Gregory Prigg v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0222

GREGORY PRIGG	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2024
DATE OF JUDGMENT:	8 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 261
JUDGMENT APPEALED FROM:	[2023] VCC 1605 (Judge Cahill)

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CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception – Whether judge unfairly intervened to assist prosecution – Whether prosecutor reversed onus of proof – Jury directions – Jury delivering verdict before judge’s redirection – Whether any miscarriage of justice caused by jury delivering verdict before redirection – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception – Submitting false invoices to employer totalling $680,000 – Aggregate sentence of 3 years, with non-parole period of 2 years – Manifest excess – Whether sentence manifestly excessive – Sentence not manifestly excessive – Leave to appeal against sentence refused.

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Counsel
Applicant:		Mr C Thomson
Respondent:		Mr D Glynn with Mr J O’Connor
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
BOYCE JA:

Between 2009 and 7 April 2017, the applicant was employed as an operations manager at Coastal Bridge, a freight forwarding division of AAW Global Logistics Pty Ltd (‘AAW’). During this period, Coastal Bridge engaged transport contractors to move freight for it; and the applicant’s duties included submitting contractors’ invoices to the accounts department of AAW for payment.
Between 17 April 2013 and 7 April 2017, the applicant submitted 393 false invoices to the AAW accounts department, in the names of transport companies which had not provided any services. The false invoices nominated bank accounts owned or controlled by the applicant (‘the applicant’s bank accounts’) for payment. On the basis of those false invoices, AAW made 257 payments totalling $681,481.21 into the applicant’s bank accounts.
Over 11 days in July and August 2023, the applicant was tried by a judge and jury on 12 charges of obtaining a financial advantage by deception.[1] Each charge was a ‘course of conduct charge’ within the meaning of cl 4A of Schedule 1 to the Criminal Procedure Act 2009. The false invoices were grouped by reference to the time of payment and the name of the transport company referred to in each invoice.
[1]Contrary to s 82(1) of the Crimes Act 1958.
At trial, the applicant (who gave evidence) did not dispute that he had submitted the false invoices, and accepted that he had obtained a financial advantage — namely, deposits of AAW funds into his bank accounts. He disputed, however, that he had deceived AAW, and disputed that he had acted dishonestly. He testified that AAW had authorised a scheme to enable him to pay kickbacks, in cash and in kind, to customers to win business for Coastal Bridge. He said that a former general manager of AAW (Greg Wormald) told him how to do this, and one of AAW’s directors (Joseph Pace) had approved this scheme.
On 4 August 2023, the jury returned guilty verdicts on all 12 charges. On 5 September 2023, following a plea hearing on 10 August 2023, the applicant was sentenced to an aggregate sentence of imprisonment[2] of 3 years. The judge fixed a non-parole period of 2 years.[3]
[2]See s 9 of the Sentencing Act 1991.
[3]DPP v Prigg [2023] VCC 1605 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal against conviction. His proposed grounds of appeal are as follows:
1.The trial judge unfairly intervened to assist the prosecution leading to a miscarriage of justice.
2.The prosecutor reversed the onus of proof in his cross-examination of the applicant and in his closing address, leading to a miscarriage of justice.
3.The jury reached guilty verdicts before being redirected on the critical issue of deception and so may well have reached their verdicts on a mistaken view of the applicable law.
The applicant also seeks leave to appeal against sentence. His single proposed ground of appeal is that the sentence was manifestly excessive.

The trial

At trial, the prosecution called five witnesses: Jason Pretorius, the chief financial officer of AAW; Alberto DiMaggio, a commercial director of AAW; Mr Pace; Douglas Brboric, a forensic accountant employed by Crime Command, Victoria Police; and a police investigator, Sergeant Andrew Paulet.
By agreement, the prosecution read into evidence the statements of two other witnesses: Sandra Foran, a friend of the applicant who provided him with the details of her ING savings account, and into which transfers of money were made; and Bruce Willett, who set up a transport company, Request Logics Pty Ltd (‘RL’), with the applicant, but which ‘never got off the ground’, and into whose bank account transfers were made.
As we have already observed, the applicant gave evidence at trial. No other witnesses were called by either party.

