during this ten minute timeframe in the early hours of the morning that same value of the EFTPOS transaction can re-appear in the customer's account.
15This would allow you to remove funds up to the value of the previous day's account transactions. The system allowed you to deposit cash or transfer funds into accounts you control and use EFTPOS transactions to then cause a nil or near nil balance to be reflected in that account. During the early hours of the next morning you would log on to the internet and begin refreshing your internet banking until the previous day's credit balance re-appeared in the account. This balance would not show the EFTPOS transactions completed that day. You then transferred the funds out of the account again.
16Once the strip file was online again the account would correctly show to be overdrawn. The respective accounts were then abandoned and no attempt was made to repay the NAB. These accounts would then be referred to the bank's collection section and were eventually written off as bad debt.
17The following is an example of what you did and forms part of Charge 3.
On 25 February 2014 $39,500 was deposited into the account in the name of David Cleary from Stier Group Pty Ltd. That same day $5000 cash was deposited into an account of David Cleary. The result was that the David Cleary account had a credit of $44,500. At 1.50.23 AM that day an EFTPOS withdrawal of $37,500 was made from Steve Di Petta & Associates. Then at 4.00 AM a withdrawal of $7000 was made from the Steve Di Petta & Associates account. The David Clearly account now had a zero balance.18The next morning on 26 February 2014 the David Clearly account refreshed at a time when the NAB systems are offline. The account would show a credit balance of $44,500 on the previous days' transactions are temporarily not shown. You then made the following four transfers. At 1.13.12 AM $14,500 BPAY to an ANZ card. Two seconds later at 1.13.14 AM, $9997 transfer by BPAY to an ANZ card. Then at 1.13.58 AM a further $1000 internet transfer was made to the Stier company group, the Stier Group Pty Ltd and finally at 1.14.43 AM, $18,970 was transferred by internet transfer again to the Stier Group Pty Ltd. These funds were used, in part, to pay wages and allow an $18,000 withdrawal transfer. After the above mentioned internet transfers totalling $44,466.95 were made, the NAB systems returned online and the account was in overdraft to that amount. The account was written off as a bad debt on 25 August 2014.
19You used your own account and accounts of family and friends to steal funds from the NAB. In short you used what you later on describe as a "loophole" in the NAB system to double dip on account balances. The amounts that you stole, the subject of Indictment Charges 1-4, aggregate $347,191.21.
20On 20 August 2014 you attended a meeting with NAB investigator, Rosalind Simms, where you made admissions to Ms Simms that you had completed the transactions. You further stated that you had discovered the vulnerability in the NAB system whilst living in Hong Kong.
21You were interviewed by police in the form of a record of interview on 27 July 2015, a date which is of very considerable importance as will be revealed in relation to your subsequent offending, the subject of Charges 5-8. In that interview, having been arrested, you made a confessional statement saying, among other things, that you performed transactions on other people's account which exploited the loophole in the NAB banking system. That you had uncovered the loophole in Hong Kong probably about eight years ago and "We used to be up late… we used to pay bills… And then one time, he's gone
‘Gee, all that money back in the account’. And then 15 minutes later it wasn't there…”22You indicated that it had been a “tough financial year [with a] $200 grand debt popped up at the tax office… I thought if I could just balance the money off from there, then once I got the stock back, moved some more stock, I could you know balance the NAB". I doubt that you had any such intention whatsoever.
23Continuing with your interview you said:
"If you book a credit card transaction… through an EFTPOS… it obviously charges the account. That money will show back up overnight for a period of time… once it returns to your account you can then go forward and produce another transaction".
24You told the police that, "I'm aware of what I was doing". You went into some detail in relation to some of the transactions and described your activity in these terms, "Taking money to repay money to people that had put money into the company… I felt like they deserved their money back". You stated further,
“I needed to get money back in to pay some things that were urgent”, and that, “Everyone involved that owed me money or something… They didn't receive money". At answer to question 543 you said, "I wasn't doing it for any personal gain on my own - for myself. I was trying to fix the mistakes of others…. I never benefited personally from any of this". I have no reason to believe any of that.25I have mentioned that the date of that confessional interview was 27 July 2015 and that that was a significant date. So it was. For having being interviewed by police in relation to the theft on indictment of four charges amounting to $347,191.21, a little over four months later you commenced the offending which is the subject of Charges 5-8, utterly and completely undeterred by what you had done before for which you were sentenced in August 2008 and utterly undeterred by being interviewed by police in relation to the significant thefts the subject of Charges 1-4. One might have thought that you would stop your dishonest conduct but no, you continued on with your offending.