Evidence of Mr Pretorius

Mr Pretorius was the chief financial officer, and a director, of AAW. At the time of the applicant’s employment, he was a deputy chief financial officer. He gave evidence of AAW’s corporate structure and its divisions and brands. He described Coastal Bridge as one of its brands;[4] and Hoyer Global Agency Australia (‘Hoyer’) as one of its divisions that operated as an agent to a principal based in Singapore. He said that in 2016 and 2017, Coastal Bridge and Hoyer each had about three or four people employed by them. The applicant was employed by AAW, within Coastal Bridge.
[4]Although, later in his evidence, he also referred to Coastal Bridge as one of AAW’s divisions.
As to relevant personnel, Mr Pretorius gave evidence that Mr Pace was a director largely responsible for Hoyer as well as ‘the AAW general forwarding part of the business’. He said that the manager of Coastal Bridge was Mr DiMaggio.
Mr Pretorius gave evidence that he first became aware of the false invoices when Mr Pace told him that there had been ‘some inconsistencies with some invoices’ and that ‘a supplier had made an enquiry about some outstanding invoices, and … when it was looked into, those invoices didn’t match up’. He said this conversation occurred at the beginning of April 2017, and Mr Pace asked him to ‘go and investigate it further’.
Mr Pretorius gave evidence of the investigation he performed uncovering the false invoices, and discovering that it was the applicant who had ‘approved’ them. Mr Pretorius said that, during the course of his investigation, it was determined that one of the alleged suppliers, Games Interstate Transport (‘GIT’) ‘was not a legitimate company’. He said that AAW had paid out on GIT invoices in an amount of $295,115.69.
Mr Pretorius gave evidence that when he advised Mr Pace of his findings, Mr Pace was ‘quite shocked’. Mr Pretorius subsequently met with Mr Pace and another director (Barry Misiurak), and it was agreed that AAW would terminate the applicant’s employment for gross misconduct.
At a meeting held on 13 April 2017, the applicant was confronted with the false invoices and it was put to him that one of the account numbers on a GIT invoice belonged to him (the applicant). Mr Pretorius said that the applicant admitted that the account belonged to him, and admitted that monies were transferred to his account. Mr Pretorius gave evidence:
I asked him if anyone else was involved in the matter and he stated no. I asked him how long this had been going on for and how much had been paid; I only got the answer that there was an amount of around $30,000 that he’d recovered from this. I asked him why he was conducting (sic) this. His answer to me was that he was due monies, he was promised an increase, and that this — he was recovering back that amount.
Mr Pretorius gave evidence that once the applicant had effectively admitted to diverting funds into his own account, he (Mr Pretorius) summarised the events to say that this represents a ‘gross misconduct’. Mr Pretorius asked the applicant if he had anything to say; there was nothing; and so Mr Pretorius told the applicant that action would be taken to terminate his employment for gross misconduct. The applicant was given a letter of termination, signed by Mr Pace. The applicant then countersigned the letter. The letter, after referring to the discussion at the meeting about the applicant’s ‘serious misconduct that occurred regarding the discrepancies that had been found during an audit, wherein payments have been directed to [the applicant’s] personal account over the last five years’, stated that the applicant’s employment had been terminated without notice.
Mr Pretorius also gave evidence about invoices in the name of All West Transport (‘AWT’). When asked whether AWT was a genuine company, he said that ‘this one was slightly different’. AAW paid invoices totalling $370,228.97 in respect of AWT. He said that AWT was an actual company, but not one which had provided services to AAW.
In evidence in chief, Mr Pretorius was asked whether he had become aware that there had been ‘any improper invoices practices’ in relation to Hoyer. He replied:
Yes, I was made aware that prior to my time, there was an instance of accounting adjustments made between, — within a division called Hoyer Global Agency Australia and the head office in Singapore, where commissions that were claimed were inflated.
In cross-examination, it was put to Mr Pretorius that there was a sales conference in early 2013 ‘with all the managers from around Australia’, out of which ‘came the idea of [the applicant] getting new business by paying kickbacks to suppliers’. Mr Pretorius said he had no knowledge of this.
Mr Pretorius was cross-examined about AAW’s approval process for the payment of invoices. He was shown invoices bearing two signatures, and it was put to him that, before an invoice could be approved, it required both the applicant’s signature and the signature of someone else who was a manager at AAW. Mr Pretorius said:
The process that I’m aware of, and the systems that we adopted on 1 January 2016, required an approval in the system. I sort of see these — the stamp and these two signatures, but the process of approval — I’m just not familiar with it at that time, since I was not there.
Mr Pretorius was cross-examined about ‘the payment of marked-up invoices by Hoyer International from Singapore to Hoyer in Melbourne’. He agreed that it was Mr Pace who told him about that process. He said he was told that ‘we had been inflating our commission claims to Singapore’. He said that he believed that what was described to him was that, when a supporting document was requested from Singapore, it would have been an invoice: ‘that invoice was mocked-up’. When asked whether he regarded it as his duty as an accountant to report ‘this false accounting practice’ to the police, Mr Pretorius said that he believed it was improper, but that he was also ‘not aware of any discussion between the head office at Singapore and ourselves’; and that he ‘viewed that as a commercial activity between a head office and an agent’. He was then asked and answered the following questions:
Okay. Going back to Hoyer, after Mr Pace told you that Hoyer Australia by means of false accounting had accrued moneys that were not properly due to it, did you inform Hoyer in Singapore about that and arrange some form of compensation to Hoyer in Singapore?---No compensation was, ah, offered to Singapore, no.
But did you contact the Singapore office of Hoyer to tell them about what you’d found out?---No, I did not.
Mr Pace resigned soon after telling you about what he had been supervising in relation to Hoyer’s false accounting, correct?---That is correct.
After putting to Mr Pretorius that the applicant had told police that he had marked up the invoices for AWT and GIT to enable him to have money to pay kickbacks to suppliers of AAW, Mr Pretorius was then asked and answered the following questions:
All right. Now, um, this was your first job in the transport industry, and so perhaps you didn’t have experience of the payment of kickbacks in the industry, but from the auditors that, ah, took over soon after you arrived at AAW, you found out that there had previously been quite a widespread black economy in the transport industry involving cash payments, correct?---That is correct.
All right. And by cash payments I mean the payment of kickbacks to suppliers to ensure they continue to do business with whoever’s paying the kickbacks?---Yes, ah, some — I imagine there’d be, ah, different, ah, reasons 26 for it, but yes, mostly volumes.
Mr Pretorius was cross-examined about Mr Pace’s shareholding in AAW. He could not recall whether it was 5 per cent or 10 per cent. It was put to him that if the applicant helped increase the profits of AAW, some of that increase went into the pockets of Mr Pace. Mr Pretorius responded, ‘as a shareholder, yes’.
Finally in cross-examination, Mr Pretorius was asked questions about what the applicant said in the meeting on 13 April 2017. Mr Pretorius gave evidence that the applicant said that the total amount he had taken was $30,000. It was put to him that he was mistaken about this. Specifically, he was asked and answered the following questions:
All right. I suggest you’re mistaken about that and that any mention of $30,000 was in relation to bonuses that he was owed by the company. He said to you, I suggest, that the company hadn’t paid him bonuses — $10,000 a year bonuses that had been promised over the last few years?---Um, he just mentioned that they were money owed to him.
Yes. I suggest that he did not tell you that he had taken any money from the marked-up invoices, that all the money went to pay kickbacks apart from $55 for a birthday cake?---That is incorrect.

Evidence of Mr DiMaggio

Mr DiMaggio commenced employment at AAW in 1998. He gave evidence that he set up Coastal Bridge in 2005. He described his title as ‘commercial director’ although he was not, and has never been, a director of AAW.
Mr DiMaggio said that the applicant commenced employment at Coastal Bridge in about 2009. He was employed in an operations role, arranging bookings, liaising with clients in relation to deliveries and liaising with suppliers and contractors. Initially, the applicant reported to a branch manager, who himself reported to Mr DiMaggio. In approximately 2012 or 2013, the branch manager changed jobs, and the applicant became Mr DiMaggio’s second in charge. At that time, Mr DiMaggio was in charge of Coastal Bridge, with the applicant reporting to him. There was a third employee, described by Mr DiMaggio as a ‘customer service girl’ who worked under the applicant’s supervision.
Mr DiMaggio gave evidence about the applicant’s level of autonomy and responsibility. His evidence was that the applicant was responsible for operations and ‘pretty much had all the autonomy that he required to do the job’. The job involved ‘approving invoices, raising invoices … and we weren’t looking over his shoulder’.
Mr DiMaggio said that he first became aware that senior management at AAW had concerns about a series of invoices in April or May 2017. He was called into Mr Pace’s office, shown some invoices, and asked if he knew anything about them. He told Mr Pace that he was not aware of the invoices.
In evidence in chief, Mr DiMaggio was asked about the applicant’s authorisation to approve invoices. He said the applicant was able to approve invoices up to the amount of $10,000 without going to a senior manager for account approval. Mr DiMaggio said that, where approval was required, the applicant would ask him and he would give his approval. He said he did not personally check the credentials of the company referred to in the invoice. He said it was not possible for him to do that, but that sometimes he would ‘go into the system to check that the amount was correct in the system[5] and [that they were] approving the correct invoice for the job’. He said that this was not often done ‘because we took it on the trustworthy nature of the employee to present the correct invoice in relation to the job’. Thus he said:
So often invoices were approved on the basis of the operator approving the job and then just me countersigning the approval.
[5]The system was a system called ‘CargoWise’, a system which could be accessed to check particular jobs.
In evidence in chief, Mr DiMaggio was shown an AWT invoice. He said he was not aware that AWT had not done the work that this invoice related to; nor was he aware that the bank account on the invoice was in fact the applicant’s bank account. He said if he had been aware of either of those matters he would not have signed the invoice.
When asked whether he ever authorised the applicant to issue an invoice that stated the name of a company that had not in fact done the job, he said ‘No, never’. Similarly, he denied ever authorising accounts people to make payments on an invoice directly into a bank account belonging to the applicant. He also said that he never had any discussion with the applicant about providing payments as kickbacks to attract new business. He did not believe that anybody at AAW had any such discussions with the applicant.
In cross-examination, Mr DiMaggio agreed that he had heard about kickbacks in the transport industry. He denied knowing that it was common practice, and said that it did not happen in AAW. Mr DiMaggio said that he ‘never knew that [the applicant] was paying kickbacks to Coastal Bridge clients’. He was asked and answered the following questions:
If Mr Prigg was to say that he was paying kickbacks in kind sometimes with clients, like giving them a game of golf as an incentive to keep doing business with Coastal Bridge, were you aware of that happening?---Ah, I’m aware that he was playing golf with certain — both suppliers and customers, and I didnt have any issue with that.
But if he had an arrangement with the customers, ‘Look, you keep doing business with Coastal Bridge and I will give you, in effect, an incentive of $200 a container to keep doing business with us, and if you want that in kind we can go to the golf or we can go to the TAB or whatever’, were you aware of anything like that happening?---No.
Finally, Mr DiMaggio denied being aware of any conversation between the applicant and Mr Wormald to the effect that the applicant should do what Hoyer had done and create inflated invoices to pay kickbacks and obtain new business.
Evidence of Mr Pace
Mr Pace gave evidence that, in 1991, he became a director and shareholder of AAW. His shareholding was 9%.
Mr Pace was asked whether he had any working relationship with the applicant. He responded, ‘hardly any’. He said the applicant was an employee, working for Coastal Bridge, who was directly responsible to Mr DiMaggio. He said that he had very little interaction with the applicant in regards to the applicant’s role within Coastal Bridge.
Mr Pace gave evidence that, while he could not specifically recall the dates, he remembered a whistleblower coming into his office and expressing concern about invoices that were going across the applicant’s desk for payment. As a result, he requested Mr Pretorious to investigate the whistleblower’s concerns. Mr Pace said that, apart from going to an address on one of the invoices, he did not have any involvement in the investigation.
Mr Pace gave evidence that, as a result of ‘anomalies’ in the invoices prepared by the applicant, it was decided to terminate the applicant’s employment.
In evidence in chief, Mr Pace was taken to the termination letter of 13 April 2017 and asked about the meeting that occurred on that day. He said he had no recollection of attending the meeting.