26The offending which is the subject of Charges 1-4 involved stealing from an institution. Grave as that is, what you did in relation to Charges 5-8 was steal from superannuation funds from associates and clients. Funds that they had accumulated for their retirement, you plundered.
27I turn to the circumstances of the offending the subject of those four charges,
5-8. That offending occurred between 8 December 2015 and 6 January 2016, a period of one month or thereabouts. You, at the time, were a director of a company, Stier Group Pty Ltd, which had offices in Melbourne's Docklands and in Hong Kong. In November 2015 you requested four clients, namely Dean Bowles, Shane O'Brien, Bradley Walker and Geoffrey Goldman provide identification documents. These documents were later certified without the persons being present. Each of these persons were clients of yours and were later visited by you in relation to other share transactions unrelated to your offending.
28You provided them with a sheath of documents and you hid within such documents, for their signature, superannuation rollover requests which they unwittingly signed. These rollovers were made with a third party authority. The rollovers were then made to self-managed, super funds that you had access to either as trustee or fund manager.
29In relation to the rollover of Dean Bowles, Charge 5, you contacted the fund and represented yourself as Mr Bowles. Once you received the respective cheques from the superannuation fund you contacted the Australian Tax Office and removed his name from the list of self-managed super funds, all in order to hide your criminality and to achieve the result you did.
30In that fashion, as with Mr Bowles, you received the following amounts from the superannuation fund: $75,000 from Mr Dean Bowles' account with Australian Super Pty Ltd, Charge 5. $150,000 from Shane O'Brien's account with that same company, Charge 6. $100,000 from Bradley Walker's account with CBUS Trustee United Super Pty Ltd, Charge 7 and $100,000 from Geoff Goldman's account with the Australian Super Pty Ltd, Charge 8. The total sums that you obtained through these frauds was $425,000. After the clients became aware that their superannuation funds had been accessed by you, you used various nefarious devices to excuse what you had done, indicating to them falsely that there had been an administrative error or utilising some other brazen excuse.
31As revealed during the course of discussions it appears that what you were doing was taking from Peter to pay Paul. As persons requiring their retirement funds - that had already been depleted by you - you stole or took from others as set out in Charges 5-8. Your purpose is pithily put in your counsel's written submissions where at one dot point the submissions read:
"In regard to the deceptions the accused was taking money from one private superannuation fund to pay other superannuation funds whose members were retiring from employment".
32You were again interviewed by the police and on 5 October 2016 and you made a confessional record of interview at the Shepparton police station. Among other things that you said to the police:
"At his house we were signing a heap of things at the time. This would be the same with all parties. They were added to super funds without their permission. I was trying to plug holes in other super funds 'cause people needed to withdraw and that kind of thing and we fed them from money. Just got money tied up and I thought I could balance things off for a period of a few months until I could take care of it".
33You appropriately described your activity as "shuffling deck chairs on the Titanic". You described the Bowles money was rolled over into "Mark Hubern's super fund who was a partner of one of my auntie's". You said that when these people signed these consents to roll over their funds they probably did not know what they were doing, signed it unwittingly. "Other rollovers, basically the same. I used to work for Australian Super years ago and that money was rolled over to Stier Capital Ltd, which I am the only member and trustee”.
34You further stated, "We've got lots of money being held through receivers.
I used money to pay out the people. So I used it to pay out other investors" and this acknowledgement, "I have been dishonest through this whole process". That is putting it mildly.35As discussed with the learned prosecutor and your counsel, Mr Timms, it is patent that what is the criminality revealed in Charges 5, 6, 7 and 8 is but an aspect of your criminal enterprise that you were engaged in of broader scope. During discussions yesterday I emphasised that you are not to be punished for any other criminal conduct and nor will you be. Nonetheless it cannot be said, and has not been said by Mr Timms that this offending, the subject of Charges 5-8 are isolated.
36You knew precisely what you were doing. Once again you demonstrated, as you did with your other offending for which you were dealt with in the Magistrates' Court in August 2008, a capacity for deceitful and dishonest conduct. Manipulating systems in order to achieve what you wanted. Undeterred by the previous sentence of imprisonment and undeterred by having been spoken to by the police in relation to the NAB thefts in July 2015.
37In relation to each of the four charges, 5-8, there are detailed victim impact statements. I intend to read from portions of those statements. First in relation to Dean Bowles, Charge 5, he wrote:
"Now I find myself withdrawn from social outings, I keep to myself and
I find it impossible to trust anyone anymore. This is not the kind of person I wish to be, but because of Matt's betrayal it has left me feeling angry, deceived, embarrassed and ashamed.The embarrassment and shame I carry on a daily basis is crippling. It has affected my judgment of people and the open communication I once shared with my wife. As a proud man it is extremely difficult to come to terms that a person can be manipulative and deceiving towards another person and take their life savings for retirement so easily without any conscience. It is unnerving and still blows my mind".
38Shane O'Brien, who is the victim in relation to Charge 6 wrote in part:
"What happened took its toll on me at work as I work with his uncle and we need to have open communication in our roles, this did not happen. The time I was at work was spent on the phone breaking down questioning how this happened and putting in place measures for it not to happen again. Ultimately this had me compromising my employment, my livelihood and our future.
I ended up taking numerous days off work due to a lack of sleep as a result of the stress and some days I was too stressed and mentally drained to even leave the house".
39Later he continued:
"I often have sleepless nights and I get very angry and worried that my identity could be stolen, I'm continually calling banks and other institutions to confirm that things are okay".
40The victim of Charge 7 is Brad Walker who wrote:
"From the initial shock and disbelief that a so-called friend could defraud me without the slightest hint of remorse was totally consuming. By nature, I am an outgoing and trustworthy person who is full of life and fun. From the day that I found out that my superannuation was taken from me I was a changed man. My whole demeanour changed, I became enraged, embarrassed and stressed with the prospect of a retirement with very little superannuation that wouldn't allow me to retire with any sort of comfortable lifestyle. With 27 years of working I am now left with no superannuation at all.
“My wife and I had plans for when we retire to travel, this is now a pipe dream. I initially couldn't face my wife to tell her the news of how my superannuation had been taken from me and that our plans would never eventuate. This caused me to withdraw into myself and away from family and friends. I lost weight, I couldn't eat or sleep and turned to drinking to deal with the constant reminder of what had happened. The anxiety that
I was feeling was overwhelming. I was on a downward spiral and was spinning out of control".
41Later he wrote:
"Working in the construction industry is an unforgiving workplace that can take its toll on the strongest of people, with my mental state fractured
I felt I might crack and not be able to return to my workplace".
42He concluded with this sentence:
"To this day I still live in hope that Matthew may see the error in his ways and realise the permanent damage he has done to me emotionally, financially and physically".
43That is a hope which I consider, in the circumstances of this case, to be a forlorn hope.
44I now come to the victim impact statement of Geoffrey Goldman, who was the victim in relation to Charge 8. He read his victim impact statement to the Court and it was more poignant for that reading. I shall extract but a few passages from that victim impact statement.
"I have always been a good provider for my family and they trust me to make decisions based on sound information. However the values and beliefs I have always held so highly soon came crashing down on me when I made the biggest mistake of my life, by trusting the defendant".
45He continued later:
"Once I became fully aware of the magnitude of the situation and the reality of what was happening, my whole world came crashing down around me. I felt depressed and completely despairing and wondering what my options going forward could possibly be. I was at rock bottom.
Initially I tried to resolve the situation myself by phone calls, texts and emails to the defendant. I convinced myself that there was no need to panic, that this could all be sorted, it was just an unbelievable mistake that the defendant assured me he would remedy. At this stage, I still thought the defendant was telling the truth and that he would return the money. I hoped I could trust his word and had convinced myself that, because I can generally judge a person's character, I wouldn't easily be conned or taken for a ride".
46Still later he wrote:
"The defendant's actions put an enormous amount of strain on all of my family including my children, Jorja, Mitch and Judd. My two elder children knew something was wrong with me because of my unusual actions: irritable mood, secret phone calls I was making and receiving, and my lack of interest in them. I have always played a large part in their day to day activities and due to my anxiety and stress, I became removed and distant from them. Initially my children thought I was sick and that I was suffering a terminal illness and that I was keeping it from them to protect them. The effect on me as a father and husband was enormous and I felt I had let my wife and children down".