He was asked about Hoyer’s marking up of invoices to Hoyer Singapore. He said:
Well the whole idea [came] from [a] AAW staff member who suggested that we should marginally mark up the invoices to Hoyer Singapore for the export of empty tanks, and for that mark up to be recorded in the business as additional revenue. And because [Hoyer] didn’t receive any handling fees for the move[ment] of empty tanks, I gave the okay to trial [this]. The trial continued for some time and then it stopped. And I can’t recall when it started or when it stopped, it was a long time ago.
Mr Pace was asked in evidence in chief about whether he had authorised the applicant to generate false invoices to enable money to be paid by AAW into the applicant’s bank accounts so that ‘payments in cash or in other sweeteners’ could be paid to attract new clients to Coastal Bridge. He said that he never instructed the applicant to engage in that process, and he never authorised Mr Wormald to instruct the applicant to engage in that process.
Mr Pace was cross-examined about the preparation of the false accounting documents which were sent to Hoyer Singapore. He said that this was a commercial decision to generate additional revenue for Hoyer.
It was put to Mr Pace in cross-examination that he authorised Mr Wormald to tell the applicant to copy the process that Hoyer had used in the creation of backup documents to try and generate new business for Coastal Bridge by enabling the payment of kickbacks. Mr Pace denied this assertion.
In relation to Hoyer, Mr Pace admitted that he ‘gave the okay for the trial to proceed’ and that ‘the practice continued for a while’. Mr Pace was asked to answer the following questions:
Okay. And Mr Prigg says that he was told to copy the Hoyer process to enable him to do what he did. I suggest you authorized that. Isn’t that right?---That’s not correct.
Okay. This process of creating marked up invoices for Hoyer to go back to Singapore involved a false accounting practice. You agree with that?---It involved, ah, creating, ah, an invoice with a — with a marginal markup.
Yes, which was false?---It was a commercial decision we made to, ah, increase revenue for the agency.
And it increased revenue for you as a shareholder too, didn’t it?---Um, indirectly.
Yes. So one of the reasons you approved this shonky process was to make money for yourself, isn’t that right?---There was no thought of making money for myself through that, ah, process. It was purely designed to increase revenue for the agency.
Was Hoyer in Singapore ever told that this had been going on so that AAW could repay the amounts that they’d falsely claimed?---No.
Why not?---Because it was a commercial decision that was made to use the, um, duplicated invoice to generate additional revenue for the agency.
All right. Well, you realize you could be charged with authorizing false accounting, don’t you?---I’m not aware of that.
You’re not aware of that? You don’t know that creating false accounts is a crime in Victoria?---No, I’m not aware of that.

Evidence of John Brboric

Mr Brboric was a senior forensic accountant with Victoria Police. He was consulted in November 2017 and asked to assist in the analysis of the applicant’s bank accounts and AAW invoices covering the period from 17 April 2013 to 13 April 2017. Much of his evidence was not in dispute, the applicant not contesting that he raised invoices for services which were not supplied to AAW, and that he submitted them for payment into his bank accounts or bank accounts controlled by him.
In summary, Mr Brboric’s evidence was that the bank records showed that the applicant received $681,488.21 of AAW’s funds for the false invoices that he raised for payment in respect of AWT, GIT and RL. Mr Brboric’s analysis showed that during the relevant period, the applicant:
•paid $354,907.65 to contractors known to AAW;
•paid $28,730.98 to contractors not known to AAW;
•was paid wages of $263,397.56;
•spent $249,474.32 on items categorised as ‘living and lifestyle’;
•made rental payments totalling $80,056.
•made cash withdrawals totalling $206,160; and
•made untraced withdrawals totalling $29,700.
In cross-examination, Mr Brboric agreed that he could not say whether or not the $206,160 in cash withdrawals was used to pay kickbacks to AAW clients or for spending on the applicant’s own behalf.
Similarly, when cross-examined about the living and lifestyle expenses, Mr Brboric agreed that he could not tell whether those were expenses that were paid purely for the applicant, or whether the applicant had taken clients for a game of golf or to the football or to a hotel.
Ultimately, it was put to Mr Brboric that he could not say that the various amounts he identified as cash withdrawals, untraced withdrawals or living and lifestyle expenses had not been paid in cash or kind as kickbacks to AAW’s customers. Mr Brboric responded:
I can’t definitely say, but I would say the likelihood of that is not strong.

The remaining prosecution witnesses

For present purposes, other than to make the references made to them in paras [8] and [9] above, it is not necessary to summarise the evidence of the remaining prosecution witnesses (Sergeant Paulet, Ms Foran and Mr Willett).

Applicant’s evidence

The applicant gave evidence that he commenced employment at Coastal Bridge in about 2009. As we have already noted, in his evidence, the applicant did not dispute that he had submitted the false invoices, and that, as a result of the false invoices, AAW transferred more than $680,000 into his bank accounts. The applicant’s evidence was that AAW approved the making of the false invoices and the paying of kickbacks in order to entice customers to do business with them, and thus increase their own profitability.
In his evidence in chief, the applicant described the scheme as having commenced after a conference held in 2012 at which branch managers and sales representatives from all over the country for AAW and Hoyer, and ‘just the three of us at Coastal Bridge’, attended. At and/or after this conference, the applicant had discussions with Mr Wormald about the scheme, including the creation of ‘backup documents’ as had earlier been done with a similar scheme involving Hoyer. The applicant said that he was told on ‘numerous occasions’ that Mr Pace was involved and approved of the scheme.
In his evidence in chief, the applicant referred to a number of very large companies who were customers at AAW and to whose employees kickbacks were paid or given. The applicant described the kickbacks as ranging from cash to goods and services, including hotels, vouchers, football tickets, concert tickets, golf memberships, electrical goods and a brothel. The applicant gave evidence that on one occasion he offered a customer $10,000 and Coastal Bridge received over $30,000 which it would otherwise not have received.
At the conclusion of his evidence in chief, the applicant was asked and answered the following questions:
All right. Now, Mr Prigg, what was your honest belief about whether the company, AAW, approved of what you were doing in creating these false invoices, making them up and then paying kickbacks out of the difference?---My honest proof if they – if they knew?
Yes?---I don’t - - -
No, what was your belief about whether the company approved of it or not?---They showed me how to do it, they approved, yes, they knew exactly what was going on.
And who did - - -?---Greg Wormald. Greg Wormald was the first one that come to me and I was told on numerous occasions Joe Pace knew about it and approved about it.
In cross-examination, it was put to the applicant that it was his intent in his record of interview to tell the police ‘everything that happened, how it was set up and done’. The applicant agreed with this proposition. He was then cross-examined on the basis that he did not provide a full explanation in his record of interview about the nature of the kickback payments. He denied that suggestion.
In cross-examination, it was put to the applicant that a number of things he said in his evidence in chief had not been said by him to the police in his record of interview. It was also put to him that he had no records of expenses paid by him under the system he alleged had been approved by AAW. He said that there were emails and invoices that would have been on his computer. It was put to him that he had never called for production of any of these documents from AAW and that he had not issued any subpoenas seeking those documents. He agreed that he had not taken either of these steps. We will return to this cross-examination when considering the first and second of the applicant’s proposed grounds of appeal against conviction.

After the close of evidence

At the close of evidence, counsel for the applicant made a submission to the judge that he (the judge) would need to tailor his charge to the jury ‘to how the case has been put’. Defence counsel submitted that some parts of the relevant sections of the Victorian Criminal Charge Book,[6] did not ‘really get to the nub of what this case is about, which is did [the applicant] dishonestly deceive AAW…’. The judge agreed with defence counsel that the charge would need to reflect the issues that had been litigated between the parties. His Honour also accepted that the framework of the model charge in the Charge Book did not entirely fit the facts of the case. His Honour said that, in charging the jury, he wished to make it as simple as he could.
[6]Judicial College of Victoria, Victorian Criminal Charge Book (‘the Charge Book’).
After this discussion, the prosecutor addressed the jury, followed by defence counsel. At the conclusion of defence counsel’s address, the judge delivered his charge. We will refer further to the prosecutor’s address and the judge’s charge as necessary when dealing with the applicant’s proposed grounds of appeal against conviction.

Conviction: proposed ground 1

Proposed ground 1 makes complaint that the trial judge unfairly intervened in the trial to assist the prosecution, leading to a miscarriage of justice. In his written case, the applicant makes reference to the judge’s intervention in the cross-examination of the applicant; and also to an unspecified comment made by the judge, in his charge, about whether Mr Pace had a motive to lie.[7] In oral argument, the applicant made complaint about the judge cross-examining Mr Brboric in the course of his examination in chief.
[7]A complaint in the applicant’s written case about the judge’s cross-examination of Mr Brboric, prior to trial, during the course of an examination conducted under s 198B of the Criminal Procedure Act 2009, was withdrawn by the applicant in oral argument.
Starting first with the applicant’s complaint about the judge cross-examining Mr Brboric during the course of evidence in chief, there is no substance in this complaint. The judge asked a number of questions of Mr Brboric during the course of his evidence in chief. The questions, however, were all directed to matters which were not in issue between the parties. The questions related to the movement of monies and the creation of the invoices, the falsity of which (the invoices) was not disputed by the applicant. None of the questions asked by the judge about which the applicant makes complaint related to the issue of whether AAW had given its approval to the scheme in which the applicant admitted he engaged. The questions asked by the judge of Mr Brboric were anodyne. Our conclusion in that regard is reinforced by the fact that no complaint was made about them by the applicant’s counsel to the judge (either at the time they were asked, or at any later time in the trial).
Next, in his charge, the judge noted that defence counsel had attacked the reliability and credibility of both Mr Pretorius and Mr Pace. The judge said that, by his own admission, Mr Pace was a reluctant witness; and, again by his own admission, Mr Pace had ‘been previously involved in a scheme of falsifying documents to increase revenue’ (the Hoyer arrangement of rendering marked up invoices to Hoyer in Singapore). The judge then said:
Mr Pace offered a reason for his reluctance; that is, his poor health. He told you after his initial reluctance, he decided to do the right thing and give the police a statement of what he knew. It is a matter for you whether you accept his explanation. The defence also argue that Mr Pace not only lied to you when he denied that he authorised the arrangement for Coastal Bridge to raise false invoices to pay kickbacks, but that he had a motive to do so. The defence suggest that he knew if he admitted he had authorised the kickback arrangement, he would implicate himself in some wrongdoing.
In considering the argument, you will have noted that Mr Pace freely admitted he had authorised the wrongdoing in the Hoyer process to transfer funds between the Australian agent and the Singapore principal using false invoices. That answer implicated him in wrongdoing.[8]
[8]Emphasis added.
While the applicant did not specifically identify the part of the judge’s charge about which he makes complaint, the applicant (in its written case) surmised that it was the emphasised portion set out above. The short answer to the applicant’s complaint about this part of his Honour’s charge is that, far from making any comment, the judge merely reminded the jury that Mr Pace had admitted in evidence that he had authorised the wrongdoing in the Hoyer scheme. No express comment was made. The jury may have taken what his Honour said positively or negatively so far as Mr Pace’s credibility was concerned: positively for Mr Pace’s credibility, because he had admitted wrongdoing in the past and would therefore be expected to admit subsequent wrongdoing; or negatively for his credibility because, having been admittedly dishonest in the past, he might be more likely to be dishonest subsequently. The real point is that the judge did not expressly make either comment; and no issue was taken by the applicant at trial about anything the judge said in his charge about Mr Pace’s credibility.
Next, there is no substance in the applicant’s complaint about the questions asked of the applicant by the judge during the course of his cross-examination. Again, the questions were largely anodyne: they included specific questions about specific invoices, the details of which were not in dispute between the parties; and open ended questions, which gave the applicant an opportunity to explain how Coastal Bridge would have made money as a result of the scheme in which he was engaged.
Finally, at the risk of repetition, we would note that, at no time during the trial did the applicant make any complaint about the judge unfairly intervening to assist the prosecution; nor, at any time, did the applicant take any exception to any of the questions asked by the judge and about which complaint is now made; and nor, at any time, was any exception taken to the judge’s directions in his charge about the credibility or otherwise of Mr Pace.
Having considered the material relied upon by the applicant, we are unable to see any error or irregularity in, or in relation to,[9] the questions asked by the judge of either Mr Brboric or the applicant; nor any error in that part of the judge’s charge dealing with the credibility of Mr Pace. Far from asking questions which could be said to be favourable to the prosecution and/or unfavourable to the applicant, the judge asked questions which appeared to be designed to clarify matters which were not relevantly in dispute, so as to assist the jury in better understanding the entirety of the evidence. Similarly, his Honour’s charge to the jury was a balanced one devoid of comment which could reasonably be said to be favourable to the prosecution or unfavourable to the applicant.
[9]See s 276(1)(b) of the Criminal Procedure Act 2009.
It follows from what we have said above that proposed ground 1 must be rejected.