47He concluded with this last paragraph:
"The impact of this incident has caused me to lose faith and trust in people which has not been part of my nature in the past. Your Honour, I have shared with you today the impact that this situation has had on me, my family and our life. I believe a strong message needs to be sent to the defendant to ensure this never happens again. The defendant needs to understand that what he has done has caused irreparable damage and pain to many people. No-one should have to go through an ordeal such as this. I trust Your Honour will take this impact statement into serious consideration when passing sentence on the defendant".
48It is unusual in cases such as this for there to be victim impact statements. It is left to the sentencing judge to assess the impact of such behaviour as you have engaged in. But here I have the benefit of those victim impact statements which demonstrate the multifarious ways in which your actions has affected their lives, their hopes, their aspirations and their families.
49This is offending viewed in light of your criminal history and viewed in relation to Charges 1-4 when you were interviewed in July 2015 in relation to those charges, and your subsequent offending, Charges 5-8, as offending which rather than tempering in any way, increased in its gravity.
50Your personal background was set out by Mr Timms in a most helpful way. You were born in Adelaide when your mother was 16 years of age, she having been sent there by her parents during her pregnancy and for the birth. Upon your birth your mother and you returned. Then you became very close to your maternal grandparents who, with your mother, raised you. Your grandfather died in 2007 and your grandmother still resides in Shepparton. You were living in the guest room at her house and you were her part time carer until your arrest on 5 June 2017 and the subsequent revocation of bail by me shortly thereafter. You have no siblings.
51You successfully completed your secondary education in the Shepparton region, completing Year 12. Schooling was uneventful and you were a keen golf player. You later completed your Bachelor of Finance at Deakin University. You have been married two years to your wife, a Russian citizen who is seeking spousal visa residence.
52You were employed by Westpac in the finance department and then at BAN AMRO and finally, Goldman Sachs. Thus you acquired considerable skills and knowledge in the financial industry. You then established your own company, the Stier Group Pty Ltd, which had the principal purpose of raising funds to enable companies to be registered in various stock markets. On one occasion, in March to October 2012, you successfully raised $1.5 million as a capital float for a digital investment company. Your subsequent business exploits were unsuccessful.
53It is difficult to know the true situation in relation to any business activity you engaged in, for the source of the information is you and your dishonesty permeates every aspect of your dealings with the victims in relation to these charges.
54The total sums involved in this offending amount to no less than $772,191.00.
The only amount that you have paid or repaid is $22,500 to Bradley Walker, who is the subject of Charge 7. The balance of the $100,000, which you obtained, has not been recompensed by CBUS Trustee United Super Pty Ltd. The other three victims in relation to that set of Charges 5-8 have been repaid their amounts plus interest by Australian Super Pty Ltd but not without difficulty. The National Bank of Australia has, in turn, resolved the matters the subject of your thefts in Charges 1-4 by writing off the amounts. That there has been a writing off of the debts by the National Australia Bank and by Australian Super Pty Ltd does not reduce the gravity of your offending.55You have displayed little insight but you have pleaded guilty at the earliest opportunity and cooperated with the authorities by being confessional in relation to all of the matters that are before me.
56General deterrence, that is deterring others from engaging in this type of activity, is the principal sentencing factor. It must be made plain that those who are prepared to engage in fraud of this scale will receive stern punishment. Indeed, there is also the need here for just punishment and denunciation of the despicable conduct of you, Mr Waij, in relation to this offending. Deterring you form further offending is, because of the matters that I have endeavoured to put forward, a significant factor that I must take into account.
57Because of your early pleas of guilty there is considerable utility in those pleas of guilty avoiding at least two trials. Both of which would have been complex and lengthy. I estimate that each trial could have taken something in order of three or so weeks.
58I have given anxious consideration to the need to ensure that the sentences I impose are, in total, appropriate. Stand.
59On Charges 1-4, I sentence you to an aggregate sentence of three and a half years imprisonment.
60On Charges 5-8, I sentence you to an aggregate sentence of five year's imprisonment.
61The aggregate sentence on Charges 5-8 is the base sentence and I direct that two years of the three and a half years be served cumulatively upon that five years producing the total effective sentence of seven years imprisonment and I set a minimum non-parole period of five and a half years.