Conviction: proposed ground 2

Proposed ground 2 makes complaint that the prosecutor reversed the onus of proof in his cross-examination of the applicant and in his closing address, leading to a miscarriage of justice.
Prosecutor’s cross-examination of the applicant and final address
In cross-examining the applicant, the prosecutor sought to contrast details given by the applicant in his evidence in chief with what the applicant said in his record of interview. Specifically, the prosecutor asked the applicant why, having referred to cash payments in his record of interview, he had not referred to payments in kind in that interview. In cross-examining the applicant, the prosecutor put to him on a number of occasions that the applicant had not provided a ‘full explanation’ to police in his record of interview. It was questions of this kind which the applicant submitted reversed the onus of proof.
Similarly, the applicant made complaint about a series of questions asked in cross-examination which challenged the applicant to provide documentary evidence or other records supporting the proposition that AAW had approved the scheme in which he was engaged. In the course of that cross-examination, it was put to the applicant that he had ‘never called for production of any of those documents from AAW’, nor ‘issued any subpoenas seeking those documents’.
While no objection was taken by defence counsel at the time the questions now sought to be impugned were asked, defence counsel subsequently raised the issue during a break in the cross-examination of the applicant as follows:
[DEFENCE COUNSEL]: Some of my learned friend’s cross-examination reversed the onus of proof. He asked Mr Prigg, you know, ‘Did you provide names to the police, after the interview?’
HIS HONOUR: Yes. You do have to be careful about that, [Mr Prosecutor]. You did sort of verge into that territory a couple of times.
The applicant does not contend that any further questions which reverse the onus of proof were asked in cross-examination after he had the above exchange with the judge.
In his final address, the prosecutor submitted to the jury that some of the answers given by the applicant in his record of interview were inconsistent with his evidence at trial. At one point in his final address, the prosecutor again returned to the lack of detail about kickback payments in the record of interview, saying:
But you might think he didn’t provide a full explanation about the nature of the kickback payments in the record of interview and that the account there was really focussed on justifying these large withdrawals of cash whereas at trial really the, in relation to the evidence of the spending well the story about kickbacks became a story of cash and kickbacks in kind to justify those expenditures.
For completeness, we note that no objection was taken by defence counsel to this passage of the prosecutor’s final address, nor indeed to any other part of the prosecutor’s final address on the basis that the prosecutor had reversed the onus of proof.

Was there an impermissible reversal of the onus of proof?

In considering whether there was an impermissible reversal of the onus of proof, one needs to consider the various matters complained of by the applicant in the context of the whole of the trial.
The first matter to be observed is that the issue of whether the prosecutor’s conduct of the case had the potential to reverse the onus of proof was one to which defence counsel was alive at trial. This is not a case where, for whatever reason, none of the participants in the trial (counsel or judge) gave any thought to whether the conduct of any party had the potential to reverse the onus of proof. Being aware of the issue, however, no application was made by defence counsel at any stage for the jury to be discharged, or for any curative direction to be given by the judge.
The second matter to be considered is that the applicant’s evidence in chief was, in large part, elicited from him by his counsel first asking whether the answers he gave in his record of interview were true and correct, and secondly by him being taken to those answers and then asked further questions. As we have already noted, the applicant’s evidence was that his intent in the record of interview was to tell police ‘everything that happened, how it was set up and done’. As has been said before, if an accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution to attack the accused’s credit.[10] Such a use by the prosecution does not amount to a reversal of the onus of proof. Given the applicant’s evidence about his record of interview, the prosecutor was entitled to test the evidence the applicant gave at trial by reference to what he said in his record of interview for the purpose of challenging the credibility of the applicant’s account.
[10]Jones v The Queen [2005] NSWCCA 443, [75] (McClellan CJ at CL, Simpson and Hoeben JJ agreeing); Sanchez v The Queen [2009] NSWCCA 171, [54]–[55] (Campbell JA, Latham and Harrison JJ agreeing).

The third matter to be considered is that, whatever might be said about the passages in the prosecutor’s address about which the applicant now makes complaint, the prosecutor specifically told the jury that the applicant did not bear any onus and that the prosecution must prove its case beyond reasonable doubt.
The fourth matter to be considered is the judge’s charge. At numerous points throughout his Honour’s charge, the judge was at pains to tell the jury that it was for the prosecution to prove its case beyond reasonable doubt; and that it was not for the applicant to prove his innocence. As his Honour went on to say, the applicant ‘does not have to prove anything, and that has not changed because he decided to give evidence’.
Having considered the cross-examination and passages in the prosecutor’s final address relied on by the applicant in the context of the whole of the trial, we are not persuaded that there is any real risk that the jury, in convicting the applicant, may have reversed the onus of proof. While some of the matters relied upon by the applicant might possibly have risked reversing the onus of proof, it was explained to the jury many times that at all stages the prosecution bore the onus of proof and that the applicant did not have to prove anything.
Moreover, defence counsel, immersed as he was in the atmosphere of the trial, did not perceive that there was any risk of the jury reversing the onus of proof. While the issue was raised by defence counsel with the judge in a limited way, if he had perceived that there was any risk of a reversal of the onus of proof, one would have expected him to have at least asked for curative directions — if not a discharge of the jury.
That said, objection should have been taken to the prosecutor’s questions of the applicant that he had not called for documents nor sought to subpoena them. Those questions should not have been asked; and, if objection had been taken, should have been ruled impermissible. For the reasons we have given, however, the asking and answering of those specific questions did not give rise to any miscarriage of justice.
It follows from what we have said above that proposed ground 2 must be rejected.

Conviction: proposed ground 3

Proposed ground 3 makes complaint about the jury reaching guilty verdicts before being redirected ‘on the critical issue of deception’ and thus the jury ‘may well have reached their verdicts on a mistaken view of the applicable law’. In order to determine this ground, it is necessary to examine the relevant parts of the judge’s charge and the circumstances which occurred between the conclusion of the charge and the jury’s verdict.

The judge’s charge

In the course of charging the jury on the elements of the offence of obtaining a financial advantage by deception, the judge provided the jury with a checklist sourced from paragraph 7.5.13.2 of the Charge Book. The judge identified the three elements that the prosecution were required to prove beyond reasonable doubt as:
1.       The accused obtained a financial advantage; and
2.       The accused obtained that financial advantage by deception; and
3.       The accused obtained the financial advantage dishonestly.
The judge then directed the jury that, in relation to the second element of the offence, the prosecution was required to prove four parts:
2.1The accused must have made a false representation.
2.2The accused must have known that the representation was false or that it was probably false.
2.3The accused must have intended that the false representation be acted upon.
2.4The accused must have obtained the financial advantage as a result of making that false representation.
Having identified the elements of the offence, the judge then proceeded to relate the evidence given at trial to the elements of the offence. In the course of doing this, the judge identified the positions of the parties with respect to each element.
In relation to the first element of the offence, the judge told the jury that there was no dispute that the applicant had received $681,000 into his bank accounts or accounts controlled by him. As his Honour put it, holding those deposits gave him the financial advantage of having the money in his accounts — ‘so you should have no difficulty finding this element proved’.
In relation to the second element of the offence, the judge identified the issues in dispute as being parts 2.2 and 2.3. Specifically, the judge said:
So as [the prosecutor] put it, the false representations allegedly made are, firstly that the entities did the job described in the invoice, and secondly the entities would receive the payment which AAW made. The allegation of false representations is the same in every charge, that is, by raising the invoices, Mr Prigg had represented the company had done the job described in the invoice, and that the entities would receive the payment from AAW, and not Mr Prigg through bank accounts controlled by him.
It is common ground that the entities did not do the job described and that Mr Prigg and not those entities received the payment. So because there is no dispute, you will be satisfied that when Mr Prigg submitted the invoices to AAW accounts for payment he made a false representation.
Now the second part of this second element is that he must have known that the representation was false or probably false when he made it. Again, it is common ground, and Mr Prigg has admitted before you, he knew the companies had not supplied the services and he knew that the payment was not to be made to those companies but to his account. So because there is no dispute you will be satisfied that this part, that he knew the representation was false, is also met.
The next part, going to 2.2, did the accused intend that the false representation would be acted upon, requires the prosecution to prove that he must have intended that the false representation be acted upon by AAW. What that means is that he intended AAW would believe the representation which he knew to be false was true. In other words, that they were misled. Now as you well understand, this part is in dispute.
Mr Prigg testified that a senior manager had directed him to create and submit the false invoices to make money to pay kickbacks to the AAW customers. On Mr Prigg’s account, the company AAW through the senior manager and through one of its directors, Mr Pace knew the invoices were false and had approved their creation.
So, in order to find this third part of element two proven, you must be satisfied that Mr Prigg intended that AAW would believe the representation, which he knew to be false, was true. If you conclude there is a reasonable possibility a senior manager directed him to obtain the payments which were made into his accounts by rendering false invoices and told him a director had approved the scheme, you would have a reasonable doubt about whether he intended AAW would act on a false representation, and if you had that reasonable doubt about this part of element two, you would find Mr Prigg not guilty.
If, on all the evidence, you are satisfied that there is no reasonable possibility of that circumstance, namely that the company knew the invoices were false, this third part of the second element of deception is proved; and I repeat, that it is for the prosecution to prove that Mr Prigg intended AAW would believe the invoices to be true. It is not for him to prove that AAW knew the invoices were false.
If you are satisfied that this third part of element two is met, then you go on to consider the fourth part of the element and that is, that Mr Prigg must have obtained the financial advantages as a result of making the false representation, and this part is not in dispute. It is common ground that AAW paid $691,000 (scil, $681,000) into Mr Prigg’s bank accounts, relying on the false invoices that he submitted, so there is no dispute that this fourth part is proven.
In relation to the third element of the offence, after summarising the earlier directions he had given on the first two elements, the judge said:
You then have to consider a third element and that is whether he acted dishonestly and what the prosecution must prove is that when he obtained the financial advantage he was acting dishonestly, and in this context, dishonesty does not have its ordinary meaning as between right and wrong.
The law says that a person acts dishonestly when obtaining a financial advantage if that person does not believe that he has a legal right to obtain the financial advantage, and the issue here is whether the prosecution have proved beyond reasonable doubt that Mr Prigg did not believe he had a legal right to obtain the AAW moneys which were paid into his bank account. He told you that he believed that Joe Pace, a director of the company, had approved the kickback scheme. Mr Pace denied it. If you conclude there is a reasonable possibility Mr Prigg believed that AAW through a director, Pace, had approved the scheme, you would have a reasonable doubt about whether he did not believe he had a legal right to obtain the AAW moneys.
If, on all the evidence, you are satisfied there is no reasonable possibility of that circumstance, you would be satisfied this third element is proved. I repeat, it is for the prosecution to prove that Mr Prigg did not believe he had a legal right to obtain the AAW moneys paid into his accounts. It is not for Mr Prigg to prove that he did have such a belief.[11]
[11]Emphasis added.
No exception was taken by either the prosecutor or defence counsel to these parts of the judge’s charge and, at the conclusion of the charge, the jury retired to consider its verdict.

After the jury retired to consider its verdict

The jury retired to consider its verdict at 1.38 pm on 3 August 2023. They deliberated until 3.38 pm on that day, before the judge adjourned the trial until 10.00 am on 4 August 2023.
At some time between 10.00 am and 10.44 am on 4 August 2023, the jury sent a note to the judge asking for a transcript of the charge. At 10.44 am the judge reconvened the court and discussed the jury’s request with counsel. The judge told counsel that, while a transcript had been ordered, there was currently no transcript of the charge available. The judge said that he had a ‘script in relation to the directions of law’ that he had given as part of his charge, which he then provided to counsel. There was then a discussion between the judge and counsel as to amendments that might be made to that document before it could be provided to the jury.
At 11.58 am, the jury were brought back into court and the judge told them that his directions to them had not been transcribed. The judge said that he had worked from a draft document and that after ‘some typographical things’ had been corrected, the document would be made available to the jury.
The judge then asked the jury whether there was any particular legal principle or direction that they would like him to repeat or explain. One of the jurors responded, ‘just on your point 2.3’. After noting that this was ‘one of the two points in dispute’, the judge then redirected the jury as follows:
All right, do you have your checklist? So just to recap, in relation to the second element and that is whether Mr Prigg obtained a financial advantage by deception, Part 2.3 is the prosecution must prove that he intended that a false representation would be acted on by, in this case, AAW. Now I will repeat what I told you about that and then I will add a paragraph which may — well no, just excuse me.
I will reread this. So the third part of the second element is that the prosecution must prove beyond reasonable doubt that Mr Prigg must have intended that the false representation, that is, that what was contained in the invoice, namely that the company, Allwest Transport or Games Transport had provided a service and that company would receive money for payment. So the third part is that the accused must have intended that that false representation be acted upon by AAW. That is, that he intended that AAW would believe the representation was true.
Now the defence is that the company, AAW, knew that these invoices were false. And if you conclude that there is a reasonable possibility that AAW, through Mr Pace, knew the invoices were false, then this part would not be met and you would find Mr Prigg not guilty. And I will just repeat for you — because there are two elements in dispute. One is that path that you have identified, the deception, and the other is the dishonesty. And what I said to you members of the jury, and I hope that this summarises it for you, pardon me.
The prosecution has to prove Mr Prigg’s guilt. He does not have to prove his innocence and I had said to you that if you find, on all the evidence, that there is a reasonable possibility, not an imaginary one or a fanciful one, but a reasonable possibility that Mr Prigg used the money to pay kickbacks and that Mr Pace authorised it, then the prosecution will not have proved his guilt and you must acquit him. So in other words, what you have got to decide is whether there is a reasonable possibility that the company knew the invoices were false and whether there was a reasonable possibility — no, you do not have to decide that.
You have to decide beyond reasonable doubt, in order to convict Mr Prigg you would need to be satisfied beyond reasonable doubt. Sorry I’m getting confused now, members of the jury. Let me pause. Let’s just go back to Torrs. In answer to your question about that part, Question 2.2, I think the simple answer is if you conclude there is a reasonable possibility that the company AAW through its director Mr Pace knew the invoices which were rendered were false then that part would not be proved and you would find Mr Prigg not guilty. Now I trust that answers your query in that regard.
I’ll have the charge amended and, for the typos, and printed out.
The judge asked defence counsel whether he was content with that direction; defence counsel responded: ‘Yes, Your Honour’. At 12.06 pm the jury retired to further consider its verdict. There was then further discussion between the judge and counsel about the insertion of an additional paragraph in the document which was to be provided to the jury. From the transcript, it appears that the document to be provided to the jury was to contain a statement that ‘… if you conclude there is a reasonable possibility that a senior manager directed Mr Prigg to obtain the payments which were made into his accounts by rendering false invoices and told him the director had approved the scheme, you would have a reasonable doubt about whether Mr Prigg intended AAW would act on a false representation and because this part of the deception element is not proved you would find him not guilty’. After the judge read out this proposed passage, defence counsel submitted that the words ‘you would have a reasonable doubt about whether Mr Prigg intended to deceive AAW’ should be inserted into the paragraph.
After hearing from the prosecutor, the judge then said that he would make the change suggested by defence counsel. Specifically his Honour said:
All right … , so the only change that I’ll make to that paragraph is that the third last line of the paragraph where it reads ‘whether Mr Prigg intended AAW would act on the false representation whether Mr Prigg intended to deceive AAW’.
The judge then asked defence counsel whether that was what he had asked for, to which defence counsel responded, ‘I’m happy with that, Your Honour, yes’.
The transcript then records that at 12.15 pm, the matter was stood down in order that ‘an engrossed version’ of the agreed document could be prepared and provided to the jury. Before the document was provided, however, the jury indicated that it had reached a verdict. The court was reconvened at 2.16 pm. At 2.17 pm, the jury entered the court; and at 2.18 pm the jury returned a verdict of guilty on all charges.