62But for your pleas of guilty I would have sentenced you to a period of eight and a half years and set a minimum non-parole period of six and a half years. I declare the pre-sentence detention is ten days. Take a seat.
63Are there any other matters that need to be corrected or otherwise, Mr Devlin?
64MR DEVLIN: No, Your Honour, I don't believe so. Your Honour, there was an application for a forensic sample.
65HIS HONOUR: Yes. Have you got the orders there, Mr Devlin?
66MR DEVLIN: Yes, Your Honour. I believe they're with you and there's also the compensation order ‑ ‑ ‑
67HIS HONOUR: Yes.
68MR DEVLIN: ‑ ‑ ‑ which were also not opposed. I believe the documents are with Your Honour's Associate.
69HIS HONOUR: Yes. I will hand back that Court of Appeal decision to you.
70MR DEVLIN: Thank you, Your Honour.
71HIS HONOUR: I note the order in relation to Mr Walker is in the sum of $77,000. Is that correct still?
72MR DEVLIN: That has been modified because of information from today. I will check. It's $22,500 he received so, Your Honour, that has to be modified.
73HIS HONOUR: Well I will just teat up what I have just signed.
74MR DEVLIN: It will be re-submitted, Your Honour.
75HIS HONOUR: Sure.
76MR DEVLIN: Thank you.
77HIS HONOUR: Is there an industry association for the superannuation industry? I believe there is one.
78MR DEVLIN: I'm sorry, Your Honour, I'm just not ‑ ‑ ‑
79HIS HONOUR: Well, I am being - I find it curious that Australian Super has recompensed their clients but Cbus Trustees has not.
80MR DEVLIN: Yes, Your Honour.
81HIS HONOUR: I only wonder whether that might be an avenue that might be open.
82MR DEVLIN: The only thing I can add to it, Your Honour, that I ‑ ‑ ‑
83HIS HONOUR: Anyway it's none of my business but just (indistinct).
84MR DEVLIN: No. One would hope that matter will be advocated further.
85HIS HONOUR: Well now with the finding of guilt I would assume so, Mr Devlin, but anyway that is by the by as it were.
86MR DEVLIN: Yes, Your Honour.
87HIS HONOUR: Yes. Does that conclude the notes as you're concerned?
88MR DEVLIN: Yes, Your Honour.
89HIS HONOUR: Thank you, Mr Devlin. Thank you, Mr Timms. You may remove Mr Waij please. You're excused from the Bar table. Thank you, Mr Timms. I will stand down while the court reconvenes.
90MR DEVLIN: Yes, Your Honour, thank you.
91(Short adjournment.)
92MR DEVLIN: If I can ‑ ‑ ‑
93HIS HONOUR: Sorry, yes Mr Devlin?
94MR DEVLIN: I apologise. I believe Your Honour was also required to declare Mr Waij a continuing criminal offender. I believe ‑ ‑ ‑
95HIS HONOUR: But is this ‑ ‑ ‑
96MR DEVLIN: ‑ ‑ ‑ Your Honour said as much in the first part of your decision but ‑ ‑ ‑
97HIS HONOUR: Yes well he is being sentenced on Charges ‑ ‑ ‑
98MR DEVLIN: On the basis that ‑ ‑ ‑
99HIS HONOUR: ‑ ‑ ‑ Charges 5-8 as ‑ ‑ ‑
100MR DEVLIN: A continuing criminal enterprise offender.
101HIS HONOUR: Pursuant to s.6I he is, for the purposes of the sentences on those Charges 5-8, inclusive, a continuing - sentenced as a continuing criminal enterprise offender.
102MR DEVLIN: Yes, Your Honour, I believe Your Honour made that clear.
103HIS HONOUR: Well I hope I did because that is why I doubled the maximum penalty ‑ ‑ ‑
104MR DEVLIN: It's crystal clear now.
105HIS HONOUR: ‑ ‑ ‑ as being the maximum penalty for that offending ‑ ‑ ‑
106MR DEVLIN: Yes, Your Honour.
107HIS HONOUR: ‑ ‑ ‑ on those charges.
108MR DEVLIN: Yes, Your Honour.
109HIS HONOUR: Yes. I will again - Mr Waij can be removed please first. Thank you.
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