Applicant’s submissions

In his written case, the applicant noted that the judge had decided to redirect the jury on the issue of deception, but the jury came back with its verdict without being redirected on the issue. The applicant thus submitted that there was ‘a reasonable possibility that the jury reached its verdicts on a mistaken view of the law’ and that this ‘led to a miscarriage of justice’.
In oral argument, this submission was elaborated on by reference to the applicant’s submissions made to the judge, at the conclusion of the evidence, that the model direction in the Charge Book did not ‘really get to the nub of what this case is about, which is did [the applicant] dishonestly deceive AAW …’. In this Court, the applicant contended that, notwithstanding the submission to the judge about the inappositeness of the model direction, the judge in effect gave a charge which followed the form of the Charge Book, and which did not relate the facts of the applicant’s case to the relevant principles of law.
More broadly, the applicant submitted that the judge intended to give the jury a further direction on the law, which direction he was unable to give because the jury returned its verdict before any further direction could be given. When asked by the Court what further direction the judge needed to give, which had not already been given, the applicant’s counsel formulated the necessary direction as follows:
Before you can return a guilty verdict, you must be satisfied beyond reasonable doubt that Mr Prigg did not believe that he was authorised to conduct the scheme.

Consideration

There is no substance in proposed ground 3.
First, the directions given by the judge in his charge about the elements of the offence were plainly correct. His Honour carefully identified the elements of the offence and the matters which the prosecution was required to prove in order to make out each element of the offence. Moreover, contrary to the applicant’s submissions, in the passages of the charge to which we have already referred,[12] the judge related the facts of the case to the relevant legal principles. No more than what his Honour said was required. Indeed, we note that, notwithstanding the high level submission made by the applicant to the judge that the charge book was somehow inapposite, at the conclusion of the judge’s charge, no submission was made by the applicant that there was any failure by the judge to relate the facts of the case to the law.
[12]See in particular paras [88] and [89] above.
Secondly, as we have already said, when the jury was sent out to consider its verdict at the conclusion of the charge, as originally given by the judge, the judge asked counsel whether they had any exceptions. Again, as we have already said, no relevant exception was taken by defence counsel. Specifically, no submission was made that any direction which was required to be given to the jury, had not been given. To the contrary, defence counsel indicated that he was content with the directions that had been given.
Thirdly, contrary to the applicant’s submission following the jury’s request for a transcript of the charge, the direction which counsel submitted had not been given, and needed to be given, was in fact given during the course of the judge’s original direction on the third element of the offence of obtaining a financial advantage by deception. At the risk of repetition, the judge had already directed the jury that:
If you conclude there is a reasonable possibility Mr Prigg believed that AAW through a director, Pace, had approved the scheme, you would have a reasonable doubt about whether he did not believe he had a legal right to obtain the AAW moneys.
If, on all the evidence, you are satisfied there is no reasonable possibility of that circumstance, you would be satisfied this third element is proved. I repeat, it is for the prosecution to prove that Mr Prigg did not believe he had a legal right to obtain the AAW moneys paid into his accounts. It is not for Mr Prigg to prove that he did have such a belief.

And, in the end, it was submitted that the only words not included in the judge’s oral directions, which were to be included in the written document to be supplied to the jury, were ‘… you would have a reasonable doubt about whether Mr Prigg intended to deceive AAW.’ These words were to be included at the end of the written statement (which was in fact read out to the jury) that is referred to at paragraph 95 above. But the absence of these words could have made no difference to the jury’s consideration. As has already been noted, the jury had earlier been directed that the prosecution was required to prove that the applicant ‘misled’ AAW by intending that ‘AAW would believe the representation which [the applicant] knew to be false was true’.[13]
[13]See paragraph 88 above.
Finally, if defence counsel considered that there was a risk of a miscarriage of justice because a necessary direction had not been given to the jury, it was open to defence counsel to submit to the judge, before he took the verdict, that the judge should not take the jury’s verdict — but rather, he should bring the jury back into court; tell them that he had further directions he needed to give them; and tell them that therefore he would not take their verdict at this time, but would give them the further directions and then send them out again to consider their verdict in the light of all of the directions he had given them. The failure by any counsel or the judge to propose or take any such step suggests to us that those immersed in the atmosphere of the trial did not consider that any further direction to the jury was necessary.
It follows from what we have said above that proposed ground 3 must be rejected.

Application for leave to appeal against sentence

Having rejected each of the applicant’s proposed grounds of appeal against conviction, it is necessary for us to consider his application for leave to appeal against sentence. As we have already observed, the applicant’s single proposed ground of appeal is that the aggregate sentence of imprisonment of three years, with a non-parole period of two years, was manifestly excessive.

Sentencing reasons

The judge commenced his reasons for sentence by summarising the circumstance of the applicant’s offending.[14] Noting that the prosecution accepted that the applicant paid $383,638.00 to contractors for legitimate services,[15] the judge said that the surplus of funds paid by AAW into the applicant’s bank accounts was $297,849.58.[16] Referring to the amounts paid to the applicant as wages and expense reimbursements, and offsetting those against the outgoings from the applicant’s accounts, the judge said that, while it was impossible to determine how much of AAW’s funds the applicant used for his personal benefit, it was clear that his spending exceeded his wages by nearly $300,000.00.[17] The judge then said, however, that he could not exclude the possibility that the applicant used ‘some modest sum of the AAW funds to entertain clients’.[18]
[14]Sentencing Reasons [2]–[14].
[15]Ibid [18].
[16]Ibid [20].
[17]Ibid [21]–[24].
[18]Ibid [27].
The judge accepted that the applicant’s employment position with Coastal Bridge enabled him to successfully disguise his conduct for several years, and that loose accounting practices at the time of his offending made it easier for the applicant to perpetrate his deceptions.[19] The judge assessed the objective gravity of the applicant’s offending to be ‘mid-range’.[20]
[19]Ibid [28].
[20]Ibid [29].
In summarising the applicant’s personal circumstances, the judge noted the following matters:
(1)The applicant was born in 1973 and was one of four children. He lived with his family in country towns until his parents separated, when he returned to Melbourne with his mother and completed year 10 at a technical college. He worked for transport and logistic companies for several years until he joined Coastal Bridge in 2009.[21]
(2)The applicant has an adult son who lives with his mother in Queensland. The applicant had partnered with his son’s mother in 1998 and separated in 2005. It was an acrimonious breakup. There were arguments about access and intervention orders followed.[22]
(3)The applicant was a well-liked employee. A former employer and three friends gave impressive evidence for the applicant on the plea. All regarded him very highly, and had never had any reason to question his honesty. From 2020 until 2023, the applicant worked as a warehouse manager. He was an industrious and valued employee. He was retrenched, through no fault of his own, in July 2023.[23]
(4)The applicant had a criminal history of summary family violence and violent offences, but no history of dishonesty.[24]
[21]Ibid [37]–[42].
[22]Ibid [43]–[44].
[23]Ibid [47]–[55].
[24]Ibid [35]–[36].
The judge noted that defence counsel had made full, forceful and comprehensive submissions about the applicant having no history of dishonesty; the applicant having an excellent work history; the applicant having given excellent service to the community; and the delay in the prosecution of the applicant. His Honour noted that defence counsel relied on these matters in support of a submission that a ‘sentence of imprisonment combined with a CCO[25] could meet sentencing purposes’.[26] The judge said that, while he did not accept defence counsel’s submission as to disposition, he had taken into account the factors defence counsel had identified to moderate the sentence he would impose.[27]
[25]Community Correction Order.
[26]Sentencing Reasons [56].
[27]Ibid [57].
The judge accepted a prosecution submission that, taking account of the fact that the applicant engaged in a systematic course of conduct (which involved him breaching his employer’s trust over a four year period to dishonestly obtain $681,481), a composite sentence, with its necessarily limited prison component, was not within range.[28]
[28]Ibid [58]–[59].
The judge noted that general deterrence was an important sentencing factor, as was denunciation.[29] He described the applicant’s conduct as ‘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’.[30] The judge said that he was satisfied that, over the four year period of the applicant’s offending, the applicant used a considerable proportion of the surplus of funds he received for his own personal benefit.[31]
[29]Ibid [64].
[30]Ibid [66].
[31]Ibid [67].
The judge noted that the applicant had pleaded not guilty and that, without justification, he had shifted the blame to others, namely Mr Wormald and Mr Pace.[32] The judge said that the applicant had no remorse and that, without remorse, he (the judge) needed to be cautious about the applicant’s prospects of rehabilitation.[33] The judge noted, however, that the applicant had ‘some protective factors’, namely: no record of prior dishonesty; an excellent work history; and being well liked and highly regarded at work and in the community.[34]
[32]Ibid [71]–[72].
[33]Ibid [73].
[34]Ibid [74]–[75].
The judge said he would impose an aggregate sentence because the charges formed part of a series of offences of the same character.[35] He also said that he would apply the principle of totality to ensure that the aggregate sentence was an appropriate measure of the applicant’s overall criminality.[36] The judge concluded the Sentencing Reasons by saying:
By 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.
Considering 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.
I direct you serve 2 years of your sentence before you are eligible for parole.[37]

Applicant’s submissions

[35]Ibid [78].

[36]Ibid [79].

[37]Ibid [80]–[82].

In support of his contention that the sentence imposed by the judge was manifestly excessive, the applicant submitted that ‘the prosecution could not prove that the actual financial benefit to the applicant was more than $67,000.00’. In further support of the contention that the sentence was manifestly excessive, the applicant relied upon the following matters:
•he had no relevant prior convictions for dishonesty;
•at the age of 50, ‘this was his first time in custody’;
•he did not, by his offending, accrue luxury assets, gamble excessively or indulge in a drug habit;
•he had a solid work history;
•character witnesses had given impressive evidence on the plea about his contributions to the community;
•while the offending took place between April 2013 and April 2017, police did not interview the applicant until April 2018, and a filing hearing did not take place until August 2019; and
•during the ‘delays leading up to his conviction’, the applicant had rehabilitated himself.

Consideration

There is no substance in the applicant’s assertion that the sentence imposed on him was manifestly excessive.
First, the applicant’s submission that the prosecution could not prove that the actual financial benefit to him was more than $67,000 appears to overlook the fact that the applicant was found guilty of obtaining a financial advantage by deception in excess of $680,000. This necessarily involved rejection by the jury of the applicant’s claim that AAW had ‘showed [the applicant] how to do’ the false invoice/payment of kickbacks scheme. It was not for the prosecution to then have to prove, as a matter of aggravation, or otherwise, that the applicant obtained an ‘actual financial benefit’ in any particular amount.
While the prosecution accepted that some $383,000 of the $680,000 was paid by the applicant to contractors ‘for legitimate services’, if the applicant wanted to rely upon (by way of mitigation) some assertion that he paid other sums of money out of the $680,000 for AAW’s legitimate purposes, it was up to him to prove such matters on the balance of probabilities. This he did not do.
The judge sentenced the applicant on the basis that the applicant had used for his personal benefit an amount approaching $300,000. His Honour provided two alternative bases for arriving at that conclusion. The applicant has not established any error in relation to this conclusion or either of the bases upon which it was based. In any event, the applicant does not advance any proposed ground of appeal contending that this conclusion is erroneous.
Secondly, as this Court has said before,[38] in sentencing offenders who commit white collar crimes of the kind committed by the applicant, general deterrence will usually carry particular significance; together with a requirement for strong denunciation by the sentencing court.[39]
[38]DPP v Bulfin [1998] 4 VR 114.
[39]Ibid 131–132.
Thirdly, while it can be accepted that the applicant has no relevant prior convictions for dishonesty, a solid work history, an excellent reputation and excellent prospects of rehabilitation, these are no more than the usual features associated with offenders who commit offences of this kind. To that extent, those matters do not loom as large in the sentencing synthesis as they might in the sentencing of offenders in respect of some other offences.[40]
[40]Ibid. See also, Kelly v The Queen [2021] VSCA 216, [39].
Fourthly, as has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[41] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and to the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[42]
[41]Clarkson v The Queen (2011) 32 VR 361, 384 [89], (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2001] VSCA 157.
[42]Ibid.
Plainly, as is said expressly in the Sentencing Reasons, in sentencing the applicant, the judge took into account the matters in mitigation which the applicant relied upon on the plea (and again relies upon in this court). There is simply no basis upon which it can be sensibly contended that the sentence imposed by the judge did not take these matters into account; nor any basis upon which it can be said that the sentence imposed by the judge was wholly outside the permissible range of sentencing options open to him. Indeed, noting that the applicant had shown no remorse and was not entitled to what might otherwise have been the significant mitigatory benefits associated with pleading guilty, it seems to us that the sentence imposed by the judge was relatively modest.

Conclusion

The applications for leave to appeal against conviction and sentence must be refused.
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[2024] VSCA 261

8 November 2024